Naturalization Concerns For U.S. Residents Outside The U.S. During COVID-19 Pandemic

Immigration Attorney Caroly Pedersen

Most U.S. residents (Green Card holders) understand the basic requirements for Naturalization to become a U.S. citizen.

This includes having been a resident for at least 4 years and 9 months, (or 2 years and 9 months if married to a U.S. citizen, called “Early Naturalization”), being at least 18 years old, having a “good moral character,” being able to read and write and be proficient enough in English in order to answer questions about your Naturalization application, U.S. history and civics (with few exceptions).

But what many do not fully understand is one of the most important requirements of all—having continuous residence and physical presence in the U.S.

Continuous residence requires a resident to show that he or she has lived in the U.S. for the past five years (or 3 years if married to a U.S. citizen). Physical presence, means that a resident has actually  been “physically” inside the U.S. for at least half the time of their required continuous residence, meaning 2.5 years in the past 5 years prior (or 1.5 years if married to a U.S. citizen).

Importantly, residents are not required to remain inside the U.S. for the continuous period of “physical presence” all at one time and are allowed to use time accumulated during the requisite period. So  generally, it’s fairly easy for a resident seeking to qualify to apply for naturalization to add up all the time spent in the U.S. during the past five (or three) year period, in order to determine the date that he or she is eligible to apply for naturalization.

The glitch, however, is that any period of time spent outside the U.S. for 180 continuous days (six months) or more up to 364 days breaks a resident’s physical presence in the U.S. and generally “resets” the continuous residence clock. That means all the physical time accumulated in the U.S. prior to leaving is totally lost and the time required for continuous residence starts all over again. There are some exceptions, for instance when a resident can prove that although they were outside the U.S. for 180 days, but less than a year, they continued to maintain residency in the U.S.

However the burden of proof is on the resident to provide documentary evidence, for instance that they continued to be employed in the U.S. during that time, that their immediate family members remained in the U.S., they maintain a home, car, insurance, bank accounts, utilities, filed tax returns, etc. But in a very strange twist, re-entering the U.S. after staying outside for 365 days or more allows a resident to apply for naturalization in only 4 years + 1 day (2 years + 1 day for residents married to a U.S. citizen) weird, but true!

So, residents who are stuck outside the U.S. and unable to return due to the pandemic and related travel restrictions have a lot of issues to consider:

Outside U.S. Less Than 180 Days: Those who have not yet been outside the U.S. for 180 days or more might want to strongly consider re-entering the U.S., even if briefly, once international travel resumes. Best not to risk the consequences of having to provide proof of residing in the U.S., especially when one has not maintained a home or apartment, employment, automobile, tax returns and insurance, etc.

Residents Outside The U.S. For 180 days, But Less Than 1 Year: Those who have already been outside the U.S. for 180 days, but less than a year may want to be prepared to provide proof to the officer upon entering that U.S. showing that they have been residing in the U.S. and were simply stuck outside due to the pandemic, but returned immediately once flights resumed. Then when applying for naturalization, be prepared to provide extensive documentation outlined above to prove that he or she continued to maintain a residence, employment, etc. in the U.S. during the extended absence during the pandemic.

Residents Outside The U.S. For 1 Year Or More: Residents who have been outside for a year or more have a lot more to worry about than simply when they can file for naturalization, first and foremost they need to be concerned about preserving their green card. After an absence of 365 days or more, a resident must apply as a Returning Resident (SB-1) Visa at the U.S. Consulate abroad (form DS117) and submit proof that they reside in the U.S. and are returning from a temporary trip which was extended due to circumstances beyond their control related to the pandemic, for instance canceled flight to the U.S. The other alternative is applying at the U.S. port of entry (Customs and Border Protection) by providing the same proof, completing the form I-193, Application for Waiver of Passport and/or Visa and paying the $585 filing fee. If allowed to re-enter the U.S., the resident can then apply for naturalization in 4 years and 1 day.

 

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