What is an example of a “brief, casual and innocent absence” that will not disturb the continuous physical presence requirement?
Absences after November 6, 1986 are okay if they were brief, casual, and innocent. There is no set definition for these terms. Generally, an absence of about one month will probably be brief. Absence must also be “innocent,” which means that the trip must not have been to accomplish an illegal purpose such as obtaining a visa by fraud while the immigrant was abroad. However, the use of a previously issued non-immigrant visa to return illegally is okay. No waivers are needed for brief, casual, and innocent absences. We believe that absences after the applicant was turned away by the INS (for CSS and Newman (LULAC) applicants) or after May 4, 1988 (for LIFE Act applicants) are irrelevant to eligibility. However, if a person at any time used a non-immigrant visa to return illegally (at any time after January 1, 1982), they probably need a waiver of excludability. CIS may not recognize this, so it may be best to submit the application without a waiver and then file one if it is requested.
