bit confused about the physical presence (3yr application)

[gstrength 20]

Thank you in advance for your answers. My wife was admitted on feb 06 2013, CR-1 status. The conditions on her GC have been removed. She was going to apply for naturalization this month, based on marriage to a USC (3 yrs) but, she has an emergency and have to go to her country for approx. 35 days. Two years ago, she left for 30 days, for a total of 65 days.

My question is this:

"would this absences (65 days) be enough to break the continuous presence requirement to apply for naturalization"?

Can we go ahead and apply?

Thank you for your answers

[aleful 1,905]

hi

yes of course she can apply, short trips don't break physical presence, only trips over 6 months do

[JimmyHou 610]

There are two different requirements to consider: physical presence and continuous residence.

Physical presence is very straight forward: you have to be physically in the US for roughly 18 months (if applying based on the 3 year rule) or 30 months (if applying under the 5 year rule). It doesn't matter how long each individual trip is as long as your present for the required amount. For example, if you take 19 one month trips outside of the US in your 3 years as a permanent resident, then you will not meet the physical presence requirement because you will have only been in the US for 17 months of the 3 years. Note that the limit isn't exactly 18 and 30 months; it's a specific number of days (I think it's 915 or 916 days under the five year rule, but I don't remember the exact figure... sorry).

Continuous residence is more complicated... you can be outside the country and still be considered to have maintained your residence in the US. Gerenally speaking, trips of over a year will break your continuous residence. Trips between 6 months and a year may break your continuous residence and you have to convince an interviewer that you did not in fact give up your residence in the US (even temporarily). Trips under a six months may break continuos residence depending on the circumstances, but this is very unlikely.

So in your case, the 65 day trip will be fine for both requirements.

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

C. Breaks in Continuous Residence​

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An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.​ [9]

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•Absences of more than 6 months but less than one year; and​
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•Absences of one year or more. ​

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An officer may also review whether an applicant with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. In some cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time.​ [10] ​

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1. Absence of More than Six Months (but Less than One Year) ​

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An absence of more than six months (more than 181 days but less than one year (less than 365 days)​)​ during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship.​ [11]

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An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence. ​

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An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence:​ [12]

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•The applicant did not terminate his or her employment in the United States or obtain employment while abroad.​
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•The applicant’s immediate family remained in the United States.​
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•The applicant retained full access to his or her ​United States​ abode.​

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2. Absence of One Year or More ​

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An absence from the ​United States​ for a continuous period of one year or more (365 days or more) during the period for which continuous residence is required will break the continuity of residence. This applies whether the absence takes place prior to or after filing the naturalization application.​ [13]

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The naturalization application of a person who is subject to the continuous residence requirement must be denied for failure to meet the continuous residence requirements if the person has been continuously absent for a period of one year or more without qualifying for the exception benefits of ​INA 316(b)​. An applicant who is absent for one year or more to engage in qualifying employment abroad may be permitted to preserve his or her residence.​ [14]