The Residency Requirement of Naturalization

September 29, 2014 2:20 pm
by David Jakeman

Naturalized citizens enjoy virtually all of the same rights, benefits, and responsibilities as do native-born U.S. citizens. However, the naturalization process is complex and often confusing. That is why it is a good idea to consult with an experienced immigration attorney before starting the naturalization process. This post will discuss one of the most nuanced eligibility criteria for naturalization—residency.

Residency

Applicants must have been legal permanent residents for at least five years before they can file for naturalized citizenship. During those five years, the applicant must have resided continuously in the United States, 30 months (half of five years) of which must be actual physical presence. If the applicant is the spouse of a United States citizen, the five year period is reduced to three years, 18 months (half of three years) of which must be actual physical presence.

Also, the applicant must establish that he or she has resided in the State or Service District having jurisdiction over the application for three months prior to filing. Finally, the applicant must reside continuously within the United States from the date of application for naturalization up to the time of naturalization. Residence is defined as the applicant’s domicile or principal actual dwelling place regardless of the applicant’s intent.

“Continuous residence” means that the applicant has maintained a residence in the United States for the required three or five year period. Absences of less than six months from the United States will not affect the continuous residence requirement. For an absence of more than six months but less than a year, a rebuttable presumption is created that continuous residence has been broken.

To rebut this presumption, the applicant can submit proof that he did not terminate his employment in the United States during his absence, that his immediate family remained in the United States, that he retained full access to his residence in the United States, that he did not seek or obtain employment while abroad, or any other fact that helps establish that continuity of residence in the United States was not disrupted. Absences of one year or more will disrupt the continuous residence requirement and the applicant will have to wait four years to file his petition from the date of his return.

The “physical presence” requirement means that the applicant must demonstrate with documentation actual physical presence for the required time period. Though related to the continuous residence requirement, physical presence is distinct and must be satisfied on its own in order to qualify for naturalization.

Exceptions

Section 316 of the Immigration and Nationality Act (INA) provides several exceptions to the continuous residence requirement. For example, the continuous residence requirement is either waived entirely or at least in part for those applicants working abroad for the United States government, the United States military, contractors of the United States military, a recognized American institution of research, a public international organization, and an organization designated under the International Immunities Act.