Continous residence-6+ months overseas on 2 occasions within first 3 years as PR

[PR81502]

Hi Rajiv,

I got my GC Aug/2002. I travelled overseas from Sept 30th, 2002 until Jan 21st, 2003. Then I returned overseas from March 4th, 2003 until Nov 6th, 2003(215 days). My last trip overseas was Dec 5th, 2003 until Nov 16th, 2004(345 days).

I did not file Tax returns between 8/2002 and 11/2004, since I was not employed in the US. During that period I returned to my legal residence, my dad's home and maintained a bank account. I have no IRS transcrpits for that period nor utility bills.

Since Feb/2005 I have been permanently employed in the US and I have filed my federal and state returns.


Questions?
1. Can I used a letter from my bank and a bank statement indicating that I had an account with them during the period for which I was absent from the USA?
2. Can I file the N-400 application in May/2007?
3. If I am ineligible for naturalization by which date can I apply and and my N-400 approved?

Thanks

PR81502

 

[Flydog]

As a permanent resident, you are required to file with the IRS every year. If you paid taxes abroad, and that country has a tax treaty, the amount owed to the US is likely minimal (or even $0).

If you intend to continue to reside in the US, you should file 1040s for whatever years you didn't file - now! The IRS allows you to file for previous years (but, I don't know for how long afterwards - it is at least 3 years).

Whatever you do, do not submit an N-400 right now. File your missing 1040s first. I'm not a lawyer (and this isn't advice or legal knowledge or anything like that), but I suspect that you might be considered to have abandoned your permanent residence by not filing taxes. You may even be deportable (but, remember, I'm not a lawyer, etc.). You don't really want the USCIS to know that.

I'll let others with more knowledge of continuous residence and physical presence rules chime in here now. Expect to learn something about the 4 years + one day rule.

 

[boatbod]

Questions?
1. Can I used a letter from my bank and a bank statement indicating that I had an account with them during the period for which I was absent from the USA?
2. Can I file the N-400 application in May/2007?
3. Will employment while overseas for a non-US company affect my eligibility?
4. If I am ineligible for naturalization by which date can I apply and and my N-400 approved?

Looks to me like you broke continuous residence from 3/03-11/03 and again 12/03-1/04. Did you ever file for a reentry permit?

A bank letter is pretty weak evidence that you maintained residence, especially in view of not filing tax returns. On its own, it will not be sufficient to prove anything, after all, more or less anyone can have a US bank account.

Overseas employment is also a very big red flag to USCIS. Not only does it cause problems because (as Flydog mentioned) you didn't file tax returns on worldwide income, but if it was an open-ended contract, you may well have inadvertently shown intent to abandon residency. When you go abroad, especially for an extended period, you need to be able to show up front that your trip is going to be temporary in nature. i.e. reentry permit, fixed return date or some future commitment in the US. In absence of those, the presumption is any trip over 6 months breaks residency, and may also break LPR.

So as it stands I don't think you are eligible to file N-400. I'm also not convinced the 4yr+1day rule applies here as none of your trips were longer than 1 year, so most likely your eligibility would start 5yrs-90days from 11/16/2004.

At the very minimum you need to file those missing tax returns while you were employed overseas. Tax treaties may well mean you don't owe any money, but it is important to have an uninterrupted record of filing with the IRS all the time you are an LPR. (Same rules apply to LPR as USC - you must file tax returns every year, regardless of where you are employed.)

And finally... I suggest you seek professional advice before filing an N-400.

 

[PR81502]

I appreciate very much your inputs. According to what I read in terms of the law the burden of proof is on me. The returns were not file because I did not work in the USA and was unawear of all these intricacies before I considered filing. Basically the law from what I have read makes no mention of how long one must wait after breaking the continous residency requirement. The 4yrs 1day can't be applied to my case.

My intentions was never to abandon my domicile but family issues required my being overseas(3 family deaths in one year).

I will seek legal advice as you mentioned.

Thanks again

PR81502

 

[equate]

Basically the law from what I have read makes no mention of how long one must wait after breaking the continous residency requirement. The 4yrs 1day can't be applied to my case.

That's actually a simple matter. USCIS generally considers the last 5 years of your residence. So the rule of thumb is just add 5 years to the last time you broke the continuous residence. But the tax matter further complicates your case.