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Naturalization - Residency Requirements

by Gregory Siskind, Esq.

While there are a number of substantive requirements for naturalization, the most complex of these is residence in the US. The following questions provide insight into the residency issues that should be considered when applying for citizenship.

 

What is meant by “residence” in the naturalization requirements?

 

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.”

In general, what are the physical requirements for naturalization?

 

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. 

 

Is an applicant required to physically reside in the US when applying for naturalization?

 

During the three months preceding the application, the person must have resided in the USCIS 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.  This does not mean travel is forbidden, however. But one must not change their place of residence during this time and the requirement of spending half of one’s time in the US continues to apply at the time of naturalization as well as the time of application. 

 

Is there a residence requirement after the applicant has submitted an application for citizenship?

 

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

 

Will an applicant be denied naturalization if absent for 6 months to a year from the US during the 5 year period prior to the application?

 

Simply being absent from the US during brief periods, even for six months up to a year in the five years prior to a citizenship application, does not terminate the period of physical presence. However, such absences need to be dealt with carefully.  They are presumed to break the period of continuous residence if they last over six months, but this presumption can be overcome by demonstrating that the applicant did not abandon the US residence.  Evidence that could be used in this regard includes evidence of continuing US employment, family in the US, maintaining a home in the US, and evidence that no employment abroad has been obtained.

Will an applicant be denied naturalization if absent for more than a year from the
US during the 5 year period prior to the application?

 

Absences of more than one year will terminate continuous residence unless the applicant complies with the certain 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.  Additionally, 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 file an application to preserve residency with USCIS and must demonstrate employment by one of the organizations listed above.  The applicant must then prove again that the 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. 

 

What absences will be considered as “constructive presence” in the US?

 

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.

 

In which cases are the residence requirements waived?

 

Residence requirements are waived if an applicant is the spouse of a U.S. citizen and meets one of the following classifications:

 

• 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

 

The citizen spouse is working overseas for at least 1 year according to an employment contract or order, then the residency requirements are actually waived.

 

Which residence requirements apply when a spouse of a US citizen applies for citizenship?

One of the most important benefits spouses of US citizens have with regard to naturalization is that they make seek
US citizenship after only three years as a permanent resident, rather than five, as is generally the case.  As is the case under the general rule, one half of this time must be spent physically in the US, or 18 months.  The couple must have been living in marriage for the entire three years, and the citizen member of the couple must have been a citizen for the entire three year period.  Should the couple no longer be living together as husband and wife, the residency requirement for naturalization will revert to the normal five years.

If the US citizen spouse of a permanent resident applying for citizenship is employed abroad, are residence requirements still applied?

 

As previously mentioned, under section 319(b) of the Immigration and Nationality Act, spouses of US citizens who are employed abroad also benefit from an expedited naturalization process.  The US citizen must be employed by a qualifying organization, which can be:

  • The US government,
  • A recognized US research institution,
  • A US business engaged in foreign trade,
  • An international organization of which the US is a member or participant, or
  • A religious denomination, for the purpose of performing religious work.

The regulations specify that the citizen spouse’s employment abroad must be for a period of at least one year, but if this requirement is met, the naturalization application can be filed before the employment abroad begins.  Also, there is no minimum required residence in the US, nor a minimum period for which the applicant must have been a permanent resident.  The applicant must, however, declare their intention to reside permanently in the US upon the termination of their spouse’s foreign employment. 

Unfortunately, many USCIS officials are not familiar with this rule and we have received numerous reports over the years of people who encountered difficulties as a result of USCIS officials failing to grasp the actual law on this subject.

 

I’ve heard that Congress is considering changes in the residency requirements. What can you tell me about that?

 

The US Senate is currently debating a comprehensive immigration reform package that contains a provision which would drop the residency requirement from five years to four years for those who demonstrate fluency in English (as opposed to basic knowledge of English necessary to pass the current English test administered as part of the naturalization process).


About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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