5 Year Eligibility - Continuous Residence - When does it start?

[CzarDee]

Hi there,

My question is for my 72-year old mother. She received her green card in March 2016 through my sister who is an American citizen. My mother has physical absences from the US since then.

5 months in 2017
11 months in 2018
5 months in 2019 -- she could not go back in the US because she had a stroke in the UK and was recovering
5 months in 2023 -- my father passed away in our home country

Can her 5 year eligibility start from 2019 then she can apply in 2024? Or should it start from the very beginning 2016?

My mother does not own any property like house. She does not have any children in our home country as everyone is abroad. Don't know if this will help justify her ties with the US.

Please need advise. Thank you so much for your time.

[okccanary]

Not a Lawyer or even an expert but as far as I understand the 2018 would have reset her clock as it was an absence of more than 6 months! But I believe she is eligible after 4yrs and a day on the date she returned in 2018 under the 4 year and a day rule.

The more than 6months less than a year might not have actually broken the continuous resident requirement but would require alot of evidence and would be subject to the officer personal opinion on the matter.

If it was me I would wait until she was eligible after using the returned in 2018 date. It would then hopefully be more of a straightforward and less stressful application rather than trying to prove she didnt break any of the requirements. And from the looks of it you probably wont have to wait that much longer for her to be eligible that way.

I would also make sure you are 100% certain on the days out of the country just incase any of those 5s are really 6s. Also did the 11months in 2018 carry over in 2019? so really she was out of the country for a full 16months with no gap in between? If so then that would have absolutely reset her clock!

[newacct]

First, what matters is not how many months she was away in each year, but how long each particular absence was. Are you saying that she had a single absence of 11 months, and no other absences of more than 6 months? If so, then that absence is presumed to have interrupted her continuous residence, but this presumption can be overcome with strong evidence of her ties to the US. If the presumption is overcome, then her continuous residence was never interrupted, and she can apply 90 days before being a permanent resident for 5 years, which would be Dec 2020. If the presumption is not overcome, then she has to wait until 4 years and 6 months after her return from that absence before she can apply for naturalization. You did not state which month she came back from her absence, so I cannot give you an answer for when she can apply. "4 years and 1 day" is NOT applicable -- that only applies to people who were absence for more than 1 year, who are able to overcome the presumption in the last year of their absence. See 12 USCIS-PM D.3(C) for more details.

[CzarDee]

First, what matters is not how many months she was away in each year, but how long each particular absence was. Are you saying that she had a single absence of 11 months, and no other absences of more than 6 months? If so, then that absence is presumed to have interrupted her continuous residence, but this presumption can be overcome with strong evidence of her ties to the US. If the presumption is overcome, then her continuous residence was never interrupted, and she can apply 90 days before being a permanent resident for 5 years, which would be Dec 2020. If the presumption is not overcome, then she has to wait until 4 years and 6 months after her return from that absence before she can apply for naturalization. You did not state which month she came back from her absence, so I cannot give you an answer for when she can apply. "4 years and 1 day" is NOT applicable -- that only applies to people who were absence for more than 1 year, who are able to overcome the presumption in the last year of their absence. See 12 USCIS-PM D.3(C) for more details.

She was in our home country for 11 months from Jan 31, 2018 to Dec 02, 2018.
She was in the US from Dec 2, 2018 to April 25, 2019, then away for 5 months, went back to US in Sept 2019.
So is it safe to say she should start from Dec 2018? We can justify her 5 months absence inn2019, she was supposed to go back in the US from the UK but she had a stroke.
This year, she was again back in our home country for 5 months because my father passed away and had to sort out legal matters.

Thank you for your reply. Much appreciated.

[okccanary]

First, what matters is not how many months she was away in each year, but how long each particular absence was. Are you saying that she had a single absence of 11 months, and no other absences of more than 6 months? If so, then that absence is presumed to have interrupted her continuous residence, but this presumption can be overcome with strong evidence of her ties to the US. If the presumption is overcome, then her continuous residence was never interrupted, and she can apply 90 days before being a permanent resident for 5 years, which would be Dec 2020. If the presumption is not overcome, then she has to wait until 4 years and 6 months after her return from that absence before she can apply for naturalization. You did not state which month she came back from her absence, so I cannot give you an answer for when she can apply. "4 years and 1 day" is NOT applicable -- that only applies to people who were absence for more than 1 year, who are able to overcome the presumption in the last year of their absence. See 12 USCIS-PM D.3(C) for more details.

Thanks for clarifying and correcting me on the 4 year and a day rule!