MARIO and Leila were granted legal permanent resident (LPR) status in May 2008, through the petition of their son who is in active duty in the United States Navy. After only 7 months, Mario went back to the Philippines and for the past 7 years have been in and out of the United States, staying here between 1-3 months at a time. Leila, on the other hand, remained in the United States, visiting Mario in the Philippines yearly during Christmas holidays and was careful not to stay outside the United States longer than 5 months at a time. She filed for naturalization in March 2013 and became a proud United States citizen in August 2013. When she went back to the Philippines in December 2013, she decided to remain and stay put to be with her husband Mario. Mario continued his annual trek to the United States — he came in July of 2014 and stayed for 2 months; and he recently arrived on July 1. He is now thinking of staying longer and apply for naturalization – but is he eligible?
In addition to proving good moral character, an applicant for naturalization must show:
(i) Continuous residence in the United States for a period of at least 5 years; or 3 years, if married to a United States citizen (USC) and living in marital union with the same USC for 3 years; (ii) maintain residence between the date of filing and date of admission to citizenship; and (iii) must be a resident of the state or USCIS district where application will be filed for at least 3 months immediately preceding the date of filing. In determining physical presence, a naturalization applicant must have been physically present in the United States for at least half of the 5 (or 3) years immediately prior to the date of filing – 912 days outside United States in the last 5-year period or 547 days outside the United States in the last 3-year period.
Mario is possibly facing issues on abandonment of residence and may not be able to meet the continuous residence requirement. Mario’s absences for less than 180 days has no immigration consequences; his absences for more than 180 days but less than 1 year raises a rebuttable presumption of break in continuous residency; and his absences of 1 year or more definitely breaks his continuous residency. He can overcome the presumption of abandonment and break in residency by proving his “intent to return to an unrelinquished permanent residence” and that his trips abroad, though numerous, were temporary.
Factors that the United States Citizenship and Immigration Services (USCIS) will consider are Mario’s family ties in the United States, ownership of real property, operating a business, payment of taxes, maintenance of bank account(s); or whether he intended to return to the United States as a place of employment, business or actual home; and whether he worked or operated a business while abroad. USCIS is instructed to consider the totality of circumstances in determining whether a permanent resident has abandoned his LPR status.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
