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The Period Between Filing and The Interview: Residency Requirements for Naturalization

 
When filing a naturalization application, one of the main factors resulting in denial of the application (besides failing the exam or having certain arrest(s) on the record) is breaking the continuous residence or physical presence requirements.

These residency requirements are described in §316 of the Immigration and Nationality Act (INA) as follows:

 

(a) Residence

 

No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately, preceding the date of filing his application for naturalization has resided continuously, after being admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

 

(b) Absences

 

Absences from the United States of more than six months but less than one 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 for naturalization and the date of any hearing under section 1447(a) of this title, shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

 

Thus, there are actually four separate residency/physical presence requirements: "the applicant must show (1) that she resided in the U.S. continuously for at least five years; (2) that during the five years immediately preceding the naturalization application, the applicant must have been "physically present" in the U.S. for at least half of that period; (3) that she resided at least three months in the state where the application is filed; and (4) that there is no break in continuity of residence during the five-year period preceding her application and during the period between the date of filing the application for naturalization and the date of her INS review hearing."

 

For purposes of naturalization, "residence" means the place where the alien has lived with the intention of making that place his home.  The applicant's intention regarding his residence is to be judged by his acts, not by his declarations. [3]

 

With respect to these actions, the United States Citizenship & Immigration Services (USCIS), has put forward regulations describing the kinds of factors to be considered in determining whether to deem a prolonged absence from the country to evidence an "abandonment of residence" under 8 C.F.R.  § 316.5(c)(1)(i)(A)-(D).  These include evidence that during the absence: "(A) The applicant did not terminate his or her employment in the United States; (B) The applicant's immediate family remained in the United States; (C) The applicant retained family full access to his or her United States abode; or (D) The applicant did not obtain employment while abroad."

 

In Abdul-Khalek v. Jenifer, the U.S. District Court found that the applicant broke the continuity of residence requirement for naturalization by her 11 month absence from the United States between the date of her application and the date of her interview.  The applicant, Mrs. Abdul-Khalek, was admitted to the U.S. as a permanent resident on February 28, 1988, and had several trips outside of the country lasting anywhere from four to eleven months each.  She filed for naturalization on May 13, 1993, and left the U.S. on May 21, 1993, for 11 months, returning about three weeks before her naturalization interview.

 

At the interview, the examiner gave her two reasons for her ineligibility: (1) that she had not met the "physical presence" requirement because she had been absent from the United States for 39 of 60 months prior to her citizenship exam; and (2) that because of her absences of more than six months but less than one year, she did not meet the "continuity of residence" requirement.

 

This decision was appealed on June 24, 1994, and a hearing was conducted on September 27, 1994.  The ineligibility decision was upheld; however, the INS District Director found that the examiner misapplied the "60-month physical presence" rule, and found that the correct application of the rule is to determine physical presence in the 60 months preceding the date of the naturalization application.

 

The U.S. District Court, however, disagreed with the INS Director's decision and found that "the continuity of residence was broken by Mrs. Abdul-Khalek's numerous prolonged absences from the United States-including, in particular, the 11 month absence from the country between the date of her application for naturalization and her INS review hearing, which was not considered by the INS."

 

The Court then went on to discuss the factors listed above in relation to the types of evidence that may be considered in deeming a prolonged absence from the United States an "abandonment of residence".

 

The first factor discussed was that Mrs. Abdul-Khalek listed "none" in the space for listing employers on her naturalization application.  Affidavits were provided from her and her brother, however, these affidavits stated only that she "helped out" in the family restaurants and was never treated as an "employee".  Therefore, the Court found that there was no persuasive evidence satisfying the "no termination of employment in the U.S." factor during her absences.

 

The second factor was in relation to her immediate family.  Although Mrs. Abdul-Khalek stated that her immediate family remained in the United States during her absences, the Court was not persuaded that her mother and her siblings counted as immediate family.  However, because her husband remained abroad and her children went with her whenever she traveled to see him, the Court found that her immediate family did not remain in the United States, but in fact was with her on each trip abroad.

 

The third factor was in relation to Mrs. Abdul-Khalek's references to her "abode" and retention of full access to her home in the U.S.  The Court was not persuaded by this factor for two reasons:  First, at the naturalization interview, she had stated that she was still living at her brother's house; and Second, "Although she had been deeded a house in Dearborn two years earlier, in 1992, there is no indication that she ever made any preparations to move into that house."

 

The fourth, and final, factor the court considered was in relation to employment abroad.  While the Court found that this was the only factor Ms. Abdul-Khalek had satisfied, "...under the circumstances of this case, the Court finds that this factor should not be given much weight since her husband appears to have substantial holdings in the Middle East... thereby obviating any need for Mrs. Abdul-Khalek to seek employment to support herself and her children [while abroad]."

 

By considering these four factors and including the 11 month trip abroad after filing, the Court affirmed the rule set out in 8 U.S.C. §§1427 (a) and (b) and in INA §§ 316 (a) and (b) - namely that an applicant must show that they did not break residency both during the five-year period preceding the application and during the period between the date of filing and the date of the interview.

 

 

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