The Continuous Residence and Physical Presence requirements for Naturalization

February 1, 2016

“I recently took a trip longer than 6 months but I want to apply for my citizenship”

The continuous residence and physical presence requirements for naturalization are frequently encountered legal issues in citizenship proceedings. Applicants are required to show that they have resided continuously in the U.S. for 5 years prior to applying and were physically present in the U.S. for 30 months within the same 5 year period. USCIS defines “residence” for these purposes as a permanent resident’s principal physical dwelling place. While an order of removal will terminate green card status and a failure to file tax returns can point towards a finding of abandonment, extended absences outside the United States can disrupt an applicant’s continuous residence. The burden of proof to establish compliance with the continuous residence requirement rests with the applicant – what this means is that if you have long trips outside the U.S. as a green card holder, you will need to prove that they didn’t interrupt your continuous residence. Absences of more than 6 months but less than 1 year will be presumed to break the continuity of residence, including any absences that take place after filing of a naturalization application and before the taking of the oath of citizenship. Important to note is that someone’s intent is not relevant in determining whether disruption in continuous residence has occurred – the period of absence from the U.S. is what the government will focus on.

Evidence that can be used to overcome a presumption of a loss of continuity of residence can include documentation of the following: the applicant didn’t leave his or her job or find a job overseas, the applicant’s immediate family remained in the United States, and the applicant remained free to come back to his or her U.S. residence (i.e. that the applicant’s residence remained there for him or her to return to).

An absence of one year or more will break continuous residence – someone who was denied on this ground, however, may reapply for citizenship 4 years and 1 day after returning to the U.S. to resume permanent residence (2 years and 1 day if applying for citizenship based on marriage).

You can under certain circumstances preserve your residence despite an absence of 1 year or more if you have qualifying employment abroad. If you have questions about this process or are concerned about extended absences as you apply for citizenship, please contact us for a consultation.

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