Many green card holders or Lawful Permanent Residents (LPRs) travel frequently for their employment or to spend time with extended family outside the United States. We have two resources on our website for individuals in that situation, covering how to avoid losing your green card and how to be eligible for naturalization.
We get a fair number of questions from LPRs who have traveled frequently about how to calculate when they will be eligible to apply for naturalization. In making those calculations, there are actually three separate presence-related requirements: never having abandoned LPR status, having enough physical presence (no more than ½ of the required time outside the United States), and having “resided continuously” in the US during the 5 (or 3) years of continuous residence, which is the requirement that causes the most confusion about how to calculate.
A naturalization applicant must meet those three separate requirements, separately, as of the date of application, and must meet two of them up to the date of naturalization. So:
- Maintains LPR status (never abandons or has it taken away): from date of initial LPR status through to date of naturalization oath.
- Physical presence in US: not absent more than 1/2 of the required time (normally, 5 years) preceding the application. Two important points: 1) the day of departure and the day of return are not “days outside the US”, which can help someone who travels frequently for short trips; and 2) the physical presence “clock” stops on the day of application, not the day of oath administration, which can help those who are looking to naturalize but need to be out of the US during the process (as long as they don’t leave for long enough to break continuous residence, which has to be maintained throughout the process).
- “Continuous residence”: from five years before the date of application through to date of naturalization oath.
Illustrating with a typical case where these three rules apply: an LPR since 2005 takes an assignment abroad and gets a reentry permit January 1, 2012. He lives overseas with no trips back until December 31, 2013. On January 1, 2013, he returns to US but travels for 3 one-month trips in 2013, 2014 and 2015; he now is considering taking a long trip – perhaps a seven-month trip from January 1, 2016 to the end of July, 2016 to care for a sick relative. If he does so, when will he be eligible to naturalize?
The applicant maintained LPR status from 2005 and has never lost it, because the reentry permit protects his LPR status while he’s absent for 2012 and 2013, so that’s not a problem. Since the applicant would be applying now, in 2015, however, the physical presence from 2005-2010 does not help him. Instead, if he applied now, the five years would be measured back from April of 2015, back to April of 2010. The applicant was physically present for more than ½ of the days before April of 2015, but had broken the continuity of residence within the five years before April of 2015.
To meet the continuous residence requirement in the statute (no absence of more than one year in the five years preceding application), the applicant has to apply on or after January 1, 2018. At that point, in the five years before the application (January 1, 2012-December 31, 2017) the applicant will have less than one year of absence from the US (364 days, to be precise). In the regulations and on the USCIS web site, it uses the formulation of waiting “four years and one day” after returning from an absence of more than one year that has broken the continuity of residence. By waiting “four years and one day” after returning, only 364 days outside the US will be in the five year period before the application.
Of course, the “four years and one day” language only applies to continuous residence: separately, we have to make sure that the person will meet the physical presence requirement in the five years before January 1, 2018. Since the applicant plans to go overseas, we have to calculate how much time he could be absent for. If our applicant stays overseas for seven months in early 2016, then on January 1, 2018 he will have been absent for less than ½ of the days in the five years (364 in 2012, 30 each in 2013, 2014 and 2015, and 210 in 2016 = 664 days absent out of a maximum possible of 912 days).
One wrinkle with that applicant’s plan is that an absence of more than six months and less than one year that occurs during the five years does not automatically break the continuous residence, but does raise a “rebuttable presumption” that the continuity of residence is broken. A “rebuttable presumption” means that if the applicant does nothing, the residence is considered to be broken, but the applicant can give proof that the continuity of residence was not broken. That proof can be evidence of employment continuing or being available in the U.S. after the trip; owning property in the U.S.; continuing to pay taxes in the U.S.; and other evidence of continuing ties to the U.S.
The requirement of maintaining a continuous residence applies to the whole five year period before an application for naturalization, but the rules can be both complicated, and flexible enough to accomodate a variety of travel needs that LPRs may have. If you are in a complicated situation and are interested in naturalization, be sure to contact a Klasko Immigration Law Partners attorney.
