Seguritan US Immigration Articles

Continuous Residence Requirement for U.S. Citizenship

An applicant for U.S. citizenship must meet basic residence and physical presence requirements. A noncitizen must be a lawful permanent resident (LPR) in order to qualify for naturalization. Certain non-residents who served in the U.S. military, however, are an exception and may qualify for U.S. citizenship.

The noncitizen must have continuously resided in the U.S. as an LPR for five years immediately prior to applying for naturalization. Only three years of continuous residence is required for spouses of U.S. citizens. The U.S. citizen spouse through whom the noncitizen obtained his/her LPR status must have been a U.S. citizen during that period. Also, they must have been living in marital union for three years. If the marriage terminates in less than three years, the noncitizen will have to complete the period of five years. Applicants may file their N400 application for naturalization 90 days early or 3 months before the end of the required continuous residence period.

Spouses and children granted LPR status because of battering and extreme cruelty under VAWA are also required only three years of continuous residence. Three years of living in marital union is not required.

The continuous residence requirement does not mean that the noncitizen has to be physically present in the U.S. throughout the whole period. Short visits outside the U.S. for less than six months are acceptable and will not affect continuous residence.

Absence from the U.S. for six months but less than one year raises a rebuttable presumption that U.S. residence has been abandoned. This will be considered as a disruption of continuous residence and may result in a denial unless the applicant demonstrates lack of intent to abandon residence. Evidence which may establish continuity of residence include not terminating employment in the U.S., presence of immediate family in U.S., retention of full access to U.S. home and not obtaining employment abroad.

Absence from the U.S. for one year or more will interrupt the continuity of residence. The five/three year period will have to run anew when the noncitizen returns to the U.S. However, the applicant does not have to wait for the full period to file the N400 application for naturalization. Spouses of U.S. citizens can file after two years and one day while other LPRs can file after four years and one day.

Absence from the U.S. for one year or more may be excused in the case of employees abroad working for certain U.S. government agencies and U.S. companies. The noncitizens must seek permission to preserve their residency for naturalization purposes by filing Form N-470.

Aside from the continuous residence requirement, the noncitizen must also have been physically present in the U.S. for one half of the required residence period. Applicant must be in the U.S. for an aggregate period of not less than 30 months for the five-year period, and 18 months for the three-year period. Employees abroad working for the U.S. government and firms must also satisfy this requirement.

The applicant must reside within the state or within the USCIS district where the application is filed for three months immediately prior to the filing of the application. Continuous residence in the U.S. is required after application is filed.

Abandonment of LPR Status Due to Trips Abroad

The process of becoming a permanent resident of the United States is often a long and costly journey. Perhaps because they are relieved to finally get their green card and long to travel or handle personal affairs abroad, some new lawful permanent residents (LPR) believe that they can just go in and out of the U.S. as long as they make it a point to reside here for at least a few months each year.

A recent decision of the 6th Circuit Court of Appeals should serve as a warning for green card holders. In Lateef v. Holder, the Court found that the LPR had abandoned her LPR status for spending the majority of her time as an LPR in her native country.

Immigration authorities found that out of 116 months that Lateef had been an LPR, she spent only 35% or 40 months in the U.S. and 65% or 76 months abroad. She had no employment history or properties in the U.S. and her only ties were her parents and brothers.

Lateef’s seven trips abroad were of various durations. She went back to her native country shortly after becoming an LPR in order to finish her medical studies and for this purpose obtained a re-entry permit. The court found this trip to be temporary because it ended upon her graduation, but not so with her subsequent trips between 1995 and 2001. She married her husband during one visit. On another, she took an exam and became pregnant. She made visits to see her husband and to attend to her daughter who was not only missing her but was also developing behavioral problems, and she also helped plan her brother’s wedding.

In November 1999 she returned to her home country because of her daughter’s continuing behavioral problems. In November 2000, her husband and children were granted immigrant visas. She remained abroad for another three months to attend weddings.

Lateef and her family attempted to enter the U.S. in February 2001 but a few months later they were placed under removal proceedings. Lateef’s abandonment of status was imputed to her daughter and served as basis to revoke the immigrant visas of her husband and her child. They were ordered removed by the immigration judge.

The law allows an LPR to temporarily leave the U.S. and maintain her LPR status if she has not abandoned her LPR status or if she has not been away from the U.S. for more than 180 days. A protracted trip abroad must have been caused by reasons beyond her control and for which she was not responsible in order for her to remain admissible.

In determining whether Lateef’s trips abroad were temporary, the appellate court looked into whether the trip was for a “relatively short period fixed by some early event” or ended “upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time”.

The Court said that Lateef remained abroad for one year and three months without any definite plans of returning to the U.S. It noted that although Lateef said that she wanted to return to the U.S. as soon as possible, she only did so three months after her family obtained immigrant visas. The Court found that this last trip showed that Lateef abandoned her LPR status because it was over 180 days and was not caused by reasons beyond her control.

Lateef was found to have abandoned her LPR status even though the record showed that she took steps to be licensed as a doctor in the U.S., applied for medical residency positions, and applied for citizenship. Note that she also tried to bring her own family here as immigrants and that her main reason for her last stay abroad was her daughter’s continuing behavioral problems..

This case is a reminder that abandonment of status is a serious matter that could affect not just the LPR but also any minor children and those whom the LPR petitioned for. A green card holder must not embark on extended trips abroad without a strategy to preserve LPR status in case issues arise. It must be remembered that having a green card is a privilege that grants an alien benefits and obligations, but it is also a privilege in the sense that it can be taken away.

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