Contents
A reader asks, “Can a green card holder who’s been overseas for 6 months apply for citizenship?”
In short, maybe. It depends on the specifics of your situation.
The General Rule
To be naturalized as a U.S. citizen, an applicant must ordinarily prove that “immediately preceding the date of filing [their] application for naturalization [they have] resided continuously, after being lawfully admitted for permanent residence[1], within the United States for at least five years …, and [they have] resided continuously within the United States from the date of the application up to the time of admission to citizenship….”[2]
| Warning: This article focuses just on the “continuous residence” requirement for naturalization, not the separate “physical presence” and “state residence” requirements. Briefly, a naturalization applicant must generally be physically present in the U.S. for 1/2 of the required period of continuous residence. So, for example, if the period of required continuous residence if 5 years, then 2.5 years of physical presence is required. And the applicant must generally reside in a state or USCIS district for 3 months before applying for naturalization. |
Residency is defined as the applicant’s “principal, actual dwelling place in fact, without regard to intent.”[3] The purpose of the residence requirement is to establish a period of probation during which an applicant might be enabled to learn English, to be familiarized with U.S. customs and institutions, to shed foreign attachments, to acquire attachment to the principles of the U.S. Constitution and government, to demonstrate law-abiding conduct, and generally to prove fitness to be accepted as a citizen of the U.S.[4]
The length of the continuous residence requirement is different than the normal 5 years under the following scenarios:
- The continuous residence requirement is 3 years for an applicant who immediately preceding the filing of the application has been married to and living in a “marital union” with a U.S. citizenwho has been a U.S. citizen for all 3 years. [5][6] The term “marital union” means “actually resid[ing] with his or her current spouse.”[7] Marital union can be lost through divorce, death, expatriation, or legal or informal separation (but not involuntary separation).[8]
- The continuous residence requirement is 3 years for a person who obtained lawful permanent resident (LPR) status by reason of their status as a spouse or child of a U.S. citizen who battered or subjected them to extreme cruelty, as long as the U.S. citizen has had citizen status during the entire 3-year period.[9]
- Certain LPRs married to U.S. citizens stationed or employed abroad do not have any continuous residence requirement[10] if the citizen spouse is employed by the U.S. Government (including the U.S. Armed Forces); an American research institution recognized by the Attorney General; recognized U.S. religious organizations; “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”[11]; or certain public international organizations involving the U.S.
Naturalization rules allow an applicant to file their naturalization application as early as “3 months before the date the applicant” meets the continuous residence requirement.[12]
Absences in General
Absence from the U.S. may break the required period of continuous residence. Moreover, prolonged or frequent absences may raise the issue of whether the applicant has abandoned their permanent residence, i.e., left the U.S. without the intent to return to remain permanently here. If U.S. Citizenship and Immigration Services (USCIS) believes that a naturalization applicant has abandoned their permanent residence, USCIS may place the applicant in removal proceedings in which an Immigration Judge will determine whether the applicant should be deported. Persons with such absences should contact legal counsel to discuss this issue in detail. Persons subject to prolonged or frequent absences should seek advice about whether it’s appropriate to apply for a reentry permit as part of their strategy to avoid abandonment of permanent resident status. For more on this point, see Your Green Card Is at Risk if You Stay Outside U.S. Over 6 Months.
Absence for a Continuous Period of One Year or More
Absences from the U.S. for a continuous period of 1 year or more absolutely shall disrupt the continuity of residence, except if USCIS has approved a Form N-470, Application to Preserve Naturalization for Naturalization Purposes, as discussed below.[13] A person whose continuous residence is broken due to an absence in excess of 1 year may file an application for naturalization 4 years and 1 day following the date of their return to the U.S. to resume permanent residence.[14]
Absence for a Continuous Period of Between Six Months and One Year
According to statute, an absence of between six months and one year presumably “break[s] the continuity of residence unless the applicant shall establish to the satisfaction of [USCIS] that he did not in fact” do so. USCIS regulations explain in more detail that the continuity of residence for naturalization purposes can be broken even if the applicant has not requested tax classification as a “nonresident” and has not lost permanent resident status due to abandonment. Further:
The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:
(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant’s immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad.[15]
Absence for a Continuous Period Shorter Than Six Months
The statute is silent as to whether an absence from the U.S. shorter than six months can break the required period of continuous residence. The Supreme Court has said in dicta that such short absences do not break continuous residence.[16] Similarly, scholars have interpreted the silence to mean that, unlike absences of six months or more, such short absences are unimportant. After all, if Congress would have meant for short absences to interrupt continuous residence, it would have said so.[17] But the following contrary example of a naturalization applicant working abroad is included in administrative guidance[18]:
The applicant filed Form N-400 on September 8, 1999…. However, on June 15, 1999, he was sent overseas on an assignment by his employer, which is not an American corporation. He appeared for his interview on January 24, 2001. He informed the examining officer that he was on temporary work assignment in the U.K. and Russia. He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England. He was not gone for more than six months at any time, but his trips back to the U.S. from June 1999 to January 2001 were brief and sporadic. The application should be denied for lack of continuous residence under Section 316 of the Act. He failed to reside continuously in the U.S. from the date of application for naturalization up to the time of admission to citizenship.
According to this guidance, the temporary work assignment abroad broke continuous residence. The guidance doesn’t see the 6-month and one-year rules as the exclusive way to break continuous residence. Instead, the guidance also looks to the general definition of “residence” as one’s principal abode and asks whether multiple absences under six months imply that the applicant has given up his or her principal abode in the U.S. The guidance stresses that the “overall context of facts and evidence”[19] should be taken into account, similar to the way multiple factors must be taken into account to determine if an applicant out for 6 months can overcome the presumption that continuous residence has been interrupted.[20] The administrative guidance provides a plausible—but in my opinion incorrect—alternative to the interpretation of the Supreme Court and commentators.[21] To my knowledge, no case or scholarly article has cited this guidance[22], so it’s not the prevailing view. Still, it’s possible that an officer could cite the guidance as the basis for denial of a naturalization application for an applicant whose U.S. trips are just “brief and sporadic.”
Use of the Form N-470 to Preserve Continuous Residence
In narrow circumstances, absence from the U.S. will not break the continuity of residence required for naturalization if the applicant files with USCIS a Form N-470, Application to Preserve Residence for Naturalization Purposes, showing that they will be absent from the U.S. under the following circumstances[23]:
- After lawful admission for LPR status, they have been physically present and residing in the U.S. for an uninterrupted period of at least 1 year.[24]
- The applicant must be employed by or under contract with the U.S. government or an American institution or research recognized as such by the Attorney General, or be employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the U.S., or a subsidiary thereof more than 50% of whose stock is owned by an American firm or corporation, or be employed by a public international organization of which the U.S. is a member by treaty or statute. Or the applicant must be absent temporarily from the U.S. solely for the purpose of performing the ministerial or priestly functions of such religious denomination, or serving as a missionary, brother, nun, or sister.
- Before the expiration of 1 year of continuous absence from the U.S., the person must file a Form N-470 proving to the USCIS that your absence from the U.S. is for the purpose of the specified employment.
For more about N-470, see Naturalization for Permanent Residents and Spouses of U.S. Citizens Employed Abroad.
Endnotes
[1] You must have been lawfully entitled to LPR status. In other words, a person who was granted LPR status although not entitled to it is ineligible for naturalization. Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983), cert. den’d, 467 U.S. 1219 (1984).
[2] INA §316(a).
[3] INA §101(a)(33). See 8 C.F.R. §316.5(a) (similar regulatory definition); AFM 74.2(b)(10)(B)
[4] U.S. v. Mulvey, 232 Fed. 513 (2d Cir. 1916).
[5] INA § 319(a).
[6] The statute count the 3 years “immediately preceding the date of filing” the N-400, but the regulations count the three years “preceding the date of examination” on the N-400. CompareINA § 319(a) with 8 C.F.R. § 319.1(a)(3). USCIS admits that the regulations are void where they conflict with the statute. AFM ch. 74.2(e)(2)(A).
[7] 8 C.F.R. § 319.1(b)(1)..
[8] 8 C.F.R. § 319.1(b)(2).
[9] INA §319(a).
[10] Such LPRs also are exempt from the physical presence and state or district residence requirements. 8 C.F.R. § 319.2(a)(6).
[11] INA § 319(b)(1).
[12] INA §334(a).
[13] 8 CFR §316.5(c)(1)(ii).
[14] 8 CFR §316.5(c)(1)(ii).
[15] 8 CFR §316.5(c)(1)(i). Besides the factors specified by USCIS, other factors which perhaps may be relevant include: the specific length of your trip abroad; the purpose of your trip abroad and the purpose of your return to the U.S.; whether unforeseen circumstances caused an unavoidable delay in returning to the U.S.; whether prior to departing the U.S. or while abroad you had specific plans you intended to return to the U.S. to carry out; where your children attend school; whether you have real estate or personal property in the U.S. or abroad; whether you purchased or rented a residence abroad; whether you have bank or other financial accounts in the U.S. or abroad; whether you filed U.S. income taxes as a resident during the period in question; whether you returned to the U.S. with a reentry permit; and whether upon departing the U.S. you held a return ticket.
[16] “Section 316 of the 1952 Act, 66 Stat. 242-243, 8 U.S.C. s 1427, which liberalized previous law in some respects, provides that an alien who wishes to seek naturalization does not begin to endanger the five years of ‘continuous residence’ in this country which must precede his application until he remains outside the country for six months.” Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963).
[17] Tthe expression of one thing implies the exclusion of others). 7 Charles Gordon, et al., Immigration Law and Procedure, § 95.02[4][a](2004) (“[a]bsence from the United States of six months or less does not affect the continuity of residence. The statute does not mention such absences, but manifestly sanctions them in the light of the specific directives” regarding six-month and one-year absences.) See Dhillon v. Regents of the Univ. of Calif., OCAHO Case No. 92B00097 (Mar. 10, 1993) (citing Gordon). See also Daniel Levy, U.S. Citizenship and Naturalization Handbook § 7.5 (Sept. 2008) (“[T]he statute by implication provides that absences of less than six months are unimportant for purposes of the five years of continuous residence prior to naturalization.”). The canon of “generalia specialibus non derogant” (the general does not detract from the specific) also appears to apply here: the general statutory definition of “residence” at § 101(a)(33) shouldn’t be used to modify the meaning of the specific definition of continuous residence at § 316(b).
[18] AFM ch. 74.2(b)(10)(B).
[19] AFM ch. 73.3(c).
[20] See also Julie G. Muniz and Lyndsey Yoshino, Home on the Range: Establishing Continuous Residence and Physical Presence for Naturalization Purposes, in AILA, Immigration Practice Pointers, 226-231 (2012) (stating, without citing authority, that “where an LPR keeps a home in the United States and enters once every six months (or more), the continuous residence can still be considered interrupted.”).
[21] Cf. In re Romalez-Alcaide, 23 I. & N. Dec. 423, 2002 WL 1189034 (BIA 2002) (Although the cancellation of removal statute at INA § 240A(d)(2) says certain periods abroad can break “continuous physical presence,” that’s not meant to be “exclusive,” and deportation breaks it too.)
[22] One commentator points out that some officers achieve the same result by “clubbing two back-to-back lengthy trips” under 180 days to say that the 6-12 month absence rule applies. Gary Endelman, The Enigma of Disruption: What Continuity of Residence in Naturalization Really Means, 17 Bender’s Immigration Bulletin 1427, 1439 (Aug. 1, 2012). Of course, this savages the statute and 8 C.F.R. § 316.5(c)(1)(i), which refers to “[a]bsences from the United States for continuous periods of” 6-12 months. (Emphasis added).
[23] Like a reentry permit, an N-470 serves as prima facie evidence that an LPR who has left the United States has not abandoned his LPR status. See9 Foreign Affairs Manual N9 to 8 CFR §42.22 (“It would be inconsistent to permit time spent abroad [when an N-470 has been approved] to be applied for residence for naturalization purposes, but to interpret that same time abroad as interruptive of residence for the purpose of retaining LPR status. Thus, if an alien qualifies for the benefits [of an N-470] it may be considered prima facie evidence that the alien is entitled to the status of a returning resident….”); Matter of John, 17 I&N Dec. 534 (RC 1980) (Pointing to the same inconsistency as the Foreign Affairs Manual, USCIS held that an a person who would be eligible for approval of an N-470 has not abandoned LPR status, even though they never actually filed an N-470). However, our firm may recommend that you apply for a reentry permit too because only the reentry permit serves as a travel document for an LPR who has been outside the U.S. for 1 year or more.
[24] In the case of a person employed by the CIA, the 1 year of uninterrupted physical presence in the U.S. may take place at any time prior to filing the naturalization requirement.
65 responses to “Can a Green Card Holder Who’s Been Overseas for 6 Months Apply for Naturalization?”
[…] The applicant must not have broken the continuity of U.S. residence. Continuity is absolutely broken by a 1 year continuous absence and presumably broken by a 6-month continuous absence. That presumption can be overcome only where there is very strong evidence the absence was intended to be temporary only. Key evidence includes but is not limited to evidence that: (a) the applicant did not terminate his or her employment in the U.S.; (b) the applicant’s immediate family remained in the U.S.; (c) the applicant retained full access to his or her U.S.; or (d) The applicant did not obtain employment while abroad. (For more, see Can a Green Card Holder Who’s Been Overseas for 6 Months Apply for Citizenship?). […]
Today I had my U.S. naturalization interview, and it didn’t go so well. I went to Mexico in Nov. 2009 and spent a little over 6 months there taking care of my ill girlfriend. After some time she passed, and i came back home. While I as there, I was forced to work to support myself. The immigration officer said that my naturalization petition will be denied. Is there anything that I can do?
Oscar,
I’m sorry that your naturalization interview didn’t go smoothly. As mentioned above, absences of between six months and one year presumably break the continuity of residence unless you prove otherwise, taking into account factors including but not limited to:
(A) The applicant did not terminate his or her employment in the United States. [Did you?]
(B) The applicant’s immediate family remained in the United States. [Did they?]
(C) The applicant retained full access to his or her United States abode. [Did you?]
(D) The applicant did not obtain employment while abroad. [Yes, you did.]
The totality of the facts should be taken into account, and to me it sounds (based on the few facts I know) that you had important and sympathetic reasons to be abroad: to take care of a dying loved one.
There are a number of published court cases about whether a permanent resident abroad for purposes of caring for an ill family member has abandoned LPR status. These cases should shed some light on the analogous question of whether continuous residence is interrupted for purposes of naturalization. See my comments to Rick in this post: Your Green Card Is at Risk if You Stay Outside the U.S. Over 6 Months.
It’s also worth pointing out that one purpose of the continuous residence requirement is to give the applicant an opportunity to prove fitness to be accepted as a citizen of the U.S. Taking care of an ill loved one, to me, is important evidence of such fitness.
This is a situation in which you may benefit from good legal advice. Some applicants are pressured to withdraw their applications “voluntarily,” contrary to their interests. If denied, you will have a right to appeal (or file a motion to reconsider or reopen). There’s a short deadline for appeal. The best course of action may be for the lawyer to contact USCIS immediately to try to avoid a denial. If you need a referral to a good lawyer, let me know where you live.
Dear Sir,
My husband (age 70) and I are naturalized US citizens living in Ohio. Since 2005, my husband has been diagnosed with degenerative brain disease and requires full time care. We have found a caregiver from India holding a green card since November 2008. This is his first entry to USA thru his daughter (US Citizen) who is living in NJ.
Since his arrival in September 2008, he has visited his wife and his two daughter’s family twice in India. 1st visit in 2010, was for 5 weeks and his 2nd visit in 2012, was for three and half months.
So my questions for you:
1. When can he apply for US citizenship?
2. Will his two family visits interrupt continuity of 30 months needed for citizenship application?
3. He plans to go to India for another family visit for couple months in early 2014. Will it affect his chance for application for US citizenship or should he apply first, get citizenship and then plan for his visit to India(mid 2014 or after)?
I would appreciate very much your answer soon. Thanks.
UD
UD,
It’s dangerous to ask a lawyer to do math. (There’s a reason we chose law over fields that require us to count.) But still I’ll try. Your caregiver has been an LPR since Sept. 2008, so assuming that none of his absences interrupt his “continuous residence,” then he’s got 5 years as of Aug. 2013 and can file the Form N-400, Application for Naturalization, now. (Also, he’s allowed to file 3 months before completing the 5 years, as mentioned above.)
As to whether any of his trips abroad interrupt that “continuous residence,” the general rule is that absences for under 6 months don’t matter. So far, he’s been abroad for only about 5 months total. So there’s been no interruption.
Also, he meets the “physical presence” requirements as he’s been in the U.S. for more than 1/2 of the prior 5 years.
Another visit to India for a couple months won’t imperil his compliance with the “continuous residence” or “physical presence” requirements. He can file now or upon return from India. If he files now, he may need to watch the mail for a biometrics appointment notice, which will be scheduled for about 1-2 months after filing. If it’s scheduled for while he’s abroad, he may need help requesting that it be rescheduled.
Of course, I don’t know the facts about whether he meets the other requirements for naturalization. An immigration lawyer can review those facts (as well as reviewing his passport to confirm the dates abroad) and advise.
Hi! My husband has been a green card holder since March of 2006, but he went back to the Philippines for about 3 years beginning May 2008 to finish his studies. He managed to go back to the U.S. at least once a year during that period to work for 2 months as a clinical nursing assistant during his school breaks. Anyway, he’s been back in the US since September 2011. My question is, will those years he stayed in the Philippines affect his application for naturalization?
He was told that because one time he stayed in the Philippines for more than a year that it might affect his application for citizenship. That’s disappointing since he’s been waiting to qualify for it so he could upgrade the petition he filed for me and our son. He’s supposed to file for citizenship this coming January 2014 because that completes his 5 years of presence in the US. Your answer will be very much appreciated.
Evade: One thing’s for certain: as mentioned above, a person whose continuous residence is broken due to an absence in excess of 1 year may file an application for naturalization 4 years and 1 day following the date of their return to the U.S. to resume permanent residence.
Besides that, I can’t give solid advice without a clear timeline. From the sound of it, over a period between May 2008 and Sept. 2011 your husband was really living abroad as a student and only back in the U.S. a couple months a year for work during school breaks. It’s quite possible his U.S. residence didn’t begin to accrue again for citizenship purposes until he moved back to the U.S. in Sept. 2011. If you want solid advice about how to apply the above rules to your husband’s case, a lawyer can look at his passports, talk to him, and sort it out.
Hi Gary,
I really commend you for the good job advising others. My wife, kids, and I have been LPRs since August 2009. I have a home here in the US and I work for a US-based company here in the States, but the nature of my job does take me out of the country for 2 or 3 week a month so my question is that will that impact my citizenship application. And when should I file my citizaenship application–I will have been an LPR for 5 years in Aug. 2014.
Sunny,
Your travel abroad for work won’t impact your naturalization eligibility, so you can file 3 months before the 5-year mark, so long as you meet the continuous residence requirement and physical residence requirement.
Hi, I hope you are in good health.
My wife, kids, and I have been permanent residents since November 2009.
From 2010 to 2012, we came to the U.S. for only two months per year, as I was working abroad and my kids were studying abroad. We did have absences over 6 months (but none over a year) during this period. We were interrogated several times in the airport secondary inspection (Where do you work? Where do your kids study?) and threatened that our green cards could be taken away.
Now, we’re living in the U.S. We will have completed 5 years as permanent residents in November 2014.
1. Will our long stays abroad affect our naturalization?
2. When can we apply for naturalization?
3. Do we need to tell USCIS the dates we’ve been abroad?
Thank you and God bless you.
Abo,
As mentioned above, if you’re out of the U.S. for 6-12 months, then there’s a presumption that you’ve broken the 5-year period of continuous residence required in the U.S. for naturalization. In your case, sounds like you and your family just weren’t ready to move to the U.S. when you got your green cards, and you were abroad multiple times for over 6 months. I thing its unlikely that you’ll overcome the presumption that continuous residence was broken. If that’s true, then you’ll need to be continuous residents of the U.S. for 4 years and 9 months from the time that you really moved to the U.S. (school, work, etc.) before you can apply for naturalization. When you apply, you’ll need to list all trips outside the U.S. since becoming a permanent resident. If you want a formal legal opinion about whether you can overcome this presumption, you’ll need to consult with a qualified immigration lawyer (our firm or someone else) who can learn all relevant facts then provide more specific guidance.
Thanks.
Hi Gary!
My husband (an American citizen) had being employed overseas with the American Government for over 5 years. On 1st of July 2013 we MOVED back to the States. I am a green card holder since September 2008. For all this time we were living overseas together and every year we entered the States in order to keep my green card active. I didn’t fill out any form to preserve my continuous residence and physical presence. Am I still eligible to apply for naturalization now as the spouse of American citizen who WAS employed abroad and now in the States? If not, WHEN I would be able to file for Naturalization?
Olga, “expedited naturalization” under section 319(b) of the Act is no longer available to you since your husband’s assignment abroad with the U.S. Government has ended. The purpose of “expedited naturalization” is to allow naturalization so that a green card holder can join his or her U.S. citizen spouse abroad.
The timing for you to apply for naturalization will depend on the length of your continuous absences from the U.S. As discussed above, the rule is different depending on whether the absences were for under 6 months, 6-12 months, or longer. And, for trips abroad under a year, as discussed above, it’s relevant what ties you kept to the U.S. and developed abroad.
Hi Gary, my wife and I both received our green cards in Jan 2010, and after working in Seattle for 6.5 years, I have decided to leave my church (I am a pastor) while figuring out what’s the next step for us and the family.
We went back to Taiwan the end of Sept (last month) and we are currently going through some church trainings and we will return to the States next March.
However, our church trainings will not be done by the time we return next March, so once we go back to the States, we are thinking that we will take a few months (maybe 3 months) to clean out the house and rent it out, and then we’ll return to Taiwan yet again next summer for another couple of months (another 6 months or so) to finish our church trainings, then we’ll return back to the States for good.
My questions are:
1. Will we run into the risk of losing our LPR status? (We own a home, been filing taxes jointly for years, both have bank accounts and investments, as we’ll as insurances) though we don’t have any relatives living in the US.
2. How will this plan affect our naturalization status? For we are told that we are eligible to apply our citizenship in Nov 2014.
Any comments would be much appreciated.
Walt,
If my math is correct, your plan is to be in your native Taiwan for religious training from Sept. 2013 to Dec. 2014 (with a 3-month period back in the U.S. to clean up and rent out your U.S. house).
To me, the most important thing you’ve written is that “you’re figuring out what’s the next step” for your lives. You’re at risk of losing your green cards due to abandonment if you don’t have a concrete plan to return to live in the U.S. For more on this, see this article: You Run Risk of Abandoning Green Card by Staying Abroad Over 6 Months.
But let’s assume that you do have concrete plans to return to the U.S., you just don’t know what your job will be and/or where you’ll live. That’s fine as a matter of law, but it creates evidentiary problems. In other words, how will you avoid abandonment by proving that you intend to return to live in the U.S. without specific U.S. plans? It seems to me that you need real clear proof that
* your stay in your native Taiwan is temporary (maybe no job or home ownership, for example)
* your training is suitable for use in the U.S.
* you have kept U.S. ties of the types mentioned above.
* any efforts by you/your wife to find a new job are exclusively in the U.S. (Keep the evidence to show to CBP).
As to your naturalization eligibility, a continuous stay abroad over 6 months would probably interrupt your period of required “continuous residence” (because your total stay abroad is also relatively long). Whether keeping your stays abroad under 6 months straight would interrupt your “continuous residence” is harder to predict because the USCIS guidance cited above is unclear, leaving ample room for interpretation to individual officers.
If naturalization and preserving LPR status are important for you, you may want to schedule a consultation with us or another law firm to discuss. We represent clients worldwide on these issues.
[…] Can a Permanent Resident Who’s Been Abroad for 6 Months Apply for U.S. Citizenship? […]
Hello Gary,
Thank you for your very informative website. My question is regarding 4 years and one day rule.
My parents got their green card in September 2007. They got a reentry permit in 2009 and left the US, returning in July 2011. Since then, they’ve been in the US at least for 6 months.
I’d like to know how many months out of these four years and one day they need to be physically present in the U.S. They like to travel to Canada, Bahamas, etc.
I called USCIS, and to my surprise the agent told me they should be physically present in the U.S. for the whole 4 years and 1 day!!!
I appreciate your help in advance,
Thank you,
Sara
Sara,
You raise two separate questions. First, you’re right that your parents departure for more than one year broke their continuous residence for naturalization purposes, so they need to reside in the U.S. for 4 years and 1 day after their July 2011 return to the U.S.
Second, they need to be physically present in the U.S. for 1/2 of the continuous residence period (i.e., 2 years and 1 day). So brief trips abroad for vacation aren’t a problem.
Notice also that your parents can apply 3 months before they meet the continuous residence requirement, as explained above.
Hi Gary,
Thank you for this post. I’m helping my boyfriend figuring our when he can apply for naturalization.
He is from Denmark. He’s had green card for 8 years. He was still in school and living in Denmark prior to 07/2009, but visited his brother in the US every 5-6 months. From july, 2009 to june, 2010, he was in Denmark continuously to finish his compulsory military service so that he could move to the US permanently. He was in Denmark for 11+ months straight for the service and was able to return to the US before the 1 year mark. He has worked and lived continuously in the US since 07/2010 with only very short vacation trips out of the US since. We are talking about marriage, and we know that it’d be much easier if we do, but we don’t want this to play a dominant role in deciding when to go down the aisle.
So my questions are:
1. When can he apply for naturalization? 12/2014 or 06/2015?
2. If asked, he plans to tell the office why he had to be in Denmark for 11+ months. Will military service for another country hurt his naturalization application?
Thank you so much. We really appreciate your time.
Jess
Jesse, the 11+ month military service–since it exceeds 6 months–presumptively interrupts your boyfriend’s continuous residence. This presumption would be especially strong because (a) it’s almost 1 year, and (b) you mention that beforehand he was also not living in the U.S.
But, no, apart from the continuous residence issue, Denmark military service isn’t a basis for refusal of naturalization.
Hi Gary
Thanks for the very informative post. I just wanted a little clarification on the continuous residence requirement. If a person got his green card on Jan. 1, 2000, then he leaves the US once every year but not exceeding the 6 months, when would the person meet the 5-year continuous residence requirement to file for naturalization?
Lurker
Hi Lurker,
Assuming the departures from the U.S. don’t interrupt the continuous residence period, the applicant who is granted permanent resident status on Jan. 1, 2000, completes 5 years of continuous residence on Dec. 31, 2004. In other words, if the time outside the U.S. doesn’t interrupt the period of continuous residence, then it doesn’t impact the date that the continuous residence period is completed.
The Form N-400, Application for Naturalization, can be filed 3 months early, as mentioned above, which is Sep. 30, 2004.
Thanks for the Quick reply Gary
Hi Gary,
Me and my wife got green cards in March 2009. But both had good jobs in our home country, so we wanted to find jobs and start living in USA which happened in August 2012. In the interim, we took several short trips to the US, and a couple times we were outside the U.S. for more than 6 months straight, during which we lived and worked in our home country. Would we be eligible for neutralization 5 years after we started living in US?
Thanks
Al
Al: If I understand your question, you want to know if your absences from the U.S. prior to moving to the U.S. in Aug. 2012 are important for purposes of naturalization, assuming you apply for naturalization based on continuous residence in the U.S. for 5 years after Aug. 2012.
The prior absences are relevant in one way: if between Mar. 2009 and Aug. 2012 you abandoned LPR status, then you’re not eligible for naturalization. Abandonment happens when an LPR makes a non-temporary trip abroad. Based on your short narrative of the facts, it seems unlikely that you abandoned LPR status, but I couldn’t offer a reliable opinion on that without knowing all the facts, since this determination is made by the government based on the “totality of the facts.” See my discussion of abandonment above with the heading “Absences in General.”
But we didn’t abandon our LPR status. We were able to return to and settle in the US in August 2012.
Al: I understand that you were admitted by U.S. Customs and Border Protection (CBP) as a returning resident at the airport (or other port of entry) in August 2012.
My point is that sometimes CBP doesn’t pick up on abandonment issues. They admit as returning resident persons from time to time who shouldn’t be admitted. The admission isn’t binding. At a later time, a USCIS or other Department of Homeland Security officer could notice that the individual seems to have been admitted incorrectly and refer that individual to Immigration Court for the judge to decide whether that individual has abandoned LPR status.
So part of the due diligence that a lawyer does in helping a client to decide whether a trip abroad is safe (in terms of being able to return to the U.S.) or whether to apply for naturalization is to analyze whether there’s an unacceptable risk that the individual will be found to have abandoned LPR status at some point in the past.
(By the way, I enjoyed your slip of the tongue in your original post–“neutralized” instead of “naturalized.” You make it sound ominous. Maybe you have some reservations about U.S. citizenship?)
So you say that if I apply for naturalization they can take my greencard too? I always thought I can’t lose my green card so long as I’m not out 1 year straight. Longest I have been out of USA was 9 months 26 days since I got my LPR status back in March 2009.
Al
It’s funny now. Don’t know what I was thinking while writing “neutralized” 🙂
Al:
It’s a common and tantalizing but false myth that green card holders can keep their lawful permanent resident (LPR) status just so long as they return to the U.S. once per year. These people who just “touch down” in the U.S. once per year are at risk of being referred by U.S. Customs and Border Protection (CBP) at an airport or another port of entry to Immigration Court for the judge to decide whether they’ve abandoned LPR status. My article on this is here: “Green Card Holders Who Stay Abroad Over 6 Months Risk Abandonment.” https://lawandborder.com/risk-abandoning-green-card-abroad-6-months/
Similarly, sometimes at a naturalization hearing a USCIS officer believes that the applicant has previously abandoned LPR status and refers the applicant to Immigration Court.
These determinations are made based on the “totality of the facts.” Not knowing the relevant facts in your case, I’m not offering any opinion about you and your wife abandoned LPR status during the 3+ years between when your cards were issued and when you moved to the U.S.
Hello!
I have been a LPR for well over 5 years now. My question is… Do I have to be in the US when I apply for this?
The main reason I want to get Citizenship is because Im spontaneous and like to travel. Right now I am in the UK.
Thanks!
Hollie,
Yes, you can file the Form N-400, Application for Naturalization, while you are physically abroad, but except for narrow exceptions (e.g., spouses of U.S. citizens employed for certain U.S. entities abroad and members of the military), you’ll need to return to the U.S. for the biometrics appointment, naturalization interview, and naturalization ceremony.
Hello Gary,
I’ve been a permanent resident since 2005. I attended high school overseas from 2008 to 2012. Back in 2010, I entered the U.S. after having been out for 2 years and 10 months. The inspector allowed me in (approved an I-327 waiver) and told me that I should consider applying for a reentry permit for any future prologned absences from the U.S. I did later get a reentry permit but didn’t use it–all my subsequent trips outside the U.S. have been for under 6 months.
I applied for naturalization in November 2013, did my biometerics and went to my interview. The officer told me everything is fine and gave an appointment for an oath ceremony. But yesterday I received a notice for a second interview about my absences between 2008 and 2012. What should I expect?
Tareq:
It appears that the officer who did your original interview failed to consider all issues related to your eligibility so you have been called for another interview. There are many additional facts that a lawyer would need to advise you. You may want to consult with a lawyer.
It appears that in 2010, when the officer admitted you to the U.S., it was his or her opinion that you hadn’t abandoned LPR status. Still, your prior absence for a continuous period of 1 year disrupted the continuity of your residence, except if USCIS had approved a Form N-470, Application to Preserve Naturalization for Naturalization Purposes, for one of your parents. If that was your only break in continuous residence, you would again meet the continuous residence requirement to file an application for naturalization 4 years and 1 day (minus 3 months) following the date of your return to the U.S. to resume permanent residence. Did you wait the appropriate time?
I don’t have enough information to know whether you had other breaks in continuous residence, or whether you meet the other requirements for naturalization (for example, the physical presence requirement).
Hi Gary,
I have a problem. I submitted my application for naturalization today. Then I read your website and realized I may have a problem. I’ve been a permanent resident since 1993, but in 2013, when I finished my masters degree in the U.S. I went overseas. My original plan was to stay abroad for 4 months, but due to family problems it was 8 months until I returned to the U.S. Will my naturalization case be denied? Will I lose my permanent residence?
Kathy
Kathy,
As mentioned above, absences of between six months and one year presumably “break[s] the continuity of residence” required for naturalization “unless the applicant shall establish to the satisfaction of [USCIS] that he did not in fact” do so. You may need to overcome this presumption by submitting evidence showing that your 8-month trip abroad was meant to be temporary, not a move away from your U.S. residence, taking into account factors listed in the regulations: employment, residence of your immediate family; and access to your U.S. home. Evidence of the unexpected family problem abroad may be relevant. You can submit this evidence at your interview, or in advance if USCIS requests it.
It sounds unlikely that your absence cause you to lose your permanent resident status. For more on this point, see Green Card Holders Who Stay Abroad Over 7 Months Risk Abandonment.
What happens if my naturalization application is denied for failure to meet the continuous residence requirement?
Assuming the denial is proper (so that there’s no ground for an appeal or motion to reopen or reconsider), you can reapply when you do meet the naturalization requirements.
Hi Gary,
I was granted LPR status in 1982 at the age of 2. I am now 34 and have been an LPR for 32 years. However in Nov of 2009 I accepted a job in the UK and have been living in the UK ever since. In 2010 I returned to US just under 1 year for a visit, since then I’ve been returning to the US twice year (right before 6 months). I actually just renewed my Permanent Residence Card last July and received the new card this past January.
My question is can I apply for Citizenship, in light of the continuous residence and physical presence rules? I would like to apply for Citizenship when I return to the US this June for a visit. I have maintained a home in the US and my family immediate family reside in the US as well. Thank you in advance for your attention to this matter.
Charlene,
I’m going to assume that the 5-year continuous residence rule applies to you (rather than any of the exceptions listed above) and that neither you nor your U.S. citizen spouse is working abroad for a U.S. employer.
You need to be careful becuase working abroad for a foreign employer in a regular (not temporary) position is strong evidence of abandonment of law permanent residence, as discussed here: Green Card Holders Who Stay Abroad Over 6 Months Risk Abandonment.
Although you were became a permanent resident many years ago, the 5 years of continuous residence that count are those years immediately before you file for naturalization. As discussed above, an absence of more than 6 months during those 5 years presumably breaks your continuous residence, and your multiple absences shorter than 6 months may break it.
Moreover, you’ll need to meet the physical presence requirement of being in the U.S. for 1/2 of the days in that 5-year period.
If any of your absences (all of which are under 1 year) break your continuous residence period, then the clock is reset and you need to meet a new 5-year continuous residence period.
Hi Gary,
Thank you, that was very helpful.
Hello Gary,
I’ve been a LPR since 2006 (via diversity visa lottery). I lived and worked in the US from that time until 2013 when my now wife (US citizen by birth) and I decided to go on a world backpacking trip, which meant that we were outside of the US for approximately 8 months.
I’m considering applying for US citizenship, but understand that I need to overcome the rebuttable presumption that my continuity of residence has been broken because I wasn’t physically on US soil for 8 months. Our trip was purely for tourism purposes and we did not work in any of the countries we visited. In order to take such a trip I did have to quit my job and negotiate to terminate our apartment lease. While we were away we moved all our possessions to a rented storage facility in the US and I also maintained US bank accounts and credit cards and filed tax returns as a US resident.
Would greatly appreciate any thoughts on whether US citizenship might be worth pursuing.
Thank you,
Stephen
Stephen: Great fact pattern. My off-the-cuff impression (not researched legal advice) is that if you were on a world backpacking trip and never spent much time in any one place, then it follow that you didn’t establish a new “residence” (i.e, principal home) in any of those places. That would seem to be a good argument that your U.S. residence wasn’t interrupted.
Hey Gary,
I became a LPR in 2003, when i was 13. Anyway, In 2008, i applied for the citizenship, but i got denied, probably due to some marijuana possession. In May 2009, i went to France to study, and i didn’t come back for good until Jan 2012. I did visit my parents for Xmas in California in dec. 09, and Dec. 10, both times for about 2 weeks.
Anyway its been over 5 years since i got denied. and now im finding out about being abroad and it not being good when its over 6 months, which is my case ! But i was studying ! I went to a nice landscaping school, because i want to start a gardening business over here. the custom officer actually gave me some crap when i came back in Jan 2012, he told me they could take my green card away…etc ( i had no idea). But when i told him about gardening school and everything, he just said, ok, you’re fine, but next time, dont leave without filing a permit, you have to let us know.
Now, im thinking about re-applying, no more marijuana… and yet im finding out that its something else that might prevent me from doing so…
Everyone is American now, except me !! my mom became American 4 years ago, my little sister is born here, my stepdad is American. my other French born sister luckily became American because my mom applied when she was still under 18… but when i was 19 ..
Did i study abroad for two long ? do i need to wait ? i dont want to be denied again… and this time because i was studying instead of smoking weed….
help !
I always recommend that people with criminal convictions for controlled substance violations seek legal advice before applying for naturalization. Certain such convictions can lead not only to denial of naturalization but also institution of removal (deportation) proceedings.
At my brother’s recent citizenship interview, the USCIS officer said in the past 5 years he had been out of the country for over 1045 days but never for 6 months at a time. My brother has been a LPR since 2001 and he plays baseball. Unfortunately he plays in Mexico and the Dominican Republic. USCIS did not deny his application they gave him choice of withdrawing his application or denial, and he chose to withdraw it. Because of his profession he only spends about 2 months in the US each year. He does own a home in the US. He is still married to his wife who is a US citizen however the relationship is not that great.
Gary,
Thanks for the extremely informative article.
A Chinese national myself, I became an LPR on 3/11/2010 and will be able to submit my N-400 on Dec. 11 this year. In November 2010, just 8 months after obtaining my greencard, I was sent to China on a 2-year assignment by my American employer, coming back for a short visit every 175 days and maintaining social and economic ties (continued to own albeit rented out my U.S. house, filed taxes, obtained a reentry permit, kept my car and auto insurance etc.)
On Feb 7, 2013 I returned to the U.S. and have remained here ever since. As luck would have it, I accepted a job offer from another American employer who would send me to their Singapore sub for a couple of years starting Jan 15. I have applied for another reentry permit and will wait until the biometrics before my departure. Still, the possibility of deemed abandonment of my green card during the interview lurks above my head especially given the fact I have two, not one foreign assignments before naturalization.
Should I apply for naturalizaiton? Would you recommend retaining a lawyer now or waiting until, God forbid, the appeal procedures?
Ben,
An LPR working abroad for a U.S employer should always consider filing a Form N-470 to preserve residence for purposes of naturalization. Otherwise, as explained above, even stays abroad shorter than 6 months straight may break continuous residence for naturalzation purposes, depending on the facts. An applicant needs to continue to reside in the U.S. even after the N-400 is filed too.
And an LPR working abroad may have difficulty meeting the physical presence requirement for naturalization, even if he or she has an approved N-470.
Bottom line: I recommend meeting with a lawyer to evaluate whether your eligible for naturalization now, whether you should file an N-470, and how to plan and document that you haven’t abandoned your LPR status.
dear sir
I was given green card in june 2005 which is valid till may 2015
i am appying for a new green card
i have been living in texas and california relatives home
i suffered a emotional tragedy and hence did not worked since these 9 years (depression state)
i was 18 at the time of recieving green card and now 27
i did not file any taxes nor did i completed any documentation for tax exemptions
what is the penaly i will have to pay for my green card renewal
also what documents will i have to show that i did not pay tax
will i be able to apply for naturalization once i pay penalty
i was dependent on my relatives for these years
plz reply
thank you
Grace:
What city and state do you live in? I may be able to refer you to free or low-cost local immigration lawyer or accredited representative.
Dear Sir,
I have a query regarding 6-months absence outside US.
I am entering the US with a valid green card after spending 5 months and 25 days (175 days) abroad to keep my permanent residency, I have a valid return ticket, in case the flights get cancelled or the airport gets closed for security reasons as it happened a few times in Pakistan. This results in flight delay and causes my absence just a few days over 6 months like 185-190 days.
Will it count towards the continuous period broken as the circumstances were unavoidable and out of my control?
Appreciating your kind consultation.
Thanks
Hello mr Gary,
Hope as.well
I’M really appreciated our your information.in this web site ,
My situation I was enter usa as refuge 2009 and I was leave usa for.1 year because my son did.accedint by head.and he was between.life and death he was 2 years, and that pushed.me to.leave usa for 1 year , and the reason to.stay 1 out usa because I.didnt had green.card.and.I. was leave usa without travel doc.or.green card , so I. Applied.for travel.doc.and.the uscis took.6 month.to.issued travel doc., and.then get back.to.usa so.I.leave usa for.1 :-year.for.medical reasons for.my child and.my.child American citizenship already because he was born.in usa , my specific queation.I.was apply for.N400 and I pass with test historic but the officer told.me we.the supervisor.need review your.case to.take.decision and im done.with 8.month and wait without any update from.uscis.and.I.did.requestd from.uscis.and.contacted with congress office.on.my.city and.the uscis the same answer you.need wait we and.we don’t know how.long time your.case take it , please can you advise.me.what I.need to.do., and did you.think ths uscis will deny or.approval.my case , my god.bless yiu.and.wait your reply
hi gary
i am a greencard holder i went back to my country . and i been in my country 2 year , and now i wanna go back to us , do i able to enter the us , or i can’t enter to the us . and i don’t have reentry documents .
with my all respect .
Thank You sir for your pertinent replies to so many posters . One of these is what I stumbled upon , to come to your very useful website. I got my GC in Sept 2010. So come Sept this year-it’d be 5 years since I have my GC . Some questions with regards to situation around Citizenship application.
I had hoped to have better days after getting my GC – and they were better status-wise but alas ( maybe as in many other cases ) my personal family situation went a bit south – I had to partake in divorce proceeding and so spend half a year of the time back abroad with my parents every year – though I was primarily resident here in US ( ( I kept made sure I had enough time here in US- more than 6 months ) .
So my Q is My understanding is that when you file for citizenship – you should have completed 2.5 yrs stay within the US . Are these frequent trips abroad ( ALL of them Less than 6 months ) likely to cause problems in my Naturalization Application. I have also had bouts of unemployment ( usually less than a year ) and I found mostly contract work which is compatible with my personal situation.
Do these trips matter
does this employment pattern bring up concerns
Also I am of the understanding that if I file in June then I should be in the US from June till my application is reviewed. Q is I should be resident in the state where the GC got sponsored from or I can I be working anywhere in the US long as I have work.
I am pretty sure I ‘d very very well off job wise at the time of filing.
My parents health is not great , they need me now , so I was planning for go back for a few months and come back in May . Can I still go or you suggest I wait it out.
I know its a grey area ( Naturalization application) but I was of the impression that rejects are primarily because you had abandoned status or did something gross. In your best experience – does this happen frequently to people who have kept status ( fulfilled the objective requirements ) but their situation is vulnerable to an interpretation by the officer .
would buying a house ( asset owning ) help to resolve any kind of ambiguity in your situation that would depend on interpretation.
TY again for your help
Dear Gary,
I was hoping you can respond a couple of questions regarding my path to US citizenship.
I have been living in the US for 4 years and 5 months now as a Legal Permanent Resident through Diversity Visa Lottery. It’s in my bet interest to apply for Citizenship so I can bring my family in the US also. Am I able to apply for citizenship before 5 years of time ? And if so can I apply 6 months or 3 months before the 5 year period ?
And is there an approximate time o how long will it take for me to bring my parents here ?
Thanks for your help
Hello Gary,
Thank you for the information…
I got the temporary 2 year green card through marriage on January 21st of 2012..In June of 2014 I got my temporary 10 year green card.. I filled as divorced. My ex husband and I were married for 2 years and 4 months.
On september 30th of 2014 I left the US and quit my job to go on a backpacking trip around Asia I came back after 3 months and 18 days.. and now January 2015 I’m leaving for 3 months to study a course in South America and visit my family ..After I plan on coming back to the US.
If I want to file for citizenship..Will my absence of this 3 more months cause me trouble?..As I read I’m allowed to leave for less than six months per year…so As of 2015 it will only count the 17 days I was previously gone and this 3 months ..am I correct? or will they consider all the time I was gone from 2014? Thank you so much for your help.
Also After speaking with my previous employer… I will get my job back when I return in Aphril. I also have all my savings and credit cards here in the US and I do plan on making the US my home forever.
Also .. to file for citizenship, does it count from the time I got the first green card or it only counts for the permanent? Thank you so much for your help
i have been in the us since 2006 and i became a green card holder in august 2010 and i never went out of the country since 2006 can i apply for citizenship right now ??////
Hi Gary,
I got my green card in Feb 2010 and already submitted my N-400 in Dec 2014. I will go in for biometrics in Feb 2015. For the 5 years, I satisfied residence and physical presence requirements (a little over 2.5 years were spent in the US). However, during the past 2 years, I’ve spent more time working in China than in the US, and my current job assignment is still in China.
My questions:
1. At each step in the naturalization process – biometrics, interview, etc. – do I still have to have been physically present in the US for more than half the time?
2. How important is it that I am physically present in the US as much as possible during my application process? Should I plan to move back to the US now?
Thanks much!
Jess
Hi Gary,
Thank you for your very informative website. I just wanted to run my situation by you for your valuable opinion:
My wife and I became GC holders in June 2005. We applied for Re-Entry permits and stayed outside the US for exactly 2 years from Aug 2006 – Aug 2008. We had no issues while returning back to the US after our 2 year stay outside. We were gone to take care of our sick parents. During those 2 years we did not work. Also, we never owned a home in the US. We did keep our US bank accounts and filed federal income taxes for years 2006/2007/2008 as US residents. We also filed Illinois State (we lived in IL all along) for years 2006 and 2008. We did not file an IL state tax for 2007 as we did not live in IL and did not have any income from IL in 2007. We did get a letter from IL asking us to pay IL taxes for 2007, but after I wrote to them about our absence in 2007, they withdrew their notice. I have copies of all the correspondence with IL on that topic. The reason IL even sent me that notice was b’cos I had filed a Federal Tax return for 2007 and had used an Illinois address (my friend’s address). I had used my friend’s address as a forwarding address for reliably receiving any correspondence during my 2 years outside the US.
After our return back to the US in Aug 2008, we have stayed here and had no trips outside the US for more than 6 months at a stretch. In fact, our total stay outside the US since Aug 2008 is less then 90 days.
So now in Feb 2015, it is 6 years and 5 months since we returned back after our 2 years stay outside the US and during the 6 years and 5 months, we had traveled outside the US for a total of just 90 days. Do you think we could run into issues with our N-400 application now due to the 2 years absence? What are the supporting documents we should send along with our N-400 application to address our situation?
Thank you very much!
Dear Sir:
My concern is due to the continuous residence and physical presence as I have been traveling back and forth out of the country. I became a resident on 11/17/2004. So I have been in the country for more than 10 years, but have been vacationing to my birth country.
Here’s the breakdown of my travels:
11/2005 – 04/2006 – 5 months
02/2007 – 06/2007 – 4 months
11/2008 – 04/2009 – 4 months
2/5/2010 – 8/27/2010 – less than 1 week to be considered six months
11/6/2011-4/27/2012 – less than 1 week to be considered six month
2/23/2014-6/23/2014 – 4 months
Am I eligible to apply for citizenship ? Also, I no longer work and have no income as I am a dependent of my daughter. Therefore, I have not filed an income tax. Will that be a problem?
Thank you and Hope to hear from you.
Loyo
sorry….date s/b 2/17/2010 – 08/7/2010
Thanks
I’m planning to apply for citizenship by 2-3 months before May 23, 2011, which was the date we acquired our residency. My daughter is currently in the Philippines studying and is holding a re entry permit, She will be turning 18 by December, 2016. If I become a US citizen will she be carryover eventhough that she stayed in the Philippines more than 6 months? Should I include her with my application for naturalization so that she will still be considered minor. Does she needs to attend the interviews or biometrics or just the oath taking. If so can she go back to the Philippines after applying for a US passport and use her Philippine passport instead if in case the US passport is not available yet and she needs to attend school.
thanks
Vicky
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