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Is there any basis for thinking that USCIS would frown upon a case where somebody who applies for citizenship has accrued the physical presence days mostly at the first half of the 5 year period?

Let's suppose someone is applying for the citizenship in US (N-400, not a qualified spouse of US citizen)

Let's also suppose that applicant meets all 4 presence\residence related rules:

  • During last 5 years before filing have been physically present in US at least 913 days in total
  • Immediately before filing have been a resident of state where filing the application for at least 3 months
  • Maintain continuous resident status for 5 years (no trips outside of US exceeding 5.5 months at a time)
  • Maintain continuous residence in US during the period after filing the application and before been granted the citizenship

Let's say that residence period lasts from Jan 1, 2000 till Jan 1 2005 Let's say that person has been staying in US physically 2.5 years continuously without any trips outside US - so from Jan 1, 2000 to June 15 2002 has not left the country. Then in sharp contrast after the first 1/2 (of the 5 year period) have passed, the applicant has continuously taken trips lasting 5.5 months outside US returning back to US for a month or less and then going back abroad (mostly physically outside of US)

So basically

  1. staying in US for the first 1/2 half of the 5 year period
  2. traveling and being abroad for extensive periods, spending very little time in US for the second 1/2 half of the 5 year period

If it matters let's also say that the person maintains ties to US via continuous work for a US employer (working remotely) for the entire 5 year period

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  • Did you maintain a house/apartment while you were gone? Did you ever file your US taxes as a nonresident alien? uscis.gov/policy-manual/volume-12-part-d-chapter-3
    – mkennedy
    Jun 7 at 19:24
  • @mkennedy I have a condo in US that I co-own with my spouse. We have leased it out, we are still the owners and intend to keep owning. I have always filed as a resident, spouse filed as non resident alien the very first tax form because didnt meet the presence test (this was before green card). We intend to both file N-400 at the same time. We both have active, on-going (no end date) work relationship with US employers. I also maintain a vehicle that is registered and stored (insurance in good standing, tax/registration paid). Plus a storage container full of belongings that is maintained. Jun 9 at 8:33
  • @ambidexterous what about your foreign residence? Are you living in a country where you're a citizen/permanent resident? Do you own a home/car there? Are you registered/paying taxes there? The fact that you leased out your home and stored your belongings can be a good evidence that you've abandoned your US residency.
    – littleadv
    Jun 9 at 20:34
  • Don't own a home or car in any country other than US. Not paying taxes in any other country than US. In 5.5 months we have been doing a travel tour - we were staying for periods ranging from 1 mth to 1.5 mths in 5 different countries. Among those is the country which passport I hold (stayed there about a month). 4 of 5 are EU countries. I hold passport from an EU country, my spouse does not. Any red flags there @littleadv? Jun 10 at 7:17

1 Answer 1

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There are no nuances, you may file the application, as per INA Sec. 1427(a)(1). However, you may still potentially run afoul of INA Sec. 1427(a):

(a) Residence

No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and 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, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

While absences of less than 6 months don't break the presumption of continuity of residence for the adjudication of the N400 purposes (source: USCIS policy manual), the USCIS may claim that you've abandoned residence altogether (as it in fact sounds that you have). So the question will not be whether your residence was continuous, but whether you were resident at all.

I would suggest discussing this with an immigration attorney.

If it matters let's also say that the person maintains ties to US via continuous work for a US employer (working remotely) for the entire 5 year period

It matters, but there would be many different facts and circumstances that you'd need to present to the USCIS, this is just one of them.

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