Chapter 5: Modifications and Exceptions to Continuous Residence and Physical Presence

Certain classes of applicants may be eligible for a reduced period of continuous residence and physical presence. Certain applicants may also be eligible to count time residing abroad as residence and physical presence in the United States for naturalization purposes.

Other applicants may be exempt from the residence or physical presence requirement, or both. Although not required in all cases, applicants are generally required to have been “physically present and residing within the United States for an uninterrupted period of at least one year” at some time after becoming an LPR and before filing to qualify for an exemption.

A. Qualifying Employment Abroad

The table below serves as a quick reference guide on certain continuous residence and physical presence provisions for persons residing abroad under qualifying employment. The paragraphs that follow the table provide further guidance on each class of applicant.

1. Employee of U.S. Government or Specified Entities

LPRs who have been continuously physically present in the United States for at least one year before filing an application to preserve residence and who obtain approval of the application from USCIS for employment by or contract with the U.S. Government abroad will not break the continuity of their residence during such time abroad. Such persons are exempt from the physical presence requirement.^[1] See INA 316(b) and INA 316(c). Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of continuous physical presence at any time prior to applying for naturalization and not just before filing the application to preserve residence.^[2] See INA 316(c). 

LPRs who have been continuously physically present in the United States for at least one year before filing an application to preserve residence and who obtain approval of the application from USCIS for employment abroad by an American institution of research recognized as such by the Attorney General (now DHS Secretary) or by an American firm^[3] USCIS has adopted the AAO decision in Matter of Chawathe. The decision states that under INA 316(b), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated and trades its stock exclusively on U.S. Stock Exchange markets. If the applicant is unable to meet this qualification, then he or she must meet the requirements under Matter of Warrach, 17 I & N Dec 285, 286-287 (Reg. Comm. 1979). USCIS then determines the nationality of the corporation by reviewing whether more than 50 percent is owned by U.S. citizens. The applicant must establish this by a preponderance of the evidence. engaged in development of U.S. foreign trade and commerce or its subsidiary, or a public international organization, will not break the continuity of their residence during such time abroad. Such applicants are subject to the physical presence requirement.^[4] See INA 316(b) and INA 316(c). See 8 CFR 316.20. See www.uscis.gov/AIR for a list of recognized organizations.

Only applicants who are employed by or under contract with the U.S. Government may be exempt from the physical presence requirements. All other applicants who are eligible to preserve their residence remain subject to the physical presence requirement.

The applicant’s spouse and dependent unmarried sons and daughters, included in the application, are entitled to the same benefits for the period during which they were residing abroad with the applicant.^[5] See INA 316(b)(2). See 8 CFR 316.5(d)(1)(ii).

2. Employee of Certain Media Organizations Abroad 

An applicant for naturalization employed by a U.S. incorporated nonprofit communications media organization that disseminates information significantly promoting United States interests abroad, that is so recognized by the Secretary of Homeland Security, is exempt from the continuous residence and physical presence requirements if:

• The applicant files the application for naturalization while still employed, or within six months of termination of employment;

• The applicant has been continuously employed with the organization for at least five years after becoming an LPR;

• The applicant is within the United States at the time of naturalization; and

• The applicant declares a good faith intention to take up residence within the United States immediately upon termination of employment.^[6] See INA 319(c). See 8 CFR 319.4.

3. Employed as an Interpreter or Translator in Iraq or Afghanistan

An applicant employed abroad by, or under contract with, the U.S. Chief of Mission (Department of State) or by the U.S. Armed Forces as an interpreter or translator in Iraq or Afghanistan does not break the continuity of his or her residence in the United States during such time abroad. 

This benefit is available for the entire period of absence from the United States even if only a portion of the employment as an interpreter or translator was spent in Iraq or Afghanistan, so long as the applicant was employed by the U.S. Chief of Mission or by the U.S. Armed Forces as an interpreter or translator during the entire absence. 

For example, if the applicant was employed by the Chief of Mission as an interpreter or translator and only spent one day in Iraq or Afghanistan, that applicant receives credit for the entire time abroad. However, if the applicant spent part of that time abroad in a position other than translator or interpreter, then the applicant does not receive credit for that part of the time.

Other employment in Iraq or Afghanistan, or employment as an interpreter or translator by an entity other than the U.S. Chief of Mission or the U.S. Armed Forces does not provide a benefit to the applicant. Such an applicant would still be required to meet the continuous residence requirement unless the applicant qualified for preservation of residence as the spouse of a U.S. citizen employed abroad.^[7] See INA 319(b). See Section A, Qualifying Employment Abroad. 

This benefit only applies to the continuous residence requirement. Applicants must still meet the physical presence requirement.^[8] See INA 316(c) (exempting applicants employed by or under contract with the U.S. Government from the physical presence requirements under certain conditions). While applicants who qualify for this benefit are not required to file an application to preserve their residence, applicants who do file the application to preserve residence and whose application is approved, will be exempt from the physical presence requirements.

The applicant has the responsibility of providing all documentation to establish eligibility.^[9] Public Law 110-036 added section 1059(e) to the National Defense Authorization Act for Fiscal Year 2006, which added the interpreter and translator provisions. 

• The applicant must be employed by the Chief of Mission or U.S. armed forces, or employed by a firm or corporation under contract with the Chief of Mission of U.S. armed forces;

• The applicant must be employed as an interpreter or translator; and

• The applicant must be employed as such in Iraq or Afghanistan.

4. Employed Abroad in Religious Vocation 

LPRs who go abroad temporarily 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 treat such time abroad as continuous residence and physical presence in the United States for naturalization purposes.

LPRs must have been physically present and residing within the United States for an uninterrupted period of at least one year in order to qualify.^[10] See INA 317.

B. Qualifying Military Service

Applicants with certain types of military service may be eligible for a modification or exception to the continuous residence and physical presence requirements for naturalization.

See Part I, Military Members and their Families, for modifications and exceptions for applicants with certain types of military service, to include:

• One Year of Military Service – INA 328

• Service during Hostilities – INA 329

• Service in WWII Certain Natives of Philippines – § 405 of IMMACT90

• Members who Enlisted under Lodge Act – Act of June 30, 1950, 64 Stat. 316

C. Spouse, Child, or Parent of Certain U.S. Citizens

The spouse, child, or parent of certain U.S. citizens may be eligible for a modification or exception to the continuous residence and physical presence requirements for naturalization.

See Part G, Spouses of U.S. Citizens, for modifications and exceptions for spouses of certain U.S. citizens, to include:

• Spouse of U.S. Citizen for 3 Yrs – INA 319(a)

• Spouse of Military Member Serving Abroad – INA 319(e)

• Surviving Spouse of U.S. Citizen – INA 319(d)

• Surviving Spouse Person Conducting U.S. Intelligence^[11] See Section 305 of the Intelligence Authorization Act of 1997, Pub. L. 204-293 (October 11, 1996).

See Part H, Children of U.S. Citizens, for modifications and exceptions to the continuous residence and physical presence requirements for children of certain U.S. citizens.

• Child of U.S. Government Employee (Abroad) – INA 320

• Surviving Child of U.S. Citizen – INA 319(d)

• Surviving Child of Person Conducting U.S. Intelligence^[12] See Section 305 of the Intelligence Authorization Act of 1997, Pub. L. 204-293 (October 11, 1996).

These parts will also include information on modifications and exceptions to the continuous residence and physical presence requirements for surviving parents of certain U.S. citizens.

D. Other Special Classes of Applicants

The table below serves as a quick reference guide to certain continuous residence and physical presence provisions for special classes of applicants. The paragraphs that follow the table provide further guidance on each class of applicant.

1. Citizens who Lost U.S. Citizenship through Foreign Military Service^[13] See INA 327.

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. The applicant must be admitted as an LPR. However, the applicant is exempt from the continuous residence and physical requirements for naturalization.^[14] See 8 CFR 327.1(f).

2. Noncitizen Nationals of the United States

The time a noncitizen national of the United States spends within any of the outlying possessions of the United States counts as continuous residence and physical presence in the United States.^[15] See INA 325. See 8 CFR 325.2. Unless otherwise provided under INA 301, the following persons are nationals, but not citizens of the United States at birth: (1) a person born in an outlying possession of the United States on or after the date of formal acquisition of such possession; (2) a person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person; (3) a person of unknown parentage found in an outlying possession of the United States while under the age of five years, until shown, prior to his attaining the age of twenty- one years, not to have been born in such outlying possession; and (4) a person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years: during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and at least five years of which were after attaining the age of fourteen years. See INA 101(a)(22) and INA 308. 

3. Service on Certain U.S. Vessels

Any time an LPR has spent in qualifying honorable service on board a vessel operated by the United States or on board a vessel whose home port is in the United States will be considered residence and physical presence within the United States.^[16] See INA 330. See 8 CFR 330.1. The qualifying service must take place within five years immediately preceding the date the applicant files for naturalization.

4. Service Contributing to National Security 

The Director of Central Intelligence, the Attorney General, and the Director of USCIS may designate annually up to five 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 exempted from the continuous residence and physical presence requirements.^[17] See INA 316(f).