USCIS Policy Manual
VOLUME 12: CITIZENSHIP & NATURALIZATION
PART D: GENERAL NATURALIZATION REQUIREMENTS
An applicant for naturalization under the general provision See INA 316(a). must have resided continuously in the United States after his or her LPR admission for at least five years prior to filing the naturalization application and up to the time of naturalization. An applicant must also establish that he or she has resided in the State or Service District having jurisdiction over the application for three months prior to filing. See INA 316(a). See Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].
The concept of continuous residence involves the applicant maintaining a permanent dwelling place in the United States over the period of time required by the statute. The residence in question “is the same as that alien’s domicile, or principal actual dwelling place, without regard to the alien’s intent, and the duration of an alien’s residence in a particular location measured from the moment the alien first establishes residence in that location.” See 8 CFR 316.5(a). Accordingly, the applicant’s residence is generally the applicant’s actual physical location regardless of his or her intentions to claim it as his or her residence.
Certain classes of applicants may be eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for an exemption from the continuous residence requirement altogether. See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5]. These classes of applicants include certain military members and certain spouses of U.S. citizens. See Part I, Military Members and their Families [12 USCIS-PM I].
The requirements of “continuous residence” and “physical presence” are interrelated but are different requirements. Each requirement must be satisfied (unless otherwise specified) in order for the applicant to be eligible for naturalization. See Chapter 4, Physical Presence [12 USCIS-PM D.4].
USCIS will consider the entire period from the LPR admission until the present when determining an applicant’s compliance with the continuous residence requirement.
An order of removal terminates the applicant's status as an LPR and therefore disrupts the continuity of residence for purposes of naturalization. However, an applicant who has been readmitted as an LPR after a deferred inspection or by an immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. See 8 CFR 316.5(c)(3) and 8 CFR 316.5(c)(4).
Other examples that may raise a rebuttal presumption that an applicant has abandoned his or her LPR status include cases where there is evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability or fails to file either federal or state income tax returns because he or she considers himself or herself to be a non-resident alien. See 8 CFR 316.5(c)(2).
An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization. See INA 316(b).
Absences of more than 6 months but less than one year; and
Absences of one year or more.
In addition, absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence.
1. Absence of More than Six Months (but Less than One Year)
An absence of more than six months (more than 181 days but less than one year (less than 365 days)) during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship. See INA 336 (Hearings on Denials of Applications for Naturalization).
An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence.
An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence: See 8 CFR 316.5(c)(1)(i).
The applicant did not terminate his or her employment in the United States or obtain employment while abroad.
The applicant’s immediate family remained in the United States.
The applicant retained full access to his or her United States abode.
2. Absence of One Year or More
An absence from the United States for a continuous period of one year or more (365 days or more) during the period for which continuous residence is required will break the continuity of residence. This applies whether the absence takes place prior to or after filing the naturalization application. See INA 316(b).
The naturalization application of a person who is subject to the continuous residence requirement must be denied for failure to meet the continuous residence requirements if the person has been continuously absent for a period of one year or more without qualifying for the exception benefits of INA 316(b)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9898.html#0-0-0-7689). An applicant who is absent for one year or more to engage in qualifying employment abroad may be permitted to preserve his or her residence. See Section D, Preserving Residence for Naturalization (Form N-470) [12 USCIS-PM D.3(D)].
3. Eligibility after Break in Residence
An applicant who is required to establish continuous residence for at least five years See INA 316(a). and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement See INA 319(a). may apply two years and one day after returning to the United States to resume permanent residence. See 8 CFR 316.5(c)(1)(ii).
D. Preserving Residence for Naturalization (Form N-470(http://www.uscis.gov/n-470))
Certain applicants See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5], for classes of applicants eligible to preserve residence. may seek to preserve their residence for an absence of one year or more to engage in qualifying employment abroad. The applicant may also need to apply for a reentry permit to be permitted to enter the United States. Such applicants must file an Application to Preserve Residence for Naturalization Purposes (Form N-470(http://www.uscis.gov/n-470)) in accordance with the form instructions.
In order to qualify, the following criteria must be met:
The applicant must have been physically present in the United States as an LPR for an uninterrupted period of at least one year prior to working abroad.
The application may be filed either before or after the applicant’s employment begins, but before the applicant has been abroad for a continuous period of one year. See 8 CFR 316.5(d).
In addition, the applicant must have been:
Employed with or under contract with the U.S. Government or an American institution of research See 8 CFR 316.20. See www.uscis.gov/AIR for lists of recognized organizations. recognized as such by the Attorney General;
Employed by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof if more than 50 percent of its stock is owned by an American firm or corporation; or
Employed by a public international organization of which the United States is a member by a treaty or statute and by which the applicant was not employed until after becoming an LPR. See INA 316(b). See 8 CFR 316.20.
The applicant’s spouse and dependent unmarried sons and daughters are also entitled to such benefits during the period when they were residing abroad as dependent members of the principal applicant’s household. The application’s approval notice will include the applicant and any dependent family members who were also granted the benefit.
The approval of an application to preserve residence does not relieve an applicant (or any family members) from any applicable required period of physical presence, unless the applicant was employed by, or under contract with, the U.S. Government. See INA 316(c). See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5].
In addition, the approval of an application to preserve residence does not guarantee that the applicant (or any family members) will not be found, upon returning to the United States, to have lost LPR status through abandonment. USCIS may find that an applicant who claimed special tax exemptions as a nonresident alien to have lost LPR status through abandonment. The applicant may overcome that presumption with acceptable evidence establishing that he or she did not abandon his or her LPR status. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). In removal proceedings, DHS bears the burden of proving abandonment by clear and convincing evidence. But if the probative evidence is sufficient to meet that standard of proof, approval of the application to preserve residence, by itself, would not preclude a finding of abandonment.
Approval of an application to preserve residence also does not relieve the LPR of the need to have an appropriate travel document when the LPR seeks to return to the United States. See INA 212(a)(7)(A). A PRC card, generally, is acceptable as a travel document only if the person has been absent for less than one year. See 8 CFR 211.1(a)(2). If an LPR expects to be absent for more than one year, the LPR should also apply for a reentry permit. The LPR must actually be in the United States when he or she applies for a reentry permit. See 8 CFR 223.2(b)(1).
As of November 28, 2009, the Commonwealth of the Northern Mariana Islands (CNMI) is defined as a State in the United States for naturalization purposes. See INA 101(a)(36) and INA 101(a)(38). See 48 U.S.C. 1806(a) and 48 U.S.C. 1806(f). See section 705(b) of the Consolidated Natural Resources Act of 2008 (CNRA), Pub. L.110-229 (48 U.S.C. 1806 note). Previously, residence in the CNMI only counted as residence in the United States for naturalization purposes for an alien who was an immediate relative of a U.S. citizen residing in the CNMI.
All other noncitizens, including any non-immediate relative lawful permanent residents (LPR), were considered to be residing outside of the United States for immigration purposes. Therefore, some LPRs residing in the CNMI, before the Consolidated Natural Resources Act of 2008 (CNRA) was enacted, were considered to have abandoned their lawful permanent resident status if they continuously lived in the CNMI.
Under the current law, USCIS no longer considers lawful permanent residents to have abandoned their LPR status solely by residing in the CNMI. This provision is retroactive and provides for the restoration of permanent resident status. However, the provision did not provide that the residence would count towards the naturalization continuous and physical presence requirements. Therefore, USCIS will only count residence in the CNMI on or after November 28, 2009, as continuous residence within the United States for naturalization purposes. See section 705(c) of the CNRA (48 U.S.C. 1806 note). See Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012).
Mere possession of a Permanent Resident Card (PRC) for the period of time required for continuous residence does not in itself establish the applicant’s continuous residence for naturalization purposes. The applicant must demonstrate actual maintenance of his or her principal dwelling place, without regard to intent, in the United States through testimony and documentation.
For example, a “commuter alien” may have held and used a PRC See 8 CFR 211.5. for seven years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period.
USCIS will review all of the relevant records to determine whether the applicant has met the required period of continuous residence. The applicant's testimony will also be considered to determine whether the applicant met the required period of continuous residence.