INA Sec. 316. [8 U.S.C. 1427]
(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously,
after being lawfully admitted for permanent residence, within the United States for at least five years and during 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, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.
The statute requires a variety of conditions to be met at particular times in the process.
1.) The LPR or greencard status is a base requirement. In general and for most people, it is 5 years. This is quantitative in nature and is calculated forward from the "residence since" date on your greencard.
* INA 334(a) allows you to file 3 months early of this single requirement.
* A re-entry permit MGHT protect a greencard against a long absence of over 6 months and up to a maximum of 2 years. A re-entry permit does that and only that one function--protect the greencard status against a presumption of abandoning LPR status. It does not protect against any other ground of inadmissibility and does not protect naturalization eligibility.
2.) Physical presence is a prerequisite to file and is strictly quantitative in nature. It is calculated backward from the filing date. You cannot file early for this and once you file it becomes fixed in stone and irrelevant of futre events.
3.) Continuous residence is qualitative in nature and spans your entire "statutory period". The statutory period is, in general and for most, the 5 years immediately preceeding the filing of the N-400 and continues all the way through taking the Oath.
* This is strict in a sense and subjective in another sense.
** Under INA 316(b) and 8 CFR 316.5 (c)(1)(ii), an unexcused absence of one year or more breaks this eligibility requirement. An affirmative break in continuous residence resets the clock BUT not all the way back to day one. Instead of counting over for another 5 years or even the lower 4 years and 9 months, you only start counting over for 4 years and 1 day. That new counting will result in a later filing adte from which to count backwards for physical presence.
** While also under INA 316(b) but under 8 CFR 316.5(c)(1)(i) a six month but less than one year absence MIGHT break residence unless proven otherwise under 8 CFR 316.5(c)(1)(i)(A-D) as a regulatory implementation of INA 316(b).
** An anticipated absence of over a year may qualify for advance permission to count towards naturalization upon filing and approval of an N-470. This will preserve the original LPR "residence since" date on the greencard provided that on the filing date physical presence is met. In this situation, it may require a later filing date to meet the physical presence requirement rather than the continuous residence prerequisite to filing.
4.) Good Moral Charcater (GMC) is a whole other matter unto itself but it is also both strict and subjective (discretionary) and tied to the applicable "statutory peroid" which is counted backward from the filing date and continues through taking the oath.
Why is this so?
It is important to understand that the origin of the continuous residence requirement as a prerequisite to naturalization dates back to the
Naturalization Act of 1790, which at that time required two years residence. The idea was, and remains, to allow a person to become "Americanized" or join into the society in which they desire citizenship and will enjoy the right to vote, or serve on juries, or hold any but the highest office. This residence has always been tied to the period immediately before naturalization in an effort to have a person enter the society as it currently exists.
If a person gets a greencard and immediately, or shortly thereafter, returns “home” for a long period or periods with only a few "visits" to the U.S. to maintain greencard status, then finally comes to stay in the U.S. just barely long enough to file for naturalization, and may thereafter depart again during the N-400 processing, the mere fact of having a greencard for a long enough period of time does not prepare that person to join the American society as it currently exists. They are strangers in a strange land and unprepared to become part of "We the People..."
In the case of:
Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101 (1913), it was recognized by the U.S. Supreme Court that a grant of naturalization is a mutual agreement between the naturalization applicant and the United States of America.
This Supreme Court case is found at:
http://openjurist.org/231/us/9/george-luria-v-united-states
Excerpts from the 1913,
Luria case, referenced previously:
“Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other."
"These requirements plainly contemplated that the applicant, if admitted, should be a citizen in fact as well as in name,—that he should assume and bear the obligations and duties of that status as well as enjoy its rights and privileges. In other words, it was contemplated that his admission should be mutually beneficial to the government and himself, the proof in respect of his established residence, moral character, and attachment to the principles of the Constitution being exacted because of what they promised for the future, rather than for what they told of the past.”
I shall now descend from my soapbox and wait for your rebuttals and objections.
