Continuous Residence: Can I Still Travel Abroad?
Are you a green card holder who wants to become a U.S. citizen? If so, then you will have to "naturalize." Naturalization is the process through which U.S. citizenship is granted to a foreign citizen or national after all naturalization requirements under the Immigration and Nationality Act (INA) are fulfilled. One requirement of the naturalization process is that applicants must show that they have "resided continuously" (or maintained residence) within the U.S. for five years (or three years if the applicant is a qualified spouse of a U.S. citizen).
But what does it mean to have continuously resided somewhere? Under Title 8 section 316.5 of the Code of Federal Regulations, a foreign national's residence is defined as his or her "domicile, or principle actual dwelling place, without regard to the alien's intent." In other words, what matters is where the applicant physically lives, regardless of his or her intent to claim a particular dwelling as his or her residence.
How Is the Continuous Residence Time Period Calculated?
When determining how long an applicant has continuously resided in the U.S., the time period starts when the applicant is admitted into the United States as a Lawful Permanent Resident (LPR). An LPR (also known as a permanent resident alien, a resident alien permit holder, or a green card holder) is someone who isn't an American citizen but who lives legally in the United States. An immigrant's LPR status begins on the day that his or her green card is issued (this date is written on the applicant's green card), and continues until the applicant's LPR status is lost.
An applicant can lose his or her LPR status by committing a crime that makes the applicant removable from the U.S., or by abandoning his or her status as a Lawful Permanent Resident. LPR status can be abandoned through any of the following:
- Moving to another country with the intent to live there permanently
- Traveling abroad for more than six months without providing evidence that the applicant still lives in the U.S.
- Traveling abroad for more than one year without obtaining a reentry permit or returning resident visa
- Voluntarily claiming nonresident alien status to qualify for special exemptions from income tax liability, or
- Failing to file a tax return because the applicant considers himself or herself to be a non-resident alien
Exceptions to the Continuous Residence Requirement
Under the Immigration and Nationality Act, there are exceptions to the continuous residence requirement for applicants who work abroad for:
- The U.S. government,
- Contractors of the U.S. government,
- A recognized American institute of research,
- A public international organization, or
- An organization designated under the International Immunities Act.
In order to qualify for this exception to the continuous residence requirement, eligible applicants must:
- Have been physically present in the U.S. as an LPR for an uninterrupted period of at least one year before working abroad, and
- File Form N-470, Application to Preserve Residence for Naturalization Purposes, at some point before the applicant has been abroad for a continuous period of more than one year
But what about the applicant's spouse and children? An exempt applicant's spouse and dependent unmarried children are also exempt from the continuous residence requirement while they're living abroad with the applicant. But be careful: spouses and dependent children can still violate the continuous residence requirement by abandoning their LPR status.
So what impact can traveling abroad have on an LPR's continuous residence status? An LPR can travel abroad and return to the U.S. without violating the continuous residence requirement; however, there are some limitations. For purposes of naturalization, there are two types of absences from the U.S. that are automatically presumed to interrupt an LPR's continuous residence in the United States:
Traveling abroad for six months to one year (181 to 364 days)
An applicant can overcome the presumed loss of their continuous residence by showing that his or her residence wasn't disturbed. The applicant can do so by showing that during the absence:
- The applicant didn't terminate their employment in the U.S. or obtain employment while abroad,
- The applicant's immediate family remained in the U.S., and
- The applicant retained full access to their residence in the U.S. while abroad.
Traveling abroad for more than one year (365 days or more)
If an LPR travels abroad for more than one year while continuous residence is required, their naturalization application will be denied for failure to meet the continuous residence requirement, unless the applicant qualifies for an exception.
However, if U.S. Citizenship and Immigration Services (USCIS) are determining whether or not an applicant has abandoned their LPR status, any trips abroad (even if less than one year) may be considered.
- Immigration Law Basics
- Immigration Glossary and Acronyms
- Physical Presence Requirement for Naturalization
- 10 Steps to Naturalization: Understanding the Process of Becoming a U.S. Citizen
Immigration law changes frequently. For case specific information about the continuous residence requirement, it's in your best interests to contact a local immigration lawyer.