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The ABCs of Immigration - Naturalization - Residency Requirements Part I
by Greg Siskind and Amy Ballentine

While there are a number of substantive requirements for naturalization, the most complex of these is residence in the US. As a general rule, an applicant for naturalization must have been a permanent resident of the US for at least five years and also meet certain requirements dealing with the time actually physically spent in the US.

During the five years immediately preceding the application, the person must have resided in the US, with half of that time physically spent in the US. During the three months preceding the application, the person must have resided in the INS district where the application will be filed. Between the filing of the naturalization application and the granting of citizenship, the applicant must continue to reside in the US. Residence is defined as a person’s place of general abode. In other words, the place a person makes “their principle, actual dwelling place in fact, without regard to intent.”

Simply being absent from the US during these periods does not terminate the period of physical presence. However, absences of between six months and one year need to be dealt with carefully. They are presumed to break the period of continuous residence, but this presumption can be overcome by demonstrating that the applicant did not abandon their US residence. Evidence that can be used in this regard includes continuing US employment, family in the US, maintaining a home in the US, and not obtaining employment abroad.

Absences of more than one year will terminate continuous residence unless the applicant complies with the following requirements. First, the applicant must have been physically present in the US for one continuous year following admission as a permanent resident. Any absence from the US, however brief, is not allowed during this period. Second, the applicant must be employed by one of the following:

  • The US government
  • A US research institution recognized by the Attorney General
  • A US business engaged in the development of foreign trade and commerce
  • A public international organization of which the US is a member
Before the one-year period outside the US is up, the applicant must demonstrate that they are employed by one of the organizations listed above. The applicant must then prove again that their absence from the US was because of employment. Even when these requirements are met, it is important to remember that the requirement that half of the five years prior to filing the naturalization application be spent in the US still applies. The only exception to this requirement is for time outside of the US during which a person is considered to be “constructively present” in the US. The most common example of this is overseas military service.

If an applicant is the spouse of a U.S. citizen who is one of the following:

• A member of the U.S. Armed Forces;

• An employee or an individual under contract to the U.S. Government;

• An employee of an American institution of research recognized by the Attorney General;

• An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States;

• An employee of a public international organization of which the United States is a member by law or treaty; or

• A person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the United States

AND

Your citizen spouse is working overseas for at least 1 year according to an employment contract or order, then the residency requirements are actually waived. There are also special exceptions to the residence requirement for religious workers. They must be engaged in religious work abroad and must meet the following requirements. First, at any time between admission as a permanent resident and filing the application for naturalization, they must spend one uninterrupted year physically in the US. This period may be before or after the religious work abroad. Second, the applicant must demonstrate that their absence was to perform religious work.

After filing the naturalization application, the applicant must continue to reside in the US, but absences are allowed.


About The Authors

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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