Once an individual becomes a Permanent Resident, s/he often finds that new issues arise that could impact his/her ability to maintain status as a Permanent Resident and/or meet the eligibility requirements for applying for U.S. citizenship down the road. To become a naturalized U.S. citizen, a permanent resident must reside continuously in the U.S. for a period of five years following lawful admission to Permanent Resident status, must be actually physically present in the U.S. for at least half of that period and must not be outside the U.S. for one year or more at any given time. Please note that maintaining continuity of residence for naturalization purposes is a different issue from maintaining Permanent Resident status. Driving forces in this area include temporary/permanent transfers outside the U.S. or other lengthy stays outside the U.S. Absences from the U.S. are one of the main issues affecting an individual’s ability to maintain his/her status as a Permanent Resident and eventually being eligible to apply for naturalization.Common applications to the U.S. Citizenship and Immigration Services (USCIS) that a Permanent Resident may file include Replacing an Alien Registration Card (Form I-90), Reentry Permit (Form I-131), Preserving Residence for Naturalization Purposes (Form N-470) and Naturalization (Form N-400).
Absences from the U.S. and maintenance of statusWhen a Permanent Resident (PR) departs the U. S., there is no guarantee that s/he will be readmitted to the U.S. The PR must still be admissible to the U.S. when interviewed by the Immigrant Inspector at the Port of Entry to the U.S. The PR must not be excludable or removable for any reason. For example, conviction of a crime at any time may make a PR excludable or removable. An extended absence (gone more than one year without a Reentry Permit) may mean that the PR does not have a document to be readmitted to the U.S. or it may break the continuity of residence for naturalization purposes.

There are two issues involved with absences from the United States once a person is lawfully admitted for Permanent Residence. One relates to his/her naturalization and the other relates to maintenance of status as a PR. If a PR is gone from the United States for one year or longer, the continuity of residence for naturalization purposes is broken. This is a conclusive presumption in the naturalization regulations, and it makes no difference what the reasons are for the extended absence. While it is possible to make an application to preserve residence for naturalization purposes, this is an application with complex requirements which is frequently denied by the Service. More on this below.

The other issue concerning long absences from the United States relates to the preservation of one’s immigration status. Returning resident aliens can remain outside the U.S. for up to one year less a day without losing their permanent residency status. However, with the passage of the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRAIRA) (see other portions of our website), new admission and timing rules were implemented. When a resident alien is returning to the U.S. after a period of absence of less than six months, s/he must be inspected by USCIS but is not regarded as “seeking admission” to the U.S. “Seeking admission” refers to the individual proving to USCIS that s/he is admissible for entrance in the desired category. A returning PR alien who is returning from an absence of 180 or more days, must prove that s/he is admissible to the U.S. and has not abandoned his/her status as a PR. USCIS will admit a PR returning from an absence abroad if the alien (1) was a Permanent Resident at the time of his/her departure; (2) left the U.S. intending to return within a fixed period of time; (3) at no time after departing the country abandoned this intention; and (4) is returning from a “temporary visit” abroad. The amount of time spent outside the U.S. can be a determinative factor in the USCIS inspector’s analysis. The evidentiary factors that the USCIS inspector will consider for admittance purposes include but are not limited to:

1. Duration of absence
2. Location of family ties
3. Property holdings
4. Location of job
5. Intention with respect to the location and length of absence
6. Reason for temporary absence
7. Payment of U.S. taxes and filing of tax return(s) (state and federal taxes)
8. Any other relevant factor.

If a PR is absent for a year or longer, s/he will not have a valid document for readmission and will not be admitted to the United States unless s/he is able to either obtain a advance permission from a U.S. Consulate or possesses a valid reentry permit. In limited cases, a U.S. permanent resident who is abroad can apply to a U.S. Consulate for a returning resident visa and/or a boarding letter. This will enable the person to return to the U.S. in order to present their admission case to USCIS inspections and apply for admission. A reentry permit is “advance” permission to be absent from the U.S. for up to a two-year period. A valid reentry permit not fraudulently procured is very strong evidence that the PR is returning from a temporary absence abroad and has not abandoned his/her Permanent Residence status. The reentry permit application must be submitted when the individual is physically present in the U.S. although it can be adjudicated and issued after the individual departs from the U.S. The reentry permits are usually valid for a two-year period and the individual must return to the U.S. prior to the expiration of the reentry permit.

Abandonment of permanent residence is never a simple issue and all relevant factors are reviewed if the issue is raised by the USCIS inspector. If the PR has a letter from a United States employer regarding business reasons for the absence (protect American property rights or promote American business) and copies of U.S. and state income tax returns and evidence of property in the United States, it will assist with or ease the PR’s admission (inspection) to the United States. The PR’s testimony must reflect the fact that s/he has been and continues to be a Permanent Resident of the United States at all times. The PR’s tax returns should reflect a U.S. address and a U.S. address should be given as the place of residence at the time of inspection.

The acquisition of a reentry permit has no bearing on one’s eligibility for naturalization or meeting the continuity of residence for naturalization purposes (absence of one year or longer – see below). There is a conclusive presumption that an absence from the U.S. of one year or more automatically breaks the continuity of the alien’s residence for naturalization purposes unless the alien has taken steps to preserve the continuity during the alien’s absence. An alien may receive this benefit if:

1. S/he has been physically present and residing in the U.S. as a permanent resident for an uninterrupted period of one year prior to the absence;
2. Will be employed abroad by or under contract with a U.S. corporation or majority owned subsidiary of U.S. corporation engaged in the development of foreign trade and commerce;
3. Alien requests the extended absence naturalization benefits before he or she has been absent from the U.S. for one year; and
4. Alien proves that the absence is in furtherance of his/her overseas employment.

 
Naturalization

Permanent Residents may become naturalized U.S. citizens if they meet certain requirements. Permanent Residents are not required to become U.S. citizens and may reside in the U.S. indefinitely. The requirements for citizenship include the following:

• Lawful admission for permanent residence (LAPR)
• Residence for five years after LAPR (three years for the spouses of U.S. citizens) and continuous residence to the date of naturalization and intent to reside permanently in the U.S.
• Physical presence for thirty months or more during the five years preceding the submission of the application for naturalization (eighteen months for spouses of U.S. citizens) without a continuous absence of one year or more (unless Application to Preserve Residence for Naturalization Purposes is approved by USCIS)
• Ability to speak, read and write English
• Knowledge and understanding of the history and government of the U.S.
• Good moral character and attachment to the principles of the U.S. constitution (willingness to take the full oath of allegiance to the U.S.)

 
Exceptions to the above requirements including the following:

The ability to read, speak and write English is not required of four classes of applicants:

1. Those physically unable to comply because of a disability (blindness, deafness, etc.);
2. Those unable to comply because of a developmental disability or mental impairment;
3. Those over 50 years of age who have lived in the U.S. for 20 years since LAPR; and
4. Those over 55 years of age who have lived in the U.S. for 15 years since LAPR.

In some situations the minor children of naturalized citizens derive U.S. citizenship through the naturalization of their parent or parents, and it is possible for a U.S. citizen to file a naturalization application for a minor child (under 18 years – this benefits adopted children and children born outside the U.S. who did not acquire U.S. citizenship at birth) and some children who have U.S. citizen grandparent(s) may be eligible for naturalization (parents cannot transmit citizenship).

There are other exceptions to the naturalization requirements (active duty U.S. military service and others) that we will not attempt to summarize.

The naturalization process has become very lengthy although as part of “Operation Citizenship” the USCIS is trying to reduce processing times to six months. After the initial forms are submitted, the applicant is asked to appear at a local processing center to submit fingerprints. Once the application and the FBI clearances are completed, the individual is scheduled for a preliminary examination. The preliminary examination involves a review of the application and any supporting documents, responding to questions involving U.S. government and history, and establishing one’s ability to speak, write and understand English. Assuming that the individual passes the preliminary examination, s/he is scheduled for an Oath Taking ceremony within one to two months of the preliminary examination. It is not until after the Oath ceremony is completed that the individual is a U.S. citizen and eligible to obtain a U.S. passport, vote, sponsor family members as a U.S. citizen, etc.

 
This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.