Naturalization issues: physical presence

The text below is taken from section 73.5 of the CIS Adjudicator's Field Manual, which deals with the concept of "physical presence" for naturalization purposes. This is not "law" in the sense that it carries any particular authority. Rather, it is an explanation of the law, as the law is understood and interpreted by the CIS. This information is provided so that readers may understand the CIS view on this subject. Readers must understand that only the courts have the final say as to what "the law" is or is not.

73.5 Physical Presence.

(a) Introduction. Section 316(a) of the Act provides that “except as otherwise provided in this title,” applicants for naturalization must have been “physically present” in the United States for at least half the time for which their continuous residence is required. This chapter discusses the physical presence requirement and those classes of applicants for whom the requirement either is reduced, modified, or waived entirely. The chapter is arranged as follows:

(a) Introduction
(b) “Physical presence” as a basic requirement for naturalization
(c) Classes of applicants having a reduced physical presence requirement
(d) Classes of applicants eligible for constructive physical presence while outside the United States
(e) Classes of applicants not subject to the physical presence requirement
(f) Documenting physical presence
(g) Conclusion

(b) “Physical Presence” as a Requirement for Naturalization.

Associated with the basic eligibility requirement of at least 5 years of continuous residence within the United States is the condition that “immediately preceding the date of filing [the] application for naturalization” the applicant also must have “been physically present therein for periods totaling at least half of that time”. (See section 316(a) of the Act). The resulting aggregate of 30 months is the minimum physical presence requirement for the great majority of applicants for naturalization.

Bear in mind that although “physical presence” and “continuous residence” are interrelated concepts, each is a separate requirement that must be satisfied in order for the applicant to be admissible to citizenship. For example, an applicant whose aggregate physical presence in the United States during the preceding five years was 40 months could still be ineligible for naturalization if he or she had remained abroad for more than a year without obtaining an approved Form N-470 during the period for which continuous residence is required. On the other hand, an applicant who did procure an N-470 approval for exemption from the continuous residence requirement could nevertheless be inadmissible to citizenship if he or she failed during that time to accrue the requisite amount of physical presence. (See section 316(b) and section 316(c) of the Act)

There are several provisions of the Act that modify or set aside the physical presence requirement for certain classes of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during the three years immediately preceding their application for citizenship the minimum period of physical presence required is reduced to 18 months. (See section 319(a) of the Act)

In addition to provisions in the Act for reduced amounts of physical presence required for certain classes of applicants, there are also exceptions that credit time abroad in certain activities as constructive physical presence in the United States, and still others that exempt special classes of applicants from the physical presence requirement entirely. These exceptions will be discussed in succeeding sections of this chapter. Prior to 1985, some Interpretations (see Interpretations 316.1(c) and Interpretations 316.1(d)) had applied the Fleuti decision to the evaluation of “physical presence” in some cases. That guidance is no longer valid. See for example Matter of Copeland, 19 I&N Dec. 788 (BIA 1988), holding that in an Application to Preserve Residence for Naturalization Purposes (Form N-470) the year of continuous physical presence required to qualify for its benefits must “follow the plain language of section 316(b).” The physical presence requirement must be strictly applied in naturalization proceedings.

(c) Classes of Applicants Having a Reduced Physical Presence Requirement. Under other provisions of the Act, a lesser amount of physical presence is required for certain classes of applicants:

(1) Spouse Living in Marital Union with a United States Citizen for 3 Years. Applicants who meet the requirements of section 319(a) of the Act are required to establish only 18 months of physical presence over the period of three years immediately preceding their application for naturalization. (See section 319 (a) of the Act and the discussions in Chapter 72 and Chapter 74 of this field manual dealing with section 319(a) cases.)

(2) Employee of the U.S. Government. Sections 316(b) and (c) of the Act provide that lawful permanent residents who have been continuously physically present in the United States for at least one year prior to obtaining the permission of the Attorney General (i.e., USCIS approval of an N-470 application) to go abroad on employment by or contract with the Government of the United States will not be subject to the rest of the physical presence requirement of section 316(a). (Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of physical presence at any time prior to applying for naturalization). The spouse and dependent unmarried sons and daughters who are members of the household of such an applicant are entitled to the same benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary. Note that for all other classes of N-470 beneficiaries, the absence is only excused with respect to the continuous residence requirement; the applicant and beneficiary remain subject to the general physical presence requirement. (See section 316(b) and section 316(c) of the Act and Chapter 72 of this field manual for a discussion of the Form N-470.)

(d) Classes of Applicants Eligible for Constructive Physical Presence While Outside The United States. For certain classes of applicants, time spent outside the borders of the United States may be counted as all or part of the physical presence required by section 316(a) of the Act.

	(1) Resident Going Abroad for a Religious Vocation. Section 317 of the Act prescribes conditions by which lawful permanent residents who go abroad temporarily “in connection with or for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister” for a religious denomination organized in the United States may “be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 316(a), notwithstanding any such absence from the United States.” However, a prerequisite for this exception is that the applicant at some time after becoming a lawful permanent resident and before filing an application for naturalization must have been “physically present and residing within the United States for an uninterrupted period of at least one year.” (See 8 CFR 317.)
	(2) Non-citizen National of the United States. Section 325 of the Act provides that in the case of a “person not a citizen who owes permanent allegiance to the United States” and applies for naturalization, and who is otherwise qualified, time spent within any of the outlying possession of the United States will be included in calculating physical presence. (See 8 CFR 325.2.) A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (See section 308 and section 101(a)(29)of the Act.)
	(3) Service for 3 Years in the U.S. Armed Forces. Section 328(d) of the Act stipulates that eligible section 328 applicants who apply later than 6 months after the termination of their qualifying service are subject to the physical presence requirements of section 316(a). However, it also provides that any time spent in U.S. service during the 5 years immediately preceding the application for naturalization will be considered as physical presence within the United States.
	(4) Service on Qualified U.S. Vessels. Under section 330 of the Act, any time spent in qualifying honorable service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … physical presence within the United States within the meaning of section 316(a) of this title.” Note: This section pertains to service other than service as a member of the Armed Forces of the United States.

(e) Classes of Applicants Not Subject to the Physical Presence Requirement. Certain classes of applicants are exempted from physical presence as a requisite for naturalization.

	(1) Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States or Is Engaged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad. Applicant spouses (or former spouses, in the context of battered spouses) of this description who meet the qualifications prescribed by section 319(b) of the Act and by 8 CFR 319.2 are not required to demonstrate any physical presence prior to naturalization. The applicant must, however, declare a good faith intention to take up residence in the United States upon the termination of the citizen spouse’s employment abroad.
	(2) Employee of a U.S. Incorporated Nonprofit Communications Media Organizations Which Are Principally Engaged in Disseminating Information That Promotes U.S. Interests Abroad. Applicants of this description who meet the qualifications prescribed in section 319(c) of the Act and 8 CFR 319.2 are not required to demonstrate any physical presence prior to naturalization.
	(3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces. Applicants who meet the qualifications prescribed by section 319(d) of the Act and by 8 CFR 319.3 are not required to demonstrate any physical presence prior to naturalization.
	(4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II. Section 327 of the Act provides that former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship through an abbreviated process that requires lawful admission for permanent residence but no particular amount of physical presence. (See also 8 CFR 327)
	(5) Service in the U.S. Armed Forces for 3 Years. Section 328 of the Act provides that an applicant who has served honorably in the U.S. Armed Forces for an aggregate of 3 years is exempt from the physical presence requirement, provided that the application is filed either while the applicant is still in the service or within 6 months after the termination of such service. (See also 8 CFR 328.) For otherwise qualified section 328 applicants who file more than 6 months after separation, see the preceding section at (d)(3).
	(6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities. Section 329 of the Act provides complete exemption from the physical presence requirement for aliens and non-citizen nationals of the United States who have served honorably on active-duty in the U.S. Armed Forces at any time during the following specified periods of hostilities: April 6, 1917-November 11, 1918 (World War I); September 1, 1939-December 31, 1946 (World War II); June 25, 1950-July 1, 1955 (Korean hostilities); February 28, 1961-October 15, 1978 (Vietnam hostilities); August 2, 1990-April 11, 1991 (Persian Gulf conflict); September 11, 2001-present (Operation Enduring Freedom); or any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force that the President has designated for naturalization benefits by executive order. Qualified section 329 applicants are not obligated to meet the general section 316(a) requirement of physical presence for a particular period of time. However, any section 329 applicant who on the day of filing the application for naturalization was not in lawful permanent resident status must establish that he or she was physically present in the United States or its outlying possessions at the time of enlistment or induction into the Armed Forces of the United States. (See also 8 CFR 329.2(c)).
	(7) World War II Participant Born in the Philippines. Section 405 of the Immigration Act of 1990 allowed certain natives of the Philippines with active duty service during World War II to be naturalized under section 329 of the Act, provided that they met all other requirements and applied for naturalization no later than February 3, 1995. Any qualified applicant under this law is exempted from the physical presence requirement of section 316(a) of the Act. (See also 8 CFR 329.5.)
	(8) Enlistee under the Act of June 30, 1950 (Lodge Act). Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization under section 329 of the Act and are entitled to the same exemptions from the physical presence requirement. (See Interpretations 329.2.)
	(9) Distinguished Service to National Security. Section 316(f) of the Act allows the Director of Central Intelligence, the Attorney General, and the Director of USCIS to designate annually up to 5 persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities.” Such persons are exempt from the physical presence requirement.

(f) Documenting Physical Presence. In general, the same documentation and evidentiary considerations discussed in the chapter on Continuity of Residence apply in the evaluation of physical presence. Once all the available evidence has been gathered, the determination as to whether the physical presence requirement has been met is a relatively simple matter of mathematical computation. (See Chapter 73.3(c) of this field manual on documenting continuity.)

(g) Conclusion. Physical presence within the United States for 30 months during the 5 years immediately preceding the application is a basic requirement for naturalization under the Act. There are statutory exceptions for certain classes of applicants who are eligible for a reduced period of physical presence, for constructive physical presence while outside the United States, or for exemption from the requirement. Those provisions, however, often prescribe conditions that must be met to qualify for the exception. Applicants who cannot meet all the stipulated conditions for the exception remain subject to the general physical presence requirement of section 316(a) of the Act in order to be naturalized.

Immigration Information

Naturalization issues: physical presence