The text below is taken from section 73.3 of the CIS Adjudicator's Field Manual. It deals with the concept of "continutity of residence" for naturalization purposes. This is not "law" in the sense that it carries any particular authority. Rather, it is an explanaton of the law, as the law is understood and interpreted by the CIS. This information is provided so that readers may understand the CIS view on this subject. Readers must understand that only the courts have the final say as to what "the law" is or is not.
73.3 Continuity of Residence.
(a) Introduction. Continuous residence within the United States for a period of 5 years preceding the application for naturalization is one of the basic eligibility requirements for admission to citizenship. This chapter discusses “continuous residence” and the classes of applicants for whom that requirement may be either reduced, modified, or waived entirely. The chapter is arranged as follows:
- (a) Introduction
- (b) “Continuous residence” as a basic requirement for naturalization
- (c) Statutorily defined breaks in the continuity of residence
- (d) Application to Preserve Residence for Naturalization Purposes(Form N-470)
- (e) Classes of applicants having a reduced continuous residence requirement
- (f) Classes of applicants eligible for constructive continuous residence while outside the United States
- (g) Classes of applicants not subject to the continuous residence requirement
- (h) Documenting continuous residence
- (i) Conclusion
(b) “Continuous Residence” as a Requirement for Naturalization. Section 316(a) of the Act prescribes a general rule that applicants for naturalization must have “(1) … 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 …has been physically present therein for periods totaling at least half of that time … and (2) … resided continuously within the United States from the date of the application up to the time of admission to citizenship." “Continuous residence” and “physical presence” are interrelated requirements, but each must be satisfied in order for the application to be approved. Unless specifically exempt, an applicant must also establish that he or she has resided in the state or Service District having jurisdiction over the application. The topics of physical presence and residence in the state of Service District will be discussed separately in later units. (See section 316(a) of the Act).
The concept of “continuous residence” concerns the maintenance of the applicant’s domicile in the United States over the period of time required by the statute. Regulations provide the general rule that for naturalization purposes the residence in question “is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.” (See 8 CFR 316.5(a)).
Note: Persons applying under section 316(a) or 319(a) of the Act may file a naturalization application up to 90 days prior to the completion of their required period of residence. (See section 334(a) of the Act) A related consideration is whether the applicant, since admission to lawful permanent residence, has maintained that status up to the time of admission to citizenship. The Act defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” (See section 101(a)(20) and section 318 of the Act). The "not having changed" part of the definition recognizes the fact that at any time after the granting of a lawful permanent residence the person on whom it was conferred may forfeit that status by his or her actions. For example, any departure from the United States under an order of removal terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for naturalization purposes, even if the applicant happened to retain possession of the original PRC. On the other hand, an applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. (See paragraphs (3) and (4) of 8 CFR 316.5c).) Other examples of a presumption that an applicant has abandoned lawful permanent resident status would be evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability, or failed to file federal or state income tax returns because he or she considered himself or herself to be a nonresident alien. (See 8 CFR 316.5(c)(2).) In verifying that the applicant has not relinquished permanent resident status prior to applying for naturalization, it is necessary to consider the entire period from the original admission to lawful permanent resident status until the present.
Certain provisions of the Act reduce the five-year period of continuous residence for some types of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during three years immediately preceding their application for citizenship the period of required continuous residence is reduced correspondingly from five to three years. (See section 319(a) of the Act.) Other provisions in the Act and other laws provide exceptions by which time abroad in certain activities is credited as constructive continuous residence in the United States, and still others that exempt special classes of applicants from the continuous residence requirement entirely. These exceptions will be discussed in succeeding sections of this chapter.
Prior to 1985, some interpretations (See Interpretations 316.1(c) and Interpretations 316.1(d)) had applied the Fleuti decision to the evaluation of “continuous residence” in some cases. That guidance is no longer valid. The continuous residence requirement of section 316(b) must be strictly applied in naturalization proceedings.
(c) Statutorily Defined Breaks in Continuity of Residence. Every applicant has the burden of establishing by the overall context of facts and evidence that he or she has complied with the continuous residence requirement. However, section 316(b) of the Act specifies two types of absence from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization:
|
(1) Absence of More than 6 Months But Less than 1 Year. If an absence of more than six months but less than one year has occurred during the period for which continuous residence is required prior to the filing of the application for naturalization, or between the filing of the application and the date of any hearing under section 336(a), such absence is presumed to break the continuity of such residence. However, section 316(b) further provides that this presumption of loss of residence can be overcome if the applicant can “establish to the satisfaction of the Attorney General that he or she did not in fact abandon residence during such period.” Acceptable evidence for this purpose may include, but is not limited to, documentation that during the absence the applicant did not terminate his or her employment in the United States nor obtain employment while abroad; the applicant's immediate family remained in the United States; and the applicant retained full access to his or her United States abode. (See 8 CFR 316.5(c)(1)(i))
(2) Absence for a Continuous Period of 1 Year or More. Section 316(b) of the Act provides that “[a]bsence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of residence.”
An exception in the case of a person who, after having lived in the United States as a lawful permanent resident for an uninterrupted period of at least one year, goes abroad for the purposes of employment by or contract with the United States government or an American institution of research recognized as such by the Attorney General, or employment by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof, or by a public international organization of which the United States is a member, as defined in section 316(b) of the Act. No further period of absence from the United States shall break the continuity of residence if that applicant establishes to the satisfaction of USCIS prior to beginning such employment and prior to the expiration of one year of continuous absence that his or her absence is for the purpose of the qualifying employment and upon return proves to the Attorney General's satisfaction that the absence has been for such purpose. The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the foregoing exemption are also entitled to such benefits during the period when they were residing abroad as dependent members of the principal applicant's household. (See section 316(b) of the Act).
Regulations provide that the process by which a qualified applicant seeks the required approval of USCIS for the proposed absence is the Application to Preserve Residence for Naturalization Purposes, Form N-470. Unless the applicant applies in accordance with those rules, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under paragraphs (3) and (5) of section 316.2(a) of the Act shall disrupt the continuity of that applicant's residence.
The application of a person who is subject to the continuous residence requirement but has been continuously absent for a year or more without qualifying for the exception benefits of section 316(b), or making a timely application for such benefits, must be denied for failure to meet the continuous residence requirement of section 316(a). In the case of a denied applicant who is subject to the five-year continuous residence period, this means that he or she becomes eligible to overcome that impediment four years and one day following the date of return to the United States to resume permanent residence. If the case of an ineligible applicant who is subject to the three-year statutory residence period, eligibility to overcome the impediment and to file a new application for naturalization will occur two years and one day following the date of return to resume permanent residence. (See to 8 CFR 316.5(c)(1)(ii) and 8 CFR 316.5(d).) For additional discussion see the relating parts of Chapter 74.2 of this field manual, Part-by-Part Discussion of Form N-400 Data.
The Form N-470 application process is referenced in the next section.
|
(d) Application to Preserve Residence for Naturalization Purposes (Form N-470). The application process for preservation of residence under section 316(b) of the Act is described in 8 CFR 316.5(c) and 8 CFR 316.5 (d) and the N-470 discussion in Chapter 74.2 of this field manual.
If a Form N-470 application is based upon a claim that the applicant is going or has gone abroad for employment by an American institution of research, a public international organization, or an organization recognized under the International Immunities Act, the standing of the qualifying organization must be confirmed by referring to the appropriate lists in 8 CFR 316.20.
An approval of a Form N-470 under section 316(b) that names a qualified spouse and dependent unmarried sons and daughters of the applicant will cover those family members also.
Note that the approval of an Application to Preserve Residence will not shield an applicant or any family members listed on the applicant's Notice of Approval of Application to Preserve Residence (Form N-472) from the presumption of having relinquished lawful permanent resident status while abroad if the applicant or family member claimed special tax exemptions as a nonresident alien. However, the presumption may be overcome with acceptable evidence that establishes abandonment of lawful permanent resident status did not occur.
Section 316(c) of the Act stipulates that the granting of absence benefits under subsection (b) does not relieve an applicant from the physical presence requirement, if any, except in the case of those persons employed by, or under contract with, the Government of the United States.
(e) Classes of Applicants Having a Reduced Continuous Residence Requirement. Under other provisions of the Act, a lesser amount of continuous residence is required of certain classes of applicants:
|
(1) Spouse Living in Marital Union with a United States Citizen for 3 Years. Spouses of United States citizens who meet the requirements of section 319(a) of the Act are required to establish a continuous residence period of three rather then five years immediately preceding their application for naturalization.
(See Chapter 74 of this field manual.)
(2) Classes Subject to a Combination of Actual and Constructive Continuous Residence. See section (e) for other classes of applicants who must establish a limited period of actual continuous residence in order to qualify for constructive residence outside the United States for the balance of the time required.
|
(f) Classes of Applicants Eligible for Constructive Continuous Residence While Outside the United States. For specified classes of applicants, time spent outside the borders of the United States may be counted as all or part of the continuous residence required by section 316(a) of the Act:
|
(1) Employee of the U.S. Government, an American Institution of Research, an American Firm Engaged in Development of U.S. Foreign Trade and Commerce or its Subsidiary, or a Public International Organization. Section 316(b) and section 316(c) of the Act provide that lawful permanent residents who have been continuously physically present in the United States for at least one year and who obtain the permission of USCIS (i.e., through the Form N-470 application process) to go abroad on employment by or contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or on employment by an American firm engaged in development of U.S. foreign trade and commerce or its subsidiary, or a public international organization, will not be subject to the rest of the continuous residence requirement of section 316(a). (Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of continuous residence at any time prior to applying for naturalization.)
The spouse and dependent unmarried sons and daughters who are members of the household of a qualified applicant are entitled to the same benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary.
Note: Except for employees of the U.S. Government or those under contract with it, or their dependents as previously described, all other types of N-470 beneficiaries remain subject to the physical presence requirement of section 316(a). (See Section 316(b) and section 316(c) of the Act; and discussion of the Form N-470 in Chapter 74.2)
(2) Resident Going Abroad for a Religious Vocation. Section 317 of the Act prescribes conditions bywhich lawful permanent residents who go abroad temporarily “solely for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister” for a religious denomination organized in the United States may “be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 316(a), notwithstanding any such absence from the United States.” However, a prerequisite for this benefit is that at some time after becoming a lawful permanent resident the applicant must have been “physically present and residing within the United States for an uninterrupted period of at least one year.” (See also 8 CFR 317.)
(3) Non-citizen National of the United States. Section 325 of the Act provides that in the case of a “person not a citizen who owes permanent allegiance to the United States” and applies for naturalization, time spent within any of the outlying possession of the United States will be counted as continuous residence in the United States. (See also 8 CFR 325.2.) A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (See section 308 and section 101(a)(29) of the Act.)
(4) Service for 3 Years in the U.S. Armed Forces. Persons eligible for the benefits of section 328 of the Act who apply later than 6 months after the termination of their qualifying service are subject to the continuous residence requirement of section 316(a). However, the statute provides that any time spent in U.S. service during the 5 years preceding the application for naturalization will be considered as continuous residence within the United States.
(5) Service on Certain U.S. Vessels. Under section 330 of the Act, any time spent in qualifying service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … continuous residence within the United States within the meaning of section 316(a) of this title.”
|
(g) Classes of Applicants Not Subject to the Continuous Residence Requirement. Certain classes of applicants are exempted from continuous residence as a requisite for naturalization.
|
(1) The Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States, or Engaged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad in Such Employment. An applicant spouse of this description who meets the qualifications prescribed by section 319(b) of the Act and by 8 CFR 319.2 are not required to demonstrate any continuous residence prior to naturalization. The applicant must, however, declare a good faith intention to take up residence in the United States upon the termination of the citizen spouse’s employment abroad.
(2) Employee of a U.S. Incorporated Nonprofit Communications Media Organization Disseminating Information That Promotes U.S. Interests Abroad. Applicants who meet the qualifications prescribed by section 319(c) of the Act and by 8 CFR 319.2 are not required to demonstrate any continuous residence prior to naturalization.
(3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces. Applicants who meet the qualifications prescribed by section 319(d) of the Act and by 8 CFR 319.3 are not required to demonstrate any continuous residence prior to naturalization.
(4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II. Section 327 of the Act provides that former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship through an abbreviated process that requires lawful admission for permanent residence but no period of continuous residence. (See also 8 CFR 327.)
(5) Service in the U.S. Armed Forces for 3 years. Section 328 of the Act provides that an applicant who has served honorably in the U.S. Armed Forces for an aggregate of 3 years is exempt from the continuous residence requirement, provided that the application is filed either while the applicant is still in the service or within 6 months after the termination of such service. (See also 8 CFR 328.) For otherwise qualified section 328 applicants who file more than 6 months after separation, see the preceding section at (e)(4).
(6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities. Section 329 of the Act provides complete exemption from the continuous residence requirement for aliens and non-citizen nationals of the United States who have served honorably on active-duty in the U.S. Armed Forces at any time during the following specified periods of hostilities:
- April 6, 1917-November 11, 1918 (World War I);
- September 1, 1939-December 31, 1946 (World War II);
- June 25, 1950-July 1, 1955 (Korean hostilities);
- February 28, 1961-October 15, 1978 (Vietnam hostilities);
- August 2, 1990-April 11, 1991 (Persian Gulf conflict);
- September 11, 2001-present (Operation Enduring Freedom); or
- any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force that the President has designated for naturalization benefits by executive order.
Applicants who apply for naturalization under this section of law are not required to meet the minimum continuous residence requirements of section 316(a). However, any section 329 applicant who was not in lawful permanent resident status on the day of filing the application for naturalization must establish that at the time of enlistment or induction into the Armed Forces of the United States he or she was physically present in the United States or its outlying possessions. (See Section 329 of the Act and 8 CFR 329.2(c).)
(7) World War II Participant Born in the Philippines. Section 405 of the Immigration Act of 1990 provided that certain natives of the Philippines with active duty service during World War II could be naturalized in compliance with Section 329 of the Act, if they met all its other requirements and applied for naturalization no later than February 3, 1995. Any qualified applicant under this law is exempt from the continuous residence requirement of section 316(a) of the Act. (See 8 CFR 329.5)
(8) Enlistees under the Act of June 30, 1950 (Lodge Act). Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization under section 329 of the Act and are entitled to the same exemptions from the continuous residence requirement. (See Interpretations 329.2)
(9) Distinguished Service to National Security. Section 316(f) of the Act allows the Director of Central Intelligence, the Attorney General, and the Director of the USCIS to designate annually up to 5 persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities”. Such persons are exempted from the continuous residence requirement.
|
(h) Documenting Continuous Residence. The applicant has the burden of establishing by a preponderance of the evidence that he or she meets the continuous residence requirement. At the time of the examination of the application for naturalization, the applicant may be required to establish the lawful permanent resident status by submitting the original evidence, issued by the Service, of lawful permanent residence in the United States, as well as any passports, reentry permits or other documents used to enter the United States at any time after the original admission for permanent residence. (See section 318 of the Act, 8 CFR 316.4 (a)(2) and 8 CFR 316.4 (c).)
Mere possession of a Permanent Resident Card for the period of time required by the law does not in itself establish the applicant’s continuous residence for naturalization purposes; actual maintenance of his or her principal dwelling place in the United States is required. For example, a "commuter alien" may have held and used a PRC, as allowed by 8 CFR 211.5, for 7 years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period. (See 8 CFR 316.5(b)(3).)
The A-file of any applicant who at the time of examination claims not to be in possession of his or her PRC card must be carefully reviewed for verification of the claimed status. Checks of the Central Index System (USCIS) and other Service databases may be consulted, as well as other documentation submitted by the applicant. (See Chapter 72.2 of this field manual, Examination Preparation, and section 264(e) of the Act.) Never assume that the application and the related file will contain complete and accurate data regarding the applicant’s continuous residence and physical presence. Present procedures, for example, authorize reentry upon presentation of the applicant’s PRC rather than a reentry permit when the absence has been less than one year, as well as waiving the reentry permit requirement for certain spouses or children of Armed Forces personnel. In such cases the file may contain nothing whatsoever concerning such reentries. Moreover, officers of foreign immigration or customs authorities may not place stamps in travel documents concerning some entries and exits from those countries.
When documentation is inadequate or inconclusive, careful interrogation and use of the applicant's own testimony may be of crucial importance in developing the facts required to make a correct conclusion regarding the continuous residence question. The same testimony can have a bearing on related issues such as the physical presence requirement or the possibility of an applicant's excludability or removability. You should, therefore, conduct an inquiry into such application items as absences, addresses, employment, and tax status with a view to resolving all such issues. (See Chapter 73.5(e) of this field manual on documenting physical presence.)
In preparing to take testimony about these matters, the examiner should review the preliminary application and note any time gaps in United States residence that are not explained by listed absence(s) during such periods. These time gaps may represent undisclosed absence(s) and should be explored by appropriate questions. The same scrutiny should be given to gaps in recorded periods of unemployment. Termination of an applicant’s marriage by divorce in a foreign country could also point to a period of extended absence.
(i) Conclusion. Continuous residence within the United States for five years immediately preceding the application and until the date of naturalization is a basic eligibility requirement under the Act. There are statutory exceptions for certain classes of applicants eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for exemption from the requirement. Those exceptions, however, often prescribe other conditions that must be met in order to qualify for the exception. Applicants who cannot meet all the stipulated conditions for the exception must meet the general continuous residence requirement of section 316(a) in order to be naturalized.
