Naturalization in question b/c of abandonement?

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PR81502

Registered Users (C)
A friend got her GC in Sept 2003 and left 6 weeks later back to her home country and stayed there for 3 months. She then returned to the US for 3 weeks left again Feb 2004 for 8 months b/c of a job offer in her country(Foreign employer).

She returned to the US Oct 2004 stayed a month and went back to work for another 11 months working abroad for the same employer being paid in foreign currency until 2005.

She got a letter indicating her appointment was temporary for 11-12 months with specified end date and returned after that. She had a bank account in the US and she had a physical address(legal and official) which was her cousin's home.

She filed foreign income exclusion form 2555 but filled in the portion for 330 days rule presence not bonafide residence and based on that she did not owe taxes. She is concerned b/c she only filed her taxes after returning as resident claiming the exclusion of foreign income after returning permanently to the US.

Did she abandon her LPR status( 3months, 8 months, and 11 months periods overseas working for foreign company not US based, did not pay US SS & Medicare taxes but in her country she did pay SS taxes) for citizenship purposes? She wants to file when she would have been back for 4 years plus 1 day.
 
There's obviously a lot of negative aspects to this case; filed taxes as a non-resident, spent a long time outside the country working for foreign employer....

I strongly recommend this friend of yours consults with a couple of good immigration attorneys before sending her N-400 to USCIS.
 
Please read carefully

She has never filed taxes as non-resident, she filed a 1040 for resident but claim foreign income exclusion based on the 12 months period working in her country. That's something that is legal, go to the IRS website or google Form 2555. She filed late but the law makes provision for her to file after without penalties as long as she owes no taxes. Here is the law " Filed pursuant to Section 1. 911- 7(a)(2)(i)(D)."

She made less than $85,000 US which is up to how much can be excluded. She never claimed to be a non-resident for US tax purposes.

Had she claimed to be a bonafide resident of a foreign country then that would be an issue. She is more concerned how USCIS views working for a foreign entity with no links to the US and being out for more than 6 months but less than a year on 2 ocassions?

She does have a letter indicating her employment was of a temporary basis and has returned to the US since then and has been paying her taxes.
 
Well the problem is that what may well be legal under IRS code is not necessarily legal under immigration law. Specifically, to qualify for Form 2555, a person must declare they reside and are employed abroad for at least 330 days in a year, which is of course directly at odds with claiming to be a LPR who has not abandoned their US residence.

Seek professional advise.
 
I personally do not interpret this employment as temporary, but I advise her to consult a competent attorney.

PR81502 said:
She does have a letter indicating her employment was of a temporary basis and has returned to the US since then and has been paying her taxes.
Click to expand...
 
Ok I found the answer in USCIS manual!!!!!!!!

Regarding form 2555 and non-resident tax issue.

B) Use of IRS Form 2555. The use of IRS Form 2555 by an applicant should be a warning to you that the alien might not be eligible for naturalization. You will need to develop facts pertaining to the applicant’s residence, absences, continuity of residence, and physical presence.


IRS Form 2555 can be used by an applicant to exclude all or part of his or her income, up to $76,000, from being taxable income of the United States Government. To qualify the alien must meet the following three IRS criteria:


• Has foreign earned income;


• Has his or her tax home in a foreign country, and either:


– Has declared to be a bona fide resident of a foreign country for an uninterrupted period that includes an entire tax year. (This declamation will be clearly articulated by the alien under part 2 on the IRS Form 2555); or


– Has declared to be physically present in a foreign country for at least 330 full days during any period of 12 consecutive months. (This declamation will be clearly articulated by the alien under part 3 on the IRS Form 2555).


If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] The applicant applying for naturalization after openly declaring residence in a foreign country on an official United States Government form will most likely be unable to fulfill the residence requirement for naturalization (see 8 CFR 316(c)(2) ).


If the legal permanent resident declared himself or herself to be physically present in a foreign country on IRS Form 2555, it only means that the applicant met the IRS’s physical presence test to have a proportion of his or her income excluded form United States taxes. The applicant has not declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] Eligibility for naturalization purposes may be affected if the applicant fails to establish that he or she meets the physical presence requirements or fails to establish that the absence of more than six months but less than one a year did not re sult in abandonment of LPR status. If the applicant applying for naturalization has sufficient physical presence in the United States for naturalization purposes or can establish that his or her LPR status was not abandoned, then the applicant can still be eligible for naturalization (see Part 3 of the Form N-400 ).
 
Is she planning to apply for naturalization this year? From what you've described, it does not look like she would be eligible unless she waits 5 years after returning from that last trip in 2005.
 
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