Requirement for Naturalization

Requirement for Naturalization —— The Continuous Residence

Among all the requirements for Naturalization, “continuous residence” is the one about which every applicant should be extra careful. Especially, if applicants have to travel outside of the US due to his family or job abroad, it is crucial to truly understand the requirement of “continuous residence”. The other requirements for naturalization that are not mentioned in this article. This article discusses “continuous residence” for naturalization process purpose only.

According to INA 316 and 319, the requirement for “continuous residence” breaks down to the following requirements:

the applicant must have resided continuously in the US after he became a Green Card holder for at least 5 years (3 years for US citizen’s spouse);
the applicant must have been physically present in the US for periods totaling at least one-half of the time, I.e., 30 months out of 5 years; 18 months out of 3 years for US citizen’s spouse;
the applicant must has resided in the state having jurisdiction over the application for 3 months prior to filing; and
the applicant must reside continuously in the US from the date of the application for naturalization until the date of admission of citizenship.
Many applicants are confused by the difference between “continuous residence” and “physical presence”. They are related but not the same concept. This requirement does not prohibit naturalization applicants from leaving the US. However, absences from the US may lead to interruptions of continuous residence.

It is important to understand the definition of “continuous residence”. INA 316(a) provides that the applicant must maintain a permanent dwelling place in the US to satisfy the continuous residence requirement. Such place must be “the same as the alien’s domicile, or principal actual dwelling place, without regard to the alien’s intent.” The period of time measured starts from “the moment the alien first establishes residence in that location.”

INA 316(b) provides the regulations of absences and interruption of continuous residence. First, an applicant’s continuous residence may be found interrupted if he has multiple absences of less than 6 months because such absences may lead to a conclusion that the applicant’s principal actual dwelling is not in the US. In another word, although multiple absences of less than 6 months do not lead to a presumption on interruption of continuous residence, applicants who have multiple absences still should consult an immigration lawyer if they would like to apply for citizenship.

Second, an applicant who was absent from the US for a continuous period of longer than 6 months but shorter than one year, continuity is presumed broken unless the applicant proves that he did not abandon residence in the US. Recall that the applicant’s intent is irrelevant to the consideration of his permanent dwelling place. INA 316 provides a list of evidence that applicants can introduce to overcome the presumption, including but not limited to keeping applicant’s employment in the US and applicant’s immediate family member remaining in the US. I will discuss some cases regarding this issue in future articles.

Finally, if the applicant is absent from the US for over one year, he might still be eligible under some circumstances. However, unlike the absences shorter than one year, absences for one year or longer constitute an interruption of the continuous residence. You definitely should consult an immigration lawyer if you have been absent from the US for such long time.

Law Office of Hong-min Jun

—— Attorney for Foreign-Born Individuals and Small Businesses