Wife applying for Naturalization asked to prove residency prior to three year requirement...

[Mridk 0]

We thought my wife's N-400 application would be automatically considered under the 3 year rule due to a trip of 187 days almost 5 years ago.  However, the interviewer questioned about the trip and has required my wife to show proof that she didn't abandon residency.   Not sure if the interviewer made a mistake, or did we make a mistake listing more than 3 years of travel, even though the N-400 explicitly asks for 5 years of travel history.

[Crazy Cat 41,010]

Not a mistake by the officer.  Any trip of more than 180 days as a Green Card holder will get unwanted attention.  USCIS can look at your entire history as a legal resident when applying for citizenship (regardless of which rule you filed under).   BTW, If applying under the 3 year rule, you needed only to list 3 years of travel.  I have heard that the new N-400 states that.

Edited May 20 by Crazy Cat

[Mridk 0]

2 minutes ago, Crazy Cat said:

Not a mistake.  Any trip of more than 180 days as a Green Card holder will get unwanted attention.  USCIS can look at your entire history as a legal resident.   BTW, If applying under the 3 year rule, you needed only to list 3 years of travel.  I have heard that the new N-400 states that.

Then my mistake for listing the travel past 3 years.  I did the electronic version and it said 5 years of travel which was confusing.  So, since it was listed, even though outside the parameters required, they'll probably deny the application, since we have very little evidence that they require, the only thing is an open bank account.

[Crazy Cat 41,010]

7 minutes ago, Mridk said:

So, since it was listed, even though outside the parameters required, they'll probably deny the application, since we have very little evidence that they require, the only thing is an open bank account.

The bigger concern would be if they determine she abandoned her Green Card.  I would consult an immigration attorney. 

Edited May 20 by Crazy Cat

[Mridk 0]

25 minutes ago, Crazy Cat said:

The bigger concern would be if they determine she abandoned her Green Card. 

The USCIS website made it out to just reestablish if anything more the 6 months and less than a year: https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3#:~:text=1. Absence of,period.[18] 

1. Absence of More than 6 Months (but Less than 1 Year)

An absence of more than 6 months (more than 180 days) but less than 1 year (less than 365 days) during the period for which continuous residence is required (also called “the statutory period”) is presumed to break the continuity of such residence.[12] This includes any absence that takes place during the statutory period before the applicant files the naturalization application and any absence between the filing of the application and the applicant’s admission to citizenship.[13]

An applicant’s intent is not relevant in determining the location of his or her residence. The length of the period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted the continuity of his or her residence.

However, an applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such evidence may include, but is not limited to, documentation that during the absence:[14]

The applicant did not terminate his or her employment in the United States or obtain employment while abroad;

The applicant’s immediate family members remained in the United States; and

The applicant retained full access to or continued to own or lease a home in the United States.

Eligibility After Break in Residence

An applicant who USCIS determines to have broken the continuity of residence must establish a new period of continuous residence in order to become eligible for naturalization.[15] The requisite duration of that period depends on the basis upon which the applicant seeks to naturalize.[16] In general, such an applicant may become eligible and may apply for naturalization at least 6 months before reaching the end of the pertinent statutory period.[17]

Example

An applicant who is subject to a 5-year statutory period for naturalization is absent from the United States for 8 months, returning on August 1, 2018. The applicant has been absent from the United States for more than 6 months (180 days) but less than 1 year (365 days). As such, the applicant must be able to rebut the presumption of a break in the continuity of residence in order to meet the continuous residence requirement for naturalization.

If the applicant is unable to rebut the presumption, he or she must wait until at least 6 months from reaching the 5-year anniversary of the newly established statutory period following the applicant’s return to the United States. In this example, the newly established statutory period began on August 1, 2018, when the applicant returned to the United States. Therefore, the earliest the applicant may re-apply for naturalization is February 1, 2023, which is at least 6 months from the 5-year anniversary of the pertinent statutory period.[18]

Edited May 20 by Mridk

[Scandi 4,101]

The 3-year rule is only for those who haven't been greencard holders for 5 years yet and who are eligible to file through marriage.

Anybody who has been a greencard holder for 5 years is automatically filing under the 5 year rule - you can't choose. Doesn't matter if this person would otherwise be eligible under the 3 year rule, having been a greencard holder for 5 years or more, rules out the 3 year rule completely. 

[OldUser 5,855]

14 minutes ago, Scandi said:

The 3-year rule is only for those who haven't been greencard holders for 5 years yet and who are eligible to file through marriage.

Anybody who has been a greencard holder for 5 years is automatically filing under the 5 year rule - you can't choose. Doesn't matter if this person would otherwise be eligible under the 3 year rule, having been a greencard holder for 5 years or more, rules out the 3 year rule completely. 

I don't think this is right. People can elect filing under 3 year rule based on marriage even if they're residents for over 5. If you read this page you'll see there is no restriction of eligiblity if one is an LPR for over 5 years:

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

 

People do it on VJ quite often.

 

Edited May 21 by OldUser

[nastra30 2,209]

Op, you can choose 3-year or 5-year rule whichever is convenient for you. But with naturalization, your whole immigration journey is looked into. I think you should have listed only the last 3 years of travel history if applying under 3-year rule.

Either ways, can't you just provide the relevant evidence being requested? Lease, bank accounts, driver's license, etc etc

[Mridk 0]

7 hours ago, nastra30 said:

Op, you can choose 3-year or 5-year rule whichever is convenient for you. But with naturalization, your whole immigration journey is looked into. I think you should have listed only the last 3 years of travel history if applying under 3-year rule.

Either ways, can't you just provide the relevant evidence being requested? Lease, bank accounts, driver's license, etc etc

Since we have been living with my parents since day 1 of her residency, the only thing we have is her bank account; jobs, license, tax returns, have only been in the past 3 to 4 years.  So, the next question is if the whole "journey" is looked at, how will she ever overcome the faux paus of being outside the US for 187 days?  It's really misleading of the USCIS website to give examples of just waiting until you meet the required time limit if they, the officials giving the interview, continue to look at previous travel errors.