The shadow rule and naturalization

Sunday, September 5th, 2021
By: Jonathan MontagJ.D.

With the United States reeling from a military defeat, a flooded East, and infected South, a parched and burning West, and a rogue judiciary, let’s get into the nitty gritty of naturalization, acquiring United States citizenship. To naturalize, except for exceptions, a person must have held permanent residence for the requisite period (five years or three if married and living with a United States citizen,8 USC § 1430), have resided in the United States for this period (and after applying), be a person of good moral character, and have the requisite knowledge of the English language and civics. See, 8 USC § 1422, et seq.

Regarding residence, the statute (8 USC § 1427) provides four rules (with exceptions not listed here):

1. No person … shall be naturalized unless such applicant … has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years [or three years if married to a United States citizen [8 USC § 1430].

2. [D]uring the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time.

3. Absence[s] from the United States of more than six months but less than one year … shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

4. Absence[s] from the United States for a continuous period of one year or more … shall break the continuity of such residence.

These rules make for a straightforward analysis:

No. 1 – Does the person have five years with a green card?
No. 2 – Has the person been in the United States more than 913 days        (365 x 5 ÷ 2) [throw in a day or two for leap years] of the last five years?
No. 3 – Has the person been outside of the United States for more than six months in a row? In which case be ready with evidence that residence in the United States was not abandoned.
No. 4 – Has the person been outside of the United States for a year or more? In which case, they cannot naturalize.

As you may suspect, something this direct and simple cannot stand in the immigration law arena. Here is a clear example of the confounding scenario. Assume it is today, September 5, 2021, and a person seeks to naturalize. They obtained permanent residence on September 1, 2016. On January 2, 2017, the person left the United States and returned July 1, 2017. Then on August 2, 2017, they left again and returned on January 30, 2018. Unsatiated from all that travel, on January 2, 2019, the person left the United States and returned on July 1, 2019. Then on August 2, 2019, they left again and returned on January 30, 2020. Since the return on January 31, 2020, the person has remained in the United States.

Let’s run this through our analysis and see if the person is eligible for naturalization (residence-wise).

No. 1 – Having received their permanent residence on September 1, 2016, it has been five years.                                                                          No. 2 – The person’s absences were:
January 2, 2017 – July 1, 2017 180 days
August 2, 2017 – January 30, 2018 181 days
January 2, 2019 – July 1, 2019 180 days
August 2, 2019 – January 30, 2020 181 days

Total: 722 days

Being less than the 913 days which is half of the five year period, the person has resided in the United States for more than half of the requisite five year period of residence.                                                                 No. 3 – A six month or more absence that would prompt investigation of whether the person actually reside in the United States is approximately 183 or more days, so there were no absences in excess of six months.       No. 4 – None of the absences was a year or more.

Passing the four tests, the person appears eligible to naturalize. Easy Peezy.

But wait! A skeptic may say, while it is true that the the person was not absent for more than six months at a time, in the period from January 2, 2017 to January 1, 2018 (a full year), the person was outside of the United States for 332 days and from January 2, 2019 to January 1, 2020, the person was again absent 332 days. Does it not concern you that a person spent only 66 days in the United States during two complete years out of five? How can such a person be considered as residing in the United States? The answer is that the person may have been absent for long stretches, but nonetheless the person spent far more time in the United States than anywhere else. In the five years before applying, they spent 1103 days in the United States and 722 days abroad. [1103 + 722 = 365 x 5]. Doesn’t that show residence is in the United States? Assuming the 722 days were in one specific country, why would the place the person spent appreciably less time be the primary residence of the person? If each of the 180 or 181 days were world tours with multiple destinations, then how could any other country be construed as the primary residence?

Undeterred, USCIS goes outside of the statute with the following rule in its Policy Manual at Volume 12, Chapter 3, Part D:

An officer may also review whether an applicant with multiple absences of less than 6 months each will be able to satisfy the continuous residence requirement. In some of these 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.

The practice manual as well as the regulation at 8 CFR § 316.5(c)(1)(i) discuss the proof necessary:

An applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such evidence may include, but is not limited to, documentation that during the absence:

The applicant did not terminate his or her employment in the United States or obtain employment while abroad;

The applicant’s immediate family members remained in the United States; and

The applicant retained full access to or continued to own or lease a home in the United States.

Assuming a person took a six month cruise while on a sabbatical from work, then these factors would be easy to meet. There would be a job to return to, family remaining in the United States while the person is out at sea, and the person maintains a home to go back to, However, suppose a person is a widowed grandmother or a retired spinster aunt with family in the home country and the United States. She lives with relatives in the United States and in the home country. The person has no job to return to, there is no nuclear family, but there is extended family in the United States and the home country. There is no lease, and the only evidence of maintaining a home is at best an attestation from children or nieces or nephews that grandma’s or auntie’s bedroom was available to her during the absence. Or suppose the person taking a 180 day trip decided to end a lease rather than paying rent while away for several months and finding a new place when they get back – does that doom the opportunity to naturalize? Quite likely.

Or how about the scenario of a military servicemember married to a permanent resident. The servicemember gets orders for an overseas, unaccompanied assignment for seven months followed by a change of duty stations within the United States. The couple gives up their housing and the foreign spouse stays with her family abroad while the servicemember deploys. The couple reunites at the new duty station in the United States after seven months abroad.

Can this military spouse naturalize? Does staying with parents abroad while a spouse is deployed an abandonment of residence? No employment, no family members, no home. So, no. Dumb result?

Interestingly, in perusing the USCIS Policy Manual, one notices there are usually examples of the application of the rules in the manual applied to fact patterns. With this excessive-less-than-six-months-absence rule, there are no examples. USCIS’s ability to apply the rule is boundless.

Suppose a person takes a 4 month trip every year for the five years before naturalizing? A teacher or a retiree or an idle-rich person could certainly do such a thing? Does that open the door to further scrutiny? Suppose a person’s trips are to various countries – one year Europe for four months, the next year South Asia for four months, the next year South America for four months… Would that be different if the person stayed with family in France each of the five year? Would it be different if the person stayed in Iran each of the five years? Be honest USCIS! In addition, quite pragmatically, wouldn’t a person without lots of nuclear family ties (spouse, little kids) and in working years (employed, paying a mortgage) be less inclined to take lengthy trips than a single person or a retiree or a self-employed or idle-rich person? Does that mean they don’t reside here just because they lack a job or a home or an immediate family and have a travel itch?

Finally, why even look at lengthy absences as problematic? On the one hand, one can argue that it is irrational that the six-month rule causes obstacles to a person who is absent more than six months in a row, but if the person is absent for five months, comes back for a weekend, and leaves for another five months, they are not. On the other hand, since when is the remedy for an irrational law having an agency on its own create a new “rule” – one more irrational than the one it is fixing? If a person spends more than half of their time in the United States and has no prolonged absence, under what theory could the United States not be the principal residence? Like Philip and Elizabeth Jennings in The Americans, if they live here, they’re residents. Why delve into motives? Especially when delving leads to pointless, time-consuming, arbitrary, and racist (Be Honest, USCIS!) investigations. Posted September 5, 2021.


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