NATZ: PRESENCE, PRESENCE, PRESENCE

According to the INA, a lawful permanent residence must reside continuously for at least five years, be physically present during the five years immediately preceding filing of the application for at least half of that time, reside in the State in which the application was filed for at least 3 months and reside continuously from the date of application up to the admission to Citizenship. There are exceptions to this rule under INA § 317 (regarding missionaries), § 319 (spouse of a U.S. citizen, spouse of a military member stationed abroad, certain employment abroad, or employee of certain nonprofits, and §§ 328 and 329 (regarding members of the military).

When evaluating your absence from the United States, you must think about five different things:

1. Whether you abandoned your lawful permanent residency;
2. Whether any of the absences constitutes a break in the statutory period for continuous residence;
3. Whether the absences amount to a lack of sufficient physical presence in the United States;
4. Whether the absence, if immediately prior to filing, could affect the three-month residence requirement in the applicant’s state or district for purposes of filing the application, and
5. If you are still outside the United States, whether your readmission could make you subject to the inadmissibility grounds.

If you think you might be outside of the United States for more than a year, or even more than 6 months, you should talk to an immigration attorney.  There may be things you can do before you leave that will preserve your residency or continuous presence.  For example, you may qualify for an N-470. To qualify for an N-470, the individual must have resided uninterrupted in the United States for at least one year as a lawful permanent resident, must be an employee of the U.S. Government, an American institution of research recognized by the Attorney General, certain corporations engaged in the development of foreign trade or commerce, or a public international organization. The N-470 must be filed prior to you leaving the United States.

In addition, you may be eligible for expedite naturalization if you meet certain exceptions as mentioned above. If the lawful permanent resident does not qualify for an N-470, but is the spouse of someone who is an employee for certain organizations overseas (same or similar to those mentioned above), then the individual may qualify for expedited naturalization under INA § 319. If the person qualifies for expedited naturalization, they are exempt from establishing the naturalization residency and physical presence requirements.

In both instances, it may also be wise to file an I-131, application for re-entry permit to ensure smoother entry into the United States after the absence. The re-entry permit will not save you from a break of continuous presence (unless you have an approved N-470 or qualify under INA § 319), but it can mitigate any allegations of abandonment of lawful permanent residence status.

Please contact Shaftel Law if you want to become a U.S. Citizen but are worried about your time outside of the United States!