Legal Question in Immigration Law in New Jersey

You are dealing with two separate issues: abandonment of residence, and a break in continuous residence for naturalization purposes. They are related, but two separate issues.

With regards to the issue of abandonment of residence, the real rule is that an LPR who makes trips abroad that are not �temporary" loses that status. There is no specific time limit for what �temporary" means. Each situation is evaluated on its own, and all factors weighed and considered. It is quite possible that an LPR could spend more than two years outside the US and not have abandoned her or his status. It is also possible that an LPR could make numerous trips of less than six months each outside the US and be found to have abandoned her or his status. Numbers alone do not tell the whole story � they are one part of the story and must be looked at in context.

The six-month rule says that an LPR returning from abroad doesn�t even count as applying to CBP for �admission" if he or she meets the following requirements (among others): he or she has been abroad for under 180 days; he or she has not abandoned LPR status by making a trip abroad that isn�t �temporary"; and he or she hasn�t committed certain crimes. This rule tells CBP when an LPR can return to the US without being subject to investigation as to whether he or she meets the requirements for �admission". Being abroad for under six months is one of the requirements but is not enough�the trips abroad must still fall within the judicial definition of �temporary." The clearest example is the �touchdown" situation: somebody who lives abroad but who briefly �touches down" in the US once every 5 months for vacation. This person has abandoned LPR status so will not be readmitted as an LPR, despite keeping every trip abroad under six months.

The overall guiding principle in abandonment is whether or not the LPR had an objective intention to return to the US after a relatively short trip abroad, fixed by an early event, or that the LPR intended that the trip would end after an event that would occur in a relatively short period of time. Factors to consider include:

-- Family ties: Does the LPR have family in the US with whom he or she is in regular contact? Or are the LPR�s close family members living in another country with no plans to move to the US?

-- Job: Does the LPR have a job in the US that he or she can return to? Or is he or she working outside the US?

-- Income tax returns: Is the LPR filing as a US resident?

-- Club memberships and other community ties: Is the LPR actively connected to clubs or other organizations in the US?

-- Property: Does the LPR own or rent property in the US? Does the LPR own or rent property in another country? Does the LPR have bank accounts in the US?

If you can prove that your residence is in the US, i.e. your family, your home, your job, your financial accounts, etc., then you will not be adjudged to have abandoned your residence, even if your trip was over six months.

With regards to naturalization, there are two residence/presence requirements:

1. Applicants are required to show that they have resided continuously in the U.S. for five years before applying

2. Applicants are required to show that they were physically present in the U.S. for thirty months within the five year period before applying.

Absences of more than six months but less than one year may disrupt an applicant�s continuous residence unless the applicant can prove otherwise. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: the applicant did not terminate his or her employment in the United States; the applicant's immediate family remained in the United States; the applicant retained full access to his or her United States abode; or the applicant did not obtain employment while abroad.

Physical presence means just that, you had to have spent thirty months physically present in the US, but it need not be continuous. You must count all the days you were outside of the US during the last five years and if it adds up to more thirty months, then you will not fulfill the physical presence requirement.

There is no requirement that you be physically present in the US while the naturalization application is pending, but after you submit the application, the USCIS will send you an appointment for a set date and time to get biometrics (fingerprinted and photographed). You must attend that appointment before they schedule you for an interview. If you don't attend, your application may be considered abandoned.