Continuous Residence and Physical Presence for Naturalization
- Applicants generally must be a continuous resident for 5 years subsequent to lawful permanent resident or green card status;
- Must have resided for at least three months in the state where the application is filed;
- Must be physically present in U.S. for at least one-half of the 5 years (or one-half of 3 years if the spouse of U.S. citizen or obtained Legal Permanent Resident Status through VAWA);
- Must Reside Continuously in the U.S. from the Date of Filing to the Date of Approval of Citizenship;
In order to naturalize, the lawful permanent resident must establish both “continuous residence” and “physical presence” in the US prior to applying for naturalization. These concepts can be confusing for many individuals.
Continuous presence is the maintenance of the residence in the US over a period of time-based on an individual’s actual place of abode or dwelling. US immigration laws require lawful permanent residents to maintain such continuous residence in order to avoid a finding of abandonment of residence.
Maintaining Continuous Residence and Physical Presence
For naturalization purposes, the lawful permanent resident must at least show five (5) years of continuous residence (three years if the applicant is married to a U.S. citizen for at least 3 years to a US Citizen or through VAWA)
The common issue that often arises is whether there has been a continuity of residence since the foreign national received his or her permanent residence and whether he or she had interrupted this residence throughout this time. It is important to note that the physical presence requirement is normally determined at the time the application for naturalization is filed in terms of how many days the foreign national was in and out of the United States.
Factors that may establish continuity of residence include: (a) not terminating employment in U.S.; (b) presence of immediate family in U.S.; (c) retention of full access to U.S. home; (d) not obtaining employment abroad. 8 CFR §316.5(c)(1)(i)(A)–(D). An absence of one year or more “shall” disrupt the continuity of residence 8 CFR §316.5(c)(1)(ii), even where the applicant had a reentry permit.
Exceptions to the Continuous Residence or Physical Presence Requirements
While the U.S. Citizenship and Immigration Services (USCIS) mandates that applicants maintain a continuous period of residence in the U.S., certain circumstances allow for exceptions.
- Government Employees: Green card holders who are employed by the U.S. government, including the military, can preserve their continuous residence status even if they are stationed abroad. This provision ensures that government employees don’t disrupt their continuous residence due to official duties.
- Citizen Spouse: If a naturalization applicant is married to a U.S. citizen who is employed abroad, either by the U.S. government or certain international organizations, they can obtain an exception to the continuous residence requirement. This means that even if the green card holder accompanies their citizen spouse abroad for work, their continuous residency for naturalization purposes remains intact.
- Religious Workers: Ministers or individuals performing priestly functions for a recognized religious denomination can be exempted from the continuous residence requirement if their absence from the U.S. is due to their religious duties.
- Employment with International Organizations: Those working with specific international organizations, like the United Nations, can also preserve their residence for naturalization purposes.
- Preservation of Residence: In certain situations, applicants can file a specific form with the USCIS to preserve their residence for naturalization purposes if they know they’ll be outside the U.S. for a continuous period of more than one year.
It is crucial to know these exceptions before proceeding, especially if you are anticipating any prolonged absence from the U.S. It is best to consult with an experienced immigration counsel with knowledge of maintaining the permanent residence status.
The Role of Legal Counsel
If you believe you may have an issue with maintaining continuity of residence, contact one of our competent immigration attorneys to discuss your case. The disruption of residence may become an issue in the naturalization application process even if it happened many years before the filing of the naturalization application.
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