Citizenship applicaton was denied

[monica11217]

My mom's application was denied on grounds that she had taken an oversea trip to China for 190 days which exceeded the 6 months limit. Should she spend $605 to appeal - this trip was longer than it should have been, but my aging mom thought it would be a good idea to extend the stay by a few days so she could join me as I too was returning from China. This particular trip took place in 2005. Is it better for her to just reapply, instead of going through the appeal process. Here is the timeline,

2004 - trip to China totalling 129 days
2005 - trip to China totalling 190 days
2006 - trip to China totalling 161 days
2007 - trip to China totalling 179 days
2008 - trip to China totalling 125 days
2008 - submitted N400
2009 - trip to China totalling 138 days
2010 - citizenship application was denied

Does she qualify under the residency and presence requirement? I am particularly troubled by this requirement, "has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with absences from the United States totaling no more than one year". I don't recall reading this when we applied back in 2008, is this new?

[BigJoe5]

First of all there are 2 seperate requirements.

Physical presence is spending at least half her time inside the U.S. during her statutory period. For this one, as of the N-400 filing date count backwards and make sure she has at least 30 months out of prior 60 months inside the U.S.

Continuous residence means that she has not disrupted her residence in the U.S. by any single long absence. Read 8 CFR 316.5(c)(1) all parts.

If she has a trip lasting six months or longer, she may have broken residence for naturalization purposes. If she was out for a full year, there is no "IF" about it.

To fix the problem, she must wait 4 years and 1 day after returning to the U.S. to resume residing permanently in order to file an N-400. This requirement goes all the way to Oath, and can be broken AFTER filing an N-400.

If that trip in 2005 was the last long trip, she needed to wait until sometime in 2009, to apply, she applied too soon. An appeal is a waste of money UNLESS she can PROVE that she did not disrupt her residence by that long trip. She probably can't. READ that CFR section thoroughly.

[monica11217]

Thanks BigJoe5!

Just because my mother is 76 and I can provide proof that I actually flew back with her in 2005 which resulted in a 190-day trip, do you think that it is worth the appeal? If we are successful, do you know if my mother needs to go before an immigration officer again or do we just get a letter in the mail that she is approved. I should also add that my mother does not work so there is employment records for her to show for. She has her medical records so may be we can use these to show that US is her home? She also does not have a bank account or credit card in the US.

As for reapplying, one person told me that the clock starts to tick again after they denied her, not when she ended her 190-day trip in 2005? Is this true?

[BigJoe5]

It is less expensive and faster to file a new N-400 than an N-336 (They don't have to interview her for 6 months after filing the N-336).

The key date for the N-400 is the N-400 filing date. Your friend that told you that is an idiot.