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USCIS has announced an update to the USCIS Policy Manual to align USCIS practice with congressional intent and existing regulations by clarifying requirements surrounding naturalization applicants’ absences from the United States. This update concerns absences of more than six months but less than one year during the statutorily required continuous residence period.

This update clarifies the following requirements for naturalization:

  • An applicant who has been absent from the United States for more than six months but less than a year must overcome the presumption that they have broken the continuity of their residence in the United States; and
  • An applicant who has broken the continuity of residence in the United States must establish a new period of continuous residence, the length of which depends on the basis for naturalizing.

An applicant filing under the general naturalization provision is not eligible until they have reached the required period of continuous residence as a lawful permanent resident. Under the law, an absence from the United States for more than six months but less than one year during the statutory period triggers a presumption of a break in the continuity of such residence. USCIS adjudicators have always been required to determine whether naturalization applicants have broken their continuous residence when evaluating naturalization applications.

Please see the Policy Alert (PDF, 300 KB) for more information on this update. Visit the Policy Manual for Comment page for more information on stakeholder review and comment.

A. Continuous Residence Requirement

An applicant for naturalization under the general provision[1] must have resided continuously in the United States after his or her lawful permanent resident (LPR) admission for at least 5 years prior to filing the naturalization application and up to the time of naturalization. An applicant must also establish that he or she has resided in the state or service district having jurisdiction over the application for 3 months prior to filing.[2] 

The concept of continuous residence involves the applicant maintaining a permanent dwelling place in the United States over the period of time required by the statute. The residence in question “is the same as that alien’s domicile, or principal actual dwelling place, without regard to the alien’s intent, and the duration of an alien’s residence in a particular location measured from the moment the alien first establishes residence in that location.”[3] Accordingly, the applicant’s residence is generally the applicant’s actual physical location regardless of his or her intentions to claim it as his or her residence.

Certain classes of applicants may be eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for an exemption from the continuous residence requirement altogether.[4] These classes of applicants include certain military members and certain spouses of U.S. citizens.[5] 

The requirements of “continuous residence” and “physical presence” are interrelated but are different requirements. Each requirement must be satisfied (unless otherwise specified) in order for the applicant to be eligible for naturalization.[6] 

B. Maintenance of Continuous Residence for Lawful Permanent Residents

USCIS will consider the entire period from the LPR admission until the present when determining an applicant’s compliance with the continuous residence requirement.

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An order of removal terminates the applicant’s status as an LPR and therefore disrupts the continuity of residence for purposes of naturalization. However, an applicant who has been readmitted as an LPR after a deferred inspection or by an immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization.[7] 

Other examples that may raise a rebuttable presumption that an applicant has abandoned his or her LPR status include cases where there is evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability or fails to file either federal or state income tax returns because he or she considers himself or herself to be a non-resident alien.[8] 

C. Breaks in Continuous Residence

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. Generally, there are two ways outlined in the statute in which the continuity of residence can be broken:[9]

  • The applicant is absent from the United States for more than 6 months but less than 1 year; or
  • The applicant is absent from the United States for 1 year or more.

An officer may also review whether an applicant with multiple absences of less than 6 months each will be able to satisfy the continuous residence requirement. In some of these cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time.[10]

An LPR’s lengthy or frequent absences from the U.S. can also result in a denial of naturalization due to abandonment of permanent residence.

An applicant who has an approved Application to Preserve Residence for Naturalization Purposes (Form N-470) maintains his or her continuous residence in the United States.[11]

1. Absence of More than 6 Months (but Less than 1 Year)

An absence of more than 6 months (more than 180 days) but less than 1 year (less than 365 days) during the period for which continuous residence is required (also called “the statutory period”) is presumed to break the continuity of such residence.[12] This includes any absence that takes place during the statutory period before the applicant files the naturalization application and any absence between the filing of the application and the applicant’s admission to citizenship.[13]

An applicant’s intent is not relevant in determining the location of his or her residence. The length of the period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted the continuity of his or her residence.

However, 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:[14]

  • The applicant did not terminate his or her employment in the United States or obtain employment while abroad;
  • The applicant’s immediate family members remained in the United States; and
  • The applicant retained full access to or continued to own or lease a home in the United States.
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Eligibility After Break in Residence

An applicant who USCIS determines to have broken the continuity of residence must establish a new period of continuous residence in order to become eligible for naturalization.[15] The requisite duration of that period depends on the basis upon which the applicant seeks to naturalize.[16] In general, such an applicant may become eligible and may apply for naturalization at least 6 months before reaching the end of the pertinent statutory period.[17]

Example

An applicant who is subject to a 5-year statutory period for naturalization is absent from the United States for 8 months, returning on August 1, 2018. The applicant has been absent from the United States for more than 6 months but less than 1 year. As such, the applicant must be able to rebut the presumption of a break in the continuity of residence in order to meet the continuous residence requirement for naturalization.

If the applicant is unable to rebut the presumption, he or she must wait until at least 6 months from reaching the 5-year anniversary of the newly established statutory period following the applicant’s return to the United States. In this example, the newly established statutory period began on August 1, 2018, when the applicant returned to the United States. Therefore, the earliest the applicant may re-apply for naturalization is February 1, 2023, which is at least 6 months from the 5-year anniversary of the pertinent statutory period.[18]

2. Absence of 1 Year or More

An absence from the United States for a continuous period of 1 year or more (365 days or more) during the period for which continuous residence is required will automatically break the continuity of residence. This applies whether the absence takes place before or after the applicant files the naturalization application.[19]

Unless an applicant has an approved Application to Preserve Residence for Naturalization Purposes (Form N-470), USCIS must deny a naturalization application for failure to meet the continuous residence requirement if the applicant has been continuously absent for a period of 1 year or more during the statutory period. Form N-470 preserves residence for LPRs engaged in qualifying employment abroad with the U.S. government, private sector, or a religious organization.[20]

Eligibility after Break in Residence

An applicant applying for naturalization under INA 316 , which requires 5 years of continuous residence, must then wait at least 4 years and 1 day after returning to the United States, to have the requisite continuous residence to apply for naturalization.[21] The statutory period preceding the filing of the application is calculated from the date of filing.

Once 4 years and 1 day have elapsed from the date of the applicant’s return to the United States, the period of absence from the United States that occurred within the past 5 years is now less than 1 year. Since the period of absence is still more than 6 months, an applicant for naturalization in these circumstances must also overcome the presumption of a break in the continuity of residence.[22]

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If the same applicant reapplies for naturalization at least 4 years and 6 months after reestablishing residence in the United States, he or she would not be subject to the presumption of a break in residence because the period of absence immediately preceding the application date is now less than 6 months.[23]

Example

An applicant for naturalization under INA 316 departs the United States on January 1, 2010, and returns January 1, 2011. The applicant has been outside the United States for 1 year and has therefore broken the continuity of his or her residence in the United States. The applicant must wait until at least January 2, 2015 to apply for naturalization, when the 5-year statutory period[24] immediately preceding the application will date back to January 2, 2010. At that time, the applicant will have been absent from the United States for more than 6 months, but less than 1 year, during the statutory period and may be eligible for naturalization if she successfully rebuts the presumption that she has broken the continuity of her residence.

If the applicant cannot overcome the presumption of a break in the continuity of his or her residence, the applicant must wait until at least July 1, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to July 1, 2010. During the 5-year period of July 1, 2010 to July 1, 2015, assuming the applicant did not make any additional trips outside the United States that would cause USCIS to presume a break in continuity of residence, the applicant was only absent from the United States between July 1, 2010 and January 1, 2011, a period that is not more than 6 months. Therefore, no presumption of a break in continuous residence applies.

3. Summary

The following table provides a summary of how an applicant’s absence from the United States may impact his or her eligibility to naturalize.

Impact of Absence from the United States During Statutory Period on Naturalization Eligibility
Duration of Absence Must Applicant Overcome Presumption of a Break in the Continuity of Residence? Eligible to Naturalize?
6 months or less No[25] Yes
More than 6 months but less than 1 year Yes Yes
1 year or more (without USCIS approval via N-470 process) Not eligible to apply No

The following table illustrates the length of time needed to re-establish eligibility and residence in the United States following an absence of 1 year or more from the United States.

Filing Under Specific Provisions After Break in Continuous Residence
Provision Absence During Statutory Period May Apply After…
INA 316

5-year statutory period

More than 1 year
  • 4 years and 6 months, or
  • 4 years and 1 day (but must overcome presumption of break in continuity of residence)[26]
INA 319

3-year statutory period

More than 1 year
  • 2 years and 6 months, or
  • 2 years and 1 day (but must overcome presumption of break in continuity of residence)

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Diaspora

Americans abroad must return to the US immediately, says Pompeo

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US Secretary of State Mike Pompeo has told Americans abroad who still wish to return to the United States to do so “immediately,” saying commercial and government-chartered flights could soon cease amid the coronavirus outbreak.

“We don’t know how long commercial flights will … operate,” Mr Pompeo said Tuesday, adding it is not a sure thing that flights being chartered by the US government specifically for Americans to return home due to COVID-19 fears will be available in some countries.

The US top diplomat urged any Americans abroad who want to get back to US soil to contact the American embassy in the country where they currently are to begin making plans “immediately” to get a flight back to the States.

READ ALSO:   US announces new approach to reduce Green Card, Citizenship applications backlog
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Diaspora

Initial H-1B Electronic Registration Period Closes March 20

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BY BMJ MURIITHI

The US government has announced that the initial registration period for the fiscal year 2021 H-1B numerical allocations will close at noon Eastern on March 20.

According to a statement from USCIS, registrations must be properly submitted before noon Eastern on March 20 to be considered in the initial selection process.

“If we at USCIS receive enough registrations during the initial registration period, we will randomly select the number of registrations we project are needed to reach the FY 2021 H-1B numerical allocations and send selection notifications via users’ online accounts,” read part of the Statement.

“We intend to notify registrants with selected registrations from the initial registration period no later than March 31, 2020, that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration,” it added.

An H-1B cap-subject petition must be properly filed within the filing period indicated on the relevant selection notice. The period for filing the H-1B cap subject petition will be at least 90 days.

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Immigration News

More details about the Kenyan woman from Ohio, USA who tested Corona-positive in Nairobi emerge

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The Kenyan woman who has tested positive to corona virus infection travelled from Ohio via Chicago and then through London, UK, before landing at JKIA in Nairobi.

The woman, who is 27 years old arrived in Kenya on March 5th. She later complained that she was experiencing Corona-like symptoms and took herself to the hospital.

The government says it has traced all contacts the patient made since her arrival.

“We have done all the contact tracing and have all the names including the people who sat next to her on the flights she took,” Said Health Cabinet Secretary Mutahi Kagwe.

Consequently, Kenya has suspended all travel outside the country unless necessary.

Public gatherings are also suspended, including all inter-schools events.

The CS said every level 4 and 5 hospital in the country will have an isolation ward funded by the Ministry of Health and the World Bank.

Kenya has confirmed its first Coronavirus case.

Mr Kagwe on Friday said that although the patient, a Kenyan, is stable and eating, she will not be released from hospital until she is confirmed negative.

The woman is at Kenyatta National Hospital’s Infectious Disease Unit.

County Governments have also been urged to carry out regular public sensitisation on the coronavirus disease.

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KEEP CALM

CS Kagwe urged Kenyans to remain calm, noting that there’s no need for panic or worry provided people abide by the measures put in place.

“This is not a time to assign blame but one to join hands to ensure this pandemic does not tear through our country. This is not the time to make abnormal prices,” he warned pharmacies and business people.

PUBLIC TRANSPORT

Transport Cabinet Secretary James Macharia, who was present at the press conference, said all public transport operators were summoned on March 10 for a special stakeholder meeting.

He said the government will be conducting training at bus stops from 10 am to 4 pm that will involve all bus drivers, matatu drivers and conductors.

“Public transport carries the vast majority of our people…more than 90 per cent. That is why we are giving it special focus.”

HEALTH ACT RULES

CS Kagwe has invoked the Public Health Act which requires Kenyans to:

  1. Maintain a distance of atleast 1 metre from persons who are coughing
    2. Those coughing and have fever and difficulty in breathing should stay at home
    3. All public gatherings, and events that have large gatherings
    4. Suspension of interschool events but schools will remain open
    5. Public transport operators will be required to regularly clean their vehicles and provide sanitizers to passengers
    6. Suspension of all visits to prisons for the next 30 days
    7. Kenyans have been warned against spreading misinformation
    8. Unless absolutely necessary, travelling to affected countries have been banned
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The Coronavirus disease (COVID-19), whose epicentre was in Wuhan, China, has now killed nearly 5,000 people and infected more than 130,000 worldwide as at Friday.

It has spread to more that 120 countries across the globe.

PUBLIC GATHERINGS, RALLIES BANNED

Due to presence of the coronavirus case, all public gatherings, rallies, crusades and meetings of a national nature have been banned. This includes Building Bridges Initiative (BBI) rallies.

However, churches will continue to operate as usual as long they provide hand sanitisers to their congregants.

Interschool activities like drama, music festivals and sports have been also been banned.

Leaders sounded off on the announcement by Mr Kagwe, with Raila Odinga lauding the country’s preparedness.

“We are pleased with the government approach to handling the threat and protecting the health of Kenyans…As a country, we are in this together and we urge our citizens not to panic,” he said on his official social media page.

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