N-400 US Citizenship: From Green Card to US Citizenship *
Gaps / Time Away From USA
Some of our green card clients have spent some time away from the USA, so here we examine the implications of periods of absences of under 6 months, 6 to 12 months and more than 12 months.
Green Card to US Citizenship:
INA § 316(a), 8 U.S.C. § 1427(a)
We encourage all of our green card holders to go the distance and apply for US citizenship since many nations allow aliens to hold dual citizenship with their home country.
For the most part aliens will have acquired their green card by Marriage or Employment/ Family sponsorship. There are other less common ways to acquire US Citizenship from green card status such as for those whose have served in the military, Federal Government workers, missionaries and so forth however, these aliens are not the subject of this outline, just so that we can provide a easy to digest overview of this process.
Green Card by Marriage:
For aliens who acquired their green cards by marriage they can progress to US citizenship after three years.
Green Card by Family Sponsorship or Employment:
For aliens who acquired their green card having been sponsored by a family member (not US spouse) or employment they can progress to US citizenship after 5 years.
The Continuous Residence Rule:
Many clients want to know precisely when they can progress to US citizen when they have not lived continuously in the US for the whole of the qualifying period. In order to make sure that all of our readers fully appreciate this subject, please allow me to make some legal references and include some quotes. Rest assured, I’ll explain everything fully so that you know exactly where you stand. (Ref 1)
The Purpose of the Continuous Residence Rule:
Congress has stated that the purpose of such residence requirements has been to establish a period of probation during which applicants might be enabled to learn our language; to familiarize themselves with our language, customs and institutions; to shed foreign attachments; to acquire attachment to the principles of our Constitution and government; to demonstrate their ability to conduct themselves as law abiding citizens; and generally to prove their fitness to be accepted as U.S. citizens. (Ref 2)
Residence vs. Physical Presence in the US:
It would be against the State’s purpose of the continuous residence rule if a person could acquire legal permanent residency; a green card, but then proceed not to live in the US and then at the end of the qualifying period simply apply for US citizenship. Therefore, Congress introduced additional legislation in 1952 to ensure that in addition to establishing and maintaining residency in the US the alien actually was physically present in the US for at least half of that time. (Ref 3) As simple as this may sound, following this enactment came quite a complicated analysis as to how that qualifying physical presence rule of half should be calculated as aliens tend to travel in and out of the US frequently.
The 1952 Act defined residence as being “the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent”. In other words, we’re to look at where the alien actually lived first and foremost, regardless as to their intent as the two are now always the same. For example a person may claim to be living in the US, but is actually spending the bulk of his time away, therefore it could be argued that even thought the alien claims his intention is to live in the US, the fact that he is away for prolonged periods suggests otherwise.
The Absence Rules:
Six Month Rule of US Absence:
If the alien does not spend more than six months outside the US then this will not affect in any way the continuity of residence rule. No questions will be asked on return to the US. (Ref 4)
More than Six Months but less than twelve months of US Absence:
If the alien is outside the US for this period of time USCIS will begin to presume that the alien has abandoned their US residency, but this presumption is soft; USCIS will accept the alien’s claims that they did not in fact abandon their US residency. However, repeated absences from the US for this duration will be scrutinized and this scrutiny can be quite severe even if: – (Ref 5)
- The alien did not request classification as a nonresident for tax purposes
- The alien did not document abandonment of their residence (terminate their lease etc)
- The alien is still considered a permanent resident under immigration laws; those immigration laws dealing with keeping in green card status as opposed to qualifying for US citizenship.
So if in doubt, don’t stay out!
Absent more than 12 months:
If the alien is absent continuously for 12 months or more this absolutely breaks the continuity, unless the applicant has obtained advance approval of such absence. If an alien knows they are going to be out of the US for more than six months it is good idea to apply for a Travel Document, this application enables the alien to give USCIS official notice of their intention to leave the US for a prolonged period, but assure USCIS that they fully intend to return and have no intention to give up their status in the US. When we handle these for our clients we document the reasons for the prolonged trip and submit evidence of maintaining US residency. (Ref 6)
Re-establishing Continuity of Residence for US Citizenship:
For those aliens on a five year residency requirement who have broken the continuity rules once they return to the US, assuming they are let back in at all must wait four years and one day before they can re-file. For those aliens on a three year residency requirement they have to wait two years and one day. (Ref 7)
Establishing State or District Residency before Filing for US Citizenship:Before you file for US citizen you must have lived in the state you are filing from for at least 90 days prior to filing. So for example if you have been living in California for the last 5 years and then move to Nevada, you must wait 90 days before filing your US citizenship application.
As long as the alien has not been more than six months outside the US during their qualifying period for their US Citizenship and during that period they have spent at least half that time physically present in the US they should be able to qualify for US citizenship. Also, notwithstanding any other bars to US Citizenship, and timely filing from the state where they have established residency the application with due attorney supervision should go well.
I hope you have found this outline helpful. As indicated earlier this is not a comprehensive study by any means but it should be sufficient to help most aliens. My office can certainly handle your US Citizenship application and ensure that you do not file prematurely and waste your filing fee. Please be aware that there are many bars to US citizenship such as having a criminal record, engaging in immoral behavior or even being a deadbeat parent. There are many legal issues for consideration beyond the scope of this outline. You should seek specific advice and assistance before making any application.
By US Immigration Attorney Chris M. Ingram
US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
520 Broadway, Suite 350,
Tel: 310 496 4292
Everyday the Law Offices of Chris M. Ingram provides a comprehensive range of US Immigration expertise. We also provide a free consultation for our prospective clients.
General Location: Santa Monica, Santa Clarita, Los Angeles, California, USA.
Serving all 50 States
Edited by Marva Gregorio De Souza
Ref 1: Establishing Permanent Residency Duration Prior to Filing for US Citizenship INA § 316(a), 8 U.S.C. § 1427(a)
Ref 2: United States v. Carmean, 174 F.2d 151 (2nd Cir. 1949); United States v. Mulvey, 232 F. 513 (2nd Cir. 1926); In Vasicek, 271 F. 326 (E.D. Mo. 1921); In re Di Giovine, 242 F. 741 (W.D.N.Y. 1917)
Ref 3: 1952 Act Savings Clause; States v Menasche, 348 U.S. 528(1955); Medalion v. United States, 279 F2d 162 (2nd Cir. 1960) (same)
Ref 4: 8 C.F.R. § 316.5(b)
Ref 5: 8 C.F.R. § 316.5(c)(1)(i)
Ref 6: United States v. Larsen, 165 F.2d 433 (2nd Cir. 1947); Schwartz v. United States, 121 F.2d 225 (9th Cir. 1941); In re Rothschild, 57 F. Supp. 814 (S.D.N.Y. 1944); United States v. Menichelli, 65 F. Supp. 738 (M.D. Pa 1946)
Ref 7: 8 C.F.R. § 316.5(c)(1)(ii)