By Maud Poudat | US Immigration Attorney
Posted: January 2, 2012
In my daily practice, I encounter individuals who wonder if they should become citizens of the United States and whether they are eligible to do so.
I have people coming into my office who have had their green card for more than 10 years and seem to only worry about it when the time comes for them to bring over their spouse, children, parents, or even their siblings. Others never seem to worry about applying. They have been residing here for so long, have been authorized to work, they do not really care about taking part in the next elections, so why bother?
Consider the following which may bring some clarity to the issue. If you have experienced a U.S. Customs and Border Protection Officer’s lengthy interrogation process at the border, who happened to summon you about your frequent overseas travels or would like to spend more time overseas than in the U.S., whether by choice or due to unfortunate circumstances, this may be a good time to end these types of troublesome situations. By becoming a U.S. citizen by virtue of naturalization, you are entitled to travel in and outside of the United States as you please, no more questioning at the border, no need to calculate the number of days before six months of overseas travel has accrued….Many clients come to me when it is too late. Here is an example:
“I spent two years outside of the United States because my mom passed away and I had to take care of her estate and settle the inheritance. Then I arrived in the U.S. and Customs asked me for how long I was gone. I told them the truth. The officer told me that I had abandoned my residency. I explained the situation but he didn’t want to hear anything. He took my green card and asked whether I wanted to sign a form confirming that I had abandoned my residency or whether I wanted to see the Immigration Judge. I told him I wanted to see the Judge. They gave me a Notice to appear in Immigration Court, I have a hearing next month. What do I do?"
These types of scenarios happen quite frequently and more often than not to permanent residents who were eligible to file for naturalization for a while but always postponed the dreaded filing. Indeed, an absence of longer than one year will be deemed an abandonment of the LPR’s permanent resident status. In sum, the LPR may find himself in an unlawful status after signing off on that dreaded “Abandonment of Residence" form at the border or being found by the Immigration Judge to have abandoned his or her permanent residence status. Even though there are exceptions that exist within our immigration and nationality laws to avoid the abandonment of residency, including the filing of a reentry permit, one should take his precautions before thinking about prolonged absences outside of the United States.
Our laws allow for foreign nationals to naturalize if they have spent at least half of the required statutory period (five years prior to filing or three years, if they apply based on marriage to a U.S. citizen) on our soil, as well as abide by the strict continuous presence requirement during the same statutory period, up until the oath ceremony. One must not make a trip outside of the United States for longer than six months, or else a presumption of break of the continuous presence applies, which ultimately may prevent the potential applicant from applying for the benefit. Documentation needed to rebut the presumption of loss of continuous residence includes "…but is not limited to, evidence that during the absence:
Mind you, while an overseas trip of longer than six months but less than one year may presumptively break the continuous presence, absences in excess of one year conclusively break continuous residence for naturalization purposes. Outside of exceptional circumstances, a Legal Permanent Resident (“LPR") will be able to apply no earlier than four years and one day after return to the United States as a permanent resident following the extended absence.
As mentioned above, a naturalized citizen can petition for his parents to obtain permanent residency, which is otherwise unavailable to permanent residents, and otherwise upgrade the petition process for children and spouse for a faster adjudication of the benefit. One may also be interested in obtaining a federal job, which is the prerogative of a U.S. citizen and of course make your voting rights known by first registering in an election, and then actually participating in one.
More often than not however, I recommend anybody to file for naturalization because an LPR is never safe from removal from the United States. I have seen LPRs being placed in removal proceedings for various immigration violations such as crimes, past misrepresentations, unlawful voting or voting registration, which violations occurred much later after their initial eligibility date for naturalization. Unfortunately, sometimes, there is no relief for some of these violations and our laws mandate the removal of the foreign national. While naturalization does not cure some past immigration violations, it certainly protects an LPR from possible removal in case of a future violation that would deem him or her removable.
Be sure to consult with a qualified immigration attorney, preferably board certified in the field of immigration and naturalization law, to determine your eligibility for U.S. citizenship.
We handle the naturalization process of legal permanent residents from beginning to end. Contact us at email@example.com, via phone at 407.674.6968, or fill out our online form and we will get back to you shortly.