Situations where Continuous Residence/Physical Presence Requirements are Modified or Inapplicable

• Introduction: Special Cases for Continuous Residence and Physical Presence Requirements
  • Continuous Residence and Physical Presence for Qualifying Employment Abroad
  • Spouse of U.S. Citizen
  • Battered Spouse or Child of a U.S. Citizen
  • Spouse of U.S. Citizen Engaged in Certain Employment Abroad
  • Surviving Spouse, Child, or Parent of a U.S. Citizen
  • Spouse of Military Member Serving Abroad
  • Child of a U.S. Government Employee Temporarily Stationed Abroad
  • Surviving Spouse or Child of a Person Conducting U.S. Intelligence
  • Naturalization Through Certain Types of Military Service (INA 328)
  • Naturalization for Military Service During Hostilities (INA 329)
  • Noncitizen Nationals
  • Service Contributing to National Security
  • Former Citizens Who Lost U.S. Citizenship for Foreign Military Service During WWII
• Conclusion

 

Introduction: Special Cases for Continuous Residence and Physical Presence Requirements

In most cases, an applicant for naturalization must meet a five-year continuous residence requirement for naturalization. Additionally, the naturalization applicant must have been physically present in the United States for at least one-half of the statutory continuous residence period. As a general rule, a continuous absence from the United States of one year or more will serve to break the continuity of residence for naturalization purposes, and the applicant will be ineligible for naturalization notwithstanding that he or she met the physical presence requirement. However, there are certain absences which may not break the continuity of residence.

In this article, we will examine situations in which the continuous residence and/or physical presence requirements for naturalization are either modified or inapplicable. Such situations include modified continuous residence and the physical presence requirements for spouses of U.S. citizens, surviving spouses or children of U.S. citizens who died in military service, and persons seeking naturalization based on service in the U.S. Armed Forces.

Before reading this article, please make sure to read our full articles on the continuous residence requirement [see article], the physical presence requirement [see article], and situations in which an absence of one year or more does not break continuous residence [see article] to understand the key concepts involved in the continuous residence and physical presence requirements for naturalization.

Continuous Residence and Physical Presence for Qualifying Employment Abroad

The United States Citizenship and Immigration Services's (USCIS's) Policy Manual (PM) lists several situations in which absences incurred while engaged in certain types of employment abroad (including absence incurred by the accompanying or spouse or parent of a person engaged in such employment) may be counted toward satisfying the continuous residence requirement. In certain cases, such a person will still be required to meet the physical presence requirement, while in others the person may be exempt. In 12 USCIS-PM D.5 [link], the USCIS includes the following chart for such cases:

We discuss these situations in depth in our full article on situations in which time spent employed abroad may count toward satisfying the continuous residence requirement (and the physical presence requirement in certain cases).

Spouse of U.S. Citizen

Under section 319(a) of the Immigration and Nationality Act (INA), the spouse of a U.S. citizen may, in certain cases, be subject only to a three-year continuous residence requirement with at least one and a half years required to occur in the United States (18 months). In order to be subject to the shortened statutory period for continuous residence and physical presence, the spouse of the U.S. citizen must meet the following requirements:

Be the spouse of a U.S. citizen;
For the three years subsequent to having been admitted as a lawful permanent resident (LPR), have been living in “marital union” with the U.S. citizen spouse;
Have resided in the district from which the naturalization application was filed for at least three months preceding the filing of the application.

First, it is important to note that for an applicant for naturalization who is the spouse of a U.S. citizen and living in marital union with such citizen, there is no requirement that the basis for the applicant's LPR status have been marriage to a U.S. citizen. For example, the applicant could have obtained LPR status in a preference category and still be eligible for the shortened statutory continuous residence/physical presence period so long as he or she meets the requirements for being married to a U.S. citizen.

8 C.F.R. 319.1(b) explains the term “marital union.” First, the burden is on the applicant for naturalization under section 319(a) to demonstrate that he or she has lived in continuous marital union with the U.S. citizen spouse during the statutory period. Marital union ceases upon the death of the U.S. citizen spouse, divorce, or expatriation of the U.S. citizen spouse. If the applicant is divorced from the U.S. citizen spouse, he or she may not resume the period of marital union through remarriage to another U.S. citizen. The continuity of marital union is broken by legal separation. In the case of an informal separation, a determination of whether the continuity of marital union was broken will be made on a case-by-case basis. Involuntary separation will not break the continuity of marital union (e.g., separation attributable to military service, business demands, or other occupational demands).

Under section 334 of the INA, an applicant who meets the requirements of section 319(a) may file for naturalization 90 days before he or she reaches the three year/18 month continuous residence/physical presence requirements in marital union with the U.S. citizen spouse.

Battered Spouse or Child of a U.S. Citizen

Section 319(a) also provides a reduced three year continuous residence/18 month physical presence naturalization period for the battered spouse or child of a U.S. citizen. A battered spouse or child must have actually gained his or her LPR status by virtue of having been subjected to battery or extreme cruelty by the U.S. citizen spouse or parent in order to benefit from section 319(a). For a battered spouse, the three-year marital union requirement (see above) is waived. Under current USCIS policy found in HQISD 70/33 (Oct. 15, 2002) [PDF version], the requirement that the child must meet the definition of the “child” of the abusive parent in the INA as of the time he or she became an LPR is waived, but the child must still be at least eighteen years of age to apply for naturalization.

Spouse of U.S. Citizen Engaged in Certain Employment Abroad

Under section 319(b) of the INA, spouses of U.S. citizens engaged in certain types of employment abroad may file for naturalization under modified rules. One may notice that the types of qualifying employment for the U.S. citizen spouse roughly correspond to types of employment that an LPR may have counted toward continuous residence, and in certain cases, physical presence. Please see our section in this article to learn more about the types of qualifying employment in that context [see section].

Section 319(b) applies to the LPR spouse of a U.S. citizen who is:

Employed by the U.S. Government or by an American Institution of Research recognized as such by the Attorney General [see article]; or
Employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof; or
Employed by a public international organization in which the United States participates by treaty or statute; or
Authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States; or
Engaged solely as a missionary abroad by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States; and
Who is regularly stationed abroad in such employment.

In short, section 319(b) applies to the spouse of a U.S. citizen regularly stationed abroad in one of the foregoing types of employment. It is by no means a catch-all provision because it is applicable only to specified types of employment.

Under section 319(b)(2), the LPR must be present in the United States to apply for naturalization. However, under section 319(b)(3), if he or she declares before the Attorney General in good faith the intention to reside in the United States immediately upon the termination of his or her U.S. citizen spouse's employment, he or she may be naturalized in accordance with the naturalization laws but be exempted from the continuous residence and physical presence requirements.

Surviving Spouse, Child, or Parent of a U.S. Citizen

Under section 319(d) of the INA, the surviving spouse or child, or parent of a U.S. citizen who dies during a period of honorable service in active duty status in the U.S. Armed Forces will be eligible for naturalization without having to meet any continuous residence or physical presence requirement. In the cause of the surviving spouse of such a U.S. citizen, the surviving spouse must have been living in “marital union” with the U.S. citizen at the time of his or her death in a period of honorable service while on active duty status in the U.S. Armed Forces.

Spouse of Military Member Serving Abroad

Section 319(e) of the INA applies to the spouse of a U.S. Armed Forces member who is authorized to accompany the member abroad and reside abroad with him or her in accordance with the member's official orders. Provided that the LPR spouse resides abroad with the member in marital union and in accordance with the member's official orders, any time spent abroad will count as continuous residence and physical presence in the United States. Furthermore, under section 319(e)(2), the member would be eligible to apply for naturalization from overseas, as his or her time spent abroad also counts toward time spent in any State or district of the Department of Homeland Security (DHS) in the United States.

Child of a U.S. Government Employee Temporarily Stationed Abroad

Under section 320 of the INA and 8 C.F.R. 320.2, any time spent by a child of a U.S. government employee temporarily stationed abroad is considered “residing in the United States” for purpose of qualifying for the acquisition of citizenship after birth under section 320.

To learn about section 320 in more detail, please see our full article [see article].

Surviving Spouse or Child of a Person Conducting U.S. Intelligence

There is a very limited special exemption from the continuous residence and physical presence requirements for the surviving spouse or child of an alien who died while collecting U.S. intelligence. This provision is noted in 12 USCIS-PM D.5, but found in law in section 305 of the Intelligence Authorization Act of 1997, Pub. L. 204-293 (October 11, 1996). To learn more about this special provision, please see our short article on the subject [see article].

Naturalization Through Certain Types of Military Service (INA 328)

Section 328 of the INA contains a provision allowing for a person who serves honorably for at least one year in the U.S. Armed Forces to be naturalized under special rules. 12-USCIS-PM l.2 lists the requirements for qualifying for section 328 naturalization. First, the applicant must have served honorably in an active or reserve capacity in a unit of the:

U.S. Army;
U.S Navy;
U.S. Marine Corps;
U.S. Air Force;
U.S. Coast Guard; or
U.S. National Guard (but only if the National Guard unit during such time was federally recognized as a reserve component of the U.S. armed forces).

The qualifying discharge types for section 328 purposes are “Honorable” and “General-Under Honorable Conditions.”

The applicant must be otherwise eligible for naturalization save for meeting section 316(a)'s continuous residence and physical presence requirements. This means that the applicant must be an to seek naturalization under section 328. The requisite continuous residence and physical presence requirement for section 328 naturalization will depend on the circumstances under which the applicant is seeking naturalization.

If the applicant seeks naturalization under section 328 while he or she is serving honorably in the U.S. armed forces or within six months of receiving an honorable discharge, he or she will be exempt from both the continuous residence and physical presence requirement for naturalization. However, if the applicant seeks naturalization under section 328 six months or more from his or her honorable separation from the U.S. Armed Forces, he or she must meet the five year continuous residence requirement and 30 month physical presence requirement found in section 316(a). However, under section 328(d), any period of honorable service in the U.S. Armed Forces in the five-year statutory period for continuous residence and physical presence will count as continuous residence and physical presence in the United States.

Naturalization for Military Service During Hostilities (INA 329)

Section 329 of the INA contains a provision allowing for a person who serves honorably for any period of time in the U.S. Armed Forces during a designated period of or periods of hostilities to be eligible for naturalization under special rules. An applicant eligible for naturalization under section 329 will be exempt from both the continuous residence and physical presence requirements. 12-USCIS-PM l.3 lists the requirements for qualifying for section 329 naturalization.

First, the applicant must have served honorably for any period of time in one of the following capacities during a designated period of hostilities:

Selected Reserve of the Ready Reserve;
Active duty status in the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard; or
National Guard service (if he or she has honorable service in either the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, see 8 C.F.R. 329.1).

The service must have been in a “Designated Period of Hostilities.” The following chart, courtesy of 12-USCIS-PM l.3(D), lists the periods that have been designated as periods of hostilities:

Please note that these rules generally applied to certain natives of the Philippines who served in World War II and sought naturalization through the provisions of section 405 of the Immigration Act of 1990, Pub. L. 104-649 (Nov. 29, 1990).

In order to be eligible for naturalization under section 329, the applicant must be an LPR or:

Must have been physically present at the time of his or her enlistment, reenlistment, or extension of service or induction into the U.S. Armed Forces:

In the United States or its outlying possessions; or
On board a public vessel owned or operated by the United States for noncommercial service.

This means that unlike section 328 naturalization, it is possible for an applicant to qualify for naturalization under section 329 without having been admitted for permanent residence. While an applicant must meet most of the generally applicable requirements for naturalization, he or she will only be subject to a one-year statutory period for establishing good moral character. An applicant for naturalization under section 329 is exempt from both the continuous residence and physical presence requirements. An applicant who is a conditional permanent resident [see category] will not be required to have the conditions removed from his or her permanent residency to seek naturalization under section 329.

Noncitizen Nationals

Noncitizen nationals are subject to slightly different rules for naturalization, in large part because they are not aliens. A noncitizen national need not be an LPR to obtain naturalization, and may have any period spent in an outlying possession of the United States (American Samoa or Swains Island) counted as both continuous residence and physical presence within the United States. However, the applicant must apply for naturalization from within the United States and have resided in the State or within the USCIS district from which he or she files for naturalization for at least three months. To learn about naturalization and other immigration issues for noncitizen nationals in more detail, please see our full article [see article].

Service Contributing to National Security

Section 316(f) of the INA allows the Director of Central Intelligence, the Attorney General, and the Director of the USCIS to jointly designate up to five people annually who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities” for naturalization. A person eligible for naturalization under section 316(f) is exempt from both the continuous residence and physical presence requirements so long as he or she continuously resided in the United States for at least one year prior to naturalization.

Former Citizens Who Lost U.S. Citizenship for Foreign Military Service During WWII

A person who lost citizenship due to military service during World War II for any country that was at war with the United States between December 7, 1941, and September 2, 1945, may be eligible for naturalization under section 327 of the INA. A person eligible for naturalization under section 327 is exempt from both the continuous residence and physical presence requirements under section 316(a).

Conclusion

While most applicants for naturalization will be subject to the continuous residence and physical presence requirements of section 316(a), there are many cases where these requirements are modified or inapplicable. In this article, we discussed common cases, such as naturalization for certain spouses of U.S. citizens or naturalization through section 328 or 329 of the INA, and many less common cases. In general, any person who intends to seek naturalization should consult with an experienced immigration attorney. In addition to assisting with the application process, an experienced immigration attorney will be able to help a person understand the requirements that he or she will have to meet in order to be eligible for naturalization given his or her immigration path.

Please see our brief overview of naturalization to learn about the general process [see article].