Understanding How Each Is Required for Naturalization
When you finally receive your green card and become a lawful permanent resident, you may be eager to apply for naturalization, the last step to becoming a permanent United States citizen. Unfortunately, you must undergo a mandatory waiting period as a lawful permanent resident before you can begin the naturalization process.
The length of this naturalization process depends on the means in which you procured your green card. If you obtained your green card through marriage to a current United States citizen, you will need to wait a minimum of 3 years before applying for citizenship. If you became a lawful permanent resident through marriage to another lawful permanent resident or through the sponsorship of an employer or family member, you will have to wait at least 5 years. Political refugees can generally pursue citizenship beginning 4 years after receiving their green card.
Simply waiting out the prescribed time is not enough to qualify for naturalization. Prospective citizens must also meet physical and continuous presence requirements during their mandatory waiting period. It can be easy to misunderstand or become confused by the specifics of these requirements, especially as they intersect. Below, we cover the difference between physical and continuous presence and how they are relevant to naturalization.
Defining Physical and Continuous Presence
Physical and continuous presence are defined differently but are ultimately interrelated, as both involve the amount of time you spend in the United States. You must meet sufficient levels of physical and continuous presence to remain eligible for U.S. citizenship.
Continuous presence as defined as the amount of time in which you have maintained your primary residence in the United States. You are required to maintain continuous presence in the country for the entirety of your mandatory waiting period.
You can disrupt continuous presence by spending too much time out of the country in any single instance. Any trips abroad that last greater than six months can constitute an “interruption” to continuous presence and jeopardize your ability to pursue citizenship. This does not mean you cannot leave the country during your mandatory waiting period, it only means that those trips should not last for a period greater than 6 months at any one time. For example, you could in theory take multiple 2-month trips without interrupting continuous presence.
Physical presence is defined as the amount of time you were physically within the borders of the United States. In other words, if your feet are on U.S. soil, you are engaging in physical presence.
For most lawful permanent residents, you will need to spend at least half of your mandatory waiting period maintaining physical presence in the United States. For those married to U.S. citizens, this means at least 1.5 years – or 18 of 36 months – must be spent within the country’s borders. Those who were sponsored by an employer or family member or married a lawful permanent resident will need to spend at least 2.5 years – or 30 of 60 months – inside the United States.
Continuous and physical presence may sound similar, but they have key differences. Continuous presence can be maintained so long as you do not leave the country for over 6 months, while physical presence is disrupted as soon as you step outside the country’s borders. The caveat is that you only need half of your mandatory waiting period to be spent maintaining physical presence.
Still confused? Examining two examples might be useful in illustrating the difference.
Say you have a person who receives a green card through sponsorship of their employer. Under immigration rules, they must wait at least 5 years before applying for naturalization. During this time, they have a physical address in the United States where they primarily reside. However, they take three separate 4-month trips abroad to visit their parents in their home country. Because each individual trip never exceeds 6 months, they do not interrupt their continuous presence. Since they are out of the country for a total of 12 months, they have only 48 months of physical presence in the United States – well over the 30-month minimum in their case. Thus, the lawful permanent resident meets both requirements and can likely apply for citizenship when the mandatory waiting period ends.
An alternate example might see a person with a green card through marriage to a U.S. citizen taking frequent trips out of the country for pleasure. The means in which they procured their green card means they only have a 3-year mandatory waiting period. The individual takes four, separate 5-month trips to various places abroad. Again, because each trip lasts less than 6 months, continuous presence is not interrupted – the individual still maintains their primary residence in the United States. However, the frequency and length of the trips means the individual has spent 20 months outside the country, exceeding the 18-month physical presence requirement. Because they spent too much time physically outside the country, they will be unable to immediately apply for naturalization at the end of their waiting period.
Exceptions to Physical and Continuous Presence Rules
If you attempt to apply for U.S. citizenship, United States Citizenship and Immigration Services (USCIS) will conduct thorough checks to ensure you met both physical and continuous presence requirements. Any doubts about your meeting the conditions could jeopardize your candidacy. With that said, there are several exceptions for meeting physical and continuous presence requirements.
Exceptions for continuous and physical presence rules can be granted for those who:
- Must travel as an employee or contractor to the United States government
- Must travel as a translator, interpreter, or high-level security employed by the U.S. military
- Must travel as an active member of the U.S. military stationed abroad
- Must travel as an employee of eligible media organizations, including journalistic institutions
- Must travel as a member of an eligible religious vocation
- Wish to travel with an active member of the U.S. military stationed abroad
Do not assume you automatically qualify for one of the above conditions, even if it seems like you might on paper. The specific requirements for each exception condition are highly complex and should be verified by an experienced immigration lawyer.
Additionally, case-by-case exceptions for continuous and physical presence rules can sometimes be granted in situations where extraordinary circumstances or a personal emergency interfere with your returning to the United States. Receiving an exception is in no way guaranteed and requires providing a written explanation to USCIS at the time you apply for naturalization on why your continuous and/or physical presence was interrupted, how it was beyond your control, and what steps you took to avoid the interruption.
Extraordinary circumstances can include a variety scenarios, including the closure of borders (as a result of COVID-19 restrictions, a national emergency, or even an outbreak of armed conflict) or extreme weather canceling flights and preventing your timely return to the U.S. Personal emergencies generally involve either yourself or immediate loved ones. If you were to become seriously ill or injured right before you were scheduled to return to the U.S., for example, it may be acceptable to remain abroad to treat the ailment, even if doing so disrupts continuous and/or physical presence. Similarly, if a sibling or parent living abroad becomes injured or ill, you may be able to justify remaining in the country to care for them.
We Can Answer Your Questions about Naturalization
If you are interested in becoming a United States citizen, you will have to pay careful attention to continuous and physical presence rules. For over a decade, Gambacorta Law has helped countless clients navigate the U.S. immigration system, including the at-times labyrinthine naturalization process. We are familiar with all of the rules and exceptions surrounding physical and continuous presence and can help advise you to ensure you remain in compliance.
If you are concerned about continuous and physical presence or any other aspect of naturalization, do not hesitate to schedule a consultation with our team. Call (847) 443-9303 or contact us online to get started.
