Break continuous residence and 4 years and 1 day rule.

[Nick Roshet]

Hi all. I would appreciate you advice.
My green card will expire next year and I'm planning to file N400. But I'm almost sure that I brake my continuous residence when I went overseas for full time study.
3.5 years past since I've returned and continually stay in the US. Now I'm wondering if the so-called "4 years and 1 day" rule is applicable in my case? If I apply now, in my area whole process usually takes around 1 year before get to interview and by that time it will be over 4 years since I'm in United States.
Is this "4 years and 1 day rule" applicable in any cases, or only after you n400 application denied?
Just want to note, during these 3 years of education I always crossed US border every 5.5 moths and stayed 1-2 weeks in US for vacation. But didn't maintain address, bank account, etc. I didn't file taxes because I didn't have any income and was dependent from my fathers tax return (he is US citizen).

[paglia81]

Same situation

Hi Nick and thanks to all of you who will reply.
I'm in the same situation, My wife and I got our Green card on June 4th 2014. We spent 7 days in the USA, from June 4th to June 10th 2014, we left planning to come back after few weeks, but my wife had medical problems during the pregnancy (certified by doctors in Italy and already translated), so we decided to come back only when our baby was 6 months old (June 1st 2015).
During that time, I worked in Italy, but we filed our tax return as US residents and we kept our US bank account opened.

Since we were out of the USA for less than a year but more than 6 months, we don?t know if we can apply for citizenship on March 6 2019 (4 years and 9months after getting our green card) or if we have to wait June 1st (4years and 1 day after our long trip abroad).
By the time we'll be interviewed we'll be over4 years since we are in the USA.

[ember]

Hi all. I would appreciate you advice.
My green card will expire next year and I'm planning to file N400. But I'm almost sure that I brake my continuous residence when I went overseas for full time study.
3.5 years past since I've returned and continually stay in the US. Now I'm wondering if the so-called "4 years and 1 day" rule is applicable in my case? If I apply now, in my area whole process usually takes around 1 year before get to interview and by that time it will be over 4 years since I'm in United States.
Is this "4 years and 1 day rule" applicable in any cases, or only after you n400 application denied?
Just want to note, during these 3 years of education I always crossed US border every 5.5 moths and stayed 1-2 weeks in US for vacation. But didn't maintain address, bank account, etc. I didn't file taxes because I didn't have any income and was dependent from my fathers tax return (he is US citizen).

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

"An applicant for naturalization under the general provision must have resided continuously in the United States after his or her lawful permanent resident (LPR) admission for at least five years prior to filing the naturalization application and up to the time of naturalization. An applicant must also establish that he or she has resided in the state or service district having jurisdiction over the application for three months prior to filing."

Any absence of more than 6 months during the required 5 year period prior to filing is presumed to break the continuous residence.

The four years and one day rule seems to apply to applicants whose naturalization application has already been denied ("An applicant who is required to establish continuous residence for at least 5 years and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence.")

However, here is a helpful resource that seems to suggest that any applicant may use the 4 years and 1 day rule: https://www.ilrc.org/sites/default/f...sory_final.pdf

And here is the statute: https://www.ecfr.gov/cgi-bin/text-id...16_15&rgn=div8

Hope this helps!

[Nick Roshet]

Trips Abroad for 6 Months or Less

https://www.uscis.gov/policymanual/H...-Chapter3.html

"An applicant for naturalization under the general provision must have resided continuously in the United States after his or her lawful permanent resident (LPR) admission for at least five years prior to filing the naturalization application and up to the time of naturalization. An applicant must also establish that he or she has resided in the state or service district having jurisdiction over the application for three months prior to filing."

Any absence of more than 6 months during the required 5 year period prior to filing is presumed to break the continuous residence.

The four years and one day rule seems to apply to applicants whose naturalization application has already been denied ("An applicant who is required to establish continuous residence for at least 5 years and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence.")

However, here is a helpful resource that seems to suggest that any applicant may use the 4 years and 1 day rule: https://www.ilrc.org/sites/default/f...sory_final.pdf

And here is the statute: https://www.ecfr.gov/cgi-bin/text-id...16_15&rgn=div8

Hope this helps!

Thank you ember!

This is very helpful. Especially information on the report you sent (https://www.ilrc.org/sites/default/f...sory_final.pdf)

As I understand, formally I did't brake continues residence during my 3 years study abroad, since I always went back to US before 6 moths time point and therefore never stayed out of the US more than 6 months. This is formally.

The statement on USCIS website (Policy Manual → Volume 12 ? Citizenship & Naturalization → Part D General Naturalization Requirements → Chapter 3 Continuous Residence → Section C - Breaks in Continuous Residence) that always confuse me:

"An officer may also review whether an applicant with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. In some cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time."

As I understand, this statement has no legal basis in United States Code (Title 8 → Chapter I → Subchapter C → Part 316 General requirements for naturalization → 316.5 Residence in the United States) that prevails over USCIS Policy Manual. So despite the fact that there were precedents of denial due to the foreign residence address listed in N400 during trips abroad for less than 6 months, it's possible to argue USCIS decision on acted Ultra Vires to the Statute.

Thanks again!

[Nick Roshet]

Hi Nick and thanks to all of you who will reply.
I'm in the same situation, My wife and I got our Green card on June 4th 2014. We spent 7 days in the USA, from June 4th to June 10th 2014, we left planning to come back after few weeks, but my wife had medical problems during the pregnancy (certified by doctors in Italy and already translated), so we decided to come back only when our baby was 6 months old (June 1st 2015).
During that time, I worked in Italy, but we filed our tax return as US residents and we kept our US bank account opened.

Since we were out of the USA for less than a year but more than 6 months, we don?t know if we can apply for citizenship on March 6 2019 (4 years and 9months after getting our green card) or if we have to wait June 1st (4years and 1 day after our long trip abroad).
By the time we'll be interviewed we'll be over4 years since we are in the USA.

Paglia81,

I think it will be difficult to proof continues residence for the absence over 6 months. USCIS may request multiple evidences such as listed in N-400 Instruction (page 12-13) - section E of Required Evidence for Trips Outside the United States: https://www.uscis.gov/sites/default/...n-400instr.pdf

I'm still confused about this 4 year and 1 day rule. Ether you can apply for naturalization or be naturalized 4 year and 1 day after return to the US.
I find that some USCIS statements may contradict to each-other:

e.g.: Policy Manual, Chapter 3 ? Continuous Residence, section 3 says that "you MAY APPLY for naturalization four years and one day after returning...". https://www.uscis.gov/policymanual/H...-Chapter3.html

But In USCIS Guide to Naturalization shown example where stated that you ELIGIBLE FOR NATURALIZATION 4 years and 1 day after returned: https://www.uscis.gov/sites/default/...e/chapter4.pdf
__________________________

-Continuous Residence* Example
* An applicant became a Permanent Resident on January 1, 1994.

* She lived in the United States for 3 years, then returned to her native country for 1 year and 3
months.

* She got a Re-entry Permit before leaving the United States so that she could keep her Permanent
Resident status.
* The applicant re-entered the United States with Permanent Resident status on April 1, 1998.
Question: When is the applicant eligible for naturalization?

Answer: On April 2, 2002, 4 years and 1 day after she returned to the United States. The last 364 days the applicant was out of the United States count toward her time as a Permanent Resident in "continuous residence," but the 3 years in the United States before leaving do not.
_____________________

I'm not sure if naturalization means whole process of naturalization started when you submit N-400, including wait in line, or time of interview and Oath.
If can only file n400 after 4 years and 1 day, then it doesn't make much sense for states with long wait time for naturalization because by the time of interviewer it already will be 5 years or even more.

[paglia81]

Thank you!

Nick,

thanks so much for your reply.

Do you know who can I talk to or when can I find more details about this topic?

It's such a unique situation that I don't know who could help me.

Thanks again!!!

[suziq38]

The U.S.C.I.S is fairly strict about residency in the U.S. I have had only 4 cases of students who lived outside of the U.S. longer than the 6 months.

The fact remains is that staying out longer than 6 months is what we call a "red flag." This means that it is very likely that the I.O. and USCIS will highly scrutinize your application with regard to travel.

In 3 of the cases, the students were able to provide proof of having a place to live in the U.S. during that time. They showed mortgage, utility bills, bank accounts, and cancelled checks for rent. They showed their car payments. They were asked to prove DURING the interview that they paid for their living quarters and other things while they lived outside of the country. One student was denied citizenship because she lived with her family in California, was retired and had no proof of continuous residency here. In fact, the USCIS could prove that she lived longer in her former country than the U.S. during the last 5 years. She was told: "You have to decide if you want to live in Mexico, or in the U.S. Right now, we are fairly sure that you are living in Mexico." THEY rarely ask questions that they do not know the answers to.

You are welcome to try anyway. Why not? Just don't lie. If you lie to an immigration officer, you will never get your citizenship.
If your wife was sick due to complications of delivering a baby, bring all pertinent hospital and physician documents to you interview. Have them translated officially. If you don't have proof that you kept your house/apartment here in the U.S. during that time, it could be tough to win this one.
You may want to consult an attorney or a non-profit group for assistance like "Catholic Charities."

I am not a lawyer and this is not legal advice.

[nyc212]

HI All,

I received letter of denial from USCIS. below is the information.I am thinking of reapplying, but where to find four year one day rule in the application.

This notice refers to the Form N-400, Application for Naturalization, to U.S. Citizenship and Immigration Services (USCIS) you filed on January 26, 2019under section 316 of the Immigration and Nationality Act (INA).

After a thorough review of the information provided in your application for naturalization, the documents supporting your application, and your testimony during your naturalization interview, USCIS has determined that you are not eligible for naturalization. Accordingly, USCIS must deny your application for naturalization.

Generally, to qualify for naturalization, under INA 316, an applicant must:

Be 18 years of age or older at the time of filing Form N-400;
Be lawfully admitted for permanent residence;
Be a lawful permanent resident for at least 5 years at the time of filing Form N-400; Demonstrate good moral character for at least 5 years prior to the Form N-400 filing date, and during the period leading to administration of the Oath of Allegiance;
Have resided continuously in the United States for at least 5 years as a lawful permanent resident before filing Form N-400;
Have resided for at least 3 months in the State or USCIS District where residency is claimed before filing Form N-400;
Have resided continuously in the United States from the date of filing Form N-400 up to the time of administration of the Oath of Allegiance;
Be physically present in the United States for at least 21⁄2 years at the time of filing Form N-400; Demonstrate a basic knowledge of U.S. history and government;
Demonstrate the ability to read, write, and speak words in ordinary usage in the English language; and
Establish an attachment to the principles of the U.S. Constitution and be disposed to the good order and happiness of the United States.

Statement of Facts and Analysis Including Ground(s) for Denial



On March 13, 2012, you obtained permanent resident status in immigrant classification E26, Professionals Holding Advanced Degrees and Persons of Exceptional Ability. USCIS received your Form N-400 on January 26, 2019, and on March 15, 2019, you appeared for an interview to determine your eligibility for naturalization.

During the interview and review of your application, the Immigration Services Officer (Officer) noted that you were absent from the United States from January 07, 2014 to January 18, 2015. You confirmed this absence on your application for naturalization and during your interview.

In order to qualify for naturalization under INA 316, you must have resided continuously in the United States for at least 5 years prior to the filing of Form N-400. You must also have resided continuously in the United States from the date of filing Form N-400 up to the time of administration of the Oath of Allegiance. Generally, absences of more than 1 year will automatically break the continuity of residence for naturalization purposes. Therefore, your absence from January 07, 2014 to January 18, 2015, breaks the continuity of your residence for naturalization.

Since you have not demonstrated that you have met the continuous residency requirement, you are ineligible for naturalization at this time.

You may file a new application for naturalization 4 years and 1 day following the date of return from your extended absence. In order to be eligible for naturalization at that time, you must demonstrate that you meet all requirements for naturalization. See attached INA and Title 8, Code of Federal Regulations (8 CFR) citations.

If you believe that you can overcome the grounds for this denial, you may submit a request for a hearing on Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, within 30 calendar days of service of this decision (33 days if this decision was mailed). See attached 8 CFR 336.2 (a) and 103.8(b). Without a properly filed Form N-336, this decision will become final. See INA 336.

To access Form N-336 or if you need additional information, please visit the USCIS Web site at www.uscis.gov or call our USCIS Contact Center toll free at 1-800-375-5283. You may also make an appointment. To schedule an appointment, go to www.uscis.gov and select INFOPASS.

Sincerely,
YYYY ZZZ

To better assist you, the sections of the law referenced in your decision are provided below:

INA 336

(a) If, after an examination under section 335, an application for naturalization is denied, the applicant may request a hearing before an immigration officer.

(b) If there is a failure to make a determination under section 335 before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

(c) The Attorney General shall have the right to appear before any immigration officer in any naturalization proceedings for the purpose of cross-examining the applicant and the witnesses produced in support of the application concerning any matter touching or in any way affecting the applicant's right to admission to citizenship, and shall have the right to call witnesses, including the applicant, produce evidence, and be heard in opposition to, or in favor of, the granting of any application in naturalization proceedings.

(d) The immigration officer shall, if the applicant requests it at the time of filing the request for the hearing, issue a subpoena for the witnesses named by such applicant to appear upon the day set for the hearing, but in case such witnesses cannot be produced upon the hearing other witnesses may be summoned upon notice to the Attorney General, in such manner and at such time as the Attorney General may by regulation prescribe. Such subpoenas may be enforced in the same manner as subpoenas under section 335(b) may be enforced.

(e) It shall be lawful at the time and as a part of the administration by a court of the oath of allegiance under section 337(a), for the court, in its discretion, upon the bona fide prayer of the applicant included in an appropriate petition to the court, to make a decree changing the name of said person, and the certificate of naturalization shall be issued in accordance therewith.

8 CFR 336.2

(a) The applicant, or his or her authorized representative, may request a hearing on the denial of the applicant's application for naturalization by filing a request with USCIS within thirty days after the applicant receives the notice of denial.

8 CFR 103.8

This section states authorized means of service by the Service on parties and on attorneys and other interested persons of notices, decisions, and other papers (except warrants and subpoenas)in administrative proceedings before Service officers as provided in this chapter.

(b) Effect of service by mail. Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.

Thanks,

[allana]

Wow! - nyc212, did you consult it with someone? Why the 4 year rule couldn't be applied in your case?
My 4 year + 1 after returning will be this summer. Did you have the "Re-entry Permit"? Ugh, now I don't know what to do.