N-400 - Early filing and physical presence requirement

[alexandru.banu1975]

I am eligible for 90-day early filing on 8/26/2015 (GC obtained 11/24/2010).

On 8/26/2015, I will have been out of the US for 839 days, irrespective of whether I count from 11/24/2010 (date I obtained the GC) or from 8/26/2010 (5 years before filing date, which would include a 90 day period when I was not a GC).

On 8/26/2015, I will have been in the US for 898 days (so short of 913 days) if I count from 11/24/2010 (date I obtained the GC) and for 988 days it I count from 8/26/2010 (5 years before filing date, which would include a 90 day period when I was not a GC).

Can I file early?

I've read here that the 90-day early filing rule dispenses only of the continuous residence requirement (meaning you can file before you hit the 5 years from becoming a GC) but not of the other requirements, which would include the physical presence requirement. I think the early filing exception also impacts the physical presence requirement. How?

INA 316(a) [8 USC 1447(a)] says "during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time". It doesn't say (contrary to the language used earlier in that section for the continuous residence requirement) 5 years "after being lawfully admitted for permanent residence". In cases of early filing, there are by definition no 5 years after being lawfully admitted as LPR (because you file at 5 years - 90 days after becoming LPR). So should you count the 90-day period before being lawfully admitted for purposes of listing any trips taken on form N-400 (I have none) and for calculating whether you were in the US for "half the time"? Or does the requirement become half of the 5 years minus 90 day period? 

Please don't respond to advise that I should wait to hit 913. I'd do it if it were possible.

Thanks.

Alex

[JoeF]

You can file up to 90 days before you fulfill the 5-year residency requirement, but ONLY if you fulfill ALL the other requirements.

[alexandru.banu1975]

JoeF, thanks for your reply. I was hoping that you would be among the ones to reply. I read your piece from 2011 on early filing (it was on a different issue - how it works with the 4 year and 1 day rule - but thought was very well written). I had also seen this response from you (that you need to fulfill ALL the other requirements). In your view,  

[alexandru.banu1975]

JoeF, again thanks your reply. I hit sent on my previous message too early. Basically, I know what the rules and the instructions say, that you need to fulfill all the other requirements, and your interpretation that this includes the separate requirement of physical presence (because early filing dispenses only of the continuous residence requirement).

 

My question is what is the requirement for physical presence in cases of early filing? The requirement can't be 913 days IN the US since you became an LPR and up until the filing because that is more than half of this period (which is 5 years minus 90 days). So the requirement must then be 913 days IN the US in the 5 years before filing (including therefore the 90 days before one becomes an LPR). Do you agree? Alternatively, the only other possibility is that the requirement is 913 days in the 5 years since you became an LPR but because it will not be known at the time of filing and until the 5 year period elapses whether you meet the requirement or not, this will be finally determined at the time of the interview, by the officer asking what trips you took during the 90 days until you hit 5 years as an LPR after filing.

 

More pragmatically, do you think that an application filed (early) that shows only 839 days out of the US in the relevant table will raise a red flag and have then start asking questions / get list of trips from CBR or making calculations?

 

Thanks.

 

Raluca

[JoeF]

The physical presence requirement is that you need to have been present for half of the 5 years. That has to be true at the time of filing and up to the day of the oath.

[alexandru.banu1975]

The physical presence requirement is that you need to have been present for half of the 5 years. That has to be true at the time of filing and up to the day of the oath.

Joe, with all due respect to your many contributions, your statement above has got to be incorrect.

 

There's no requirement to be present half of 5 years as assessed on a daily basis from filing the application and up until the oath date (the 5 year period changes daily as to start and end point).

 

As to assessment on filing date, my question is simple: what is the start date of the 5 year period in case of early filing (i.e. filing 90 days prior to hitting 5 years since becoming LPR) for purposes of assessing if half was spent in the US? More specifically, if I show 839 days out of the US at the time of early filing, will that raise a red flag?

 

As to the period between filing and oath date, the requirement changes pursuant to the clear wording of INA: physical presence for half the time is no longer required but the applicant is still required to maintain continuous residence in the US, meaning no absences longer than 6 months. You can't be stuck in the US while your application is pending (but you also cannot go abroad for long periods of time, which I don't intend to do anyway).

 

Please let me know if anyone agrees.

 

Alex

[JoeF]

Sorry, yes. The continuous residence requirement is up to the oath, the physical presence requirement has to be fulfilled at the time of filing.

[alexandru.banu1975]

Sorry, yes. The continuous residence requirement is up to the oath, the physical presence requirement has to be fulfilled at the time of filing.

Phew ! Thanks Joe. I nearly had a heart attack when I read your reply :).

To come back to my original question, showing 839 days OUT OF THE US on the application for the 5 year period before filing (including 90 days before becoming an LPR since I'm early filing) will be problematic? It means more than 913 days IN THE US during that period. My only concern is that the 5 year period I use (since filing date) includes 90 days when I was not yet an LPR. But I don't see another 5 year period that I could use in case of early filing. Plus, I don't think that in cases of early filing, the physical presence requirement is 913 days IN THE US since becoming an LPR (so in the 5 years minus 90 days since becoming LPR). Please let me know if you agree. I plan to file on 8/26.

Really appreciate your input.

Alex.

[JoeF]

My understanding is that the start date for the physical presence requirement is when the GC is approved. Time before that doesn't count (can't look it up right now, they do maintenance at the law section on the USCIS website.)

Anyway, cutting it close may be problematic.

I know somebody who did cut it very close, and the examiner at the interview was very skeptical. He got it in the end, but he said it wasn't easy.

[JoeF]

My understanding is that the start date for the physical presence requirement is when the GC is approved. Time before that doesn't count (can't look it up right now, they do maintenance at the law section on the USCIS website.)

Anyway, cutting it close may be problematic.

I know somebody who did cut it very close, and the examiner at the interview was very skeptical. He got it in the end, but he said it wasn't easy.