More than 180 days trip outside the US? Can you still apply for N-400? (Understanding Continuous Residency Requirement)

Understanding Continuous Residence Requirement

Continuous residence is one of the requirements to apply for citizenship (N-400). Continuous residence means maintaining your primary home within the U.S. for a specific duration before applying for citizenship. The required length of continuous residence varies depending on your situation. An absence of more than 180 days but less than one year triggers a presumption by USCIS that you have disrupted your continuous residence.

• General Applicants: The required statutory period is 5 years before filing Form N-400. During this period, applicants must maintain continuous residence in the United States. Any single trip abroad must be less than 180 days. If a trip exceeds this duration, the applicant must be able to rebut the presumption of a break in continuity of residence.

• Applicants Who Obtained a Green Card Through Marriage to a U.S. Citizen: The required statutory period is 3 years, provided the applicant has lived in marital union with their U.S. citizen spouse throughout this period. As with general applicants, there must be no break in continuous residence, meaning any one trip outside the U.S. must be less than 180 days, or the applicant must be able to rebut the break. Additionally, these applicants must prove cohabitation and shared financial responsibilities (i.e., joint bank accounts, tax returns, or leases) to demonstrate a continuous marital relationship.

Managing Absences more than 180 days but less than one year (365 days)

If your absence from the U.S. lasted more than 180 days but less than 365 days, USCIS presumes a break in your continuous residence. However, this presumption can be rebutted by presenting solid evidence that you maintained significant ties to the U.S. during your absence.

It is highly advisable to maintain thorough documentation if you anticipate extended absences. Ideally, trips outside the U.S. should be less than 180 days. If you must stay longer, consider applying for a re-entry permit before departing—this must be done while physically present in the U.S.

Overcoming the Presumption of Interrupted Continuous Residence

USCIS typically accepts specific types of evidence to demonstrate continuous residence, including (not limited to):

·       Employment Records: Evidence of continuous employment by a U.S.-based company or a documented arrangement for your return to a U.S. employer.

·       Family Connections: Documentation showing immediate family members remained in the U.S. during your absence.

·       Proof of Residency: Records confirming ongoing access to a home or lease in the U.S. while you were abroad.

Providing clear and convincing evidence of these connections helps show that your absence was temporary and that you intended to keep the U.S. as your permanent home. Depending on the applicant’s circumstances, specific types of documentation or a more extensive list of supporting evidence may be required. The key is not only gathering sufficient proof, but also presenting it in a manner that aligns with USCIS expectations.

When Can You Reapply After an Extended Absence?

If your absence lasted between 180 days and less than one year, here’s when you can apply again:

• General Applicants (5-year requirement): You must either rebut the presumption of a break or wait at least 4 years and 6 months after returning to the U.S.

• Spouses of U.S. Citizens (3-year requirement): You must successfully rebut the presumption or wait at least 2 years and 6 months after returning.

You always have the option of waiting for the entire statutory period (5 or 3 years) from your return date to eliminate any concerns regarding your previous absence. Depending on personal concerns or situations, some want to wait longer than the required statutory period, which is fine. Occasionally, USCIS might still issue a Request for Evidence (RFE) even if the absence falls outside the statutory period, so maintaining detailed residency records is always beneficial.

Absence of One Year or Longer

Absences lasting one year or more carry stricter requirements. You must first reestablish residency upon returning to the U.S. before reapplying:

• General Applicants: Must wait at least 4 years and 1 day from the return date if you have strong evidence. Without sufficient documentation, you must wait 4 years and 6 months. Additionally, you must meet the physical presence requirement of at least 2.5 years within the statutory period.

• Spouses of U.S. Citizens: Must wait at least 2 years and 1 day with robust evidence, or 2 years and 6 months without sufficient documentation. You must also satisfy the physical presence requirement of at least 1.5 years within the 3-year statutory period.

Again, you may choose to wait for the entire statutory period (5 or 3 years) to ensure eligibility and avoid potential issues. Besides the continuous residency requirements, it is important to check your physical presence and state residency requirements before submitting anything to USCIS. For example, USCIS requires you to be physically present in the U.S. for at least half of your required statutory period, and you must have resided in the state where you’re applying for at least 3 months before filing your N-400 application.

These days, a conservative approach is recommended. Make sure you are eligible to apply before taking any action. A small mistake on the form, error, involuntary misrepresentation, or misinterpretation of the law can lead to a denial of your application.

Thoughts

Extended absences can complicate your citizenship application, but detailed records and proactively addressing potential issues can significantly improve your chances of success. If you’re uncertain about your eligibility or whether your evidence is sufficient, consulting an immigration attorney is highly advisable.

Our office can assist you in navigating these complexities to make sure your citizenship application is accurately prepared and effectively presented to USCIS. Contact us now if you are planning to apply for citizenship application soon or need an attorney to evaluate your eligibility.

Email: info@amylawoffice.com
Phone: 571-387-0407 (please make sure to leave a voice message so we can get back to you in case we miss your call)

Disclaimer: This blog post is provided for informational purposes only and does not constitute legal advice. Relying on this information does not create an attorney-client relationship with the Immigration Law Office of Amy Chung, PLLC (“Firm”, “We”). The Firm is not responsible for any actions taken based on the information presented on this website without formal legal representation. Legal representation is established only upon the mutual signing of a Legal Services Agreement and the payment of the required attorney’s fee by the prospective client.