Most permanent residents in the United States still have many strong ties and families back in their country of origin. However, spending too much time outside the U.S. can negatively impact a person’s ability to maintain their Legal Permanent Resident status, as well as their eligibility to apply for naturalization / Citizenship [1].
A skilled immigration lawyer can explain the complex immigration laws governing how long a person can spend outside of the United States and still maintain their permanent residency. There are strict rules, which dictate how long a person must physically present in the U.S. to maintain their Legal Permanent Resident status. Those rules include a requirement that residents must not merely be physically present in the country and possess a domicile, but they must permanently reside in the United States. While traveling for short periods will likely not have an impact on a resident’s lawful status, longer periods can be construed as an abandonment of their status as a Legal Permanent Resident.
The number of days that a Legal Permanent Resident is outside the U.S. will also directly affect their eligibility to apply for naturalization as a United States Citizen. So if you want to know how much time you can spend outside of the U.S. and still be eligible for citizenship, our immigration and Citizenship lawyers [2]can help you understand your rights as well as your obligations. Call FitzGerald Law Company today at (617) 303-2600 for a case consultation.
How Long Can I Be Outside of the Country and Still Be Eligible to Apply for Naturalization?
When applying for U.S. Citizenship through the naturalization process with the United States Citizenship and Immigration Services (USCIS), Legal Permanent Residents should know how traveling outside the country can affect their eligibility for naturalization. A permanent resident must satisfy two separate but closely related requirements relative to their time spent outside the U.S. to be eligible for naturalization, continuous residence, and physical presence. While travel to foreign countries is permitted, excessive travel can negatively affect an application for naturalization.
Legal Permanent Residents of the U.S. must “permanently reside” in the U.S. If a person spends a significant amount of time outside of the U.S. then the government may suspect that they no longer reside here. A person’s place of “residence” is commonly the place where they have their home, job, school, family, driver’s license, health insurance, doctors, bank account, finances, and t is also generally the place that they spend most of their time. It is a requirement for all Legal Permanent Residents to reside in the U.S. and they are generally not permitted to “reside” outside of the U.S. unless a special exemption applies (i.e. serving in the U.S. military, …)
The Continuous Residence Requirement
Legal Permanent Residents will usually have to meet a “continuous residence” requirement in order to be eligible to apply for naturalization. The most common “continuous residence” period is 5 years and it applies to all applicant who do not qualify for an exemption. To achieve continuous residence in the United States, an applicant must continuously reside in the U.S. for a minimum of 57 months before filing their N-400, Application for Naturalization / Citizenship [1].
Some Legal Permanent Residents do not have to wait for 5 years to become a naturalized citizen. They are allowed to file an N-400 after only 33 months of continuous residence in the United States. If a Legal Permanent Resident is married to a U.S. Citizen and living with them for 33 months, then they will be eligible to submit an N-400 and become a naturalized citizen after only 3 years. This 3-year standard is also used for some individuals who received their residency through VAWA or had their I-751 approved as a victim of domestic violence.
For a small number of Legal Permanent Residents there is no waiting period, like for certain military personnel or for some minor children residing with a biological or adopted parent who is a U.S. Citizen.
The Physical Presence Requirement
Physical presence is a closely related requirement to the continuous residence rule, but is a different standard that must also be met. In the instance that a continuous residence requirement applies, the person will generally have be physically present in the U.S. for more than half of the required period. Physical presence is calculated by each day or portion of a day that a person in physically in the U.S.
Physical presence, unlike continuous residence, is a cumulative requirement. This means that each day the person was in the United States over the residency period will be calculated to determine physical presence. If USCIS determines that a permanent resident spent more time outside the United States, it could prevent them from being eligible to file for naturalization.
Disrupting the Continuous Residence Requirement
While permanent residents are permitted to travel abroad freely, extensive travel can disrupt their continuous residency, preventing them from applying for naturalization. The immigration law states that if a Legal Permanent Resident is outside of the U.S. for 180 days in a row (but less than 1 year), without permission from the U.S. government, then it will be presumed that the person has lost or abandoned their residency, and therefore can no longer apply for U.S. Citizenship / Naturalization [1]. This presumption can be overcome, and the person may be able to keep their resident status, but only with evidence that they had intended to remain a lawful permanent resident in the U.S. This evidence can include U.S. tax filings, records related to a home in the U.S. and a valid reason for the lengthy time abroad. If the permanent resident was outside the U.S. for more than a year then generally the loss of residency cannot be overcome.
Residency can also be disrupted by “residing” outside the U.S., irrespective of the time. “Residing” generally refers to the place where a person works, studies, has a house or apartment, has a driver’s license, has their health insurance, or engages in other activities that tie them to that community in a substantial and non-temporary way.
Am I Still Eligible to Apply for U.S. Citizenship / Naturalization If I Have Been Outside the Country for More than Six Months but Less than One Year?
You can still be eligible to apply for naturalization if you were absent from the United States for 180 continuous days (approximately 6 months) but less than a year. However, you must overcome the presumption that you disrupted your residency. In general, a Legal Permanent Resident may not spend 180 days in a row outside the U.S. There are a few exceptions, including if you are working for the U.S. government in a foreign country, if you are serving in the U.S. military, or if you have been granted a special re-entry permit by filing a Form I-131 Application with USCIS.
If there is no exception that would allow you to be outside the U.S. for this period (180 days to 1 year) then you will need to provide evidence that you still maintained United States residency while abroad and that you did not abandon it. Some evidence that can demonstrate this includes evidence you did not terminate your United States employment, evidence that you did not obtain employment while abroad, and evidence that you properly filed your U.S. tax returns with all required declarations of foreign income. Residency may also be proven if your immediate family remained in the U.S., your family kept their jobs or continued to study in the U.S. and you kept full access to your U.S. home. There are many ways to prove that you have not abandoned your Legal Permanent Resident status by being outside the U.S. continuously for 180 days or more, and our immigration attorneys [1] can help you fight the presumption that your residency was abandoned if you were outside the U.S. this long.
Can I Still Apply for Naturalization If I Have Been Absent from the Country for One Year or More?
If a Legal Permanent Resident is outside the country for continuously for one year or more, it will automatically terminate their residency status, greatly hindering their eligibility for naturalization, unless they received permission, a re-entry permit, from USCIS or the US Consulate, or if a special exception applies.
Similar to Legal Permanent Residents who been outside for 180 consecutive days, there are a few exceptions that allow a resident to be outside the U.S. for extended periods, including working for the U.S. government in a foreign country, serving in the U.S. military, or receiving a special re-entry permit by filing a Form I-131 Application with USCIS.
If you are a Legal Permanent Resident that has been outside the U.S. continuously for 1 year or more than it will be difficult for you to prove that you are still have valid resident status, and it may take many years for you to be eligible for naturalization. Before applying for U.S. Citizenship [1] it is important to make sure that your Legal Permanent Resident status is valid and that you are not at risk of losing your status due to your extended period of time outside the U.S. Our immigration attorneys can help you determine the best options moving forward if you are returning to the U.S. after a year or more.
Location of the USCIS Office with jurisdiction over Your N-400
In general, USCIS requires that a person be “residing” in a jurisdiction, such as a state, territory or federal district, for 90 days before filing their N-400. USCIS will consider the place where a person is primarily living as their residence for this jurisdictional purpose.
Our Immigration Lawyers Can Help
If you have spent time outside of the U.S. and want to know how it affects your eligibility for U.S. Citizenship, our immigration and Citizenship lawyers at FitzGerald Law Company can provide you with a case assessment today. Contact us at (617) 303-2600.