By: Hasan Abdullah, Esq.

Hasan Abdullah, Esq.

The most common question that green card holders seem to ask is what impact will spending time outside the United States have on their permanent residence. This  article will provide some basic guidance on this issue, as well as resolve matters related to residence requirements for naturalization.

What is the Distinction between Continuity of Residence and Physical Presence?

A lawful permanent resident (LPR) applying for naturalization is expected to continuously maintain residence in the United States. This does not mean that you must be physically present at all times. In other words, a break in physical presence does not amount to a break in continuity of residence.

The concept of continuity of residence and physical presence are important concepts to understand in the context of applying for naturalization. In order to be eligible for naturalization, you may not have any breaks in continuity during the relevant statutory period of time for which you must demonstrate such continuity (the immediately preceding 3 years if you obtained permanent residence through marriage or VAWA, or 5 years if you obtained you permanent residence through other means*). You must be physically present in the US for only half the time (18 months if you obtained permanent residence through marriage or VAWA, or 30 months if you obtained your permanent residence through other means).

According to 8 C.F.R. § 316.5(c)(1)(i), departures of more than 6 months and less than 12, do not necessarily break the required continuity, but the burden is on the applicant to establish that you did not, in fact, abandon residence in the US. Be prepared to prove you didn’t break continuity under the regulation. You can show maintenance of ties with the following facts (this is not an exhaustive list):
(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant’s immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad.

According to 8 C.F.R. § 316.5(c)(1)(ii), departures of more than 1 year will break continuity.

If continuity is broken, then you must wait 4 years 1 day, or 2 years 1 day if you obtained permanent residence through marriage or VAWA, before you may apply for naturalization.

Having a reentry permit will not prevent the application of the above rules. So, if you leave for 1+ year and return on a reentry permit, you will be deemed to have broken continuity.

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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).