N400 Continuous Residence Broken for Incarceration
QUESTION #1: Were you lawfully admitted to the U.S. as a permanent resident? (Do you meet the LPR Admission requirement?)
With few exceptions (which apply to U.S. nationals and certain members of the U.S. armed forces), you must first be lawfully admitted as a permanent resident before you may file for naturalization when you are 18 or older.
If you were granted a green card or immigrant visa in error, or if you obtained permanent residence by fraud or willful misrepresentation, you do not meet the lawful admission requirement for naturalization.
Fraud or Misrepresentation
In reviewing your naturalization application, USCIS will make sure your permanent resident status was lawfully obtained, instead of merely rely on your having a green card. If USCIS determines you were granted lawful permanent resident (LPR) status by mistake or fraud, it will not only deny your Form N-400, but will likely place you in removal proceedings.
QUESTION #2: Have you continuously resided in the U.S. for at least 3/5 years?(Do you meet the Continuous Residence requirement?)
You must have resided continuously in the U.S. for at least 5 years, as a permanent resident, to become eligible for naturalization. An exception is if you are a qualified spouse of a U.S. citizen, in which case your continuous residence must be at least 3 years to qualify for naturalization.
You must also maintain continuous residence from the time you file the Form N-400 up to the time of naturalization (i.e. take the naturalization oath and become a U.S. citizen).
Normally, you may file your naturalization application up to 90 days before reaching the 3/5-year continuous residence period. This is known as the 90 day early filing period.
Your LPR status begins when USCIS approves your adjustment application or when you are admitted to the U.S. on an immigrant visa. For certain groups, the start date of becoming an LPR may be earlier than the actual approval of the status (commonly referred to as a "rollback" date). For example, USCIS generally considers an asylee's date of admission as an LPR to be one year prior to the date the adjustment application was approved.
Breaks in Continuity of Residence
Continuous residence involves your maintaining a permanent dwelling place or principal residence in the United States over the period of time required by the statute. Thus, if you list a foreign residence and no concurrent U.S. physical address on the naturalization application, during the 3/5-year statutory period, you could face problems meeting this requirement.
If you broke the continuity of residence because you stayed abroad too long, you may not file your naturalization application as early as 90 days before you meet the continuous residence requirement.
Continuous residence relates to the time you resided lawfully in the U.S. without any single absence long enough to "break" continuity for naturalization. There are two types of absences from the U.S. that break the continuity of residence for purposes of naturalization:
1.Absence of more than 6 months but less than one year is presumed to break the continuity of residence.
Example: Melinda is absent from the U.S. from September 19, 2017 to June 26, 2018. Her absence of 280 days is presumed to break the continuity of residence because it lasted more than six months. Any time spent in the U.S. prior to September 19, 2017 presumably does not count toward her continuous residence.
She may, however, rebut the presumption of a break in continuous residence to be eligible for naturalization. She must provide evidence showing she did not disrupt her continuous residence during her stay abroad, such as keeping her job in the U.S. and not obtaining employment while abroad; maintaining a physical residence in the U.S. to which she retained full access (e.g. own or lease a home); and having immediate family members or strong family ties in the U.S.
Eligibility After Break in Continuous Residence (due to absence of more than 6 months but less than one year): Rebut presumption OR Wait at least until 6 months before reaching the end of the new statutory period
If the applicant is unable to rebut the presumption of a break in continuous residence, she must establish a new period of continuous residence to be eligible for naturalization.
Thus, if Melinda does not rebut the presumption of a break in continuous residence, she must wait until at least 6 months from reaching the 5-year anniversary of the new statutory period following her return to the United States. In this example, the new statutory period began on June 26, 2018, which is when Melinda returned to the United States. The earliest she may apply (or re-apply) for naturalization is December 26, 2022, i.e. at least 6 months from the end of the relevant statutory period.
2. Absence of one year or more (without an approved Form N-470, Application to Preserve Residence for Naturalization Purposes) absolutely breaks the continuity of residence.
Example: Jonas was absent from the United States from December 11, 2014 to January 11, 2016. His absence of 396 days absolutely breaks the continuity of residence because it lasted more than a year. Any time spent in the U.S. prior to December 11, 2014 does not count toward his continuous residence.
Unless the applicant has an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, USCIS must deny a naturalization application for failure to meet the continuous residence requirement if the applicant has been continuously absent for a period of 1 year or more during the statutory period. A Form N-470 preserves residence for LPRs who have qualifying employment abroad with the U.S. government, private sector, or a religious organization.
Eligibility After Break in Continuous Residence (due to absence of one year or more): Four Years and One Day Rule | Two Days and One Day Rule OR Four Years and Six months | Two Years and Six Months
When there is an absolute break in continuous residence due to absence of one year or more:
You must wait at least 4 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization, if you are subject to the 5-year continuous residence requirement. (Once 4 years and 1 day have passed from the date of your return to the United States, the period of absence from the United States that occurred within the past 5 years is now less than 1 year.)
You must wait at least 2 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization, if you are subject to the 3-year continuous residence requirement. (Once 2 years and 1 day have passed from the date of your return to the United States, the period of absence from the United States that occurred within the past 3 years is now less than 1 year.)
Merely counting out 4 years and 1 day or 2 years and 1 day from your return to the U.S. — following an absence of 1 year or more — is not sufficient to determine whether you meet the continuous residence requirement. Because the period of absence within the past 5 years (or 3 years) is still more than 6 months, you must also overcome the presumption of a break in continuous residence.
But if you wait to apply for naturalization at least 4 years and 6 months after returning to the United States and reestablishing residence, there would not be a presumption of a break in residence because the period of absence preceding the application date is now less than 6 months.
Permanent dwelling place in the U.S.
You must have the intent to maintain lawful permanent resident status and consider all absences from the U.S. to be fixed, temporary visits abroad. Abandonment of LPR status makes you ineligible for naturalization.
USCIS will consider the entire period from the LPR admission until the present when determining whether you meet the continuous residence requirement. It will focus mostly on whether you maintained continuous residence (permanent dwelling place) in the United States during the statutory period.
If you have taken a trip outside the U.S. that lasted 6 months or more since becoming a permanent resident, you should have evidence that you continued to maintain a permanent dwelling/physical address in the United States and kept ties to the U.S. during your absence.
For more details on the continuous residence requirement, see our related article, Staying Abroad Too Long May Affect Eligibility for Naturalization.
QUESTION #3: Have you been physically present in the U.S. for at least half the continuous residence period? (Do you meet the Physical Presence requirement?)
You must have been physically present in the U.S. for at least 30 months of the five years prior to filing your naturalization application (or at least 18 months if the 3-year continuous residence requirement applies).
Physical presence concerns the total number of days you are actually or physically in the U.S. during the period required for naturalization.
You also must have resided for at least three months immediately prior to filing the Form N-400 in the USCIS district or state where you claim to reside.
QUESTION #4: Are you a person of good moral character? (Do you meet the Good Moral Character requirement?)
You must show good moral character (GMC) during the applicable statutory period, i.e. 3/5-year period immediately before you file for naturalization and up to the time of the Oath of Allegiance.
USCIS is not limited to reviewing your conduct only during the statutory period. Your conduct prior to the 3/5-year period may also affect your ability to establish GMC if your present conduct does not reflect a reformation of character or the earlier conduct relates to your present moral character.
USCIS will consider the totality of the circumstances and weigh favorable and unfavorable factors, when considering reformation of character, including family ties; absence or presence of other criminal history; education; employment history; other law-abiding behavior (e.g. paying taxes); community involvement; your credibility; compliance with probation; and length of time in the U.S.
If you lie on your Form N-400 application or during the naturalization interview, and you are caught, USCIS will deny your application for lacking good moral character. If you are granted naturalization and you are later found to have lied about a material fact in your naturalization application, your citizenship may be revoked through rescission proceedings.
USCIS will consider your criminal history when determining whether you meet the GMC requirement. Committing certain crimes may lead to permanent bars or conditional bars to naturalization.
Permanent Bars to Establishing Good Moral Character
There are certain convictions or criminal offenses that permanently bar you from establishing GMC for naturalization. They include a conviction for murder at any time, and a conviction for an aggravated felony on or after November 29, 1990 (e.g. murder, rape, or sexual abuse of a minor; illicit trafficking in controlled substance; and crime of violence, theft offense and passport/document fraud leading to imprisonment of at least 1 year). They also include involvement in Nazi persecutions, genocide, torture, and particularly severe violations of religious freedom.
Conditional Bars to Establishing Good Moral Character
Other offenses are conditional bars to naturalization. These temporary bars are triggered by acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance.
Conditional bars include a conviction or admission of one or more Crimes Involving Moral Turpitude (other than political offense), such as theft, forgery, and terrorist threats – except for one petty offense; violation of any law on controlled substances – except for simple possession of 30g or less of marijuana; prostitution offenses; and willful failure or refusal to support dependents, unless extenuating circumstances are shown.
Criminal History May Lead to Denial of N-400 and, In Some Cases, Cause You to be Placed in Removal Proceedings
The Form N-400 asks several questions about arrests, charges, and convictions. You should report all criminal offenses, including those that have been expunged or sealed or those that occurred before your 18th birthday. You are required to submit the certified court disposition and, in many cases, USCIS will request the police report and other related documents.
If you have committed certain serious crimes that make you removable from the U.S., USCIS will not only deny your naturalization application but may also place you in removal proceedings before the Immigration Court. Be sure to read Immigration Consequences of Criminal Offenses: Myths & Facts.
QUESTION #5: Can you pass the English and civics tests? (Do you meet the English or Civics requirements?)
You must be able to read, write and speak basic English. During the naturalization interview, the USCIS officer will instruct you to write a certain phrase in English and will give you an English phrase to read, e.g. "Only U.S. citizens may vote."
You also have to know the fundamentals of U.S. history and the form and principles of the U.S. government. The USCIS officer will have 10 civics questions to ask, and you must answer 6 correctly. You need to study for the civics test; you have one opportunity to retake it if you fail it the first time.
Certain applicants, because of age and time as a permanent resident, or because of a disability, have different English and civics requirements. Those over 50 years old and have lived in the U.S. for at least 20 years as a permanent resident, or those over 55 years old and have lived in the United States for at least 15 years as a permanent resident, or those with a disability that prevents them from fulfilling this requirement and will be filing a "Medical Certification for Disability Exceptions" (Form N-648) qualify for an exemption.
Consult an experienced immigration attorney
Sometimes the answers to these five key questions are clear. Sometimes they are not. Consult an immigration attorney, who fully understands the naturalization requirements, to verify your eligibility for naturalization before you file a Form N-400 application with USCIS. The attorney can also help you assess and maximize your likelihood of becoming a naturalized U.S. citizen.
Getting counsel to prepare and file the naturalization application, advise you on what to expect at the interview, and attend the interview with you typically makes a positive difference.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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Source: https://dyanwilliamslaw.com/tag/continuous-residence/
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