Does a Short Stay Establish a “Residence” for Immigration Law Purposes?

The article addresses the question, does a short stay establish a “residence” for purposes of the Immigration and Nationality Act (INA)? This may seem like a trivial question, but it comes up in many contexts for U.S. immigration cases.

For example, the following forms all appear to ask about residence history:

  • USCIS Form N-400, Application for Naturalization: Part 4 (Information about Your Residence) asks, “Where have you lived during the last 5 years?”
  • USICS Form I-130, Petition for Alien Relative: Part 2 asks for the U.S. petitioner’s “physical addresses” for the last five years. “Physical address” means the same thing as residence. For example, the Form N-470 Instructions (Dec. 9, 2019) and Form I-864 Instructions (Mar. 20, 2021) both state, “Physical address. Provide the address where you now reside.”
  • USCIS Form I-130A, Supplemental Information for Spouse Beneficiary”: Part 1 asks for the beneficiary’s “physical addresses” for the last five years.
  • USCIS Form I-485, Application to Register Permanent Residence or Adjust Status: Part 3 asks for the “physical addresses for everywhere you have lived during the last five years.”
  • DOS Form DS-260, Immigrant Visa Application: The “Previous Address” section asks for all addresses where you have “lived” since age 16.

INA § 101(a)(33) defines the term “residence” as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”

The State Department explains that one’s residence is “the place where the applicant in fact lives and under most common circumstances from which they conduct their life.  9 FAM 403.2-4(A) (Sept. 29, 2021).

Residence is different than “physical presence,” i.e., the place where the applicant actually is at any given moment.” 9 FAM 403.2-4(A), (B) (Sept. 29, 2021).

Residence is the place a person tends to return to live after a period of absence such as a vacation or a business trip.

Since the statutory definition refers to one’s “principal … dwelling place” in the singular, it is not possible to have more than one residence.

One’s residence continues until superseded by another. In other words, abandoning one’s old residence is a prerequisite to establish a new residence. See New York Dep’t of Taxation and Finance, Nonresident Audit Guidelines (2021).

Five key types of evidence of abandoning an old residence and establishing a new one include:

  • Home: Selling a home or ending a lease is evidence of abandoning a residence. Buying a home or entering into a lease is evidence of establishing a residence. Staying at a hotel or with friends is not strong evidence of establishing a residence.
  • Business: Termination of employment or ending one’s active participation in a business is evidence of abandoning a residence. Taking up employment, or actively participating in a business, is evidence of establishing a residence.
  • Time: The length and proportion of time one lives in a place is certainly relevant as to whether it qualifies as a residence. It’s not one’s “principal … dwelling place” if one spends proportionally greater time elsewhere.
  • Items “near and dear”: The location of items an individual holds “near and dear” to their heart, or those items which have significant sentimental value, such as family heirlooms, works of art, collections of books, stamps and coins (perhaps kept in a safety deposit box), family photo albums, and pets, is evidence of one’s residence. See Vermont Tax Reg. § 1.5811(11)(A)(i) (defining domicile for state tax purposes).
  • Family connections: The location of one’s close family, especially spouse and minor children, is evidence of residence.

Let’s consider the following hypotheticals to see if a place where a person stays briefly becomes their residence:

  • Case #1: Andy has resided in Beijing for the last 10 years. He accepts a job in New York. His flight to New York includes a 1-day layover in Tokyo, where he stays at a hotel. It’s obvious that Andy hasn’t established a residence in Tokyo because he doesn’t “conduct [his] life” here under “common circumstances.”
  • Case #2: Beth has lived in Beijing for the last 10 years with her spouse and minor child. She alone goes on a 3-month business trip to New York on behalf of her Beijing employer, then returns to continue living in Beijing with her family. None of the five key types of evidence indicate that New York is Beth’s residence.
  • Case #3: Cathy retired recently. She was a resident of Beijing. Since retiring, she has sold her Beijing apartment and bought a motor home. She plans to travel around the country. She will continue to be a resident of Beijing until she establishes a new residence. See Idaho State Tax Commission, Idaho Residency Status Guide (Feb. 20, 2021); New York Dep’t of Taxation and Finance, Nonresident Audit Guidelines (2021).
  • Case #4. Dan has lived in Beijing for the last 10 years with his spouse and minor child. He accepts a job in New York. He sells his Beijing apartment. The family stays with Dan’s mom in New York for 3 months while they look for their own apartment near Dan’s new office. This is a close case. Dan has clearly abandoned his prior residence in Beijing by selling it, but staying with his mom isn’t as strong evidence of establishing a new home as renting or buying a place would be. His new job is pretty strong evidence he has established a new residence. So is the fact that he brought his family. But we wouldn’t say Dan established residence in a New York hotel by staying there with his family for just one night. Similarly, he has been staying with his mom for such a short time that arguably this is not the place where “under most common circumstances [he] conduct[s] [his] life.”
  • Case #5. Ellen has lived in New York for the last 10 years. During the COVID-19 pandemic, she has gone to Vancouver, where she has been working for her New York employer remotely for 12 months. She has both kept her condo in New York and rented an apartment in Vancouver. She intends to move back to New York when the pandemic ends. This is another close case. Note that Ellen’s intent is irrelevant under INA § 101(a)(33). But as her ties to Vancouver grow and to New York decrease, at some point Vancouver may become her residence, i.e., “the place where” under “most common circumstances” she “conduct[s] heir life.”

In close cases, other evidence of abandoning an old residence and establishing a new one may include:

  • Immigration status in each place
  • Holding a professional license or other license in each place (e.g., concealed carry permit, hunting license, fishing license)
  • Belonging to any church organization, club, or gym in each place
  • Whether the home in the arguably abandoned residence has been rented out to others
  • Whether you typically stay in the arguably abandoned residence each time you are in that place
  • Whether you have personal belongings in storage
  • Having a telephone number and mailing address each place
  • Having assets and liabilities such as cars (title, registration, auto insurance), bank accounts, health insurance, other insurance, credit cards, other investments, estate planning documents there.
  • A record of paying or failing to pay federal and state income tax returns
  • Valid state driver’s license, library card, voter registration
  • Regular relationship with doctor, dentists, or other professionals

Lastly, for purposes of naturalization, there are specific statutory definitions of what it means to meet the requirement of “continuous residence” in the U.S.:

  • 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. INA § 316(b); 8 C.F.R. § 316.5(c)(1)(ii).
  • An absence of “more than six months but less than 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. INA § 316(b).
    D.3(C).
  • Absences of shorter than six months “may” break the continuity of residence within the definition of INA § 101(a)(33). 12 USCIS-PM

And for naturalization applicants, there is a requirement they have “resided” within a State or USCIS district for at least 3 months immediately prior to filing the application. INA § 316(a); 8 C.F.R. § 316.2. There are special regulatory provisions for military personnel, applicants who are currently students, commuter aliens, and persons who claim residence in multiple states. 8 C.F.R. § 316.5(b).

For more about naturalization-related residence requirements, see our firm’s Guide to Naturalization in the United States.

1 comment

Leave a comment

Your email address will not be published.