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, 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….”
|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.” 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.
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. citizen who has been a U.S. citizen for all 3 years.  The term “marital union” means “actually resid[ing] with his or her current spouse.” Marital union can be lost through divorce, death, expatriation, or legal or informal separation (but not involuntary separation).
- 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.
- Certain LPRs married to U.S. citizens stationed or employed abroad do not have any continuous residence requirement 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”; 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.
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. 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.
Absence for a Continuous Period of Between Six Months and One Year
According to statute, absences 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.
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. 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. But the following contrary example of a naturalization applicant working abroad is included in administrative guidance:
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” 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. The administrative guidance provides a plausible—but in my opinion incorrect—alternative to the interpretation of the Supreme Court and commentators. To my knowledge, no case or scholarly article has cited this guidance, 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:
- 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.
- 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.
 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).
 INA §316(a).
 INA §101(a)(33). See 8 C.F.R. §316.5(a) (similar regulatory definition); AFM 74.2(b)(10)(B)
 U.S. v. Mulvey, 232 Fed. 513 (2d Cir. 1916).
 INA § 319(a).
 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).
 8 C.F.R. § 319.1(b)(1)..
 8 C.F.R. § 319.1(b)(2).
 INA §319(a).
 Such LPRs also are exempt from the physical presence and state or district residence requirements. 8 C.F.R. § 319.2(a)(6).
 INA § 319(b)(1).
 INA §334(a).
 8 CFR §316.5(c)(1)(ii).
 8 CFR §316.5(c)(1)(ii).
 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.
 “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).
 Tthe expression of one thing implies the exclusion of others). 7 Charles Gordon, et al., Immigration Law and Procedure, § 95.02[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).
 AFM ch. 74.2(b)(10)(B).
 AFM ch. 73.3(c).
 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.”).
 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.)
 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).
 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.
 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.