Frequent Traveler to US from Canada

[Natan]

As a multinational who has travelled much, I have always known that an accurate record of all my travels, and the exact dates I entered and exited each country, were of the utmost importance. I do not remember when I learnt to do this or what the source of that knowledge was. But ever since I was a kid, I kept meticulous records of all my international travels.

So many things are dependent on physical presence including immigration status, citizenship, healthcare insurance, tax obligations, voting requirements, driving privileges, business registrations, contract negotiations, employment authorizations, and passport extensions/renewals. Having these travelogues have saved my bacon so many times, that it has never occurred to me to relax my vigilant record keeping in this regard.

Accurate and complete record keeping is an important aspect of any migrants journey.

 

[Natan]

Now if you want to talk about onerous citizenship requirements, there is always the United States.

The US requires you to not only maintain 'continuous' residence (where 'continuity' of residence is ambiguously defined) as LPR for the five years preceding the application, but also physical presence of at least 30 months within the past five years. And the US also does not have exit checks.

The U.S. is not a stickler for the exact number of days of physical presence, in order to qualify for citizenship. The U.S. is far more concerned that the applicant has met the "spirit of the law", in that the U.S. was their primary place of residence; as opposed to the "letter of the law", requiring applicants meet the exact number of days present. No citizenship applicant in America has ever been denied because they were short a few days (or weeks or even months) of physical presence.

One may apply for citizenship up to three months before they are eligible for citizenship. Most citizenship applications are adjudicated rapidly, and approved applicants are generally sworn in six to nine months from their application.

Few countries' governments can boast of the high level of bureaucratic efficiency of the United States Government. While there is much to be improved in the way the U.S. Government operates, compared to most other governments, the bureaucracy of American Government is efficient, streamlined and very low cost.

 

[meyakanor]

The U.S. is not a stickler for the exact number of days of physical presence, in order to qualify for citizenship. The U.S. is far more concerned that the applicant has met the "spirit of the law", in that the U.S. was their primary place of residence; as opposed to the "letter of the law", requiring applicants meet the exact number of days present. No citizenship applicant in America has ever been denied because they were short a few days (or weeks or even months) of physical presence.

One may apply for citizenship up to three months before they are eligible for citizenship. Most citizenship applications are adjudicated rapidly, and approved applicants are generally sworn in six to nine months from their application.

Few countries' governments can boast of the high level of bureaucratic efficiency of the United States Government. While there is much to be improved in the way the U.S. Government operates, compared to most other governments, the bureaucracy of American Government is efficient, streamlined and very low cost.

That may indeed be the case.

I was just going by the actual official naturalization requirements, where both continuous residency (of five years) AND physical presence (at least half of the time need to be physically present in the US) requirements need to be met. And you cannot apply until at least the fifth year anniversary of your LPR status, unlike Canada where one can apply as early as three years after you become PR (if you have the number of days within the relevant period).

There are more flexibility indeed with regards to these requirements, and sometimes, you can be outside of the US for more than 180 days but less than a year (for the right reason), and still would not break your continuous residency (provided you apply for SB-1 or re-entry permit), and still be able to apply after only 4 years and 9 months after getting green card.

With Canada, you may be able to overcome PR residency requirements due to some H&C considerations, but without the number of days, one can never be a citizen.

I agree with you regarding naturalization processing time. In Canada, you would have to be lucky for your application to be completed in a year's time (in my case, I got mine less than 6 months, but it was more of an exception because of my straight forward travel situation and obsession with record keeping).

 

[Natan]

That may indeed be the case.

I was just going by the actual official naturalization requirements, where both continuous residency (of five years) AND physical presence (at least half of the time need to be physically present in the US) requirements need to be met. And you cannot apply until at least the fifth year anniversary of your LPR status, unlike Canada where one can apply as early as three years after you become PR (if you have the number of days within the relevant period).

There are more flexibility indeed with regards to these requirements, and sometimes, you can be outside of the US for more than 180 days but less than a year (for the right reason), and still would not break your continuous residency (provided you apply for SB-1 or re-entry permit), and still be able to apply after only 4 years and 9 months after getting green card.

With Canada, you may be able to overcome PR residency requirements due to some H&C considerations, but without the number of days, one can never be a citizen.

I agree with you regarding naturalization processing time. In Canada, you would have to be lucky for your application to be completed in a year's time (in my case, I got mine less than 6 months, but it was more of an exception because of my straight forward travel situation and obsession with record keeping).

It has been my experience that, when it comes to consumer products, the U.S. and Canadian governments operate on very different philosophies. The Canadian Government's approach is to distrust consumers and require proof of eligibility, which proof Government diligently verifies. If there is any failure to meet the letter of the law, no matter how minor, the service is generally denied. The American Government's approach is to trust consumers and to generally grant services once eligibility is established by meeting the spirit of the law. I believe the differences in these approaches can be attributed to, in the case of Canada, the legacy of monarchy; and in the case of America, to the citizens' genuine distrust of government and Government's response to that distrust by being as unobtrusive as possible.

As an example of this soft of thing, when I first moved to Canada, I applied for a credit card at one of the big banks. My application was denied because I could not provide the required ID. I provided my American driving license, but what was written on the bank's list of acceptable identification was "driving licence". Even though the list stated that it would accept American driving licences, and I explained that Americans always spell it license, my application was denied for failing to meet the ID requirement. (Supervisors and managers were called over to review the situation and lecture me on the benefits of having a licence, as opposed to a license.) This would never have occurred in the U.S. Even if I couldn't produce any of the IDs listed on their list, as long as they were satisfied that I had identified myself, I would have been deemed to have met the "spirit" of the requirement.

 

[megaman]

No citizenship applicant in America has ever been denied because they were short a few days (or weeks or even months) of physical presence.

I don't see how this could possibly be true. What evidence do you have that made you think you could claim this?

 

[rish888]

(Side-note: Oddly enough, a Federal Court has recently stated that compliance with the PR Residency Obligation is NOT an eligibility requirement for issuance of a PR card, whereas IRCC information explicitly states that compliance with the PR RO is a requirement.)

Wasn't this always the case? My understanding is that in the case of RO non-compliance CIC begins inadmissibility procedures but still issues 1-year validity PR cards.

 

[Natan]

I don't see how this could possibly be true. What evidence do you have that made you think you could claim this?

I have done considerable research on U.S. citizenship cases. In all my research, I have never come across a case of an applicant whose application was denied solely for being less than 90 days short on the physical presence requirement. That does not mean that a case where other issues are outstanding will not include a shortfall of physical presence -- U.S. authorities love piling on charges as a form of intimidation, charges often intended to be bargained away during legal negotiations.

An LPR always has a right to redress their application's denial through the courts. By the time any court gets to their case, any shortfall of 90 days or less will have been made up. (Unlike Canada, the counting of days present does not stop on the day the application is signed.) A court would throw such a case out, or find in the plaintiff's favour, as, by the date of the court hearing, the applicant would have accumulated enough days present to be eligible for citizenship. Knowing this, the U.S. Government is not going to waste their time with the denial, unless there are also other reasons for rejecting the application, in which case, questions of physical presence are added as a way for the Government to bolster their case and intimidate the applicant from appealing their case in the courts.

Current policy, when the Government knows there is a non-significant shortfall in physical presence is to either (a) process the application or (b) hold the application until it is eligible for processing. In fact, the Government has so thrown in the towel on adjudicating non-significant short fall cases, that they even "permit" applicants to submit their applications three months early.

This information should not be considered a "how to" guide on acquiring citizenship early. If the Government suspects you are committing perjury (knowingly claiming to be present when you were not), you may find yourself in a lot of trouble. Not only would you have committed perjury, you would also have committed citizenship fraud. Because your application was mailed or shipped to USCIS, you would also have committed wire fraud. If your application crossed state lines (likely, even if being sent to an address in your same state), then you have broken other federal transportation and commerce fraud statutes. The Government will pile-on over a half dozen charges by the time they seek to indict you, carrying at least a decade in prison. Any felony conviction is grounds for revocation of LPR status and deportation.

 

[meyakanor]

While we're still kind of discussing the topic of US vs. Canadian naturalization process, I came across this extreme case of someone being outside of the United States for 6 years for education purposes, and was still able to maintain his green card (he renewed his re-entry permit three times, and maintained that he never abandoned his intention to reside in the US)

http://archive.is/AEqFx

This is obviously an extreme case (and who knows if he would have been successful in the anti-immigration climate of the current US administration), but this kind of case would never ever fly in Canada, where residency obligation is strictly based on physical presence rather than residency (unless there is sufficient ground for H&C consideration, a bar that keeps getting higher by day).

The clock obviously resets for the purpose of naturalization, due to a disruption of continuous residency (after which the so-called '4 years and 1 day' rule would apply), but I'm amazed to see how liberally they accepted his intent to continue residing in the US, even after such a long absence from the country.

 

[Natan]

While we're still kind of discussing the topic of US vs. Canadian naturalization process, I came across this extreme case of someone being outside of the United States for 6 years for education purposes, and was still able to maintain his green card (he renewed his re-entry permit three times, and maintained that he never abandoned his intention to reside in the US)

http://archive.is/AEqFx

This is obviously an extreme case (and who knows if he would have been successful in the anti-immigration climate of the current US administration), but this kind of case would never ever fly in Canada, where residency obligation is strictly based on physical presence rather than residency (unless there is sufficient ground for H&C consideration, a bar that keeps getting higher by day).

The clock obviously resets for the purpose of naturalization, due to a disruption of continuous residency (after which the so-called '4 years and 1 day' rule would apply), but I'm amazed to see how liberally they accepted his intent to continue residing in the US, even after such a long absence from the country.

Note that the LPR renewed their re-entry permit three times -- which clearly established the LPR's intent to reside in the U.S. and maintain their LPR status. This is not such an extreme, or even uncommon, case.

 

[dpenabill]

Oddly enough, a Federal Court has recently stated that compliance with the PR Residency Obligation is NOT an eligibility requirement for issuance of a PR card, whereas IRCC information explicitly states that compliance with the PR RO is a requirement.

Wasn't this always the case? My understanding is that in the case of RO non-compliance CIC begins inadmissibility procedures but still issues 1-year validity PR cards.

Not quite. But the explanation is complicated.

To be clear, IRCC (like CIC before it) asserts that compliance with the PR Residency Obligation IS REQUIRED to be eligible for a PR card. Not only is IRCC continuing this policy, there are strong reasons to conclude this particular Federal Court ruling is something of a misstatement. But again, that explanation is complicated.

Thus, I intend to give a more complete explanation in the discussion where I previously cited and linked this particular Federal Court decision. See Misrepresentation in an old abandoned PR card renewal application (this should link)

Otherwise: The one-year PR cards are issued to PRs who have been denied a PR Travel Document or issued a Departure Order (sometimes called a "Removal Order") and who have an appeal pending, not to PRs who IRCC has referred their PRC application into Secondary Review (even though this has been taking over a year for many).

In most actual cases we know about, if IRCC concludes the PR is not in compliance with the PR RO, IRCC either does not issue a PRC or does not deliver the PRC even if it has been issued. There are some isolated cases, involving very particular circumstances, in which the Federal Court ordered CIC (these are pre-IRCC cases) to deliver an already issued PRC, but in those cases the Federal Court concluded that CIC had determined that the PR was eligible for and entitled to be issued a PR card, and CIC was withholding delivery because it had determined the PR was no longer in compliance with the PR RO.

 

[meyakanor]

The U.S. is not a stickler for the exact number of days of physical presence, in order to qualify for citizenship. The U.S. is far more concerned that the applicant has met the "spirit of the law", in that the U.S. was their primary place of residence; as opposed to the "letter of the law", requiring applicants meet the exact number of days present. No citizenship applicant in America has ever been denied because they were short a few days (or weeks or even months) of physical presence.

One may apply for citizenship up to three months before they are eligible for citizenship. Most citizenship applications are adjudicated rapidly, and approved applicants are generally sworn in six to nine months from their application.

Few countries' governments can boast of the high level of bureaucratic efficiency of the United States Government. While there is much to be improved in the way the U.S. Government operates, compared to most other governments, the bureaucracy of American Government is efficient, streamlined and very low cost.

Anyway, if you are still interested in discussing US vs. Canadian naturalization process, here is an example of a US citizenship application being denied due to strictly having fewer than required physical presence days in the United States

http://archive.is/SVAnR

 

[Natan]

Anyway, if you are still interested in discussing US vs. Canadian naturalization process, here is an example of a US citizenship application being denied due to strictly having fewer than required physical presence days in the United States

http://archive.is/SVAnR

This is really old -- 2011.

On the surface, this case seems to be about not having met the physical presence requirement by less than 90 days.

But we don't know all the facts. It's possible that USCIS does not believe OP has maintained their primary residence in the USA during the preceding period being reviewed.

 

[Felonious.Spunk]

Holy off-topic rabbit hole, Batman.

OP - like you, I traveled frequently to the US. The Canadian Citizenship officer went over my travel records (more than 50 trips) with a fine-toothed comb and compared them against the CBSA entry record. That those trips were for business, at the behest of my American-HQ employer, didn't matter in the least. So definitely go back and use whatever resources are necessary to reconstruct every one of those trips for the physical presence calculator.