4 year and 1 day rule

Old May 14th 2022, 3:05 am
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Default 4 year and 1 day rule

Hi,

a friend of mine is getting ready to apply for his naturalization based on 5 year rule but i recommended delaying it since she left the country for more than 6 months from Jan2018 to Sept2018, she plans to apply based on period from Jan2018 -Nov2022 'early filer'.
i assume she broke the continuous residency requirement although technically she can try to make a case that it wasnt broken since she owned a house in the US at the time and her immediate family were all in the US, i think its a high bar but she mentioned something i had to google and didnt make sense, which is the 4 years and 1 day rule which technically, based on what i understood, it allows an applicant to apply 4 years & 1 day after return from the trip that supposedly broke the continuous residence 'ie:Sept2018'
my issue is that based on this rule now she can technically apply on Sept+1day-2022 by counting Sept2018 as the new starting point which doesnt make sense since if she technically didnt even travel from Jan2018 she would've had to wait until Jan2023 to apply or Oct2022'early filing'
so it feels like this way she saves one month by going over the 6month period although technically she did it because she got sick in the trip and had to stay longer!
anyone heard about this?

Best Regards,
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Old May 14th 2022, 6:49 am
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Default Re: 4 year and 1 day rule

I’m quite retired these days and don’t give legal advice. That said, law and practice can be quite fuzzy indeed. Your use of the word “assume” jumped out to my eye. I don’t think the word is applicable. Also, on the “early” filing, I was once involved in a case where clients had combined the 4year +1 day scenario with the statutory allowance to file 90 days early. Shall we say that USCIS and I disagree on whether this can be done. My opinion is correct but USCIS owns both the football field and the football.

My “mavens” for citizenship/naturalization are retired or deceased, so no names I could recommend even if I was allowed to do so by this forum. But legal advice might be in order. That said, it would be in a sub-specialty of a specialized area of law.
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Old May 14th 2022, 3:47 pm
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Default Re: 4 year and 1 day rule

I would just say always go on the side of caution with counting these days. No point trying to save some time by filing early just to have a disagreement after waiting a year for someone to look at it.
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Old May 14th 2022, 4:11 pm
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Default Re: 4 year and 1 day rule

Originally Posted by tom169 View Post
I would just say always go on the side of caution with counting these days. No point trying to save some time by filing early just to have a disagreement after waiting a year for someone to look at it.
in that case I mention, I came in fairly late in the process. Ultimately, the “solution” was to simply file a new application which did not have the time issue.

As written, OP would have caused me some eye-rolls but for the fact that the law is fuzzy and easily misunderstood.
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Old May 14th 2022, 4:59 pm
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Default Re: 4 year and 1 day rule

Originally Posted by john09_2013 View Post
Hi,

a friend of mine is getting ready to apply for his naturalization based on 5 year rule but i recommended delaying it since she left the country for more than 6 months from Jan2018 to Sept2018, she plans to apply based on period from Jan2018 -Nov2022 'early filer'.
i assume she broke the continuous residency requirement although technically she can try to make a case that it wasnt broken since she owned a house in the US at the time and her immediate family were all in the US, i think its a high bar but she mentioned something i had to google and didnt make sense, which is the 4 years and 1 day rule which technically, based on what i understood, it allows an applicant to apply 4 years & 1 day after return from the trip that supposedly broke the continuous residence 'ie:Sept2018'
my issue is that based on this rule now she can technically apply on Sept+1day-2022 by counting Sept2018 as the new starting point which doesnt make sense since if she technically didnt even travel from Jan2018 she would've had to wait until Jan2023 to apply or Oct2022'early filing'
so it feels like this way she saves one month by going over the 6month period although technically she did it because she got sick in the trip and had to stay longer!
anyone heard about this?

Best Regards,
what is the rush? Unless they are planning to leave the US a GC gets them basically everything the same, they only miss out on jury duty and voting, but are not likely to be a USC by the 2022 midterms anyway, they must have the 10 year green card now anyway so no rush to save a renewal fee there either…
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Old May 14th 2022, 5:06 pm
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Default Re: 4 year and 1 day rule

See 12 USCIS-PM D.3(C). The 4 year and 1 day rule is only for people who broke continuous residence with an absence of more than 1 year, and are able to provide enough evidence to overcome the presumption of interrupting continuous residence on the last year of their absence. If your friend, who was absent between 6 months and 1 year, was able to provide similar evidence to overcome the presumption of interrupting continuous residence, then they wouldn't have broken continuous residence at all, and can apply based on 5 years (minus 90 days) of being a permanent resident. On the other hand, if they are not able to overcome the presumption of interrupting continuous residence, then they have to wait 4 years and 6 months, and this is true for both absences of between 6 months and 1 year, as well as absences of more than 1 year.

So if your friend can overcome the presumption of interrupting continuous residence, they can file Nov 2022 (5 years minus 90 days of being a permanent resident). If not, they can file Mar 2023 (4 years and 6 months after returning from absence).

Last edited by newacct; May 14th 2022 at 5:17 pm.
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Old May 14th 2022, 5:06 pm
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Default Re: 4 year and 1 day rule

Originally Posted by john09_2013 View Post
Hi,

a friend of mine is getting ready to apply for his naturalization based on 5 year rule but i recommended delaying it since she left the country for more than 6 months from Jan2018 to Sept2018, she plans to apply based on period from Jan2018 -Nov2022 'early filer'.
i assume she broke the continuous residency requirement although technically she can try to make a case that it wasnt broken since she owned a house in the US at the time and her immediate family were all in the US, i think its a high bar but she mentioned something i had to google and didnt make sense, which is the 4 years and 1 day rule which technically, based on what i understood, it allows an applicant to apply 4 years & 1 day after return from the trip that supposedly broke the continuous residence 'ie:Sept2018'
my issue is that based on this rule now she can technically apply on Sept+1day-2022 by counting Sept2018 as the new starting point which doesnt make sense since if she technically didnt even travel from Jan2018 she would've had to wait until Jan2023 to apply or Oct2022'early filing'
so it feels like this way she saves one month by going over the 6month period although technically she did it because she got sick in the trip and had to stay longer!
anyone heard about this?

Best Regards,
I believe may be a provision that allows for filing either the 4 year and 1 day or five years rule, 60 to 90 days before eligibility. I would guess the longer the period of being back the smoother the process.,
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Old May 14th 2022, 6:30 pm
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Default Re: 4 year and 1 day rule

Originally Posted by newacct View Post
See 12 USCIS-PM D.3(C). The 4 year and 1 day rule is only for people who broke continuous residence with an absence of more than 1 year, and are able to provide enough evidence to overcome the presumption of interrupting continuous residence on the last year of their absence. If your friend, who was absent between 6 months and 1 year, was able to provide similar evidence to overcome the presumption of interrupting continuous residence, then they wouldn't have broken continuous residence at all, and can apply based on 5 years (minus 90 days) of being a permanent resident. On the other hand, if they are not able to overcome the presumption of interrupting continuous residence, then they have to wait 4 years and 6 months, and this is true for both absences of between 6 months and 1 year, as well as absences of more than 1 year.

So if your friend can overcome the presumption of interrupting continuous residence, they can file Nov 2022 (5 years minus 90 days of being a permanent resident). If not, they can file Mar 2023 (4 years and 6 months after returning from absence).
This summary is not bad. It should be noted that this summary does NOT have the force of law. Rather, it is guidance.

With my knowledge and experience, the fuzzy areas jump out at me. But otherwise it may not be so apparent.

Also, the inclinations of the local adjudication office or sometimes the individual examiner can have an outsize effect. Some focus on grounds of denial, others focus on whether a case can be approved. Also, it is more work to deny a case than to approve.

Last edited by S Folinsky; May 14th 2022 at 6:40 pm. Reason: Correct typo. Damn autocorrect!
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Old May 14th 2022, 6:31 pm
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Default Re: 4 year and 1 day rule

Originally Posted by tht View Post
what is the rush? Unless they are planning to leave the US a GC gets them basically everything the same, they only miss out on jury duty and voting, but are not likely to be a USC by the 2022 midterms anyway, they must have the 10 year green card now anyway so no rush to save a renewal fee there either…
Fair question. In my experience, the most common reason was to immigrate a relative sooner.
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Old May 14th 2022, 10:35 pm
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Default Re: 4 year and 1 day rule

I just find it illogical, and i am not a lawyer, that it is more of an incentive to have immigrants go outside the country for more than a year and come back & apply under 4year-1day guidance, Vs go out of the country more than 6 months and come back and go through the hassle of proving ties and convincing etc....In my mind, it is the >12 months that should invite more scrutiny and the >6months should leverage the 4year+1 day rule, a bit backward for me
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Old May 14th 2022, 10:57 pm
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Default Re: 4 year and 1 day rule

Originally Posted by john09_2013 View Post
I just find it illogical, and i am not a lawyer, that it is more of an incentive to have immigrants go outside the country for more than a year and come back & apply under 4year-1day guidance, Vs go out of the country more than 6 months and come back and go through the hassle of proving ties and convincing etc....In my mind, it is the >12 months that should invite more scrutiny and the >6months should leverage the 4year+1 day rule, a bit backward for me
According to the current USCIS Policy Manual, 12 USCIS-PM D.3(C), absences of over 1 year does not have an advantage over absences of between 6 months and 1 year. Under the current policy, if the person has sufficient evidence to overcome the presumption of interrupting continuous residence, in the case of absence between 6 months and 1 year, their continuous residence is not interrupted; in the case of an absence of more than 1 year, their continuous residence is interrupted, but they can apply 4 years and 1 day after returning from the absence, so the absence of more than 1 year is worse in this case. In the case where the person does not have sufficient evidence to overcome the presumption of interrupting continuous residence, then the person can apply 4 years and 6 months after returning from the absence, in both the 6 months to 1 year case and the more than 1 year case, so neither has an advantage in this case. Here is a table to summarize it:

Code:
............................ | overcomes presumption | does not overcome presumption
-----------------------------+-----------------------+-------------------------------
absence of 6 months - 1 year | no break............. | 4 years and 6 months
-----------------------------+-----------------------+-------------------------------
absence of more than 1 year. | 4 years and 1 day.... | 4 years and 6 months

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Old May 14th 2022, 11:32 pm
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Default Re: 4 year and 1 day rule

Originally Posted by S Folinsky View Post
Fair question. In my experience, the most common reason was to immigrate a relative sooner.
makes sense, but if they are going to be the anchor USC it’s seems like they would make more effort to not break their residence, but who knows…
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Old May 15th 2022, 2:17 am
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Default Re: 4 year and 1 day rule

Originally Posted by tht View Post
makes sense, but if they are going to be the anchor USC it’s seems like they would make more effort to not break their residence, but who knows…
When I was in practice, pregnancy or illness were among the reasons for the absence. Also, it is fairly common that newlyweds want to live together.
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Old May 15th 2022, 6:51 pm
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Default Re: 4 year and 1 day rule

both of my younger children have had their USC applications successful - both had absences of more than 6 months but less than 1 year. They were students but had access whenever they wanted to their family home here in Texas and obviously with both parents and an elder sibling here they satisfied the 2 conditions necessary to overcome the break in residence. We maintained their medical insurance/bank accounts whilst they were absent and were able to show proof of that.
https://www.uscis.gov/policy-manual/...rt-d-chapter-3
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Old May 15th 2022, 9:22 pm
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Default Re: 4 year and 1 day rule

Originally Posted by petitefrancaise View Post
both of my younger children have had their USC applications successful - both had absences of more than 6 months but less than 1 year. They were students but had access whenever they wanted to their family home here in Texas and obviously with both parents and an elder sibling here they satisfied the 2 conditions necessary to overcome the break in residence. We maintained their medical insurance/bank accounts whilst they were absent and were able to show proof of that.
https://www.uscis.gov/policy-manual/...rt-d-chapter-3
The second paragraph in the link is quite fuzzy to one with legal training. Part of that is confusing syntax and use of the term “domicile.” The Immigration & Nationality Act defines “residence” at 101(a)(33) and it is definitely not the same as the accepted meaning of “domicile.”

Also, it is possible to be a “lawful permanent resident” without having “residence” in the US. See Saxbe v Bustos. (FWIW, before 1968, it was particularly easy for natives of the Western Hemisphere to obtain LPR status absent criminal, health or public charge inadmissibility. Saxbe may look weird to the present eye. But it is still good law). A commuter LPR does not have residence in the US despite daily entries.

Also, the law of “presumptions” is one evidence. And presumptions can have different strengths. The strongest being “irrebutable ” such as the one year absence. Absence of 6 months to 1 year can be rebutted, as you well know. The effect of that presumption is that evidence to counter the presumption must be presented. That said, the law is silent as to how much evidence must be presented. And then, as noted in your link, there may be a very short absence that constitutes a break (once had a case where a one day absence caused problems).

OP misunderstands the law. But, that is easy to do.


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