US Citizenship through Marriage (3 year rule)

Jackolantern said:
Did your accountant run the calculations both ways and show you the difference? Or are you just blindly taking the accountant's advice?

If only one spouse has income, married-separately almost always results in a higher tax bill than married-jointly (or at best equal, if income is low and/or deductions are high). If the interviewer is familiar with the advantages of married-jointly for a one-income couple, your decision to file separately is likely to attract suspicion and extra questioning, and you'll need a better answer than "ask my accountant".

Filing separately for the 2011 tax year and earlier years may have made sense due to the rules and complexities involved when one spouse is a resident and the other is nonresident. But now that your wife is a permanent resident since 2012, if you're going to continue filing as married-separately for 2012 and later you need to know how much money you're losing or gaining by doing so, and if you're losing money you need to understand the specific nonfinancial benefits of filing separately in your specific situation, so you can decide whether it's worth it to lose money for those reasons.

Have you filed the 2012 return yet?
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The reason we file separate is because I file a form 2555 as well. I work internationally (due to my line of work) and do spend some time away in chunks. Sort of like a commuting contract. We've run all the numbers and this seems to work for us. With my wife being here in the US with the kids she wouldn't qualify for 2555 exemption.

Will this raise serious questions?
 
BritishGuy said:
The reason we file separate is because I file a form 2555 as well. I work internationally (due to my line of work) and do spend some time away in chunks. Sort of like a commuting contract. We've run all the numbers and this seems to work for us. With my wife being here in the US with the kids she wouldn't qualify for 2555 exemption.

Will this raise serious questions?
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Yes! Because for the 3-year rule she is supposed to be residing with you in the US. You filing form 2555 makes it look like you're both residing outside the US, or living apart (you outside and she inside), either of which is a problem for the 3-year rule.

Run the tax numbers again as MFJ, using the foreign tax credit to reduce or eliminate the double taxation instead of form 2555.
 
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Will they be asking for my tax forms? I do live in the US. My line of work (aviator) makes me go on the road for bouts at a time. I have a mortgage, apartment, car lease all of it. Have no abode anywhere else (other than the Marriott/Hilton) etc. We have kids as well. And still suspicion?
 
Here's what the form says:

To meet this test, your tax home must be in a foreign country, or countries (see Foreign country, earlier), throughout your period of bona fide residence or physical presence, whichever applies. For this purpose, your period of physical presence is the 330 full days during which you were present in a foreign country, not the 12 consecutive months during which those days occurred.Your tax home is your regular or principal place of business, employment, or post of duty, regardless of where you
maintain your family residence. If you do not have a regular or principal place of business because of the nature of your trade or business, your tax home is your
regular place of abode (the place where you regularly live).You are not considered to have a tax home in a foreign country for any period during which your abode is in the United States. However, if you are temporarily present in the United States, or you maintain a dwelling in the United States (whether or not that dwelling is used by
your spouse and dependents), it does not necessarily mean that your abode is in the United States during that time.

So which foreign country are you resident in, and paying taxes to?
 
I am not paying taxes to anyone. I declare them all fair and square to the US government and get an exemption on them. Residence visa in the Gulf, but had to for work purpose. Live there? No. Spend a fair bit of time there though (to meet the requirement).
 
Jackolantern said:
Yes! Because for the 3-year rule she is supposed to be residing with you in the US. You filing form 2555 makes it look like you're both residing outside the US, or living apart (you outside and she inside), either of which is a problem for the 3-year rule.

Run the tax numbers again as MFJ, using the foreign tax credit to reduce or eliminate the double taxation instead of form 2555.
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Can I use the foreign tax credit to reduce/eliminate if I'm earning from a tax free source?
 
BritishGuy said:
Will they be asking for my tax forms?
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Yes they could. With her failing to produce joint tax returns, your returns may be requested. For marriage-based naturalization, it's not just about the applicant. Both of you will be evaluated to some extent, like with the green card process. They'll want to know that you are living together with her and have been doing so for the past 3 years, and if not they'll want an explanation.

I do live in the US. My line of work (aviator) makes me go on the road for bouts at a time. I have a mortgage, apartment, car lease all of it. Have no abode anywhere else (other than the Marriott/Hilton) etc. We have kids as well. And still suspicion?
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Form 2555 requires you to either spend 330 days per year in a foreign country, or be a bona fide resident of a foreign country. If either is true, that casts major doubt on your claim of continuously residing together in the US.
 
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Jackolantern said:
Form 2555 requires you to either spend 330 days per year in a foreign country, or be a bona fide resident of a foreign country. If either is true, that casts major doubt on your claim of continuously residing together in the US.
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This is the challenge with the FEIE. I don't see it as compatible with residing in the US with your wife.
 
Applying for citizenship under N-400 3 Year Rule

I would like to have my wife make application for citizenship under the N-400 three year rule.
We were married in the Philippines Oct 11, 2009. We applied for and received her spousal visa and she entered the US on June 25, 2010. Her Green Card arrived and is dated June 25, 2010. She now has her permanent card after 2 years.
We have made sure that the “permanent residency” aspect of her requirements are thorough and complete. Tax returns, bank accts, apartment rental lease, insurance, etc.

I am writing in regards to the “physical presence” aspect.

We were in the US from June 25, 2010 until November 30,2010 , just over 5 months.
We were then outside the US from November 30, 2010 until July 9, 2011 just over 7 months.
We returned to the US on July 9, 2011 through Dec 6 2011, approx 5 months.

I am now aware that we were out of compliance by having stayed outside of the US for more than 50% of the above mentioned time periods in order to maintain the “physical presence” requirement for naturalization.
Since Dec 6, 2011 we have been careful and have made sure that we have paid attention to the more than 50% rule in the US for physical presence.
We intend to make sure that during this 3 year period from Dec 6, 2011 through December 7, 2014 we will continue to maintain more then 50% in the US. I believe she would be eligible to make application 90 days prior to that date.

The question/concern that I have is whether or not I am understanding the 3 year qualification correctly. My thinking is that even with the initial time that we spent away from the US, we will still have a 3 year period of maintaining both permanent residency and physical presence within the first 5 years of my wife having been admitted to the US.

Any help or clarification would be greatly appreciated.
Thank in advance
Howardsnewyork
 
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