USCIS Clarifies Physical Presence Requirements

USCIS issued a policy alert on February 26, 2020 which updates and clarifies continuous presence requirements for green card holders filing for naturalization. The policy alert specifically refers to absences from the US that are longer than six months, but less than one year.

Currently, it is understood that spending more than six months outside the US can, in some cases, lead to problems when re-entering, but only spending over one year outside the US can lead to abandonment of green card or ineligibility for naturalization. In order to apply for naturalization, one must maintain continuous residence in the US for the five years preceding filing the application (or three years if filing with a US citizen spouse). According to the new policy, absences for longer than six months will officially “trigger a presumption of a break in the continuity of residence” that the applicant must overcome.

The policy alert clarifies the following:

• An applicant who has been absent from the United States for more than six months but less than a year must overcome the presumption that they have broken the continuity of their residence in the United States; and
• An applicant who has broken the continuity of residence in the United States must establish a new period of continuous residence, the length of which depends on the basis for naturalizing.

Under the new law, it will be more risky for Lawful Permanent Residents to spend six months or longer outside the US, especially if they plan to file for naturalization. After six months outside the US, the applicant will be required to re-establish continuity in residence or overcome the government’s assumption that continuity of residence has been broken. This can likely be achieved by providing evidence of ongoing ties to the US and proof of the necessity of the longer-term travel. The USCIS officer will be required to view it as a break in continuity unless the circumstances surrounding the travel prove otherwise.

Establishing continuous residence has always been a part of the naturalization application process and USCIS officers have always been required to calculate and review the exact amount of days spent outside the US. Under the new system, any applicant who spends longer than six months away at one time will likely have a much harder time establishing continuous residence and will most likely need to wait to file for citizenship once they have reestablished residence.