Case File Review Questions

[chicagonatur]

Hello all,

I received the Case File Review (yellow doc) today and I have a couple of questions. The background is I came to the US in July 2001, picked up the green card, left back for my home country (India) a month later to complete my education (got a rentry permit).I joined Microsoft in India after graduation and worked for about 6 months through the end of Dec 2003 after which I came to the US and worked for MSN India in the US for another 6 months through Aug 2004. Then swtiched to a US employer.

So I was physcially in the US from Dec 2003 to Aug 2004 (except for a month break in between when I returned to India). So my period of continuous residence is Dec 2003 to Dec 2008. I take it that part is fine.

1) I have been asked to show that I haven't abandoned residence if I was out for more than 6 months.
I was staying with family in the US through the end of 2004. Is it sufficient to get a sworn affidavit from family attesting to the fact that I did maintain residence at their home? Any one have ideas on what the content of this should be?

2) I have been asked to show last 5 years of tax returns.
I have them for 4 years from 2004 to 2007. I haven't filed 2008 yet (waiting for W2s). Is it sufficent to bring my last pay statement for 2008 which shows Federal with holding?

Your answers are much appreciated! Cheers...

 

[sh1996]

1) I have been asked to show that I haven't abandoned residence if I was out for more than 6 months.
I was staying with family in the US through the end of 2004. Is it sufficient to get a sworn affidavit from family attesting to the fact that I did maintain residence at their home? Any one have ideas on what the content of this should be?

2) I have been asked to show last 5 years of tax returns.
I have them for 4 years from 2004 to 2007. I haven't filed 2008 yet (waiting for W2s). Is it sufficent to bring my last pay statement for 2008 which shows Federal with holding?

1) First, for purposes of the N-400 application you need to show continuous residency for the past 5 years or 4 years + 1 day (it looks like you actually could have applied last year). From the information above, you were physically present in the US during this entire period and did not leave for any period over 6 months. You can get an affidavit from family about your living situation after you first came back, just in case, but I wouldn't stress about it.

Separate from the continuous residency requirement for the N-400, however, there is the question of whether you abandoned residency (i.e., should your greencard be taken away as opposed to should USCIS grant you citizenship). The re-entry permit is good for 2 years, I believe, covering July 2001 to July 2003. Did you renew it? If not, July 2003 to December 2003, when you were outside of the country and working for a non-US employer may be technically problematic. However, since you did come back and in fact have been back for 5 years at this point, whether you abandoned residency July 2003 to December 2003 is probably an academic question. Unless your interviewer is, frankly, a complete, anal retentive d**k, it's probably not going to come up.

2) You actually should have filed US tax forms for July 2003 to December 2003. US citizens and permanent residents are taxed by the IRS on their worldwide income. If there is a US-India tax treaty in place (and there probably is), practically speaking this means that you will get tax credits for any Indian taxes you've already paid. Depending on whether India is a lower or higher tax jurisdiction than the US, you may or may not owe additional US taxes on your income for those 6 months. Whether you want to file for 2003 at this point or play the audit lottery is up to you (with advice from your accountant).

By the way, payment of US taxes while you're out of the country is an indicia that you did not intend to break continuous residency or abandon residency.

Finally, generally speaking, when they ask for the last 5 years of tax returns, you give them what you have. After all, if you were a student or child earning no income for part of that time, it's not like you can't apply for citizenship.

Good luck.

 

[chicagonatur]

dThanks for your reply sh1996!

A couple of points of clarification. Even though I left in August of 2001 for India, the rentry permit was only issued in Dec 2001. Given the 2 year validity, it expired only on Dec 2003. So I am guessing thats why I could stay out of the US for more than 2 years.

As for income earned in India from July to Dec 2003, the income was in Indian ruppees and sadly was below the IRS limit required to file (when converted to USD).

Thanks!

 

[sh1996]

As for income earned in India from July to Dec 2003, the income was in Indian ruppees and sadly was below the IRS limit required to file (when converted to USD).

If don't get your W-2 in time to file for 2008, go with the four tax returns you have and tell them you haven't filed yet for 2008 and for 2003 you didn't file because your income was below the minimum threshold. Also, just in case, bring your old re-entry permit with you. Good luck.