Residency Requirements for Naturalization
A common misconception of applicants for naturalization is that residency requirements are determined from the date of filing only. However, applicants should be aware that the time period between the date of filing and the date of the interview (as well as the time between the interview and the oath ceremony) may also be counted towards the residency requirements and should be considered before filing.
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.
There are four separate residency/physical presence requirements, in which an applicant must show: (1) that he/she resided in the U.S. continuously for at least five years (three years if married to a US citizen); (2) that during the five years (three 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 he/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 (three-year) period preceding his/her application and during the period between the date of filing the application for naturalization and the date of her INS review hearing.
In determining whether to deem a prolonged absence from the country as an "abandonment of residence", the following evidence may be considered: (A) that the applicant did not terminate his or her employment in the United States; (B) that the applicant's immediate family remained in the United States; (C) that the applicant retained family full access to his or her United States abode; or (D) that the applicant did not obtain employment while abroad.
In a precedent 1995 District Court decision, the Court concluded that an applicant for naturalization broke the continuity of residence requirement for naturalization through an 11 month absence from the United States between the date of her application and the date of her interview. The applicant had filed for naturalization before leaving the U.S. for 11 months, returning about three weeks before her naturalization interview.
The Court found that the continuity of residence was broken by 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 the date of her INS review hearing. It also considered the four factors from above in finding that she had broken continuous residency.
By including the 11 month trip abroad after filing for Naturalization, the Court found that an applicant must show that they did not break residency both during the five-year (three-year) period preceding the application and during the period between the date of filing and the date of the interview.
Therefore, applicants for naturalization should be careful not to break the residency requirement, both before filing and after filing. Although an applicant may have fulfilled all of the requirements on the date of filing, any trip taken after that date may also be used in determining residency.
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