You’ll need to maintain physical presence and continuous residence to establish eligibility for U.S. citizenship. This means that you must maintain a permanent residence in the United States, which should be the same place where you have established a domicile. You must show that you’ve maintained continuous residence for at least 5 years before the date of the naturalization application up until the date of your naturalization. The required time during which you must show continuous presence may be shorter depending on how you obtained your LPR status. For example, military members and spouses of U.S. citizens meet a shorter time for continuous residence. The officer may look at whether you’ve maintained continuous residence since gaining LPR status, even if that means over a longer period of time beyond 5 years.
Maintaining Continuous Presence
You should be able to show that you’ve had domicile and a permanent home in the United States since gaining LPR status. There are certain events that could interrupt continuous residence and create a rebuttable presumption that you’ve abandoned your LPR. The following events will break continuous residence:
- An order of removal: If ordered removed, then the time of continuous residence stops upon issuance of the order. However, a readmitted LPR or one granted LPR status by a judge can prove continuous residence without such a disruption;
- Claiming non-resident alien status for tax purposes creates the presumption that you’ve abandoned LPR. If you have not filed taxes because you consider yourself a non-resident alien, this also creates a presumption;
- Absence from the United States for more than 6 months but less than 1 year; or
- Absence from the United States for more than 1 year.
Absence from the United States for 6 months but less than 1 year
If you’ve been outside of the U.S. for more than 6 months (181 or more days) then the officer will presume that you abandoned permanent residence. You’ll need to rebut the presumption with evidence that you’ve maintained continuous residence even during the time of your absence. Such evidence includes:
- Proof of continued employment in the United States or that you sought to obtain employment in the United States while abroad.
- Proof your immediate family members continued to remain in the United States. For example your wife and minor kids.
- Proof that you continued to have full access to your United States home.
- School records showing continued enrollment as a student in the United States.
- Maintenance of household bills in the United States.
- Any other evidence that showed you continued to maintain continuous residence in the U.S. while abroad.
Absence from the United States for 1 year or more
An absence from the United States for one year or more will result in a denial of the citizenship application. If denied for this reason, you must wait a specific amount of time to reapply for naturalization and meet the continuous residence requirement. If you are required to maintain continuous residence for 5 years, then you must wait 4 years and 1 day. If you are required to maintain continuous residence for 3 years, then you must wait 2 years and 1 day. There is one way to live abroad while also preserving continuous residence. It involves applying to the USCIS for preservation of your continuous residence. However, you must meet certain eligibility criteria.
applying to preserving continuous residence
Prevention is always better than the cure. In this case, if you must live and work abroad, you should explore whether you can preserve continuous residence. If you are eligible, you can submit Form 470 to preserve continuous residence. To be eligible you must:
- Have been physically present in the United States as an LPR for at least one year prior to working abroad.
- File the Form 470 application before or after your employment begins, but not after you’ve been abroad for a continuous period of one year.
- Be employed by (1) the U.S. government; (2) a qualifying American research institution; (3) an American firm or corporation, or its majority owned subsidiary, that is engaged in the development of U.S. foreign trade and commerce; or (4) a public international organization of which the United States is a member by law.
Your spouse and dependent unmarried sons and daughters will also receive the benefit of preserving continuance residence as part of your household. Be sure to include your spouse and dependents on the application. Np separate forms are needed for your spouse and dependents.
Keep in mind that approval of the preservation of continuous residence is not unlimited. For instance, upon seeking re-admission to the United States, an officer may find that you’ve abandoned continuous residence on other grounds. For example, if you claim tax exemptions based on non-resident alien status, then you risk losing your LPR status for abandonment. Another issue is if the LPR card. It loses validity if you’ve been outside of the U.S. for one year or more. Therefore, you must also apply for a re-entry permit when returning to the United States.
Exceptions to the Continuous Residence Requirement
Under certain circumstances, you may be exempt from meeting the continuous residence requirement or you may only be required to meet a modified version of the continuous residence requirement. Exceptions apply under the following circumstances.
1. You are working for a qualifying U.S. nonprofit media organization that advances U.S. interests abroad
To qualify for the exception, you must:
- Apply for U.S. citizenship while still working for the organization, or within six months of leaving the organization;
- Have continuously worked for the media organization for at least five years after becoming an LPR;
- Be in the United States at the time of naturalization; and
- Declare in good faith that you will establish residence in the United States after leaving the media organization.
2. You Are Working As An Interpreter, Translator, Or As An Executive Or Manager in a Security Related Position.
If you are working for the Department of State or the U.S. armed forces as an interpreter, translator, or an executive or manager in a security-related position, then your time abroad working in this capacity does not break continuous residence. During the time you work abroad in the exempt positions is calculated as part of the period of residence and physical presence in the U.S. for naturalization purposes. This exemption is called the 1059(e) provision. To obtain the exemptions you must show that evidence that you are:
- Employed by the Chief of Mission (Department of State) or the U.S. armed forces;
- Under contract with the Chief of Mission (Department of State) or the U.S. armed forces; or
- Employed by a firm or corporation under contract with the Chief of Mission or the U.S. armed forces; and
You must hold the following positions as:
- An interpreter;
- A Translator; or
- An executive or manager in a security-related position.
- You must have spent at least a part of the time abroad working directly with the Chief of Mission or the U.S. armed forces.
The Meaning of Executive or Manager in a Security Related Position
You must meet certain criteria to be considered an executive or manager for immigration purposes. An executive or manager must have a high level of authority and a broad range of job responsibilities which include planning, organizing, directing, and controlling the main functions of the organization. The executive or manager must carry out these duties through the supervision of other employees. However, the job duties cannot be focused on menial work responsibilities but must be related to larger policies or operation of the organization.
Therefore, to be considered an Executive you must:
- Manage the organization or a major part of the organization;
- Establish the goals and policies of the organization, component, or function;
- Exercise broad discretion in your decision-making; and
- Only be supervised by higher level executives, the board of directors, or stockholders.
To be considered a Manager you must:
- Manage the organization, a department, subdivision, function, or a component of the organization;
- Supervise and control the work of other supervisory, professional, or managerial employees;
- Have the authority to hire, fire, promote or grant personnel actions such as leave (if you supervise other employees); or,
- Manage at a senior level (if you don’t supervise other employees); and
- You have broad discretion to determine daily operations and functions.
You must provide evidence that you carry out the above managerial or executive role. If you have the title of manager or an executive but you do not carry out the above functions within the organization, you will not be considered a manager or executive.
Period of Absence That Is Included in Continuous Residence
It is important to note that under Section 1059(e), the exemption only applies to the qualifying employment. If part of the your time abroad was spent working for a non-government organization, then this will not be factored into the continuous residence period. You should consider your eligibility for preservation of continuous residence through the I-470 form to cover such non-qualifying time.
3. Qualifying Military Service
Certain types of military service may make you eligible for a modification or exception to the continuous residence requirement for naturalization. That means time outside of the United States will be considered continuous residence. Such qualifying military service includes:
- One Year of Military Service. You are exempt from the continuous residence requirement if you meet the requirements pursuant to the Immigration and Nationality Act (INA), Section 328. You must have served for a period aggregating at least one year in the military and apply during your service or within six (6) months after being honorably discharged;
- Service during Hostilities. You are exempt from continuous residence requirement if you meet the requirements pursuant to the INA 329. You must have actively and honorably served during a conflict that the U.S. military was involved in, which include World War I and II, the Korean War, Vietnam War, or other hostilities declared by the President of the United States.
- Service in World War II Certain Natives of Philippines.
- Members who Enlisted under Lodge Act.
4. Spouse, Child, or Parent of Certain U.S. Citizens
The spouse of certain U.S. citizens may be eligible for a modification or exception to the continuous residence and physical presence requirements for naturalization.
- Spouse of U.S. Citizen for 3 Years. Pursuant to INA 319(a), you will only need to meet the continuous residence requirement for the three years preceding the naturalization application. To fall under this modified requirement you must have been living in marital union with the same U.S. citizen spouse during the required period.
- Spouse of Military Member Serving Abroad. Pursuant to INA 319(e), you are exempt from the continuous residence requirement if you are married to a U.S. citizen spouse who is “regularly stationed abroad.” To fall under this provision you must be currently married to the U.S. citizen up to the time of the naturalization ceremony, you must have a good faith intent to live abroad with your U.S. citizen spouse upon naturalization and then reside in the U.S. upon the end of your spouse’s service and show that you will be moving abroad to unite with your spouse within 30 to 45 days after the date of your naturalization.
- Surviving Spouse of U.S. Citizen. Pursuant to INA 319(d), You are exempt from the continuous residence requirement if you are the spouse of a diseased service member who was serving honorably and who was in active duty status at the time of death.
- Surviving Spouse Person Conducting U.S. Intelligence. The spouse of an alien who died as a result of the intentional and unauthorized disclosure of classified information that implicated the deceased alien in a U.S. intelligence gathering operation. You must show that you have been lawfully admitted as an LPR and have continuously resided in the U.S. for at least one year prior to naturalization.
Parents of certain U.S. citizen service members are also exempt from continuous residence:
- Surviving Parent of U.S. Citizen. Pursuant to INA 319(d), You are exempt from the continuous residence requirement if you are the parent of a diseased service member who was serving honorably and who was in active duty status at the time of death.
Children of U.S. Citizens who may be exempt or who may meet a modified continuous residence requirement.
- Child of U.S. Government Employee (Abroad). Pursuant to INA 320, if you were a child born abroad, you may automatically acquire U.S. citizenship. You would not need to meet the continuous residence requirement if (1) at least one of your parents is a citizen of the U.S. by birth or naturalization, (2) You were under the age of 18 years old and (3) You were living in the U.S. in the legal and physical custody of the U.S. citizen parent after being lawfully admitted as an LPR.
- Surviving Child of U.S. Citizen. Pursuant to INA 319(d), You are exempt from the continuous residence requirement if you are the child of a diseased service member who was serving honorably and who was in active duty status at the time of death.
- Surviving Child of Person Conducting U.S. Intelligence. You must only show continuous residence for at least one year before naturalization if you are the child of an alien who died as a result of the intentional and unauthorized disclosure of classified information that implicated the deceased alien in a U.S. intelligence gathering operation.
The continuous residence requirement differs for other classes of U.S. citizenship applicants which include:
- Former Citizens who Lost U.S. Citizenship through Foreign Military Service
NOTE: As always this is for informational purposes only and is not legal advice. Consult an immigration attorney, like myself, for advice regarding your particular circumstances.