HAWAII'S ONLY WEEKLY FILIPINO-AMERICAN NEWSPAPER
SERVING THE FILIPINO COMMUNITY SINCE 1993
DEC. 22, 2018

LEGAL NOTES

Complying with Residence Requirement for Naturalization

by Atty. Reuben S. Seguritan

Naturalization is the process of becoming a US citizen. The immigrant must pay for the fees required and submit the Form N-400 and other necessary documents. There are 3 residency-related requirements: 1. Continuous residence; 2. Physical presence; and 3. Time in district or state. Residence is defined as the “place of general abode” or one’s “principal, actual, dwelling place in fact, without regard to intent.”

Continuous residence in the US for at least 5 years is required for most immigrants before filing for naturalization. This means that the immigrant was not outside the US for a long period of time during one trip. Being outside the US for six months or less does not break the continuous residence in the US. If he was outside the US for more than six months, this might be deemed as an interruption of the continuous residence and this will raise a rebuttable presumption of abandonment of residency for naturalization purposes. The immigrant must prove by a preponderance of the evidence that he maintained continuous residence in the US and he intented to continuously reside in the US.

If the immigrant is outside the US for one year or more, then he is deemed to not have continuous residence in the US anymore. An exception to this break in continuous residence is granted to employees of certain US government agencies and US companies and international groups of which the US is a member. The employees falling under this exception must file Form N-470 to preserve his residence for purposes of naturalization. In order to file N-470 for this purpose, he must have lived in the US for at least one year as a lawful permanent resident (LPR) and such residence was not interrupted by trips abroad. The N-470 can be filed while the LPR is outside the US but he must meet all of the other requirements.

If the immigrant is sure that he will be outside the US for more than a year and he is not eligible to file an N0470, then he must apply for a reentry permit. The reentry permit will demonstrate that the immigrant has not abandoned his US residence and LPR status.

If the immigrant obtained his LPR status by marriage to a US citizen, then he can file for naturalization after at least three years of continuous residence in the US with his spouse. The couple must be married and living in marital union for the entire three years and the US citizen spouse must have been a US citizen throughout the entire period before filing for naturalization of the immigrant. If the marriage terminates before the three years, then the LPR spouse must be a continuous resident in the US for at least 5 years.

An immigrant granted LPR status through Violence Against Women Act (VAWA) self-petition, who was married to a US citizen or was a child of a US citizen may apply for naturalization after at least three years of continuous residence in the US. Furthermore, the VAWA self-petition applicant is not required to be married to the US citizen anymore in order to file for naturalization.

The second residency-related requirement is physical presence. Physical presence means time spent actually in the US. Most immigrants applying for naturalization must have been physically present in the US for at least half of the required period of continuous residence. This would mean that the immigrant must show that he was physically present in the US for at least 30 months out of the 5 years. If the immigrant can file for naturalization after at least 3 years, then his physical presence must be at least 18 months in the US.

The third residency-related requirement is residence within the district or state. This means that the immigrant must reside within the state or within the US Citizenship and Immigration Services (USCIS) district where the application will be filed for at least 3 months immediately preceding the filing. If the immigrant filed the naturalization application before the 3 months is met, then he must continue to reside in the same state immediately preceding the examination/interview. If the immigrant maintains two or more residences in different states, he will be deemed to be a resident of the state where his annual federal income tax returns have been and being filed.

These residence requirements are not required for immigrants who are religious missionaries employed abroad by a religious denomination or by any interdenominational mission organization having a bona fide organization in the US. This means that they can file for naturalization after at least 5 years of LPR status, provided that they resided in the US for an uninterrupted period of one year any time after obtaining LPR status. Persons serving abroad in the armed forces are also exempted from US residence requirements.

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REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at (212) 695 5281 or log on to his website at www.seguritan.com

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