Naturalization denied – break in continuous residence by prolonged absence from the United States

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

To become a naturalized United States citizen one of the set of requirements that a lawful permanent resident must meet is continuous residence in the United States.

What are the continuous residence requirements?

The continuous residence requirements for a lawful permanent resident to become a naturalized US citizen are –

  1. At least five (5) years of continuous residence immediately before the date of filing of his petition for naturalization (three (3) years in the case of qualified spouses of U.S. citizens), including physical presence in the United States for at least one half of the five-year (or three (3) years for qualified spouse of U.S. citizens).
  2. At least three months of continuous residence in the state or district in which she will file her naturalization petition, immediately before filing, including physical presence for at least one half of the period of continuous residence in the state or district of filing, and
  3.  Continuous residence within the United States from the date of the petition up to the time of admission as a citizen [1].

A person is not yet eligible for naturalization if there is a break or disruption in continuity of residence [2].

The purpose of the residency requirement

Since as far back as 1790 the US immigration laws have made residence within the United States after entry a requirement for naturalization as an American citizen.

The Second Circuit Court of Appeals has described the continuous residency requirement as a proving ground on which the alien’s good moral character and attachment to the principles of the U.S. constitution are tested [3].

The purpose of the continuous residence requirements has been to set up a period of probation during which applicants can learn the language; familiarize themselves with U.S. customs and institutions; shed foreign attachments; acquire attachment to the principles of the U.S Constitution and government; show their ability to conduct themselves as law-abiding citizens; and generally prove their fitness to be accepted as U.S. citizens [4].

Naturalization continuous residence requirement 300x198 Naturalization denied – break in continuous residence by prolonged absence from the United States

Residence defined

The INA defines residence as “the place of general abode” and “the place of general abode” of a person as his or her principal, actual dwelling place in fact, without regard to intent. So therefore residence is where a person actually lives whether it was his intention to make it his residence or not [5]. For this reason (and for the issue of abandonment, not discussed here), a lawful permanent resident should seek legal advice before going abroad for anything more than a brief and casual visit.

Breaking continuous residence

Under current immigration regulations [6] absence for a continuous period of between six months and a year during the period for which continuous residence is required create a presumption of a break or disruption in the continuous residence. The naturalization petitioner has the burden to present evidence (discussed below) to rebut the presumption. If the petitioner presents satisfactory evidence he or she has continuous residence despite absence of 6 months to one year from the United States. With limited exceptions involving work overseas for the United States government and US government contractors, if the petitioner for naturalization has been continuously absent from the United States in excess of one year during the period for which continuous residence is required, then there is a break in continuous residence as a matter of law.

Overcoming presumption of a break in continuous residence for applicant’s absence for between 6 months and one year.

To rebut a presumption of a break in continuous residence because of a prolonged absence from the United States for between 6 months and one year, a petitioner can submit documentary evidence showing that during the absence:

(A) She did not stop her employment in the United States;

(B) Her immediate family remained in the United States;

(C) She retained full access to his or her United States home; or

(D) She did not obtain employment while abroad.

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[1] See, Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D. Mich. 1995)

[2] Id.

[3] United States v. Camean, 174 F.2d 151, 153 (2d Cir. 1949)

[4] United States v. Camean, 174 F.2d 151 (2d Cir. 1949); United States v. Mulvey, 232 F. 513 (2d Cir. 1916); In re Vasicek, 271 F. 326, 329 (E.D. Mo. 1921); In re Di Giovine, 242 F. 741 (W.D.N.Y. 1917) .

[5] 8 USCS § 1101(a) (33).

[6] 8 CFR 316.5(c).

 

button Naturalization denied – break in continuous residence by prolonged absence from the United States

About Gary Goodin

US immigration and naturalization lawyer Gary Goodin provides compassionate and professional legal advice and representation in immigration and citizenship cases from his law office in Las Vegas Nevada. His practice area includes marriage green cards, k1 visas, naturalization, and citizenship. To learn more about Gary Goodin visit the home page of this green card and US immigration law blog. More information is also available at www.immigrationlasvegas.com/immigration-attorney/.
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