Physical Presence vs. Continuous Residence

 Posted on October 24, 2016 in Immigration

When a person decides to become a naturalized U.S. citizen, he or she must meet a number of requirements in order to be considered. Two of these requirements are that the person must have maintained continuous residence in the United States for either three or 5 years (depending on the situation), and he or she must have been physically present for a certain amount of time as well. This can be extremely confusing for many applicants—two concepts are similar, but not necessarily related. It is very important to have an accurate understanding of these ideas before sending in naturalization paperwork.

Physical Presence

While physical presence may seem fairly self-explanatory, in reality it can become quite complex. There are a multitude of technicalities that may render presence unlawful or otherwise unable to be counted. Additionally, even after factoring these possibilities, what many people miss is that they must be able to show they were physically present in the United States for at least half of the five-year statutory period before applying for naturalization. It is not uncommon, for example, for applicants to see that they must be able to show that they have been physically present for 30 months, without reading that the 30 months must be within that five-year (60 month) period.

If you are one of those who may have overstayed a visa or entered the country without inspection, you may be physically present. However, the time will not accrue for the purposes of naturalization. While in theory, all that is required to accrue presence is to be physically in the country, one must be there lawfully. United States Citizenship & Immigration Services (USCIS) will not grant an immigration benefit to someone who does not qualify for it.

Continuous Residence

Residence as a concept is also fairly self-explanatory, but it becomes complex when one has to define ‘continuous’ for the purpose of naturalization. Generally, one’s residence is defined as one’s fixed or permanent home, usually synonymous with domicile. Thus, a person might live in one country but be a legal resident of another. In order to naturalize in the United States, a person must be able to show that he or she has maintained continuous residence in the country for 5 years (or, in the case of those qualified applicants married to U.S. citizens, for three years).

“Continuous” has been defined for immigration purposes as being uninterrupted by absences of more than six months. Generally, unless you leave the U.S. for a specific purpose that might imply you want to abandon your application (for example, marrying a national of another country), any stay abroad of less than six months will not be held against you.

If your stay is between six months and one year, you must be able to prove that you had no intent to abandon your application. If you stay outside the U.S. for more than one year, you will almost always be presumed to have abandoned your residency—you will not be able to naturalize for at least another 5 years, if not longer.

Ask an Experienced Immigration Lawyer

Because these concepts of residency and presence are in theory so easy to understand, many make the mistake of applying for naturalization without consulting a legal professional. The dedicated Chicago-area naturalization attorneys at Mevorah & Giglio Law Offices can help you spot any potential issues before you apply, so you are not sent back to the beginning when it may be avoidable. Contact us today to schedule a free consultation.

Source:

https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization