Naturalization and the Continuous Residence Requirement

Naturalization is the process by which a lawful resident of the U.S. can become a U.S. Citizen. There are several requirements for naturalization. One requirement is that the naturalization applicant have continuously resided in the United States for the past three or five years immediately preceding the application for naturalization. (The residence requirement is three years for those whose residence is based on marriage to a U.S. Citizen and five years for most other applicants.) This article will examine and discuss the continuous residency requirement in detail and provide tips for prospective naturalization applicants to make sure they can meet this requirement.

Understanding the Key Issue: Continuity

The key issue that must be understood in order to fully understand this requirement is what it means to have "continuously resided in the U.S." More specifically it is important for prospective naturalization applicants to understand what activities can disrupt the continuity of residency for naturalization purposes. Generally speaking, continuity of residency is disrupted for naturalization purposes if the naturalization applicant has remained outside of the U.S. for an extended period of time.

How Long Can One be Outside the U.S. without Disrupting Continuity of Residency?

Current law provides that continuity of residency can be disrupted by absences from the U.S. as short as six months. Specifically, current law provides that:

• There is a rebuttable presumption that continuity of residency is interrupted when one is outside of the U.S. for a period of between six months and one year; and
• An absence of in excess of one year is a disruption of continuity of residency.

The rule regarding absences of in excess of one year or more is very clear: if the applicant for naturalization is outside the U.S. for a year or more continuity is disrupted. There are no exceptions to this rule. If the applicant has been outside of the U.S. for more than one year she will not qualify to apply for naturalization until she has accrued four years and one day of residence in the U.S. after returning from the absence.

However, the rule regarding absences of between six months and one year only creates a "rebuttable presumption" that continuity of residency has been disrupted. What this means is that if you have been absent from the U.S. for between six months and one year continuity of residency is considered disrupted unless the applicant can prove otherwise to the satisfaction of the USCIS.

How Does One Rebut a Presumption of an Interruption in Continuity of Residency?

The federal regulations regarding continuity of residency provide clear guidance on how one can rebut a presumption that continuity of residency has been disrupted. This specific provision of law can be found at 8 CFR 316.5(c). That section provides that an applicant for naturalization can provide the following types of documentary evidence to rebut this presumption:

• Evidence that the applicant did not terminate his or her employment in the United States;
• Evidence that the applicant's immediate family remained in the United States;
• Evidence that the applicant retained full access to his or her United States abode; or
• Evidence that the applicant did not obtain employment while abroad.

This is not an exclusive list of the types of evidence that may be offered to rebut the presumption but the burden to establish that there was not disruption in the continuity of residence is on the applicant.

Applications to Preserve Residency for Naturalization Purposes

Certain individuals may qualify to file an Application to Preserve Residency for Naturalization Purposes on Form N-470.

Only em­ployees who work for the U.S. government, an American research institute, a U.S. firm engaged in the development of foreign trade and commerce, or a public international organization of which the U.S. is a member qualify to file Form N-470. For purposes of qualifying for an N-470, a U.S. firm includes a subsidiary where more than 50% of stock is owned by a U.S. firm or corporation. It also includes a publicly held corporation that is incorporated in the U.S. and trades stock exclusively on U.S. exchanges. If the company does not trade exclusively on the U.S. stock market, the nationality of the firm is determined by who owns 51% of the stock.

Applicants who qualify for preservation of residency by filing Form N-470 must still establish one year of physical presence in the U.S. after obtain lawful permanent residency.

Exceptions for Military Personnel and their Families

The continuous residence requirement is waived for applicants who have served in the U.S. military for any period or periods aggregating one year. The requirement is also waiver for the spouse and children of a member of the U.S. armed forces for time spent abroad residing with their military spouse or parent. Such time is considered to be time spent in the U.S. for naturalization purposes.

Exceptions for LPR Spouses of U.S. Citizens Working Abroad

The continuous residence requirement is also waived in certain circumstances for naturalization applicants whose U.S. Citizen spouse is employed abroad by: the U.S. government, a public international organization in which the U.S. participates by treaty or statute, an American institution of research recognized by the Department of Homeland Security, or an American firm, or a subsidiary thereof, engaged in whole or in part in the development of foreign trade and U.S. commerce.

Exceptions for Certain Translators in Iraq and Afghanistan

The continuous residence requirement is also waived for an applicant who translates in Iraq or Afghanistan if:

• The applicant was employed as a translator or interpreter in one of those countries by the U.S. Chief of Mission of the Department of State, the U.S. Armed Forces, or a firm or corporation under contract with either and;
• The qualifying employment took place in Iraq or Afghanistan during any part of the period of absence (even if it was one day) where the was continuing the same employment in another foreign country for one of the same entities.

Importantly, service in Iraq or Afghanistan (or another country) for a purpose other than translating or for an entity not defined above does not count.

Conclusion & Closing Thoughts

Understanding the continuity of residence requirement is important for any person who plans to apply for naturalization. Unless one of the exceptions applies, a person who plans to apply for naturalization should not remain outside the U.S. for a period of more than one year under any circumstances. Prospective applicants who may need to be outside the U.S. for a period of between six months and one year should be sure that they will be able to provide sufficient documentary evidence to rebut the presumption that continuity of residence has been interrupted.

If you need assistance with your application for naturalization or documenting an absence of less than one year for purposes of rebutting the presumption of a disruption of continuity of residence please contact us today.