Attended Citizenship Interview - waiting for result -

[nyraj2]

Hi,

Just to give a back ground on my case, I am an Indian citizen got my GC in Sep 2010 employment based. Due to personal reason I was away from US from 4/2011 till10/2012 after getting re-entry permit approved for the due time. After wards I was in and out of country three times not exceeding 30 days. I did file my taxes during the time that I was away. I did apply for my citizenship in Sept 2015 and got my interview attended in Aug 2016. The interview all went good till question on how long I was away. The office said he was not able to take a decision at that time and still waiting for the update. Am I eligible for citizenship ? what would be the result, please give your opinion.

Thanks

[JoeF]

Since you were abroad for more than a year, the continuous residency was disrupted. USCIS has an eligibility worksheet on their website. Did you check that before applying?

5 years from 10/2012 is 10/2017...

[SoNearCitizen]

I'm afraid I have to say that you have a problem. If you are absent for more than six months in a single trip in the five year period preceding U.S citizenship application (even with a reentry permit), you are not eligible for citizenship. In your case, you were out for more than an year. So earliest you can apply is July 2017. That said, keep fingers crossed since officer didn't outright deny your app. Who knows, miracles do happen. Keep us posted when you hear from them. 

Good luck.

 

[JoeF]

13 hours ago, SoNearCitizen said:

I'm afraid I have to say that you have a problem. If you are absent for more than six months in a single trip in the five year period preceding U.S citizenship application (even with a reentry permit), you are not eligible for citizenship. In your case, you were out for more than an year. So earliest you can apply is July 2017. That said, keep fingers crossed since officer didn't outright deny your app. Who knows, miracles do happen. Keep us posted when you hear from them. 

Good luck.

 

It's a bit more complicated...

First, absences of over 6 months but less than a year result in the continuous residency to be broken, unless the person can convince the examiner otherwise. Absences over a year unconditionally break the continuous residency.

Second, if a person has been abroad for over a year (has to be with reentry permit, otherwise, the GC would be lost), it is possible to apply 4 years and 1 day after return (the 90 days earlier rule doesn't apply in this case.) Essentially, the last 364 days abroad are already counting for the 5-year continuous residency requirement.

That's why I was asking the OP if he went through the checklist on the USCIS website. With the 4 year + 1 day rule, applying in Oct. 2016 would have worked, but the OP apparently applied earlier.

This is all listed in 8 CFR 316.5(c):

"c) Disruption of continuity of residence

(1) Absence from the United States.

(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

(C) The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

 

(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under § 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence."

[nyraj2]

First of all, Thanks for all your response, appreciated !

I am also aware of the 4 year +1 day rule. Some of the attorneys recommended me to apply since they were saying if I am more than 1/2 the number of days in 5 years that I am eligible.

By this month start (10/1/2016) I am already eligible for the 4 years + 1 day rule, will the consider in the current application, or should I have to apply again. 

Thanks

 

 

[JoeF]

3 hours ago, nyraj2 said:

First of all, Thanks for all your response, appreciated !

I am also aware of the 4 year +1 day rule. Some of the attorneys recommended me to apply since they were saying if I am more than 1/2 the number of days in 5 years that I am eligible.

By this month start (10/1/2016) I am already eligible for the 4 years + 1 day rule, will the consider in the current application, or should I have to apply again. 

Thanks

 

 

You would have to apply again.

There are 3 big requirements that have to be fulfilled, physical presence (the 1/2 of the 5 years), continuous residence, 3 months in district.

I don't know which lawyers you consulted and where (there is a website where lawyers answer questions, but I have seen lots of wrong answers from lawyers there...)

The checklist on the USCIS website is accurate. And consulting with a good immigration lawyer one-on-one, not through a website, would also help.

[nyraj2]

If rejected, can I re-apply immediately, is it going to take long time or shorter to process the application ?

Thanks

 

[SoNearCitizen]

Most likely it will be a fresh, new application and will take the same amount of time as everyone else. Having applied before will not have any effect on the fresh application, since most of the steps (biometrics, interview scheduling etc.) are done without looking at the contents of your application.

[JoeF]

It is going to take the same amount of time. It is a new application, just like any other.