Michigan Immigration & Criminal Defense Attorney

Immigration and Criminal Law News

Find answers and information about U.S. immigration law and criminal law issues.

The Continuous Residence and Physical Presence Requirements for Naturalization

In order to become a naturalized U.S. citizen an applicant must meet both the continuous residence and physical presence requirements. The continuous residence requirement means that the applicant must have, after acquiring lawful permanent residency, continuously resided in the United States for a period of three or five years. The physical presence requirement provides that the applicant must have been physically present in the U.S. for at least one half of their three or five year residence. This is relatively straight forward but when exactly an applicant meets these requirements and when they are entitled to file their application is a bit more complicated.

I previously dealt with a case where my client was in a hurry to obtain her citizenship. She was a lawful permanent resident and married to a foreign national. She was pregnant and her husband's status as a student was soon to expire. We decided the best solution was to obtain citizenship for her as quickly as possible so she could file an immigrant visa petition for her husband. This would allow him to remain in the U.S. while the application was pending and, most importantly, be present for the birth of his first child. 

The goal was clear but while researching the law regarding the time for filing the N-400 the case became a bit murky. This is because the law allows an applicant for naturalization to file their application three months before they have met the continuous residence requirement. On it's face that seems simple as well but the actual law is not. The section of the INA governing this is 334(a) which states:

In the case of an applicant subject to a requirement of continuous residence under section 316(a) or 319(a), the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement.

Thus, in order to determine when the applicant would meet the continous residence requirement (and the earliest date the application could be filed), one must look at section 316(a) or 319(a). In this case we'll use section 316(a). That section states no person shall be naturalized unless:

(a)(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months.

The confusion arises because section 334(a) states that one can file three months before meeting the continous residence requirements of 316(a) but that section of the INA also addresses the physical presence requirement. In my client's case, she would meet the continuous residence requirement before she met the physical presence requirement. Therefore, if we filed three months before she met the continuous residence requirement it was possible—even likely—that she would not have met the physical presence requirement at the time of her naturalization interview.

After reviewing the relevant provisions of law and considering their interrelationship, I decided there were two possible interpretations:

There are two possible interpretation of this:

1.  The definition of "continuous residence" includes and encompasses the physical presence clause.  Under this interpretation, one does not meet the continuous residence requirement until he or she has also met the physical presence requirement;

OR

2.  Continuous residence and physical presence are entirely separate and one can meet the continuous residence requirement before meeting the physical presence requirement.

The solution to this apparent ambiguity lies in the section of law relating to continuity of residency.  Section 316(b) provides:

Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a), shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

So, if an applicant is outside the U.S. for more than 6 months the continuity of residency is interrupted unless she can prove otherwise.

Section 316(c) further confuses matters because it states that even if an applicant can convince the government that her absence of more than 6 months should not disrupt the continuity of residency she still has to meet the physical presence requirements.  Here's the language: 

The granting of the benefits of subsection (b) of this section shall not relieve the applicant from the requirement of physical presence within the United States for the period specified in subsection (a) of this section, except in the case of those persons who are employed by, or under contract with, the Government of the United States. In the case of a person employed by or under contract with Central Intelligence Agency, the requirement in subsection (b) of an uninterrupted period of at least one year of physical presence in the United States may be complied with by such person at any time prior to filing an application for naturalization.

Section 316(c) supports interpretation 2 because even if one avails herself of 316(b) to prove continuous residence she still has to establish the required physical presence.

Thus, if a person was absent for more than six months but was able to convince the government that it did not interrupt the continuity of residence, the applicant could meet the continuous residence requirement long before meeting the physical presence requirement.  This being the case, the applicant could file the application 3 months before meeting the continuous residence requirement even though she had been absent from the U.S. for more than 6 months and may not meet the physical presence requirements for some time.

Because it is likely that an applicant in this scenario would be scheduled for a naturalization interview long before meeting the physical presence requirement, I believe this supports interpretation 1.  Otherwise, the USCIS would be in a position of having to deny a case for failure to meet the physical presence requirements at the time of the interview when its own laws and regulations authorized the filing of the petition so early that it was not possible for the applicant to meet the physical presence requirements before the interview.

If you would like assistance with your application for citizenship please contact us for a free consultation.