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Several Issues Regarding the Disruption of Continuous Residency in Naturalization
The Immigration and Nationality Act stipulates that applicants for naturalization must have “(1) … resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing …has been physically present therein for periods totaling at least half of that time … and (2) … resided continuously within the United States from the date of the application up to the time of admission to citizenship."(a)
The requirement is also known as the “5-year rule”. Some provisions in the Immigration and Nationality Act allow certain Lawful Permanent Residents (LPRs) who are spouses of U.S. citizens, members of the U.S. military or U.S.employees to reduce or be exempt from the 5-year period.(b)
I. Disruptions of the Continuous Residency
According to 8 U.S.C. § 1427 (INA § 316), there are mainly two situations where the continuous residency can beinterrupted:
A. Absence from the United Statesof More than 6 Months but Less than 1 Year
Absence of more than 6 months but less than 1 year “during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a)” is presumed to disrupt the continuity of the residency. However, that presumption can be overcome by establishing“to the satisfaction of the Attorney General that”the applicant “did not in fact abandon his residence in the United States during such period.”(c)
The documents for disproving the abandonment of residence in the United States include, but are not limited to:
1. The applicant did not terminate his or her employment in the United States;
2. The applicant's immediate family remained in the United States;
3.The applicant retained full access to his or her United States abode; or
4. The applicant did not obtain employment while abroad. (d)
B.Absence from The United Statesof More than 1 year
“Absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence.” (e)However, there is one exceptiontothis provision.No period of absence from the United States shall break the continuity of residence if a person:
1. “has been physically present and residing in the United States after being lawfully admitted for permanent residence for an uninterrupted period of at least one year”;
2. “thereafter, is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or is employed by 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 more than 50 per centum of whose stock is owned by an American firm or corporation, or is employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence”;
3. “prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence from the United States,”“has established(with Form N-470) to the satisfaction of the Attorney General that his absence from the United States for such period is to be on behalf of such Government, or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation, or to be employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence; and”
4. “Proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose.”(f)
“The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection shall also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person.”(g)
An applicant who spends more than one year overseas, breaks the continuance, and must satisfy a five-year statutory residence period “may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence.”(h)
There are other circumstances in which an LPR may break the continuous residency:
1. “Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident”;
2. “Removal and return: Any departure from the United States while under an order of removal…terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part.’’;
3.“Readmission after a deferred inspection or exclusion proceeding:An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings” breaks the continuous residency.(i)
II. Filing date
Persons applying for naturalization “may file a naturalization application up to 90 days prior to the completion of their required period of residence.”(j) Thus if an applicant prefers to obtain the citizenship as soon as possible, she can file the application when there are less than 90 days left for fulfilling the residency requirement. The current processing time for N-400 application is 5 months.
(b) Id. §1430
(c) Id. §1427 (b)
(d) 8 C.F.R. §316.5(c)(1)(i)
(e) Id. §1427 (b)
(h)8 C.F.R. §316.5(c)(1)(ii)
(j) 8 U.S.C. §1445
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At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (email@example.com) for a free evaluation.
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