Continuity of Residence

Transcription

1 Continuity of Residence Introduction. Continuous residence within the United States for a period of 5 years preceding the application for naturalization is one of the basic eligibility requirements for admission to citizenship. This page outlines continuous residence and the classes of applicants for whom that requirement may either be reduced, modified, or waived entirely. The information is outlined as follows: Continuous residence as a basic requirement for naturalization Defined breaks in the continuity of residence Application to Preserve Residence for Naturalization Purposes (Form N-470) Applicants having a reduced continuous residence requirement Classes of applicants eligible for constructive continuous residence while outside the United States Applicants not subject to the continuous residence requirement Documenting continuous residence Conclusion Continuous Residence as a Requirement for Naturalization. Applicants for naturalization must have (1) resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing has been physically present for periods totaling at least half of that time and (2) resided continuously within the United States from the date of the application up to the time of admission to citizenship." Continuous residence and physical presence are interrelated requirements, but each must be satisfied in order for the application to be approved. The concept of continuous residence concerns maintaining domicile in the United States over the period of time outlined. Regulations provide the general rule that for naturalization purposes the residence in question is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location. A related consideration is whether the applicant, since admission to lawful permanent residence, has maintained that status up to the time of admission to citizenship. Lawfully admitted for permanent residence is defined as having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. The "not having changed" part of the definition recognizes the fact that at any time after gaining lawful permanent residence, the person on whom it was conferred may forfeit that status. For example, any departure from the United States under an order of removal terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for naturalization purposes, even if the applicant happened to retain possession of the original PRC. On the other hand, an

2 applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. Other presumptions that an applicant has abandoned lawful permanent resident status would be evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability, or failed to file federal or state income tax returns because he or she considered himself or herself to be a nonresident alien. In verifying that the applicant has not relinquished permanent resident status prior to applying for naturalization, it is necessary to consider the entire period from the original admission to lawful permanent resident status until the present. Certain provisions of the Act reduce the five-year period of continuous residence for some types of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during three years immediately preceding their application for citizenship the period of required continuous residence is reduced correspondingly from five to three years. Other provisions in the Act and other laws provide exceptions by which time abroad in certain activities is credited as constructive continuous residence in the United States, and still others that exempt special classes of applicants from the continuous residence requirement entirely. Defined Breaks in Continuity of Residence. Every applicant has the burden of establishing facts and evidence that he or she has complied with the continuous residence requirement. However, the Act specifies two types of absence from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization: (1) Absence of More than 6 Months But Less than 1 Year. If an absence of more than six months but less than one year has occurred during the period for which continuous residence is required prior to the filing of the application for naturalization, or between the filing of the application and the date of any hearing, such absence is presumed to break the continuity of such residence. However, this presumption of loss of residence can be overcome if the applicant can establish to the satisfaction of the Attorney General that he or she did not in fact abandon residence during such period. Acceptable evidence for this purpose may include, but is not limited to, documentation that during the absence the applicant did not terminate his or her employment in the United States nor obtain employment while abroad; the applicant's immediate family remained in the United States; and the applicant retained full access to his or her United States residence. (2) Absence for a Continuous Period of 1 Year or More. The Act provides that absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of residence.

3 An exception in the case of a person who, after having lived in the United States as a lawful permanent resident for an uninterrupted period of at least one year, goes abroad for the purposes of employment by or contract with the United States government or an American institution of research recognized as such by the Attorney General, or employment by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof, or by a public international organiza tion of which the United States is a member, as defined in section 316(b) of the Act. No further period of absence from the United States shall break the continuity of residence if that applicant establishes to the satisfaction of USCIS prior to beginning such employment and prior to the expiration of one year of continuous absence that his or her absence is for the purpose of the qualifying employment and upon return proves to the Attorney General's satisfaction that the absence has been for such purpose. The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the foregoing exemption are also entitled to such benefits during the period when they were residing abroad as dependent members of the principal applicant's household. Regulations provide that the process by which a qualified applicant seeks the required approval of USCIS for the proposed absence is the Application to Preserve Residence for Naturalization Purposes, Form N-470. Unless the applicant applies in accordance with those rules, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under paragraphs (3) and (5) of section 316.2(a) of the Act shall disrupt the continuity of that applicant's residence. The application of a person who is subject to the continuous residence requirement but has been continuously absent for a year or more without qualifying for the exception benefits, or making a timely application for such benefits, must be denied for failure to meet the continuous residence requirement. In the case of a denied applicant who is subject to the five-year continuous residence period, this means that he or she becomes eligible to overcome that impediment four years and one day following the date of return to the United States to resume permanent residence. If the case of an ineligible applicant who is subject to the three-year statutory residence period, eligibility to overcome the impediment and to file a new application for naturalization will occur two years and one day following the date of return to resume permanent residence. Application to Preserve Residence for Naturalization Purposes (Form N-470). The application process for preservation of residence can be applied for using the N-470. If a Form N-470 application is based upon a claim that the applicant is going or has gone abroad for employment by an American institution of research, a public international

4 organization, or an organization recognized under the International Immunities Act, the standing of the qualifying organization must be confirmed. An approval of a Form N-470 that names a qualified spouse and dependent unmarried sons and daughters of the applicant will cover those family members also. Note that the approval of an Application to Preserve Residence will not shield an applicant or any family members listed on the applicant's Notice of Approval of Application to Preserve Residence (Form N-472) from the presumption of having relinquished lawful permanent resident status while abroad if the applicant or family member claimed special tax exemptions as a nonresident alien. However, the presumption may be overcome with acceptable evidence that establishes abandonment of lawful permanent resident status did not occur. Applicants Having a Reduced Continuous Residence Requirement. Under certain circumstances a lesser amount of continuous residence is required of certain classes of applicants: (1) Spouse Living in Marital Union with a United States Citizen for 3 Years. Spouses of United States citizens are required to establish a continuous residence period of three rather than five years immediately preceding their application for naturalization. Applicants Eligible for Constructive Continuous Residence While Outside the United States. For some applicants, time spent outside the borders of the United States may be counted as all or part of the continuous residence required: (1) Employee of the U.S. Government, an American Institution of Research, an American Firm Engaged in Development of U.S. Foreign Trade and Commerce or its Subsidiary, or a Public International Organization The spouse and dependent unmarried sons and daughters who are members of the household of a qualified applicant are entitled to the same benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary. (2) Resident Going Abroad for a Religious Vocation. (3) Non-citizen National of the United States. A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (4) Service for 3 Years in the U.S. Armed Forces. (5) Service on Certain U.S. Vessels. Applicants Not Subject to the Continuous Residence Requirement. Certain classes of applicants are exempted from continuous residence as a requisite for naturalization.

5 (1) The Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States, or E ngaged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad in Such Employment. (2) Employee of a U.S. Incorporated Nonprofit Communications Media Organization Disseminating Information That Promotes U.S. Interests Abroad. (3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces. (4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II. (5) Service in the U.S. Armed Forces for 3 years. (6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities. These include: April 6, 1917-November 11, 1918 (World War I); September 1, 1939-December 31, 1946 (World War II); June 25, 1950-July 1, 1955 (Korean hostilities); February 28, 1961-October 15, 1978 (Vietnam hostilities); August 2, 1990-April 11, 1991 (Persian Gulf conflict); September 11, 2001-present (Operation Enduring Freedom); or Any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force that the President has designated for naturalization benefits by executive order. Applicants who apply for naturalization under this section of law are not required to meet the minimum continuous residence requirements. However, applicant who was not in lawful permanent resident status on the day of filing the application for naturalization must establish that at the time of enlistment or induction into the Armed Forces of the United States he or she was physically present in the United States or its outlying possessions. Enlistees under the Act of June 30, 1950 (Lodge Act). Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization. Documenting Continuous Residence. The applicant has the burden of establishing by a

6 preponderance of the evidence that he or she meets the continuous residence requirement. At the time of the examination of the application for naturalization, the applicant may be required to establish the lawful permanent resident status by submitting the original evidence, issued by the Service, of lawful permanent residence in the United States, as well as any passports, reentry permits or other documents used to enter the United States at any time afte r the original admission for permanent residence. Mere possession of a Permanent Resident Card for the period of time required by the law does not in itself establish the applicant s continuous residence for naturalization purposes; actual maintenance of his or her principal dwelling place in the United States is required. For example, a "commuter alien" may have held and used a PRC for 7 years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period. The A-file of any applicant who at the time of examination claims not to be in possession of his or her PRC card must be carefully reviewed for verification of the claimed status. Checks of the Central Index System (USCIS) and other Service databases may be consulted, as well as other documentation submitted by the applicant. Never assume that the application and the related file will contain complete and accurate data regarding the applicant s continuous residence and physical presence. Present procedures, for example, authorize reentry upon presentation of the applicant s PRC rather than a reentry permit when the absence has been less than one year, as well as waiving the reentry permit requirement for certain spouses or children of Armed Forces personnel. In such cases the file may contain nothing whatsoever concerning such reentries. Moreover, officers of foreign immigration or customs authorities may not place stamps in travel documents concerning some entries and exits from those countries. When documentation is inadequate or inconclusive, careful interrogation and use of the applicant's own testimony may be of crucial importance in developing the facts required to make a correct conclusion regarding the continuous residence question. The same testimony can have a bearing on related issues such as the physical presence requirement or the possibility of an applicant's excludability or removability. You should, therefore, conduct an inquiry into such application items as absences, addresses, emp loyment, and tax status with a view to resolving all such issues. Conclusion. Continuous residence within the United States for five years immediately preceding the application and until the date of naturalization is a basic eligibility requirement under the Act. There are exceptions for certain classes of applicants eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for exemption from the requirement. Those exceptions, however, often prescribe other conditions that must be met in order to qualify for the exception. Applicants who cannot meet all the stipulated conditions for the exception must meet the general continuous residence requirement in order to be naturalized.