By: Jean S. Tinsay, Esq.
Sisa came to the United States in 1985 based on the immigrant petition filed by her only son Crispin. Except for one month every summer when she would return to the Philippines to visit her only sister, she devoted her time caring for Crispin’s growing family.. She was cook, nanny, housekeeper and even an occasional gardener for the family. For her efforts, her doting son provided her with a generous monthly salary and Sisa religiously would send half to her sister in the Philippines. On weekends when the family would go shopping, Sisa never failed to buy her sister whatever she would buy for herself and more. A ready Balikbayan box was in the family garage ready to be shipped once full. Last year, her sister was diagnosed with cancer. Since her sister had no other living relative, Sisa rushed back to the Philippines to care for her. Miraculously, her sister got better and after 9 months she returned to the United States. At the port of entry she was detained for questioning because she was returning to the U.S. after more than 6 months. Crispin suggested to his mother to file for naturalization so that she would not encounter any problem returning to the U.S. in case she needed to stay in the Philippine for a longer period. Sisa who is now 72 is hesitant to apply for naturalization for two reasons: (1) she had stayed outside the United States for more than six (6) months; and (2) since she hardly speaks or writes in English she may not pass the English test and correctly answer questions regarding U.S. history and government.
In order to qualify for naturalization, applicants must meet the following continuous residency requirements.
(1) For an applicant who is married to a U.S. citizen, the applicant must have been a U.S. resident for 3 years after obtaining lawful permanent resident status; applicant’s U.S. citizen spouse must have been a U.S. citizen for 3 years; and the applicant and the spouse must have been married and living together for 3 years.
(2) For an applicant who is not married to a U.S. citizen spouse, the residency requirement is 5 years after obtaining lawful permanent resident status.
An absence of 6 months (but less than 1 year) raises a rebuttable presumption that the continuity of residence may have been disrupted. This rebuttable presumption, however, can be overturned by a showing that applicant had no intent of abandoning her U.S. residence such as: (i) applicant’s immediate family live in the U.S.; (ii) applicant retained full access to a U.S. home; (iii) applicant continues to be employed in the United States; and (iv) applicant has not obtained employment while abroad.
In Sisa’s case, while she may have been absent from the U.S. for 9 months, she may still meet the residency requirement by showing that her son and his family continue to live in the United States and she has a residence in the U.S. she can return to at any time. She could also add that she is “employed” in the U.S. by her son, Crispin. Additional documents can also be presented to establish that applicant had no intention of abandoning her U.S. residency.
The naturalization applicant is also required to demonstrate knowledge of the English language (ability to read, write and speak English) as well as knowledge and understanding of U.S. history and government. However, under section 312(b)(2) of the INA, the English language requirements shall not apply to the following:
(1) persons who are over 50 years old and have lived in the U.S. for periods totaling at least 20 years after obtaining lawful permanent resident status; or
(2) persons who are over 55 years old and have lived in the U.S. for periods totaling 15 years as after obtaining lawful permanent resident status.
As to the civics test, section 312(b)(3) of the INA provides that special consideration will be given to persons who at the date of filing of the person’s application for naturalization is over 65 years old and has been living in the U.S. for periods totaling 20 years after obtaining lawful permanent resident status.
Presuming that Sisa will be able to overcome the presumption that she has abandoned her U.S. residency, Sisa who is now 72 years old and has lived in the U.S. for a period totaling 20 years will be exempt from the English test as well as be accorded special consideration in taking the civics test.
Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or email CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; email@example.com.