U.S. CITIZENSHIP RESIDENCE & PRESENCE REQUIREMENTS

. . . back to marriage green cards

Picnic in Washington D.C.

A naturalization applicant must meet all 4 residence and physical presence requirements to qualify for naturalization (USA citizenship).

Requirement Number 1: 5/3 Years of “Continuous Residence” in USA

An applicant for U.S. naturalization must have “resided continuously” in the USA as an LPR (green card holder) for the last 5 years immediately prior to applying for naturalization. If the applicant is still married to the U.S. Citizen who sponsored them for their LPR status, the continuous residence period is 3 years. INA § 316(a)(1).  An applicant may leave the USA during the 5/3 years, but no single trip is supposed to be for over 6 months (180 days).

What if I have 1 trip in the last 5/3 years that was over 6 months?

As stated above, if a person left the U.S. for a trip lasting less than 6 months, continuous residence is not “disrupted” even though they left the USA and therefore the continuous residence requirement is satisfied.

But what if a person left the USA for even 1 trip lasting 6-12 months? If they want to apply for USA citizenship they would have to prove that even though they left for that long of a trip, they did not disrupt their “continuity of residence” in the USA.

How does an applicant prove they did not disrupt their “continuity of residence” in America if they left the USA for 6-12 months? The following type of evidence that is normally included with the N-400 application for naturalization when a person has a 6-12 month trip during the last 5/3 years are documents like this: 

• proof that employment in the U.S. was not terminated
• proof that applicant’s immediate family remained in U.S. while he was abroad
• proof that the applicant retained full access to his home in the U.S.
• proof that the applicant did not find new employment while abroad
• USA bank statements
• USA tax returns with USA residence on them
• proof of USA auto insurance
• proof of medical insurance in USA
• house or rent payments for USA residence
• USA driver’s license
• USA credit cards
• photographs taken while in USA
• membership in USA organizations
• USA school transcripts

Sorry, but it is impossible for me to list all of the evidence here because each person’s situation is different. The applicant should tell the interviewing Immigration Officer at the citizenship interview that his/her intent was not to disrupt the continuity of residence in the USA and that their 6-12 month trip abroad was merely temporary in nature.

Vacationing at Disneyland

If an applicant has at least one trip of 6-12 months, they should know that it will be up to the interviewing Immigration Officer whether to excuse that trip or not. It is entirely in that officer’s discretion on the day of the citizenship interview. Often success depends on how professionally prepared the N-400 package appears. Occasionally a supervisor gets involved.  If the Immigration Officer indicates that they are not inclined to approve the application for USA citizenship, it is allowed for the applicant to ask that their N-400 be withdrawn, but the government fees will not be refunded.

In my opinion, submitting an N-400 with two trips of 6-12 months is pushing it, but some say, why not try, all I have to lose is my time and government fees?

Many green card holders who have traveled abroad for trips of 6 – 12 months hire an immigration attorney to either represent them, or to at least review and critique their N400 applications before submitting them to the USCIS for a better chance of success.

What if I have 1 trip that is over 1 year? What is the 4 Years+ 1 Day Rule?

If a person has even 1 trip for over 1 year (365 days) they definitely have broken the “continuity of residence.”  The Immigration Officers are not allowed to excuse a 1+ year trip like they can a 6-12 month trip. However, there is a rule that states that an applicant may “restart the clock” on the day they returned from the 1 year (or more) trip – and that they don’t have to wait the full 5 years again, but only 4 years + 1 day (for applicants married to USA citizens, it is a 2 years + 1 day rule).

The best way to explain this rule is to give you an example:

• An applicant became a Permanent Resident on January 1, 1994.
• She lived in the United States for 3 years, then returned to her native country for 1 year and 3 Months.
• She got a Re-entry Permit before leaving the United States so that she could keep her Permanent Resident status and return even though she was gone for more than 1 year.
• The applicant re-entered the USA using her Re-entry Permit, green card, passport and “ties to America” documents on April 1, 1998.

When is she eligible for naturalization according to the 4 years + 1 day rule?

On April 2, 2002, which is 4 years and 1 day after she returned to the United States on April 1, 1998. Using the http://www.timeanddate.com calculator, she entered April 1, 1998 and added 365 x 4 + 1 (1461 days) and the result was April 2, 2002. If the N-400 is received by the USCIS even one day early (cannot use the 90 day rule in this situation) it will be rejected. Sometimes the USCIS accidently accepts an N-400 early, but the Immigration Officer notices it at the citizenship interview and denies the case (and no refund of the government fees!).

FYI, the last 364 days that the applicant was out of the USA counted toward her time as a Permanent Resident in “continuous residence,” but the 3 years in the USA before she left did not.

Can an applicant travel during the 4 years + 1 day rule period?

Yes, an applicant can travel during the 4 years + 1 day period, but they still have to abide by the “continuity of residence” rules which means no trips over 6 months.

Can I Use the 4 Year + 1 Day Rule After a 6-12 Month Trip?

Maybe. 8 CFR 316.5(c)(1)(ii) states that if a naturalization applicant disrupts her permanent resident status by leaving the USA for over 1 year, than she can reapply. The rule does not say anything about a green card holder who left the USA for 6-12 months.  Does the rule apply or not? Because the rule is not clear, it is up to the USCIS Officer’s discretion whether the 4 Year +1 Day Rule applies for a green card holder who has been outside the USA for 6-12 months (and not over 1 year).

Some immigration attorneys have successfully won these cases by saying that the U.S. Supreme Court has often stated that “nothing is better settled than that statutes should receive a sensible construction such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion.” (Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892)).  The immigration attorneys have argued that if the 4 year + 1 day rule only applies to applicants out of the USA for more than 1 year, that is an “absurd conclusion” of the statute.  Therefore, a naturalization applicant who wishes to try to use the 4 Year + 1 Day Rule in 6-12 month absence situations is definitely risking a delay in their citizenship and a possible denial.

AND Requirement Number 2: 3 Months of Local Residence

The applicant must have resided in the state or USCIS District where the N400 application is filed for 3 months immediately prior to applying for naturalization. INA § 316 (a)(1).

AND Requirement No. 3: Continuous Residence After Submitting N400 Application

The applicant must continuously reside in the U.S. from the date of filing the N400 naturalization application until the oath ceremony. INA § 316 (a)(2).

Continuous residence does not mean that the naturalization applicant must remain in the U.S. during the entire period while he is waiting for his N400 application to be processed. Generally, it means that he cannot reside or move to another country while waiting for the USCIS to decide about his N400 application. Thus, an applicant can make temporary visits while the N400 is pending, as long as he has evidence such as proof that he maintained his home in the U.S., filed U.S. tax returns, retained his employment in the U.S., etc.

AND Requirement Number 4: Physical Presence

The applicant must be physically present in the U.S. for at least ½ of the 5 (or 3) year residence period immediately prior to submitting the N400 application (see “forms” and then “N-400″ at http://www.uscis.gov) for naturalization. It’s a fairly simple math calculation.

The easiest way to figure out if this requirement is satisfied is to fill out page 4 of the N-400 located on http://www.uscis.gov. Use http://www.timeanddate.com to calculate the days abroad – please do not use a regular paper calendar.

Visiting Six Flags in New Jersey

To satisfy this requirement, your total number of days outside the USA should be less than 912.5 days (5 years x 365 days = 1825 days divided by 2 = 912.5 days). If you are eligible to file the N-400 after 3 years because you are married to a USA citizen, your total number of days outside the USA on page 4 of the N400 should be less than 547.5 days (3 years x 365 days = 1095 days divided by 2 = 547.5 days).

This calculation is not different if you are using the “4 years + 1 day” rule (see above) except that the first 364 days will be automatically counted as outside the USA.

What is that rule about filing 90 days early?

The USCIS allows applicants to file a N-400 up to 90 days early.  However, if you send the N-400 even 1 day too early, it will be rejected.  Figure out the 90 day date by using the USCIS “Filing Date Calculator:”

http://www.uscis.gov/dateCalculator.html

An applicant is not allowed to combine the “90 day early” rule with the “4 years + 1 day” rule.

Conclusion

Therefore, in order to figure out if it is time to file for USA citizenship, you need to sit down and analyze whether you meet ALL 4 of the requirements above. Are there some other exceptions?  Yes, but that will take either more legal research on your part, or the hiring of an immigration lawyer to explain all of the exceptions to you.

PERSONAL RECOMMENDATION FROM ONE OF DANIELLE’S CLIENTS

IMPORTANT NOTE ABOUT EMAILING QUESTIONS:  I get a lot of emails from people asking me to do the citizenship math calculations for them. Please at least try to figure out your case before emailing me a question.

Please do not email me your list of trips and ask me to figure it out for you.  You can do it

Second, I cannot answer a question like “in my case is this enough evidence for the Immigration Officer to excuse my trip abroad for 7 months?” for because it is impossible for me to answer that question without conducting an intake on your entire immigration history.  As a less expensive option, you may wish to request that she review and critique your entire N-400 package prior to mailing it to the USCIS.

Thanks for your courteousness!  Email danielle@immigrationworkvisa.com

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