cygnusx01

Hello
This forum has been a great place for answering my questions (tx!) but I am trying to find clarification regarding the 4 year and 1 day rule for LPRs that broke continuity of residence.

After being out of the States on a 2 year re-entry permit, my fiance returned to the US March 2008 to discover that his naturalization clock was reset to zero.

According to 8 CFR 316.5 he can submit his naturalization application after 4 years and 1 day.

However, it doesn't seem clear at all from the regulations what his physical presence requirements are. Must he stay in the US for 30 months out of the 4 years? Or can he be out for 30 months out of the 4 years? Or must he stay in the US for 30 months minus 12? Or is it half of the 4 years, i.e. 24 months in and 24 months allowed out?

Also, I've read that the 90 days early application doesn't apply in his case. Where is this covered in the regulations?

If you can help, your replies would be much appreciated!

ian-mstm

Yes, an absence from the US for 6 months or more breaks the continuous residency requirement (unless proven otherwise). A continuous absence of 1 year or more resets the naturalization clock.


Yes. All else being equal, he will be eligible to file about March 2012.


To pass the physical presence test, he must be in the US for 30 months out of 5 years. Since he's been gone for 12 months -1 day already, he's down to about 18 between March 2008 and March 2012. Further, he must not now leave the US for more than 6 months or he will again break continuous residency.


Correct.


It's in the same section: "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." You don't get the 90-days prior in this situation.

Ian

Ray

http://www.uscis.gov/files/article/M-476.pdf