Basic residence and physical presence requirements must be met in order to qualify for naturalization. The noncitizen applicant must be a lawful permanent resident (LPR). However, certain non-residents who served in the U.S. military are an exception and may qualify for U.S. citizenship.
As a general rule, the noncitizen must have continuously resided in the U.S. as a lawful permanent resident five years immediately prior to applying for U.S. citizenship.
The application is made on form N-400 and may be filed 90 days early or 3 months before the end of the required continuous residence period.
Only three years of continuous residence is required for spouses of U.S. citizens. The U.S. citizen spouse through whom the noncitizen obtained his lawful permanent resident status must have been a U.S. citizen during those three years and they must also have been living together as husband and wife. The noncitizen will have to complete the five year continuous residence requirement if the marriage ends in less than three years.
The three year continuous residence requirement also applies to spouses and children who obtained lawful permanent resident status through the Violence Against Women Act (VAWA).
Continuous residence is not the same as physical presence. To meet the continuous residence requirement, the noncitizen does not have to be physically present in the U.S. throughout the entire five or three year period.
Absences of six months or less from the U.S. are acceptable and will not disrupt continuous residence. However, absence from the U.S. for six months but less than one year raises a rebuttable presumption that U.S. residence has been abandoned.
A finding of abandonment of residence will disrupt continuous residence and may result in a denial unless the applicant demonstrates lack of intent to abandon residence. Evidence which may establish continuity of residence include not terminating employment in the U.S., presence of immediate family in U.S., retention of full access to U.S. home and not obtaining employment abroad.
Absence from the U.S. for one year or more will interrupt the continuity of residence. Counting the relevant period will begin again when the noncitizen returns to the U.S. Applicants do not have to wait for the full period to file the N400 application. Spouses of U.S. citizens can file after two years and one day while other LPRs can file after four years and one day.
There are instances when an absence from the U.S. for one year or more may be excused. These include employees abroad working for certain U.S. government agencies and U.S. companies. They must however seek permission to preserve their residency for naturalization purposes by filing Form N-470.
The applicant for naturalization must also meet the physical presence requirement. The noncitizen must have been physically present in the U.S. for one half of the required residence period.
Applicant must be in the U.S. for an aggregate period of not less than 30 months for the five-year period, and 18 months for the three-year period. Employees abroad working for the U.S. government and firms must also satisfy this requirement.
The applicant must reside within the state or within the USCIS district where the application is filed for three months immediately prior to the filing of the application.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, log on to his website at www.seguritan.com or call 212-695-5281.)