Physical Presence vs. Continuity of Residence

In order to naturalize, the lawful permanent resident must prove both “continuous residence” and “physical presence” in the US prior to applying for naturalization. These concepts are most confusing for many individuals. Continuous presence is the maintenance of a residence in the US over a period of time required by law, where the person’s residence is decided by his actual place of abode or dwelling. US immigration laws require lawful permanent residents to maintain such continuous residence in order to avoid a claim by the government of abandonment. For naturalization purposes, the lawful permanent resident must at least prove five (5) years of continuous residence (three years if the permanent residence was acquired through marriage to a US Citizen). Physical presence is simply the number of days the lawful permanent resident actually exists in the US physically. For purposes of naturalization and unless exempt, the lawful permanent resident must show half of the statutory period of continuous residence as physically present in the US. Contact us for an analysis of your case and whether you meet the statutory requirement for citizenship.

The real issue that normally arises is whether there has been continuity of residence since the foreign national received her permanent residence and whether she had interrupted her residence throughout. Discontinuity of residence happens if the foreign national is absent from the US for a prolonged period of time or is otherwise deemed to have abandoned her permanent residence. On the other hand, physical presence is interrupted if the permanent resident was absent from the US for more than 6 months. However, brief absences from the US do not break the physical presence requirement. If you have an issue relating to the continuous residence or physical presence requirement, contact us for a consultation.

It is important to note that the physical presence requirement is normally determined at the time the application for naturalization is filed in terms of how many days the foreign national was in and out of the US. However, moving forward and even after the filing of the naturalization application, the foreign national is still required to maintain continuity of residence up until the time of the naturalization application interview date. That is to say, meeting the eligibility criterion regarding physical presence is calculated backward from the date of filing the naturalization application and if the foreign national met the “physical presence” requirement, i.e., he or she has been physically present in the US for half of the period required by law the foreign national is still required to show “continuity of residence” even after filing of the naturalization application. Hence, if after filing the naturalization application the foreign national permanent resident was absent from the US for more than a year or could not overcome the presumption that she had not abandoned her permanent residence if she was absent for more than 6 months but less than a year, the foreign national may still find herself in removal proceedings even after meeting the physical presence requirement for naturalization purposes. If you believe you may have an issue with discontinuity of residence, contact one of our competent immigration lawyers to discuss your case.

The discontinuity of residence may become an issue in the naturalization application process even if it occurred many years prior to the filing of the naturalization application.

Hypothetical: Sally Foreigner is a foreign national who obtained permanent residence in the US more than ten (10) years ago, and she now decided to mail in her naturalization application. Sally was not represented by a competent immigration lawyer. Eight (8) years ago, Sally left the US on business and her absence extended more than a year. She did return to the US, and Sally had been residing continuously ever since. Her prior absence from the US could become an issue during her citizenship application if discovered by an immigration officer. Sally’s extended absence, albeit more than five years ago, may be deemed as an abandonment of her permanent residence status, a fact that could result in Sally being placed in removal proceedings. It must be remembered that the government bears the burden of proof to show that Sally abandoned her permanent residence.

Special attention needs to be given to individuals who are considered “commuter aliens” under INA § 211.5 and under 8 CFR 316.5(b)(3). Commuter aliens are those who reside in contiguous territory (Mexico, Canada, and the Caribbean islands) but who are employed in the US and enter the US for that purpose. Such permanent residents will keep their green card status so long as they continue to be employed in the US. Once their employment terminates for more than 6 months, they are considered to have abandoned their permanent resident status notwithstanding entries into the US for purposes other than employment. Such commuter aliens do not meet the continuous residence requirement for naturalization unless they take up actual dwelling in the US and reside continuously for the requisite statutory period (five years or three years if a permanent residence is acquired through marriage to a US Citizen). The same rule would apply for those permanent resident aliens who do not reside in the US or in a contiguous territory but who return frequently enough so that their continuous residence is not abandoned. In all practical considerations, those permanent residents are absent in the aggregate sense more than they are present in the US. Such foreign nationals may not be deemed to have abandoned their permanent residence because of their frequent visits; but at the same time, they cannot be deemed to have satisfied the continuous residence requirements.

Contact The Law Firm of Shihab & Associates, Co., LPA if you desire to file your naturalization application. Our lawyers have reached an esteemed level of competence, notoriety, and respect in the community. We handle all types of immigration cases including family visas, green cards, naturalization, and removal as well as employment-based cases including H-1B, PERM, L-1 intracompany transferee and more. Contact us by email or phone for a consultation.