Cases Where Absence of One Year or More Do Not Disrupt Continuity of Residence

• Introduction: Absences of One Year or More that Do Not Interrupt Continuous Residence
• Situations Where an Absence of One Year or More Does Not Constitute Interruption
  • 1. Preserving Continuous Residence through the Form N-470 Process
  • 2. Employment with Certain Media Organizations Abroad
  • 3. Employment as an Interpreter, Translator, or Security-Related Position as an Executive or Manager
  • 4. Employment Abroad in Religious Vocation
• Special Classes
  • 1. Noncitizen Nationals
  • 2. Service on Certain U.S. Vessels
• Residence in the Northern Mariana Islands
• Conclusion

 

Introduction: Absences of One Year or More that Do Not Interrupt Continuous Residence

In general, if an applicant for naturalization is absent from the United States for a continuous period of more than six months but less than one year during the statutory period for which the applicant must establish continuous residency, there will be a rebuttable presumption that his or her continuous residency was interrupted. If the applicant was absent for a continuous period of one year or more, that will lead to a finding that the applicant's continuous residence was interrupted, regardless of the applicant's professed intent. The question of “intent” for absences of one year or more is only relevant in determining whether an applicant has abandoned his or her LPR status; it is not relevant to continuous residence for naturalization purposes.

However, there are certain situations in which an applicant may remain abroad for one year or more and it will not be considered an interruption of his or her continuous residence. Some of these scenarios also exempt the applicant from the corresponding physical presence requirements to naturalization, although not all.

Before reading this article, please read our general overview on continuous residence [see article]. The introduction to that article includes links to other articles on the issue that can also be found in our website's section on naturalization and citizenship [see category]. To learn about the tangentially related issue of abandonment of LPR status, please see our articles on the DOS rules [see article] and on administrative and judicial precedent [see article].

In this article, we will review the situations in which an absence from the United States of one year or more will not lead to the interruption of continuous residence for naturalization purposes.

Situations Where an Absence of One Year or More Does Not Constitute Interruption

The specific situations in which an applicant may meet the continuous physical presence requirement after being absent from the United States for a continuous period of one year or more are described in sections 316(b) and (c), 317, and 319 of the Immigration and Nationality Act (INA). First, the following chart reproduced from 12-USCIS-PM D.5(A) [link] lists the situations in which an LPR may preserve his or her residence or be exempt from the requirement entirely after being absent from the United States for one year or more:

Continuous Residence and Physical Presence for Qualifying Employment Abroad

1. Preserving Continuous Residence through the Form N-470 Process

An LPR seeking to meet the continuous residence requirement for naturalization may still be able to remain abroad for one year or more during the required period for continuous residence in order to engage in certain types of employment abroad. In order to do so, the LPR must leave the country in order to engage in one of the statutorily defined types of employment and must file a Form N-470, Application to Preserve Residence for Naturalization Purposes.

Before addressing the types of permissible employment abroad, 12-USCIS-PM D.3 explains that an LPR must meet the following requirements in order to file a Form N-470:

The LPR must have been physically present in the United States as an LPR for an uninterrupted period of at least one year prior to working abroad;
The Form N-470 may be filed before or after employment abroad begins, but it cannot be filed after the applicant has already been abroad for a continuous period of one year (see also 8 C.F.R. 316.5(d)).

The following, in accordance with sections 316(b) and (c) of the INA, are the types of employment abroad that may be covered through the Form N-470 process:

Employment under contract with the U.S. government or with an American institution of research recognized by the Attorney General;
Employment by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or by a subsidiary of such a firm or corporation if more than 50 percent of its stock is owned by an American firm or corporation;
Employment by a public international organization of which the United States is a member (by treaty or statute) and by which the applicant was not employed until after he or she procured LPR status.

First, to see the list of American institutions of research recognized by the Attorney General, please see our full article [see article].

12-USCIS-PM D.5 explains that a person who is approved through Form N-470 process to preserve residence in order to engage in employment under contract with the U.S. government will be exempt from the physical presence requirement. This means that such persons will not be required to demonstrate that they spent half of the five-year statutory period for naturalization eligibility physically present in the United States. If such a person is employed by or under contract with the Central Intelligence Agency (CIA), he or she may “accrue the required year of continuous physical presence” for filing the Form N-470 “at any time prior to applying for naturalization and not just before filing the application.”

The PM explains that for any type of employment abroad covered by the Form N-470 process that is not direct employment by the U.S. government or employment under contract with the U.S. government, the applicant will be required to satisfy the physical presence requirement notwithstanding meeting the continuous residence requirement.

12-USCIS-PM D.3 discusses other important issues regarding the Form N-470 process. First, if the Form N-470 is approved, the applicant's spouse and/or dependent child(ren) will also be entitled to the preservation of residence for any period spent residing abroad with the principal applicant while he or she was engaged in qualifying employment. If the applicant's Form N-470 is approved by the USCIS, it will indicate any dependents who were also granted benefits.

However, it is important to note that the approval of the Form N-470 only applies to the preservation of residence. An applicant who has a Form N-470 approved may still be found to have abandoned his or her LPR status upon returning to the United States. The PM provides the example of an applicant who claimed tax exemptions as a “nonresident alien” while overseas. If an applicant is charged with abandonment, he or she may seek to establish that he or she did not attend to abandon permanent residency.

Finally, it is important to remember that, under 8 C.F.R. 211.1(a)(2), an LPR returning from a trip abroad of one year or more generally cannot use a Form I-551 to secure admission as a returning resident. Such applicants will instead need to apply for a reentry permit with the DOS [see article].

2. Employment with Certain Media Organizations Abroad

Under section 319(c) of the INA and 8 C.F.R. 319.4, an alien who is the employee of certain media organizations abroad is exempt from both the continuous residence and physical presence requirements for naturalization. 12-USCIS-PM D.5 explains that a qualifying employer must be “a U.S. incorportated nonprofit communications media organization that disseminates information significantly promoting United States interests abroad.” Furthermore, the employing organization must be recognized by the Secretary of Homeland Security for these purposes. The PM lists the statutory and regulatory requirements for being exempt from the continuous residence and physical presence requirements while working abroad for such an organization:

The applicant must apply for naturalization while still employed by the recognized media organization, or within six months of the termination of employment;
The applicant must have been continuously employed with the organization for at least five years subsequent to becoming an LPR;
The applicant must be within the United States at the time of naturalization;
The applicant must declare a good faith intention to take up residence within the United States immediately upon the termination of employment.

Unlike the types of employment that fall under the Form N-470 process, the applicant must be continuously employed with a qualifying media organization for at least five years after becoming an LPR. If the applicant is absent from the United States in excess of one year while pursuing such employment, but the employment was for less than five years, that time abroad will constitute the interruption of permanent residence.

3. Employment as an Interpreter, Translator, or Security-Related Position as an Executive or Manager

12-USCIS-PM D.5 explains that Sec 1059(e) of Pub. L. 109 163 exempts persons who work abroad in certain capacities as interpreters, translators, or as executives or managers in security-related positions from both the continuous residence and physical presence requirements for naturalization.

In order to be covered by the 1059(e) provision, the applicant must be:

Employed by the Chief of Mission or the U.S. armed forces,
Under contract with the Chief of Mission or the U.S. armed forces, or
Employed by a firm or corporation under contract with the Chief of Mission or the U.S. armed forces.

The applicant must be employed in the capacity of:

An interpreter,
A translator, or
In a security-related position in an executive or managerial capacity.

Additionally, “the applicant must have spent at least a portion of the time abroad working directly with the Chief of Mission or the U.S. armed forces.”

If the applicant is seeking credit for time abroad working in a security-related position, he or she must be working or have worked in an “executive or managerial capacity.” This means that work in a security-related position in a capacity that is not “executive or managerial” in nature will not qualify for an exception from the continuous residence and physical presence requirements for naturalization. The PM explains that the USCIS uses “the same definitions and general considerations that apply to other employment-based scenarios” in determining whether a position was in an executive or managerial capacity. Accordingly, for more background on the issue, please see our discussion on the definition of “executive or managerial capacity” in the context of the L1A classification [see article].

Citing to section 101(a)(44)(B) of the INA and the regulations found in 8 C.F.R. 204.5(j)(2) and 214.2(l)(1)(ii)(C), the PM explains that a person is employed in a “executive capacity” if he or she (paraphrased):

Directs the management or a major component or function of an organization;
Establishes the goals and policies of an organization, component, or function;
Exercises wide latitude in discretionary decision-making; and
Works while receiving only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Citing to section 101(a)(44)(A) of the INA and the regulations found in 8 C.F.R. 204.5(j)(2) and 214.2(l)(1)(ii)(B), the PM explains that a person is employed in a managerial capacity if he or she (paraphrased):

Manages the organization, or a department, subdivision, function, or component of the organization;
Supervises or controls the work of other supervisory, professional, or managerial employees, or to manage an essential function within the organization, or a department or subdivision of the organization;
(If the employee is supervising another employee or employees directly) has the authority to hire and fire or recommend employees working under the manager and has the authority to take other professional actions; or
(If the employee does not directly supervise any employees) functions at a senior level within the organization hierarchy or with respect to the function managed; and
Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

The PM emphasizes that the USCIS does not determine whether anapplicant is working or has worked in an executive or managerial capacity solely based on his or her title within an organization. Rather, the PM explains that the USCIS will assess what the applicant's “primary duties” within his or her employing organization. Furthermore, the PM explains that the USCIS will not make a determination solely based on the number of employees under the applicant's supervision. The USCIS will instead take a broader approach in its inquiry, assessing the “reasonable needs of the organization with regard to the overall purpose and stage of development of the organization” when staffing levels are relied upon in determining whether the applicant worked in an executive or managerial capacity.

The PM explains that such employment only exempts the applicant from the continuous residence and physical presence requirements for the period(s) in which he or she is abroad engaging in such employment. An applicant for naturalization must meet all of the other requirements in the INA pertaining to eligibility for naturalization.

If the any of the time that the applicant spends abroad was spent doing something other than engaging in qualifying employment, he or she will not receive credit for continuous residence and physical presence for that portion of time. The applicant may only receive credit for time spent abroad in a different capacity if it was to engage in employment covered by the Form N-470 process or another provision discussed in this section of the article.

4. Employment Abroad in Religious Vocation

Section 317 of the INA exempts certain time abroad spent “performing the ministerial or priestly functions of [a] religious denomination, or serving as a missionary, brother, nun, or sister,” pemitting that time to count as physical presence and continuous residence in the United States. 12-USCIS-PM D.5 explains that the religious organization must be a bona fide organization within the United States. In order to have such time spent abroad qualify as continuous residence and physical presence, the applicant must have first spent an uninterrupted period of at least one year physically present and residing in the United States subsequent to having been admitted as an LPR.

Special Classes

In 12-USCIS-PM D.5, the USCIS includes a chart of special classes who have modified requirements for naturalization purposes:

Continuous Residence and Physical Presence for Special Classes of Applicants

In this article, we will review two of these special classes. Our article on modified continuous presence requirements for certain naturalization applicants will discuss the other two [see article].

1. Noncitizen Nationals

A noncitizen national who is seeking naturalization may meet the continuous residence and physical presence requirements for time spent residing in an outlying possession. Under current law, this means time spent in American Samoa or Swains Island. LPRs cannot meet the continuous residence and physical presence requirements for time spent residing in an outlying possession. However, in order to apply for naturalization, a noncitizen national must reside in the USCIS district from which he or she is applying for naturalization for at least three months, and must meet all of the other requirements for naturalization. To learn more about naturalization for noncitizen nationals, please see our full article [see article].

2. Service on Certain U.S. Vessels

Section 330 of the INA allows for time spent abroad serving on certain U.S. vessels to count as continuous residence and physical presence for naturalization purposes. First, this provision applies to service on vessels other than service for the U.S. Armed Forces. In order to qualify, the vessel must be:

A. Operated by the United States, or an agency thereof, the full equitable title to which is in the United States; or
B. A vessel whose home port is in the United States and is (i) registered under the laws of the United States, or (ii) the full legal and equitable title to which is in a citizen of the United States, or a corporation organized under the laws of any of the several States of the United States.

Such service will be counted as residence and physical presence in the United States if the service occurred within the five years immediately preceding the date of the naturalization application. If the applicant served on board a vessel operated by the United States, he or she must submit “duly authenticated copies of the records of the executive departments or agency having custody of such records of such service.” If the service was on board a vessel whose home port is in the United States, he or she must submit certificates “from the masters of such vessels.”

Residence in the Northern Mariana Islands

12-USCIS-PM D.3 explains that residence in the Northern Mariana Islands only counts for continuous residence and physical presence for naturalization purposes on or after November 28, 2009. While the rule considering residence in the Northern Mariana Islands as residence in the United States applies retroactively for abandonment purposes, it does not apply retroactively for naturalization purposes.

Conclusion

If an LPR intends to seek employment abroad in one of the permitted categories discussed in this article, it is important to consult with an experienced immigration attorney. An experienced immigration attorney will be able to determine whether the proposed employment would likely lead to the finding that continuous residency was interrupted and, if it would not, will help the LPR gather the requisite documentation or file the required forms with the USCIS to prove such for the naturalization application. Furthermore, an experienced immigration attorney will be able to advise the applicant on issues regarding the abandonment of LPR status (an LPR can be found to have abandoned his or her status even if the absence does not break the continuity of residence) and regarding the physical presence requirements will apply even if continuity of residence is not interrupted.

To learn about the naturalization process in general, please see our short overview [see article].