N-400 Travel Limits

U.S. CITIZENSHIP RESIDENCE & PRESENCE REQUIREMENTS

A naturalization applicant must meet 4 residence and physical presence requirements to qualify for naturalization (USA citizenship).

Requirement Number 1

5 Years Continuous Residence in USA

(3 years if married to a USC)(INA §319(a))

An applicant for U.S. naturalization must have “resided continuously” in the USA as an LPR (green card holder) for the last 5 years immediately prior to applying for naturalization. INA § 316(a)(1). If the applicant has been married to a U.S. Citizen, the continuous residence period may be reduced to 3 years. INA §319(a). To qualify for the reduced 3 year period, the LPR must have lived with the USC spouse in marital union, without separation or divorce.

A Trip Over 6 Months

An applicant may leave the USA during the 5 years, but no single trip should be longer than 6 months (180 days). Continuous residence is not automatically broken (or disrupted) by leaving the USA, and continuous residence requirement can still be satisfied notwithstanding a single trip abroad with duration in excess of 180 days. To overcome the long-term stay abroad, an applicant must prove that, despite the length of time away, he did not intend to abandon his residency, and as such did not disrupt his “continuity of residence” in the USA.

To prove this, an applicant needs demonstrable evidence of his intent to return, such as:

proof that employment in the U.S. was not terminated
proof that applicant’s immediate family remained in U.S. while he was abroad
proof that the applicant retained full access to his home in the U.S.
proof that the applicant was not employed elsewhere while abroad
USA bank statements showing continuous financial activity
USA tax returns showing USA residence
proof of USA auto insurance
proof of medical insurance in USA
house or rent payments for USA residence
USA driver’s license
USA credit cards
photographs taken while in USA
membership in USA organizations
USA school transcripts

The applicant should express clearly through the evidence and at his interview that his 6-12 month trip abroad was merely temporary in nature, and that he at all times considered himself to reside in the US and intended to return to the US.

If an applicant has at least one trip of 6-12 months, it will be up to the interviewing Immigration Officer whether to excuse that trip or not. It is entirely in that officer’s discretion on the day of the citizenship interview. Often success depends on how professionally prepared the N-400 package appears. Occasionally a supervisor gets involved. If the Immigration Officer indicates that they are not inclined to approve the application for USA citizenship, it is allowed for the applicant to ask that their N-400 be withdrawn, but the government fees will not be refunded.

Submitting an N-400 with two trips of 6-12 months is riskier, but not impossible.

Trips Over One Year and The 4 Years + 1 Day Rule

Any trip longer than 365 days breaks continuity of residence. An Immigration Officer cannot excuse a 1+ year trip, but an applicant may start counting on the day he returned from the 1 year (or more) trip and needs show only 4 years + 1 day (for applicants married to USA citizens, 2 years + 1 day).

An applicant can travel during the 4 years + 1 day period, so long as no trip during that time exceeds 6 months.

Can an Applicant Use the 4 Year + 1 Day Rule After a 6-12 Month Trip?

Maybe. 8 CFR 316.5(c)(1)(ii) states that if a naturalization applicant disrupts permanent resident status by leaving the USA for over 1 year, than he can reapply. The rule does not say anything about a green card holder who left the USA for 6-12 months. Does the rule apply or not? Because the rule is not clear, it is up to the USCIS Officer’s discretion whether the 4 Year + 1 Day Rule applies for a green card holder who has been outside the USA for 6-12 months (and not over 1 year).

Some immigration attorneys have successfully won these cases by saying that the U.S. Supreme Court has often stated that “nothing is better settled than that statutes should receive a sensible construction such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion.” (Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892)). Immigration attorneys have argued that if the 4 year + 1 day rule only applies to applicants out of the USA for more than 1 year, that is an “absurd conclusion” of the statute. Therefore, a naturalization applicant who wishes to try to use the 4 Year + 1 Day Rule in 6-12 month absence situations is definitely risking a delay in their citizenship and a possible denial.

Requirement Number 2

3 Months of Local Residence

An applicant must have resided in the state or USCIS District where the N-400 application is filed for 3 months immediately prior to applying (filing) for naturalization. INA § 316 (a)(1).

Requirement No. 3

Continuous Residence After Submitting N400 Application

An applicant must continuously reside in the U.S. from the date of filing the N-400 naturalization application until the oath ceremony. INA § 316 (a)(2).

Continuous residence does not mean that the naturalization applicant must remain in the U.S. during the entire period while waiting for the N-400 application to be processed. Generally, an applicant can make temporary visits while the N-400 is pending, so long as he has evidence such as proof that he maintained his home in the U.S., filed U.S. tax returns, retained his employment in the U.S., etc.

Requirement Number 4

Physical Presence

The applicant must be physically present in the U.S. for at least 1/2 of the 5 (or 3) year residence period immediately prior to submitting the N-400 application.

An easy way to figure out if this requirement is satisfied is to use the N-400 located on http://www.uscis.gov, or use www.thetimenow.com or http://www.timeanddate.com to calculate the days abroad – please do not use a regular paper calendar.

To satisfy this requirement, the total number of days outside the USA should be less than 912 days (5 years x 365 days = 1825 days divided by 2 = 912.5 days). If eligible to file the N-400 after 3 years because of marriage to a USA citizen, the total number of days outside the US should be less than 547 days (3 years x 365 days = 1095 days divided by 2 = 547.5 days).

This calculation is not different if using the “4 years + 1 day” rule (see above) except that the first 364 days will be automatically counted as outside the USA.

What is that rule about filing 90 days early?

The USCIS allows applicants to file an N-400 up to 90 days early. Note, however, if you send the N-400 even 1 day too early, it will be rejected. Determine the 90 day date by using the USCIS “Filing Date Calculator:

https://www.uscis.gov/sites/default/files/dateCalculator.html

Note also, an applicant is not allowed to combine the “90 day early” rule with the “4 years + 1 day” rule.

For further explanation, try the article on travel at the independent CitizenPath website.