Overcoming “Break in Continuity of Residence” for Citizenship Purposes

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Arnel, a Filipino national, is a lawful permanent resident. He arrived in the United States in 2003 and resided with his U.S. citizen spouse. Arnel has substantial business ties in the Philippines and travels to Manila at least 3 times in a year but only for 2 months in duration. In 2018, he stayed for 9 months in Manila to attend to his business that was encountering some financial issues. Last year, Arnel decided to file for his naturalization to become a U.S. citizen. He was recently called for the interview last month February 2020. The USCIS officer informed Arnel that he was not eligible to become a U.S. citizen. He was told that he spent more than 6 months in the Philippines and so he broke the continuity of his residence for purposes of citizenship. Was the finding of ineligibility accurate?

The Physical Presence Rule

Applicants for naturalization must demonstrate that they have been physically present in the United States for more than half of the required time (three years for those married to and residing with a U.S. citizen and five years for all others). In addition, pursuant to Section 316(b) of the Immigration and Nationality Act, applicants must demonstrate that they have continuously resided in the United States, or put another way, have not abandoned their residence (since such a finding is often the outcome of a naturalization case denied for such reasons).

Breaks in Continuous Residence

There are 2 ways outlined in which the continuity of residence is broken. First is absence for more than 6 months but less than 1 years. The second one is absence for more than 1 year or more.

To be able to continue counting the residence for purposes of naturalization, the applicant must show continuity. Oftentimes, green card holders are not aware and are under the false belief that if they stay for more than 6 months outside the U.S. they may still consider this as continued residence.

On February 26, 2020, USCIS released a policy clarification on this issue, the highlights of which states that (1) an applicant absent from the United States during the statutory period for more than 6 months but less than 1 year, must overcome the presumption that the continuity of residence has been broken in order to remain eligible for naturalization and (2) clarifies that an applicant who USCIS determines to have broken the continuity of residence must establish a new period of continuous residence; the requisite duration of that period depends on the basis upon which the applicant seeks to naturalize.

Overcoming the Presumption For Continued Eligibility

An applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such evidence may include, but is not limited to, documentation that during the absence: (1) The applicant did not terminate his or her employment in the United States or obtain employment while abroad; or (2) The applicant’s immediate family members remained in the United States; and/or (3) The applicant retained full access to or continued to own or lease a home in the United States.

In the case of Arnel, the USCIS officer was correct in stating that he broke the continuity of his residence unless contrary evidence is submitted by Arnel. Evidence such as his regular and continued employment in the U.S., ownership of his home and residence of his immediate family in the United States will be helpful in overcoming the presumption. If the USCIS officer accepts his evidence and is convinced that there is continuity of evidence, then Arnel may be approved for his U.S. citizenship.

(Atty. Lourdes S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1-888-930-0808)

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