Naturalization cases are taking as long as three years to process in certain jurisdictions. This presents a series of problems for our clients who apply for naturalization and then subsequently travel abroad for lengthy periods of time. The most important of these problems is that applicants have difficulty in continuing to meet certain residency requirements for naturalization after traveling abroad. In order to naturalize, an applicant must meet the following residency requirements at:
- The Filing of Naturalization Application Form N-400 ("Filing").
- Naturalization Interview ("Interview").
- Oath of Allegiance ("Swearing In").
The residency requirements for naturalization are:
- Residence in the United States for the prescribed period of five years after admission to permanent residence (three years if application is based on being a spouse of United States citizen). An applicant may file an application "early", three months before the five-year residence (or three-year) period has run.
- Residence in the INS District where the application is filed for a period of at least three months before the filing of the application. If an application has been filed "early"(see above in #1) then the applicant must reside in the INS District for three months preceding the naturalization interview.
- Physical presence in the United States for at least half of the required residence time. This means that applicants must be physically present in the United States for at least 30 months in the periods preceding filing, interview and swearing in. (Applicants whose naturalization application is based on their marriage to a United States citizen will be required to spend at least 18 months physically present in the United States before filing, interview and swearing in).
What effect does an absence from the United States have on residence or physical presence?
Depending on the length of absence from the United States, a trip abroad can have a definite, possible or no effect on an application for naturalization. Absences from the United States may be conveniently broken into three types of trips:
1. Absences of Six Months or Less--- Absences from the United States for periods of six months or less will not effect residence for naturalization purposes. This means that the five-year period of "continuity of residence" referred to in paragraph No. 1 above, will not be broken for any absence of six months or less. This does not mean that the absence will be construed as "physical presence" in the United States. Any periods of time when the alien is not physically present in the United States will be subtracted from the 30/month (or 18/month) physical presence requirement. The applicant for naturalization must meet the 30/month (or 18/month) requirement set forth in paragraph No. 3 above at filing, interview and swearing in. An alien traveling abroad may often meet the physical presence requirement at filing but fail to meet it at interview or swearing in.
Example: Joe Alien, who qualified for naturalization at the time of his filing by living 10 continuous years in the United States after being admitted as a permanent resident, travels outside the United States for a continuous period of 5 months and 29 days. Joe returns to the United States for three days but then takes another trip abroad for a continuous period of 5 months and 29 days. He repeats this process four more times so that his total period of time spent physically present outside the United States before his interview is 35 months and 24 days. Joe Alien attends his naturalization interview and his application may be rightfully denied because he fails to meet the physical presence test even though he has not broken his continuity of residence.
2. Absences of More than Six Months but Less Than One Year---An absence lasting longer than six months but less than one year triggers a rebuttable presumption of abandonment of continuous residence for naturalization purposes. The burden is on the naturalization applicant to demonstrate that the continuous residence requirement has been met. In this situation a naturalization applicant must submit objective evidence of his/her intent not to break the continuity of residence for naturalization purposes. Such evidence could include but is not limited to: having immediate family members remain in the United States; owning property in the United States; operating a business in the United States; providing evidence of a temporary assignment from a United States corporation to a foreign office.
Example: Joe Alien, who qualified for naturalization at the time of his filing by living ten continuous years in the United States after being admitted as a permanent resident, travels outside the United States for a continuous period of 6 months and two days. He returns to the United States to attend his naturalization interview. Joe sold his United States home when he left the United States and moved his family to Italy where he now owns a home. Joe left his position at a United States restaurant to open up a three star restaurant in Milan. Joe filed his United States taxes as a nonresident alien while living in Milan. The naturalization application is denied because Joe's intent to continue to reside in the United States has not been demonstrated to the Naturalization Examiner and his period outside the United States has been for longer than six months.
Example: The same facts as above except: Joe opens a restaurant in Milan but does not sell his United States house, his immediate family members remain in the United States, and he files his taxes as a resident alien. Joe tells the examiner that after the restaurant is "up and running" he plans to return to the United States to open other restaurants there. The naturalization application is approved. Joe has demonstrated his intent to not break his continuity of residence for naturalization purposes.
3. Absences of one year or longer.Absences of one year or longer will conclusively break the period of continuous residence for naturalization purposes. There is, however, one exception to this rule. An alien, if eligible, may file an Application to Preserve Residence for Naturalization Purposes---Form N-470. An approved N-470 application entitles a naturalization applicant to rebut the conclusive presumption of a break in continuity of residence when that applicant has been continuously abroad for a period of over a year. An approved N-470 does not eliminate the requirement that a naturalization applicant be physically present in the United States for at least half of the qualifying period of residence.
Who is Eligible to File Form N-470?
The following employees are entitled to file form N-470:
- Persons employed by a United States firm or Corporation abroad who are engaged in the development of foreign trade or commerce of the United States. If the person is employed at a subsidiary of the United States corporation, a majority of that foreign subsidiary's stock must be owned by the United States corporation.
- Persons employed by a United States research institution recognized by the Attorney General of the United States.
- Persons employed by the United States government.
- Persons employed by a public international organization of which the United States is a member by treaty or statute. The commencement of this employment must have occurred after the naturalization applicant was admitted to the United States as a permanent resident.
In addition, an alien filing form N-470 must have been physically present in the United States for an uninterrupted period of at least one year after having been admitted as a permanent resident of the United States.
In addition, the naturalization applicant needs to file and obtain approval of this application within one year of the applicant's continuous absence from the United States.
Where is the N-470 filed?
It is filed at the INS District Office having jurisdiction over the naturalization applicant at the time of the filing their N-470 application. This office will almost always be different from the INS Service Center where the applicant files his/her N-400 application.
What about my reentry permit? Does it serve the same purpose as the N-470?
No. While these two documents may appear to serve the same purpose, a Reentry Permit preserves permanent residence for permanent residence purposes. It has no effect in preserving continuous residence for naturalization purposes. A naturalization applicant who expects to be abroad for a period of one year or longer must file both for:
- A reentry permit; and
- An Application to Preserve Residency for Naturalization Purposes.
In order to rebut both the presumption of abandonment of permanent residence as well as a break in continuous residence for naturalization purposes.
What About the Good Moral Character Requirement? When Does This Requirement Apply?
An applicant for naturalization must possess "good moral character" during:
- The statutory period preceding the filing of a naturalization application;
- The period between the filing of the application and the naturalization interview;
- The period between naturalization interview and the oath of allegiance.
Applicants are often required to be "refingerprinted" for a new FBI check when a lengthy period of time has lapsed from the time of their initial FBI screening. Naturalization applicants should pay their taxes as resident aliens, pay child support, if required, stay out of trouble with the law and remain model future citizens all the way through their "swearing in" ceremony.
Conclusion:
Lengthy processing times for naturalization applications have resulted in a series of pitfalls for "would-be" citizens. In order to retain their eligibility for naturalization, naturalization applicants should be aware of:
- Residency requirements;
- Physical presence requirements;
- The effects of absences from the United States; and
- Actions that will effect their "good moral character" standing
The naturalization applicant needs to remember that in order to be eligible for naturalization; one must meet the above criteria at filing, interview and at swearing in. This is especially pertinent to those naturalization applicants who have traveled abroad for lengthy periods of time since the filing of their naturalization application.