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Continuous Residence And Prolonged Absences

In this article, we will discuss the continuous residence requirement as it relates to filing an application for Naturalization.  For the full requirements for Naturalization please refer to our previous article:

https://www.patellegal.com/naturalization-the-final-step-in-the-immigration-process/

The concept of continuous residence refers to the applicant maintaining a permanent dwelling place in the US, typically for a period of 5 years.  For applicants who obtained a green card through marriage and are still living with their US Citizen spouse the continuous residence, the requirement is reduced to 3 years.  An applicant is also required to demonstrate that they have lived in the same state for at least 3 months prior to submitting their application.

The continuous residence requirement is a different concept from physical presence which requires the applicant to have spent at least 50% of the 5 or 3- year period in the U.S.

Before filing for Naturalization, you will need to determine whether you meet the continuous residence requirement.  The continuous residence requirement can be broken if the applicant:

  • Travels outside of the US for more than 6 months but less than 1 year; or
  • Travels outside of the US for 1 year or more.

However, applicants who have taken trips of say 4 to 5 months often mistakenly believe that there is no break of continuity in residence.  However, officers can review multiple absences of less than 6 months and therefore someone who travels for 4 months at a time and only returns to the US for 1 month could find that there is a break in their continuity of residence.

Absence of more than 6 months but less than one year

When an individual travels for more than 6 months, but less than 1 year there is a presumption that there is a break in the continuity of residence.  However, an applicant may be able to rebut this presumption by showing that they maintained their employment in the US, did not obtain employment abroad or maintained access to their home in the US during the time they were gone.

In the event that an applicant is not able to overcome the above presumption, the applicant must wait at least 6 months from the 5-year anniversary of the new statutory period.  Therefore, if an applicant traveled for more than 6 months and returned on April 1, 2020, then the earliest that this applicant can apply is 6 months prior to April 1, 2025, i.e. October 1, 2024.  That is because a new 5-year statutory period would commence on April 1, 2020.

Absence of more than 1 year

Travel for more than 1-year automatically breaks the continuous residence requirement.  However, as is more commonly referred to as the 4-year and 1-day rule an applicant who is absent for more than 1-year can apply for Naturalization after returning to the U.S.  The reason for that it is 4 years and 1 day is because at this point the period of absence from the U.S. in the last 5 years is now less than 1 year.  However, even though it is possible to apply after 4 years and 1 day the period of absence, even though less than 1 year is still more than 6 months and therefore an applicant would still have to rebut the presumption.  If the applicant cannot rebut the presumption, then they must wait at least 6 months prior to the anniversary of the new statutory period in which to file.

Let’s explain this with an example:

David is an LPR who obtained his green card through employment and therefore he has to demonstrate 5 years of continuous residence in order to apply for Naturalization.  However, David travels outside of the U.S. for more than 1 year returning on April 1, 2020.  Because of his prolonged absence, there is a break in his continued residence which means he is allowed to apply for Naturalization within 4 years and 1 day after returning to the U.S.  In this case, David could file on April 2, 2004, however, in order to be eligible for Naturalization, he would need to rebut the presumption that he has broken his continued residence by demonstrating that he maintained their employment in the US, did not obtain employment abroad or maintained access to his home in the US during the time he was gone.

If David cannot rebut the presumption, then he has to wait at least 6 months from the 5-year anniversary of the new statutory period. 5- years from April 1, 2020, would be April 1, 2025.  In this case, David could apply for Naturalization on October 1, 2024.

If you have questions about the continuous residence requirement please feel free to reach out to PLG Partner Chris Prescott at cprescott@patellegal.com.

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