Confused after Lawyer Consult on applying for Citizenship - HELP!

M

MMKQ

New Member
Hi everyone

I got my green card in 2006. Entered USA and immediately applied for a 2 year reentry permit, which was approved. Got back to the USA in 2008, 4 days before the expiry of the permit. Was not questioned about my absence when reentering the USA. 5 years later decided to apply for Citizenship. I believed I was eligible and decided to consult a lawyer, to be sure my application was in order.

Within a couple of minutes I was told she wouldn't take the case as I'd been out of the country for more than 1 year and had abandoned my residency. I explained my understanding that the continuous residency clock restarted after I reentered in 2008. Lawyer said most people don't know the law and that I should not apply. Not only that she told me that any time I leave the US, it is possible I won't be allowed to reenter, and that I could be deported. She then went on to say, it's like murder. there is no statute of limitations - if an officer at a port of entry to the USA decided in 20 years to deny me reentry then I'd be out, and that's that!

Does anyone have any experience with this? I now feel like a time bomb.
 
MMKQ said:
Hi everyone

I got my green card in 2006. Entered USA and immediately applied for a 2 year reentry permit, which was approved. Got back to the USA in 2008, 4 days before the expiry of the permit. Was not questioned about my absence when reentering the USA. 5 years later decided to apply for Citizenship. I believed I was eligible and decided to consult a lawyer, to be sure my application was in order.

Within a couple of minutes I was told she wouldn't take the case as I'd been out of the country for more than 1 year and had abandoned my residency. I explained my understanding that the continuous residency clock restarted after I reentered in 2008. Lawyer said most people don't know the law and that I should not apply. Not only that she told me that any time I leave the US, it is possible I won't be allowed to reenter, and that I could be deported. She then went on to say, it's like murder. there is no statute of limitations - if an officer at a port of entry to the USA decided in 20 years to deny me reentry then I'd be out, and that's that!

Does anyone have any experience with this? I now feel like a time bomb.
Click to expand...

It depends on the particulars regarding your stay abroad in 2006-2008. What exactly was the reason for that trip abroad? Did you have a job abroad at the time? Did you have a job back in the U.S. during that period?
Did you own/rent an apartment/house in the U.S. during that period? Did you own an apartment/house abroad during that period?
Where were your immediate family members (e.g. spouse and/or children) during that time?
What was your main source of income in 2006-2008?

Did you file U.S. federal income tax returns for 2006-2008? If yes, did you use the form 1040-NR or a regular version of 1040?

Were there any other ways in which you maintained close ties to the U.S. during that trip?
 
baikal3 said:
It depends on the particulars regarding your stay abroad in 2006-2008. What exactly was the reason for that trip abroad? Did you have a job abroad at the time? Did you have a job back in the U.S. during that period?
Did you own/rent an apartment/house in the U.S. during that period? Did you own an apartment/house abroad during that period?
Where were your immediate family members (e.g. spouse and/or children) during that time?
What was your main source of income in 2006-2008?

Did you file U.S. federal income tax returns for 2006-2008? If yes, did you use the form 1040-NR or a regular version of 1040?

Were there any other ways in which you maintained close ties to the U.S. during that trip?
Click to expand...

The answer to all of your questions is no and my main source of income was in my home country. I explained truthfully on my application for the 2 year reentry permit that I was in the process of selling my business and it turned out that the selling process concluded on 28 Oct 2008. I have evidence of that and why it took two years. When I was granted the reentry permit it was a lifeline, without it I would have given up the green card.

I feel at this time there is no point in applying for Citizenship. Perhaps the lawyer was spot on with her advice. She did say I may be lucky and get a IO who would just tick the boxes, but I could also get an IO who would have me deported.

I accept my errors, I created them, albeit in ignorance, which I understand is not a defense for my actions.
 
MMKQ said:
The answer to all of your questions is no and my main source of income was in my home country. I explained truthfully on my application for the 2 year reentry permit that I was in the process of selling my business and it turned out that the selling process concluded on 28 Oct 2008. I have evidence of that and why it took two years. When I was granted the reentry permit it was a lifeline, without it I would have given up the green card.

I feel at this time there is no point in applying for Citizenship. Perhaps the lawyer was spot on with her advice. She did say I may be lucky and get a IO who would just tick the boxes, but I could also get an IO who would have me deported.
Click to expand...

Not necessarily. The situation with maintaining LPR status is fairly complicated. Technically, a reentry permit, in and of itself, does not preserve LPR status and only serves for satisfying the minimal documentary requirement for a green card holder for reentering the U.S. after an absence of more than one year and less than two years (since the green card itself is no longer sufficient for reentering the U.S. in such a situation). This is kind of similar to the non-immigrant visa stamp (such as H1 or F1) in a passport: such a stamp is required for entering the U.S. as a non-immigrant, but it is not sufficient, and the final decision about admitting a person to the U.S. is made by the CBP officer at the port of entry.
And technically, even with a reentry permit, while away from the U.S. for more than a year but less than two years, one is still supposed to maintain valid LPR status, including maintaining close ties to the U.S.

However, as a practical matter, having a valid and approved reentry permit is viewed by most CBP officers at ports of entry and also by the USCIS officers adjudicating various applications as being fairly close to sufficient proof of maintaining valid LPR status while away on such a trip. Moreover, since your were admitted into the U.S. as an LPR in 2008, after returning from that trip, my understanding is that now it would require a decision by an immigration judge to have your green card revoked.

In fact, even if you submit N-400 and if it gets denied because the IO adjudicating decides that you had abandoned your LPR status during that 2006-2008 trip, such a denial will not, in and of itself, revoke your LPR status. You will remain an LPR and retain your green card until and unless the officer who denied the N-400 refers your case to an immigration judge for GC revocation proceedings. Such an outcome (meaning referring the case for GC revocation to an immigration judge) seems fairly unlikely to me, even if your N-400 is denied. And, given the fact that you did have a valid reentry permit, the likelihood of N-400 denial does not appear to me to be very high either.
So the risks here are probably significantly less than you currently believe, although some risk does exist.
I'd say that in your situation you should consult at least a couple of other immigration lawyers, and not take what the first lawyer told you as absolute truth.
 
I think Baikal3 is wrong. Re-entry does not affect your LPR status. As long as you re-enter within the re-entry time you are Ok. Only your clock is reset from the day of return.

In fact during your Green Card process USCIS does advice you not to dispose off your property in home country. They do give 2 year re-entry permit on this ground alone!!!!.

In my case i did take 2 year permit within a fortnight of getting family based GC and returned to USA after 23 months. Within 2 years in USA, i had to leave USA due to medical condition. I got a second re-entry permit and returned to US after almost 2 years.. My spouse accompanied me on both the trips. After 4 year 1 day after our second return, we filed N400. We both got approval and are USCs. There was slight delay. During our first trip to home country we had no link to USA. We had not filed any income tax return in the first 2 years as we had no income. We had income tax records for next 8 years. During interview the IO asked have i had any IT dues pending or case against me. I replied negative and i volunteered to show records for last 8 year , he skipped to next question.

If you file n-400 after 5 year stay here, they cannot revoke your GC. I think your lawyer is wrong. I feel you should apply.
 
Last edited by a moderator:
madh4 said:
I think Baikal3 is wrong. Re-entry does not affect your LPR status. As long as you re-enter within the re-entry time you are Ok. Only your clock is reset from the day of return.
Click to expand...
If read my post carefully you'll see that I did not say that having a reentry permit or using it affects one's LPR status. What I did say is that, technically, having an approved reentry permit is not, in and of itself, sufficient for preserving the GC status while being out of the U.S. on a trip longer than a year and less than 2 years.
Legally, a reentry permit is just a document that is required for being re-admitted into the U.S. as an LPR after an absence of more than a year and less than 2 years. But a reentry permit does not guarantee such re-admission.
One is still required to maintain valid LPR status while on such a trip, including ties to the U.S. etc.

While I was an LPR, I had two reentry permits myself, and I remember reading the fine print at the back of those permits explaining these points.

There are certain actions that would invalidate one's LPR status, even while having a reentry permit. E.g. filing a 1040NR "non-resident alien" tax return, or accepting a permanent job abroad, etc.

However, like I said, in practice, most CBP and USCIS officers regard having an approved reentry permit as a de facto almost sufficient proof of having preserved LPR status. Unless there are some significant red flags (such as having filed a non-resident alien tax return, for example), they are not likely to make an issue out of maintaining LPR status while out of the U.S. with an approved reentry permit, even if the N-400 applicant cannot demonstrate strong ties to the U.S. during such an absence by additional documentation (although having some proof of such ties is always a plus).

So personally, I also think that the OP should file N-400, and that the risk of denial is quite low, and the risk of denial followed by attempted GC revocation is even lower.
 
MMKQ said:
Hi everyone

I got my green card in 2006. Entered USA and immediately applied for a 2 year reentry permit, which was approved. Got back to the USA in 2008, 4 days before the expiry of the permit. Was not questioned about my absence when reentering the USA. 5 years later decided to apply for Citizenship. I believed I was eligible and decided to consult a lawyer, to be sure my application was in order.

Within a couple of minutes I was told she wouldn't take the case as I'd been out of the country for more than 1 year and had abandoned my residency. I explained my understanding that the continuous residency clock restarted after I reentered in 2008. Lawyer said most people don't know the law and that I should not apply. Not only that she told me that any time I leave the US, it is possible I won't be allowed to reenter, and that I could be deported. She then went on to say, it's like murder. there is no statute of limitations - if an officer at a port of entry to the USA decided in 20 years to deny me reentry then I'd be out, and that's that!

Does anyone have any experience with this? I now feel like a time bomb.
Click to expand...

Did you tell the lawyer that you had a reentry permit?

Looks like your lawyer is scaremongering, or you didn't inform her that you had a reentry permit back in 2008 when you reentered. I have never read or heard of anybody ever having their green card revoked for abandonment of residence after they were completely* admitted back into the US with an unexpired, unrevoked reentry permit. Does your lawyer know of any such cases?

While it is true that some people had their green card revoked for abandonment even though they were in possession of a valid reentry permit, in all such cases which I know about, the officer at the POE challenged their permanent resident status on the spot and let them know they'd have to reappear in front of CBP or in court to keep their green cards. But you were admitted free and clear with no such conditions or strings attached. For USCIS to look back 5+ years to try to overturn the CBP officer's decision to admit you free and clear with a reentry permit would be ridiculous and may be unprecedented.

*i.e. with no deferred/conditional/paroled admission or requirement to see an immigration judge
 
You are perfectly fine to file N-400 (hope you filed taxes in the entire time - if not you are screwed and need to fix that asap). Make sure you have the reentry permit at the time of your interview with you.
 
If you told the lawyer about your RP, she's shameful and ought to be reported for a lack of knowledge of basic immigration laws. With the information you've given us, I see no reason for your citizenship to be denied as long as you meet all the requirements.
 
Thanks to everyone who responded. I feel more hopeful and really appreciate the advice.

I did take my return permit to the consultation with the Lawyer and I showed that to her. Her opinion did not change. I did not file income tax returns the two years I was out of the USA but have filed since my return in 2008. I know this may cause a problem but I think I'll risk it.

I have traveled a lot in the last five years also but never for more than six months, and I have kept strong ties to the USA.

Thanks again, it's been so beneficial to hear from you, and the best to you all.
 
MMKQ said:
I did take my return permit to the consultation with the Lawyer and I showed that to her. Her opinion did not change. I did not file income tax returns the two years I was out of the USA but have filed since my return in 2008. I know this may cause a problem but I think I'll risk it.
Click to expand...

File the tax returns for those 2 years before you apply for N-400, and pay the taxes you owe (if any) or work out a payment plan with the IRS to pay the back taxes. Note that you might not owe anything, because there are tax credits and treaties that would enable you to reduce or eliminate the US taxation of non-US income based on taxes paid to the other country(ies).
 
Jackolantern said:
File the tax returns for those 2 years before you apply for N-400, and pay the taxes you owe (if any) or work out a payment plan with the IRS to pay the back taxes. Note that you might not owe anything, because there are tax credits and treaties that would enable you to reduce or eliminate the US taxation of non-US income based on taxes paid to the other country(ies).
Click to expand...

I agree I need to file taxes for those 2 years. I'm very concerned about penalties and interest that may be applied given my taxes were not filed. It does irritate me that the accountant advised me not to file for the first two years I was a resident, since I was in the USA for only 2 weeks.

I did have a reasonable income in the last two years in my home country. All of my earnings were taxed in my home country. Does anyone know if the foreign tax credit applies to all wages earned or is there a limit?

I know this isn't a tax forum but I thought I'd ask, as certain people do seem very knowledgeable. Believe it or not, I was so stressed with the move and selling a business that I didn't think of the tax side of things back then.
 
Last edited by a moderator:
Tazmania said:
There is a limit. Not idea how much it was back in 2006 but right now it's in the 90K region.
Click to expand...

Not really. You're thinking of the foreign income exclusion which exempts the first 90K of foreign earned income (probably around $100K by now) from US taxation for individuals who live abroad. But claiming that exemption has potential negative consequences for the status of permanent residents.

The foreign tax credit is different -- it allows taxes paid the foreign government to be offset against US taxation, and I don't think there is a dollar limit on it, although there is a formula for it which could result in some US taxes to be paid, especially if the foreign tax rate is lower than the US rates for the same income level. The tax credit doesn't have implications for permanent residents, because it doesn't require any claims of being a resident of a foreign country, it only requires that the income was earned abroad and taxed abroad.

Find an accountant who is familiar with all these rules, or use professional-level tax software that handles it (I don't think typical low-cost software like TaxACT or TurboTax does it). If you try it by yourself, you'll probably end up paying too much tax because you don't understand how to fully take advantage of the treaties and credits, or you'll pay too little tax and get penalized. But it's still a good idea to read up on the foreign tax credit yourself so you can have a more informed conversation with the accountant.
 
Last edited by a moderator:
I have few friends who resides overseas and they are US citizens. Your first 96K are exempted from taxes these days but as others mentioned you need be very careful and still need to file taxes to claim for non resident tax returns. Since you are permanent resident you cannot claim this at least to file for citizenship. I discussed this with my accountant few times as I travel quite a bit due to my job. Besides this, claiming a non resident for tax purposes will jeopardies your citizenship application.

I would suggest to talk to an accountant who specializes in foreign income tax credits. The problem is to find one as most of the accountants are not experienced in this. Most of them will try to search the rules from books but may miss important credits that you might be able to get.
 
You must log in or register to reply here.
Top