CASE: N-400 (Citizenship / Naturalization w/ Rebuttable Presumption and Continuity of Residence Issues)
APPLICANT: Iranian
LOCATION: Cleveland, Ohio
ISSUES: Rebuttable Presumption / Continuous Residence

Our client contacted us in March 2012 to seek legal representation for his naturalization application. He came to the United States from Iran and obtained his green card through his U.S. Citizen son’s petition in March 2007. He retained our office for his naturalization application on March 23, 2012. The main issue of his naturalization case was two long, over six-month trips that he had within the past four years.

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residence has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption should they wish to apply.

Our client was out of the U.S. more than 180 days twice.  During these trips, he was in Iran, but he could not come back to the United States earlier due to his medical condition.  Our client intended to have temporary trips of less than six months in those two trips. However, due to his medical condition and related health issues, he could not come back to the United States before his trip due to the advice of his doctors.  Moreover, our client already had chronic high blood pressures and heart-diseases in the United States as well.

Our office drafted an argument which explained our client’s medical conditions and argued that he is otherwise eligible for naturalization despite his two long trips to Iran.  We included two notarized affidavits from our client and his U.S. Citizen son, and included our client’s medical records from Iran and the U.S.

The brief and his N-400 application were filed on April 12, 2012 with all necessary supporting documents. Our office prepared him for his interview, and also accompanied him on August 7, 2012 at the Cleveland CIS office. Our client answered all questions correctly and passed his citizenship interview. We emphasized the brief as well and his reasons for his long trips to Iran. His N-400 was approved after the interview. His oath taking is scheduled soon where he will become a U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Ukrainian
LOCATION: Ohio

Our client contacted us in March 2012 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from Ukraine and obtained her green card in 1993. She retained our office for her naturalization and citizenship N-400 application on March 28, 2012.

The naturalization and citizenship N-400 application was filed on April 12, 2012 with all supporting documents. Our office prepared her before her naturalization interview, and also accompanied her on July 31, 2012 at the Cleveland CIS office. Our client answered all questions correctly and passed her naturalization and citizenship N-400 interview. Eventually, her naturalization application was approved. Her oath taking will be scheduled soon in which she will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Ukraine
LOCATION: Cleveland, OH

Our client contacted us in March 2011 to seek legal assistance for his naturalization application. His main issue was his English language skills. Despite obtaining his green card in 1993, he said he did not speak good English.  He came to the United States from Ukraine and obtained his green card in 1993.  He retained our office on March 28, 2012 to assist in his citizenship application.

Our client was born in 1955. He became a Permanent Resident of the United States in1993. Under INA Section 312(b)(2) and 8 U.S.C. Section 1423(b)(2), the English language requirement shall not apply to (1) persons who are over 50 and have lived in the U.S. for 20 years in LPR status; or (2) persons who are over 55 and have lived in the United States for 15 years in LPR status.

When our firm was retained and prior to filing, our client was 57 years old and had lived in the United States as a green card holder for more than 18 years. Accordingly, we argued based on the said statute that he sufficiently met the waiver of the English Language Test, and that he was also permitted to take the civics test in his own language. Attorney Sung Hee Yu accompanied our client at the interview, and his naturalization interview was conducted in his native language.  On July 26, 2012, his naturalization application (N-400) was approved. His oath taking will be scheduled soon in which he will be a naturalized Citizen.

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Two of the elements that a potential naturalization applicant should meet are the continuous residence and physical presence requirements. If you obtained your permanent residency through marriage, the residency requirement is three years, assuming you are still living with your spouse. If you obtained your permanent residency through other means, such as employment or through a different family member, then the residency requirement is five years. You should then be physically present in the U.S. for at least one-half of the last five years (or one-half of the last three years if you got your green card through marriage) before applying for naturalization.

An absence between six months and one year during those last three or five years raises a rebuttable presumption that continuity of residence has been interrupted. INA § 316(b). Thus, if you’ve had trips abroad which lasted between six months and one year, even though you meet the physical presence requirement, the continuity of residence requirement might have been disrupted.

You should be able to properly document your trips and reasons for such when you apply for naturalization, and explain this at your interview, to rebut the presumption of disruption.

Some factors which may establish continuity of residence as stated in 8 C.F.R. § 316.5(c)(1)(ii) include:

1. Not terminating employment in the U.S.
2. Presence of immediate family in the U.S.
3. Retention of full access to a U.S. home, and
4. Not obtaining employment abroad.

Permanent residents who studied abroad with trips between six months and a year can also rebut this presumption. Li v. Chertoff, 490 F.Supp.2d 130 (D.Mass.2007), holds that study abroad does not result in abandonment of residency. Our firm recently represented an Indian client with this issue, and he was able to naturalize. (Click Here for the Success Story). We also cited this case for another client of ours whose husband was the one who studied abroad (Click Here for the Success Story), in which she, at that time the permanent resident, accompanied her husband.

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CASE: N-400 Citizenship / Naturalization
APPLICANT: Indian
LOCATION: Cleveland, Ohio
ISSUEs: Rebuttable Presumption / Continuous Residence

Our client contacted us in late April of 2012. He came to the United States from India as a derivative beneficiary of his father’s immigrant visa in 2007 and became a permanent resident. He retained our office for his naturalization application on May 3, 2012. The main issue of his naturalization case was the two long, over six-month trips that he had within the past four years.

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residence has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption should they wish to apply.

Our client was out of the United States for almost a year in two consecutive years. Our client was in India during those times to completion his undergraduate studies.  In our brief, we cited Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007), which held that in cases where an applicant left the country to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. We asked the CIS to also apply this to our client’s case since the facts in the Li case is very analogous to our client’s.

The brief and his N-400 application were filed on May 14, 2012 with all necessary supporting documents. Our office prepared him for his interview, and also accompanied him on July 24, 2012 at the Cleveland CIS office. Our client answered all questions correctly and passed his citizenship interview. We emphasized the brief as well and her reasons for his long trips to India. His N-400 was approved after the interview. His oath taking is scheduled soon where he will become a U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: South Korean
LOCATION: Cleveland, OH

Our client contacted us to seek legal assistance for his naturalization matters.   He came to the United States from South Korea and obtained his green card in 1999.  However, he was concerned for his naturalization due to his failure to register for Selective Service during the required time period.  He retained our office to assist in his citizenship application.

After we were retained, our office contacted the Selective Service office and requested a status letter for our client.  We explained that our client became a green card holder when he was a minor and no one informed him of the Selective Service registration requirements. Thus, his failure to register was not knowing and willful. The Selective Service issued a status letter for our client, thereby allowing him to apply for naturalization.

The N-400 application was filed on May 1, 2012 with all required supporting documents.  We included a brief explaining that our client’s failure to register for Selective Service was not willful.  Although the Military Selective Service Act provides for civil penalties for failure to register, Section 12 of the Military Service Act also provides some relief from the adverse civil effects of failure to register:

(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 if:

(1) The requirement for the person to so register has terminated or become inapplicable to the person; and
(2) The person shows by a preponderance of the evidence that the failure of the person to register was not a knowing and willful failure to register.

Our client’s registration requirement has become inapplicable due to his age.  Moreover, he has never been informed by anyone during 11 years of his residence in the U.S. with regard to the selective service system registration requirement.  Therefore, our client clearly did not knowingly and willfully fail to register during the requested period of time.

Our office prepared him before the interview, and our client was scheduled to appear before the Cleveland USCIS office on July 13, 2012.   Our attorney Sung Hee yu accompanied him as well.  Our client answered all questions correctly and passed him citizenship interview.   Eventually, his N-400 was approved. His oath taking will be scheduled soon in which he will be a naturalized Citizen.

FREE CONSULTATIONS

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

For other naturalization success stories, please click here.

For other success stories, please click here.

Also feel free to contact our office anytime for free consultations.

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