Continuity Of Residence For Citizenship
Since September 11, 2001, more and more immigrants are applying for American citizenship. This process is known as naturalization. The increase in the number of naturalization petitions may be explained, in part, by the fact that green card holders feel some vulnerability in light of some of the anti-immigrant rhetoric circulating through the media. Aside from those concerns, lawful permanent residents (“green card” holders) may be deported from the United States for a number of reasons, such as conviction of certain crimes, the failure to maintain residence in the United States, or other security-related reasons. Citizens of the United States, on the other hand, cannot be deported. Additionally, one could say that the most important benefit of citizenship is the ability of the citizen to participate in elections and vote, thereby influencing legislation and policy.
While applying for citizenship, on the surface, is a relatively simple process, there are many pitfalls of which one must be aware. For instance, long absences from the United States could lead to a denial of the application. In addition, prior criminal convictions may not only lead to a denial of the naturalization application, but also could place the individual in removal proceedings.
The provisions regarding naturalization are contained in Title III of the Immigration and Nationality Act (“INA”). Generally, once an individual has been obtained lawful permanent residence (or been “admitted” as a lawful permanent resident), after five years, he or she may apply for naturalization, provided he or she can establish his or her “physical presence” in the United States “for periods totaling at least half of that time.” INA § 316(a)(1). That is, in the five years or 60 months preceding the filing of the application, the applicant must establish that he or she has actually been physically present in the United States for 30 months or more.
The lawful permanent resident spouse of a U.S. citizen, however, must only maintain residence for a period of three, as opposed to five years if: he or she was the spouse of a U.S. citizen during the entire three year period; was living in marital union with the U.S. citizen spouse for the entire three year period; and was a lawful permanent resident for that period. See INA § 319(a). During this three-year period, the eligible individual must demonstrate actual physical presence in the U.S. of 18 months or more. In both situations, an applicant must also demonstrate 3 months of residence in the state where he or she will be applying for citizenship. In addition, an applicant may submit the application for naturalization up to three months before the three or five year period. INA § 334(a).
The complication arises because in addition to establishing “physical presence” in the United States, which is simply a calculation of the total number of months one has actual been in the United States, the applicant must also demonstrate “continuous residence,” which is a far more nuanced concept. One’s continuous residence in the United States is interrupted by long absences from the U.S. that are defined—though not with the greatest clarity—in the INA.
INA § 316(b) states the following: “absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, or during the period between the date of filing the application and the date of any hearing under section 336(a), shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact his abandon his residence in the United States during such period.”
The subsection continues to state that an absence from the U.S. for a continuous period of one year or more breaks the continuity of residence, except for certain narrowly defined employment situations that cause an individual to be stationed overseas. INA § 316(b). If an applicant has been absent from the U.S. for more than one year, the slate is wiped clean and the person has to once again establish residence for 4 years and 1 day before filing the citizenship application. 8 C.F.R. § 316.5(c)(1)(ii).
As the statute is silent as to absences of less than six months, it is safe to assume that these absences do not create a presumption as to disruption of continuity of residence. With respect to absences of more than six months and less than one year, as will be discussed below, there appears to be an increasing tendency for the INS to deny such applications on ground that the applicant has failed to maintain continuous residence in the United States. It is important to bear in mind that the statute also addresses these absences individually, not collectively. That is to say, if an applicant has had several absences of more than six months and less than a year, he or she must still be given the opportunity to rebut a presumption of disruption of continuous residence, provided, of course that the total time spent in the United States complies with the INA’s “physical presence” requirements.
Recently, however, the authors have also seen that absences of 6 months but less than a year have led to denials. There appears to be no statutory basis for such denials, especially if the applicant has offered sufficient evidence to rebut the presumption of disruption. Such evidence includes, but is not limited to, the following: evidence that one’s employment in the U.S. was not terminated (or evidence that applicant continued to receive benefits such as health coverage); evidence that the applicant continued to maintain a residence in the U.S.; evidence that family members remained in the United States while the applicant was outside the U.S.; or evidence that the applicant did not seek or obtain employment abroad. It is essential that applicants be able to establish that their intention was to maintain residence tin the United States and substantiate this intention with as much documentary evidence as possible prior the interview, to prevent a denial of the application. As long as the INS continues to adhere to a rigid and mechanical interpretation of the statutory language, it will remain the applicant’s burden to prepare a solid case.
About The Author
*Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or email@example.com
** Parastou Hassouri is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the University of Pittsburgh School of Law in 1999. Prior to joining the firm, she served as a Judicial Law Clerk with the Executive Office for Immigration Review, New York City Immigration Court.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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