Understanding How the Waiting Period Impacts Citizenship
Becoming a lawful permanent resident is a huge accomplishment for any immigrant pursuing their American dream. Obtaining a green a card through employment, a family sponsor, or marriage entitles you to live and work in the United States indefinitely.
You also now have certain responsibilities. You must follow all local, state, and federal United States laws. Being charged or convicted of crime can result in your becoming vulnerable to removal proceedings. You must also inform United States Citizenship of Immigration Services (USCIS) of any address change, register for the Selective Service if you are a male between 18 and 25 years of age, and file annual income taxes.
As you respect these obligations and enjoy your new freedoms as a lawful permanent resident, you might be inclined to immediately pursue the final step in many immigrants’ journeys: United States citizenship. However, you will not be able to immediately begin the naturalization process. All lawful permanent residents must wait for a mandatory period of time while meeting certain residency requirements before they can apply for citizenship.
The Length of the Mandatory Waiting Period
USCIS requires that lawful permanent residents wait several years before they can formally begin the naturalization process. The length of time you must wait depends on how you obtained your green card.
If you received a green card through a marriage to a United States citizen, you must wait at least 3 years before applying for citizenship. If you received your green card through any other means, including through a sponsoring employer or family member or marriage to a lawful permanent resident, you must wait a minimum of 5 years.
The only major exception is extended to political refugees. Lawful permanent residents under this classification can begin the naturalization process only 4 years after receiving their green card.
Note that in most cases you can safely submit your initial naturalization application – Form N-400 – within 90 days of the anniversary relevant to your situation. In the case of someone who got a green card through a sponsoring sibling, for example, they could begin the process within 90 days of their 5-year anniversary of becoming a lawful permanent resident. This is because of the reality that, in all likelihood, USCIS will not process your application within that 90-day window. By the time they do review your application, you will have completed the necessary waiting period.
The Requirements of the Mandatory Waiting Period
You cannot simply “run the clock” once you obtain a green card. You have to fulfill several other requirements during your waiting period in order to become eligible for U.S. citizenship.
You will need to establish sufficient continuous and physical presence in the United States throughout your naturalization waiting period. Continuous presence and physical presence are two distinct but interrelated ideas.
Continuous presence refers to how long you have actually lived – or maintained a primary residence – in in the United States. You must maintain continuous presence for the length of your required waiting period. For those with green card through marriage to a U.S. citizen, that’s 3 years. For most everyone else, it will be 5 years.
You can imperil continuous presence by traveling abroad for too long a period. If you spend too much time outside the United States in any single period, your continuous presence will be “interrupted.” As a rule, a single trip out of the country should never last more than six months in total length.
Physical presence is defined as the number of days you were physically inside the United States. Every day you spend within the borders of the United States counts toward your total. This might seem identical to continuous presence, but there is a key difference. Continuous presence can be maintained even with lengthy trips abroad. So long as your time out of the country never exceeds six months in any one instance, continuous presence can be maintained.
Physical presence, conversely, only depends on how many days you were inside the country. In a grand majority of situations, at least half of your waiting period must consist of physical presence in the United States. This means that for those with green cards through marriage to a U.S. citizen, you must spend at least 1.5 of your 3 years, or 18 of 36 months, physically inside the United States. For almost everyone else, you will need to be in the country for at least 2.5 years, or 30 of 60 months.
If you are still confused how continuous and physical presence intersect, consider an example scenario. A lawful permanent resident who obtained a green card through family-based immigration takes a trip to their home country. The trip lasts 5 months, and they return to the U.S. to avoid an interruption to the continuous presence requirement. However, they almost immediately return after spending several days in the U.S., undergoing another 5-month trip. They continue this back and forth of extended trips throughout their waiting period, never violating the continuous presence rule but only barely maintaining any physical presence in the country.
When the 5-year mark approaches, they might expect to be able to apply for citizenship. Unfortunately, the number of their trips they have taken placed them outside the country for more than 30 months, meaning they did not meet the physical presence requirements of naturalization.
Exceptions to Continuous and Physical Presence Rules
Most lawful permanent residents will be subject to continuous presence and physical presence rules when it comes time to apply for citizenship. You should expect your time in and out of the United States to be closely scrutinized by USCIS.
There are some vocations that permit exemptions to these requirements. These qualifying jobs typically require the lawful permanent resident to work abroad as a significant component of their employment. Some jobs are exempted outright, while others will need to fill out Form N-470, the Application to Preserve Residence for Naturalization Purposes, to remain compliant. Many of these exemptions still require the lawful permanent resident to spend at least 1 year of physical and continuous presence in the U.S. before exercising an exemption.
USCIS allows limited or complete continuous and physical presence exemptions to the following employment types:
- Employees and contractors of the United States government
- Employees of certain types of media organizations
- Interpreters, translators, or executive-level security working for the U.S. Armed Forces
- Those employed in a religious vocation, such as nuns, brothers, or sisters
- Active U.S. military servicemembers stationed abroad
- Immediate family members (children, parents, spouse) of active U.S. military servicemembers stationed abroad
The specific requirements and exemptions of each category are complex and can be difficult to parse. If you believe you qualify for one of these exemptions, you should speak to a qualified immigration lawyer to explore your options.
It should also be noted that unintentional violations of continuous and physical presence rules can sometimes be overcome in the event of extraordinary circumstances. You will have to provide a written explanation to USCIS to convince them of why you inadvertently interrupted your continuous and physical presence. You are more likely to succeed if factors keeping you abroad were beyond your control. Border restrictions due to COVID-19, for example, might be effective, but you must also demonstrate you made every effort to avoid the interruption.
Sometimes, personal emergencies can also pass muster. A loved one becoming serious ill at the end of an extended trip, for example, might cause you to delay returning to the U.S, in turn violating continuous presence requirements. An immigration attorney can help you strategize on how to overcome these obstacles, but every effort should be made to follow the rules of the waiting period.
Let Us Help You Prepare for Naturalization
Receiving a green card is a huge milestone on the road to becoming a United States citizen. However, it can be easy to become overwhelmed by all of the rules baked into the mandatory waiting period, the last major hurdle before most can begin the naturalization process. Many can unintentionally violate continuous and physical presence rules, delaying or jeopardizing their ability to efficiently become citizens. Our team at Kanu & Associates, P.C. are prepared to help you understand your obligations and ensure you remain compliant as you navigate the mandatory waiting period. Our founding attorney is a first-generation immigrant and fully understands the challenges you face. We have over 15 years helping overcome immigration obstacles and are prepared to help you work toward citizenship.
If you have concerns about the mandatory waiting period or other naturalization requirements, call (602) 353-7795 or contact us online to schedule a consultation.