25 May Naturalization Application Approved Under the 4 Year and 1 Day Rule
An individual came to our Philadelphia immigration law firm because he had applied for US Citizenship without the assistance of an attorney and received a Notice that he was not eligible for Naturalization because of an absence from the United States of more than one year. To the contrary, he was in fact legally eligible for Naturalization pursuant to the “Four Years and One Day” rule in 8 C.F.R. § 316.5(c)(1)(ii) and USCIS had misapplied the law in his case.
8 C.F.R. § 316.5(c)(1)(ii) reads, in relevant part:
“[A]bsences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under §316.2 (a)(3) and (a)(5) shall disrupt the continuity of the applicant’s residence. 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.”
Pursuant to this section, therefore, a Naturalization applicant with an absence from the U.S. of more than one year meets their five-year statutory residence requirement by applying four years and one day from the date of their return to the U.S. as a permanent resident.
Our client had been outside the United States for more than 1 year and had re-entered with a re-entry permit. He applied for Naturalization more than four years and one day following his re-entry to the United States.
Based upon our legal arguments USCIS reversed its erroneous decision and scheduled our client for an oath ceremony to become a United States Citizen.