LEGAL GUIDE
Written by attorney Juan Paolo Pasia Sarmiento | Aug 19, 2010

Naturalization and Citizenship: Continuous Presence and Physical Presence Requirements

A lot of people become permanent residents and still maintain ties in their home country. They often travel at length and come back to the United States to “maintain" permanent residency. Most get confused on how long they can travel, its implications on their permanent residency, and its implications on their eligibility for citizenship. I’ll try to provide some basic eligibility requirements.

Continuous Residence Following Green Card Status

If the green card was obtained through marriage to a U.S. Citizen, the residency requirement is 3 years. The green card holder can apply for citizenship 90 days prior to the third year of becoming an LPR (i.e. Legal Permanent Resident). The couple should remain married and must be living together during that time. There’s an exception if the spouse is a battered spouse.

If the green card was obtained through other different means (other family, employment etc.), the residency requirement is 5 years.

What Disrupts Continuous Residence

Absence Between 6 months and 1 year (not cumulative, but on at least one trip)

An absence between 6 months and 1 year may disrupt the continuity of residence. That’s why a lot of people with ties in their home country take 5 month / 3 week trips or anything short of 6 months. If you travel for over 6 months (but less than a year) at one time, there is a “rebuttable presumption" of disruption of the continual residence. However, as long as you prove that you still have employment, residency, immediate family etc. in the U.S., then even if you travel for over 6 months in one time (still less than 1 year) you should be fine.

Note that this is per trip and not a cumulative requirement. So you can still have several trips totaling over 6 months or over 1 year. As long as no single trip is over 6 months, there won’t be a rebuttable presumption of disruption of the continuity of residence.

Absence of Over a Year

An absence of one year or more straight shall disrupt the continuity of residence.

Example:

  1. Jan 1, 2000 – A becomes a green card holder through employment.
  2. Jan 1, 2000 to Jan 1, 2005 – A has 13 trips to the Philippines of 1 month each. (So none lasted 6 months, but his cumulative trips total 1 year and 1 month).
  3. He can apply 90 days before Jan 1, 2005. On Jan 1, 2005, he would have met the continuous presence requirement and would be eligible for naturalization. The 13 1 month trips did not disrupt the continuity of his residence because none of those trips lasted over 6 months.

Example:

  1. Jan 1, 2000 – A becomes a green card holder through employment
  2. Jan 2, 2000 to August 2, 2000 A took a vacation to the Philippines and came back with reentry permit (less than 6 months). He still kept a house in the US, had employment but was just on leave, and had family ties in the US.
  3. He can apply 90 days before Jan 1, 2005. He would have met the continuous presence requirement as he is going to overcome the rebuttable presumption of disruption of continual residence when he took his 7-month trip.

Example:

  1. Jan 1, 2000 – A becomes a green card holder through petition by parents (so it’s still 5 years, not 3 years because the green card was not obtained through marriage)
  2. Jan 1, 2001 to Jan 2, 2002 – A took a vacation to the Philippines and came back with a reentry permit
  3. No vacations after
  4. Jan 1, 2005 – Though it’s been 5 years since he became a green card holder, his vacation from Jan 1, 2001 to Jan 2, 2002 disrupted the continuous residence requirement because the trip was over a year, thus the clock started again on Jan 2, 2002
  5. Jan 2, 2007 – A is eligible for citizenship since it’s been 5 continuous “undisrupted" years. He can file 30 days before Jan 2, 2007.

Physical Presence (now this is cumulative)

Applicant must also have been physically present in the United States for at least one-half of the more recent 5 years (if green card was obtained not through marriage to a US Citizen), or one-half of the most recent 3 years (if green card was obtained through marriage to a US Citizen). So in terms of months (for easier calculation), applicant must have been physically present for 30 out of the last 60 months.

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