Not sure if I meet the continuous residence criteria for Naturalization

[tophbeifong 0]

Hello, I've been an LPR since April 2013, however in order to complete my degree abroad, I only started being physical present in the US since April 2018. I meet the criteria for physical presence, however continuous residence is less clear.

 

From 2013 - 2018 I would visit my immediate family in the US for a month every year, and I would live outside the US for more than 6 months at a time but never went above a year. Coming back each time was never an issue.

I understand that if I apply for citizenship, I would have to prove I did not abandon my LPR status- my ties to my family here and the fact that I'm here since I completed school, have been working since then,  should be safe enough evidence for that?

My question is if I should wait to apply for citizenship after two more years of being physically present here or can I safely do so now, without any worry that they might think I abandoned my status and revoke my LPR?

[Mike E 11,739]

1 hour ago, tophbeifong said:

From 2013 - 2018 I would visit my immediate family in the US for a month every year, and I would live outside the US for more than 6 months at a time but never went above a year. Coming back each time was never an issue.

Good. 
 

https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

 

So because your absences were under one year, assuming you can successfully  rebut  the presumption of break in continuous residence, you can apply for citizenship as soon as you have accrued  30 months of physical presence in the USA in the previous 5 years.  Meaning assuming (for example) you have 30 months of physical presence since April 2018,  you can apply now and try to convince USCIS you did not break continuous residence.  
 

If you are unable to rebut the presumption, then you would subtract 6 months from the day in April 2018 when you arrived in the USA, and then add 5 years.  So apply in October  2022.  

Edited April 11, 2021 by Mike E

[SusieQQQ 11,586]

There is a difference between meeting the requirement to keep your green card (less than one year absence) and meeting the continuous residence requirement for N400 (less than 6 months absence). Given your description above of being in the US one month a year for all those years I personally think it is highly unlikely you will be able to rebut the presumption of breaking continuous residence, and you should start the countdown from your “real” residence date of whenever it was in 2018; specifically, you can apply 4 years and 6 months from that day. You can read this chapter carefully for understanding why https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

 

If you think you can rebut the presumption of breaking continuous residence and don’t mind potentially (in my opinion very probably) losing the fee for a denied n400 you can try applying now, nothing to lose but money by trying.

[tophbeifong 0]

4 hours ago, Mike E said:

Good. 
 

https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

 

So because your absences were under one year, assuming you can successfully  rebut  the presumption of break in continuous residence, you can apply for citizenship as soon as you have accrued  30 months of physical presence in the USA in the previous 5 years.  Meaning assuming (for example) you have 30 months of physical presence since April 2018,  you can apply now and try to convince USCIS you did not break continuous residence.  
 

If you are unable to rebut the presumption, then you would subtract 6 months from the day in April 2018 when you arrived in the USA, and then add 5 years.  So apply in October  2022.  

Thank you! That is very helpful. My remaining questions would be

 

1.  If I apply now would there be any risk of them saying I abandoned LPR status and revoking my GC?

 

2. What about the 4 years plus 1 day rule, I can meet that in April/May 2022?

[tophbeifong 0]

4 minutes ago, SusieQQQ said:

There is a difference between meeting the requirement to keep your green card (less than one year absence) and meeting the continuous residence requirement for N400 (less than 6 months absence). Given your description above of being in the US one month a year for all those years I personally think it is highly unlikely you will be able to rebut the presumption of breaking continuous residence, and you should start the countdown from your “real” residence date of whenever it was in 2018; specifically, you can apply 4 years and 6 months from that day. You can read this chapter carefully for understanding why https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

 

If you think you can rebut the presumption of breaking continuous residence and don’t mind potentially (in my opinion very probably) losing the fee for a denied n400 you can try applying now, nothing to lose but money by trying.

Thank you! If the risk is just losing the fee and not the GC itself if denied/decreasing my chances in the subsequent attempt, I can consider applying now as well it seems. (I had the travel permit for the first two of those years too)

 

Really appreciate your insight and the further reading material!

[SusieQQQ 11,586]

20 minutes ago, tophbeifong said:

Thank you! That is very helpful. My remaining questions would be

 

1.  If I apply now would there be any risk of them saying I abandoned LPR status and revoking my GC?

 

2. What about the 4 years plus 1 day rule, I can meet that in April/May 2022?

1. Technically yes, but extremely unlikely in practice (and only IJ can actually revoke it)

2. Please read the chapter I linked to you above -  they say to use 4 years and 6 months and not 4 years and 1 day. (In essence this is because the first 6 months of the “4 years 1 day rule” is still subject to presuming residence is broken)

 

 

Edited April 12, 2021 by SusieQQQ

[SusieQQQ 11,586]

13 minutes ago, tophbeifong said:

Thank you! If the risk is just losing the fee and not the GC itself if denied/decreasing my chances in the subsequent attempt, I can consider applying now as well it seems. (I had the travel permit for the first two of those years too)

 

Really appreciate your insight and the further reading material!

Travel permit - by which i presume you mean re-entry permit - is not relevant for continuous residence requirement.

[Mike E 11,739]

6 hours ago, tophbeifong said:

Thank you! That is very helpful. My remaining questions would be

 

1.  If I apply now would there be any risk of them saying I abandoned LPR status and revoking my GC?

 

2. What about the 4 years plus 1 day rule, I can meet that in April/May 2022?

1. My understanding: CBP has discretion to clear you for absences up to a year less a day.  Based on your post, CBP cleared you.  USCIS therefore cannot revisit your absences for the purposes of revoking your green card status.  
 

(if absent for a year or more, my understanding is that even if the CBP at the port of entry clears you, DHS can still start removal proceedings).  
 

2. The policy literally says the 4 years plus a day “rule” is for absences of a year or more.  That isn’t you.  And moreover it says “Since the period of absence is still more than 6 months, an applicant for naturalization in these circumstances must also overcome the presumption of a break in the continuity of residence”

 

So there isn’t a 4 year plus a day rule, because  you still  have to rebut your presumption of a breaking  continuous residence.  If you can’t rebut the presumption today, based on C1, you won’t be able to rebut it in 11 months based  on C2. 

Edited April 12, 2021 by Mike E

[tophbeifong 0]

6 hours ago, Mike E said:

1. My understanding: CBP has discretion to clear you for absences up to a year less a day.  Based on your post, CBP cleared you.  USCIS therefore cannot revisit your absences for the purposes of revoking your green card status.  
 

(if absent for a year or more, my understanding is that even if the CBP at the port of entry clears you, DHS can still start removal proceedings).  
 

2. The policy literally says the 4 years plus a day “rule” is for absences of a year or more.  That isn’t you.  And moreover it says “Since the period of absence is still more than 6 months, an applicant for naturalization in these circumstances must also overcome the presumption of a break in the continuity of residence”

 

So there isn’t a 4 year plus a day rule, because  you still  have to rebut your presumption of a breaking  continuous residence.  If you can’t rebut the presumption today, based on C1, you won’t be able to rebut it in 11 months based  on C2. 

Funny how it states a longer wait to apply for those under 1 year than those who actually broke the 1 year rule. I came across this https://www.ilrc.org/sites/default/files/resources/continuous_residence_practice_advisory_final.pdf and the last two paragraphs on page 3 make a comment on this point, however it is just from an immigration advisory resource, nothing official. 

 

This discussion has been insightful- I appreciate your time and input!

[SusieQQQ 11,586]

24 minutes ago, tophbeifong said:

Funny how it states a longer wait to apply for those under 1 year than those who actually broke the 1 year rule. I came across this https://www.ilrc.org/sites/default/files/resources/continuous_residence_practice_advisory_final.pdf and the last two paragraphs on page 3 make a comment on this point, however it is just from an immigration advisory resource, nothing official. 

 

This discussion has been insightful- I appreciate your time and input!

If you actually read the chapter of the manual, as also pointed out above, it is actually the same for both of them. Really, reading the manual helps a lot. Good luck.

[Mike E 11,739]

2 hours ago, tophbeifong said:

Funny how it states a longer wait to apply for those under 1 year than those who actually broke the 1 year rule. 

Well I clearly didn’t explain this well.  

 

If you can rebut the presumption of break in residency you are eligible to file now.  If you cannot rebut it, trying the 4 year plus a day thing isn’t going to change anything.  
 

To you it is a longer wait to apply next year versus now.  To me it is not.  
 

To each their own.  

Edited April 12, 2021 by Mike E