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Naturalization - Citizanship - physical presence in the United States

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Naturalization - Citizanship - physical presence in the United States

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Old Jun 16th 2004, 2:03 am
  #1  
Ariel
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Default Naturalization - Citizanship - physical presence in the United States

Been 5 years since I got my "green card" - I want to apply for
citizenship - I never went out of the US for more then 6 months and I
have been at the same address for a few years now but I'm a little
concerned about the "Physical Presence" issue - I tried to calculate
the number of days I was in the US but with over 60 trips abroad it is
very very hard to figure this out - I cam out with a little over 30
months but some of these stamps (in the passport) are so faded out
that I am sure that my calculation can be challenged

To my question :-)

How do they treat this whole subject in my interview? Considering the
fact that only entrees are stamped - how can this thing get figured
out?? are there other proofs beside my passport? I don't want to throw
the processing fee away but I do want to become a citizen

Thanks
 
Old Jun 16th 2004, 8:53 pm
  #2  
John
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Default Re: Naturalization - Citizanship - physical presence in the United States

Hi, I actually have a similar problem, although in Canada.

To my bad luck, in addition to having many arrival/departure stamps, I have
a wrong dated stamp (2001 instead of 2000..imagine 1 full year)

I am gonna have field day while explaining this during my citizenship
interview, and me and the officer have to play a puzzle game
"Ariel" <[email protected]> wrote in message
news:[email protected]...
    > Been 5 years since I got my "green card" - I want to apply for
    > citizenship - I never went out of the US for more then 6 months and I
    > have been at the same address for a few years now but I'm a little
    > concerned about the "Physical Presence" issue - I tried to calculate
    > the number of days I was in the US but with over 60 trips abroad it is
    > very very hard to figure this out - I cam out with a little over 30
    > months but some of these stamps (in the passport) are so faded out
    > that I am sure that my calculation can be challenged
    > To my question :-)
    > How do they treat this whole subject in my interview? Considering the
    > fact that only entrees are stamped - how can this thing get figured
    > out?? are there other proofs beside my passport? I don't want to throw
    > the processing fee away but I do want to become a citizen
    > Thanks
 
Old Jun 17th 2004, 4:13 am
  #3  
Joachim Feise
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Default Re: Naturalization - Citizanship - physical presence in the United

Ariel said on 6/16/2004 7:03:
    >
    > How do they treat this whole subject in my interview? Considering the
    > fact that only entrees are stamped - how can this thing get figured
    > out?? are there other proofs beside my passport?

Boarding passes and travel itineraries, for example...

-Joe
 
Old Jun 17th 2004, 4:14 am
  #4  
Boaz Ben-Zvi
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Default Re: Naturalization - Citizanship - physical presence in the United States

The "physical presence" requirement can be a little complicated;
the CIS has many "unadvertised" rules in this regard. Basically they
want to see that your “principal dwelling place� was in the US for
the previous 5 years.
For example, if you live in Canada and drive across the border
every day to work in the US, they consider you a commuter, not
a resident. Or you may have left the US for more than 6 months
(but less than a year) and still be considered a resident because it
was a (US) job assignment, or your family stayed in the US, etc.
Also if you were absent more than 90 days in the first year of
residency they claim that thus you have not become a resident
yet (unless you have reasons, as mentioned above).
If you had over 60 trips, maybe you should get some relevant
documentation; e.g., if business trips, then letters from your HR
department. As far as "faded" dates -- it is up to you to declare
the true dates on the N-400 ! They may ask for any verification,
so if certain date is in doubt, try to find another evidence (airline
ticket; mileage program, etc.)
If the "30 months" number is really close, maybe you'd better
wait few more months ....
Last -- here is a good reference about all these fine issues
related to naturalization:
http://www.illinoislegalaid.org/UPLO...88natguide.pdf
 
Old Jun 17th 2004, 11:50 am
  #5  
Thorsten
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Default No absence of 90+ days in 1st year of LPR?! (Re: [...] physical presence

Boaz Ben-Zvi wrote:

    > The "physical presence" requirement can be a little complicated;
    > the CIS has many "unadvertised" rules in this regard. [...]

    > Also if you were absent more than 90 days in the first year of
    > residency they claim that thus you have not become a resident
    > yet (unless you have reasons, as mentioned above).

That's the first time I hear about this alleged rule! Can anybody elaborate?

    > Last -- here is a good reference about all these fine issues
    > related to naturalization:
    > http://www.illinoislegalaid.org/UPLO...88natguide.pdf

BTW This guide does not mention any such rule. On the contrary, it
states that absences under 6 months are always safe (as long as the
physical presence requirement is satisfied, of course.)

Thanks,
Thorsten

P.S. Follow-Up limited to alt.visa.us. Please don't cross-post without
good reason!
 
Old Jun 17th 2004, 12:16 pm
  #6  
Joachim Feise
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Default Re: Naturalization - Citizanship - physical presence in the United

Boaz Ben-Zvi wroteon 6/17/2004 9:14:
    > Also if you were absent more than 90 days in the first year of
    > residency they claim that thus you have not become a resident
    > yet (unless you have reasons, as mentioned above).

Huh? Where do you get that from?
There is no such rule in the law.

-Joe
 
Old Jun 17th 2004, 8:29 pm
  #7  
Boaz Ben-Zvi
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Default Re: Naturalization - Citizanship - physical presence in the United States

About 6 months ago or more I read in the immigration forum
( http://boards.immigrationportal.com/...?s=&forumid=18 )
a post from a guy who got the GC, then left the US for about
5 months, came for a short visit, left again for some 5 months
and returned for good.
He applied for naturalization after 5 years from the GC, but
was denied; the CIS officer said that given his long absences
in the first year, he actually hasn't become a US resident during
that first year on the GC. (i.e., he should apply again a year
later)
That guy also said that the officer mentioned that "90 days
absence" someplace.
That guy later contacted several immigration lawyers, but they
all said that nothing can be done, and that the CIS has discretion
to decide so.
I also know of a similar case, but there the absence was due
to a US company foreign assignment, and the CIS asked for
a letter from the HR dept confirming that assignment and the
CIS accepted that letter OK.


"Joachim Feise" <[email protected]> wrote in message
news:[email protected]...
    > Boaz Ben-Zvi wroteon 6/17/2004 9:14:
    >> Also if you were absent more than 90 days in the first year of
    >> residency they claim that thus you have not become a resident
    >> yet (unless you have reasons, as mentioned above).
    > Huh? Where do you get that from?
    > There is no such rule in the law.
    > -Joe
 
Old Jun 18th 2004, 4:21 am
  #8  
Joachim Feise
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Default Re: Naturalization - Citizanship - physical presence in the United

Boaz Ben-Zvi wrote on 6/18/2004 1:29:

    > About 6 months ago or more I read in the immigration forum
    > ( http://boards.immigrationportal.com/...?s=&forumid=18 )
    > a post from a guy who got the GC, then left the US for about
    > 5 months, came for a short visit, left again for some 5 months
    > and returned for good.
    > He applied for naturalization after 5 years from the GC, but
    > was denied; the CIS officer said that given his long absences
    > in the first year, he actually hasn't become a US resident during
    > that first year on the GC. (i.e., he should apply again a year
    > later)
    > That guy also said that the officer mentioned that "90 days
    > absence" someplace.

Hmm, a search there doesn't bring up anything.
And, since I frequent that particular forum, I am sure I would
have seen such a post.

So, I continue to see this as just another rumor with no connection
to reality.
It would be different if the stay abroad was over 6 months. In
that case, the continuous residence would indeed be disrupted
unless the applicant can show otherwise.

-Joe
 
Old Jun 18th 2004, 4:19 pm
  #9  
Thorsten
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Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United

Boaz Ben-Zvi wrote:

    > About 6 months ago or more I read in the immigration forum
    > ( http://boards.immigrationportal.com/...?s=&forumid=18 )
    > a post from a guy who got the GC, then left the US for about
    > 5 months, came for a short visit, left again for some 5 months
    > and returned for good.

Well, being gone for 10 or 11 months in the first year after getting the
GC is quite different from bing gone just over 90 days.

I guess an argument could be made that spending less than 2 months of
the first year in the U.S. might make it very hard to establish a
permanent residence.

On the other hand, I don't see how an absence of, say, 91 days might
*automatically* disqualify someone. E.g., my wife is a university
professor and has a 3 1/2 months break between semesters every year. It
makes perfect sense for her to spend this time abroad to do research,
write, or whatever. Being out of the country for 3 months even every
summer would not in the least be unusual for someone in her field and
totally be compatible with having only one residence and a full-time job
in the U.S.

Thorsten
 
Old Jun 18th 2004, 9:34 pm
  #10  
Boaz Ben-Zvi
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Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United States

Oops, I cited the wrong forum; you should look at
http://immigration-information.com/s...ead.php?t=3475
And here are the relevant parts:
[Jeffrey88 - 10/23/2003]
I have gotten my green card since 08/15/1998. I had left the country twice;
the first time was from 08/21/1998 to 02/13/1999 (175 days), and the second
time was from 02/24/1999 to 08/09/1999 (166 days). After 08/09/1999, I have
never left the U.S until now. I submitted my N-400 on 05/15/2003, and I had
an interview on 10/22/2003. The officer did not conduct an interview with me
due to I did not establish my residence for five years. He said that as long
as I left the country for over 90 days, my residence is broken.
I cannot find any documents or laws saying that as long as I left the
country for over 90 days, my residence is broken. All of the INS official
docmuments say, "continuous residence may be broken if you take a single
trip out of the country that lasts for 6 months or more.
The officer asked me to do an interview after 08/09/2004.

[Jeffrey88 - 10/27/2003]
I have talked with five immigration lawyers. They all suggest me to wait for
another year. Because there is an exception if I cannot proof my "intent" to
stay in the U.S during my first year. The INS will not count my first year.
I had a job in Taiwan during my first year, and I did not have a house at
that time.
 
Old Jun 19th 2004, 2:57 am
  #11  
Thorsten
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Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United

Boaz Ben-Zvi wrote:

    > I have gotten my green card since 08/15/1998. I had left the country twice;
    > the first time was from 08/21/1998 to 02/13/1999 (175 days), and the second
    > time was from 02/24/1999 to 08/09/1999 (166 days). After 08/09/1999, I have
    > never left the U.S until now. I submitted my N-400 on 05/15/2003, and I had
    > an interview on 10/22/2003. The officer did not conduct an interview with me
    > due to I did not establish my residence for five years.

Unfortunately, this does make sense. You left 6 days after becoming an
LPR, came back after almost 6 months, only stayed for 11 days and left
again for over 5 months. Applying just common sense standards, most
people would probably say that you didn't permanently reside in the U.S.
during that year. Add to that that you had a job abroad during this
period and apparently didn't keep an apartment in the U.S...

If USCIS really wanted to screw with you, they could try to take away
your GC completely, e.g. by arguing that you structured your two
absences of just under 6 months each deliberately in order to circumvent
the spirit of the law.

> He said that as long
    > as I left the country for over 90 days, my residence is broken.

However, this *doesn't* make sense. As I have tried to explain in
another message, it can make sense to permanently reside in the U.S.,
hold a full-time job there, and still spend 3.5 months or so abroad.

    > I cannot find any documents or laws saying that as long as I left the
    > country for over 90 days, my residence is broken.

Because it doesn't exist, as far as anybody can tell. Bottom line, the
adjudicator's decision appears to have been justified, he just gave the
wrong reason for his decision.

    > The officer asked me to do an interview after 08/09/2004.

    > I have talked with five immigration lawyers. They all suggest me to wait for
    > another year. Because there is an exception if I cannot proof my "intent" to
    > stay in the U.S during my first year. The INS will not count my first year.

Sounds sensible. Since you only have a few more months to wait, I hope
this delay doesn't cause you too much hardship.

    > I had a job in Taiwan during my first year, and I did not have a house at
    > that time.

Good luck,
Thorsten
 
Old Jun 19th 2004, 3:55 am
  #12  
Joachim Feise
Guest
 
Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United

Boaz Ben-Zvi wrote on 6/19/2004 2:34:

    > Oops, I cited the wrong forum; you should look at
    > http://immigration-information.com/s...ead.php?t=3475
    > And here are the relevant parts:
[...]
    > I have talked with five immigration lawyers. They all suggest me to wait for
    > another year. Because there is an exception if I cannot proof my "intent" to
    > stay in the U.S during my first year.

Well, I still think that's bogus.
Unless anybody can provide a link to the actual law that says that...

-Joe
 
Old Jun 21st 2004, 3:54 am
  #13  
Boaz Ben-Zvi
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Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United States

"Joachim Feise" wrote:
    > Well, I still think that's bogus.
    > Unless anybody can provide a link to the actual law that says that...

See law below; basically the Attorney General is the sole authority;
hence he/she (actually the INS commissioner) can decide what the
naturalization "law" really is .....
---------------------------------------------------------------------------------
(TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)/8 CFR PART 310 --
NATURALIZATION AUTHORITY)
Sec. 310.1 Administrative naturalization authority.

(a) Attorney General. Commencing October 1, 1991, Section 310 of the Act
confers the sole authority to naturalize persons as citizens of the United
States upon the Attorney General.

(b) Commissioner of the Immigration and Naturalization Service. Pursuant to
Sec. 2.1 of this chapter, the Commissioner of the Immigration and
Naturalization Service is authorized to perform such acts as are necessary
and proper to implement the Attorney General's authority under the
provisions of Section 310 of the Act.

-----------------------------------------------------
 
Old Jun 21st 2004, 7:42 am
  #14  
Joachim Feise
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Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United

On Mon, 21 Jun 2004, Boaz Ben-Zvi wrote:

    > "Joachim Feise" wrote:
    > >
    > > Well, I still think that's bogus.
    > > Unless anybody can provide a link to the actual law that says that...
    > See law below; basically the Attorney General is the sole authority;

The CIS examiner acts as representative of the Attorney General. And
both are bound by the immigration law.

But, the quote does *not* state what you claimed.
So, my assertion still stands: I think what you claimed is bogus.

-Joe
 
Old Jul 6th 2004, 11:02 am
  #15  
Ariel Kahana
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Posts: n/a
Default Re: Naturalization - Citizanship - physical presence in the United States

I think I have been in and out of the country more then 70 times in
the last 5 years - and also lost my previous passport...

can I get a list of my entries/exits somewhere - otherwise I don't
have any reliable way of reporting this information...

thanks


Joachim Feise <[email protected]> wrote in message news:<[email protected]>...
    > Ariel said on 6/16/2004 7:03:
    > >
    > > How do they treat this whole subject in my interview? Considering the
    > > fact that only entrees are stamped - how can this thing get figured
    > > out?? are there other proofs beside my passport?
    >
    > Boarding passes and travel itineraries, for example...
    >
    > -Joe
 


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