continuity of residence & statutory period

N

neverthere

Registered Users (C)
I have had my GC (and resided in the US) for the last 21 years but only now meet the physical presence test.
The definition is very clear for physical presence but not for continuity of residence. Adjudicator's Field Manual for question 9 on the N400 form makes some it clear that filing IRS Form 2555 makes the applicant inegible for naturalization if he/she claims bonafida foreign resident on that form. My question is this: What is statutory period for continuity of residence? the 5 years prior to application or all years since becoming LPR? Any experience with this?

Note: it is legally possible to meet both the USCIS requirements for resident to maintain LRP status and IRS requirements for a non-resident tax expemption.
 
Where does it say that filing 2555 breaks continuous residence requirement?

Doesn't filing a regular 1040 mean you are filing regular resident taxes?
 
I don't understand. I thought filing a regular 1040 means you are filing taxes as a US permanent resident? Aren't they referring to 1040NR form? 1040NR is for non residents.
 
neverthere said:
Note: it is legally possible to meet both the USCIS requirements for resident to maintain LRP status and IRS requirements for a non-resident tax expemption.
Click to expand...

I don't see how. USCIS continuous residence requires you to not be outside US more than 180 days at any one time, and present for a total of 30 months out of 60, while IRS substantial presence test considers you a resident if you are in the US more than 180 days over 3 years and 31 days in any single year.
 
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Actually you always have to file taxes as a US resident and that means 1040 form. You cannot file 1040NR which is used for non residents.

Filing of form 2555 is allowed if you file 1040 I think.

You also have to file taxes every year.

The issue is can you take exemptions if you are entitled to them? For example if you are away for 330 days in 365 days - you can exclude 80K in income. You can easily see a person take off for a year (with a reentry permit) and be out of the US for 365 days. In fact if the person comes back in the middle of the stay abroad the person might even be able to naturalize as the 180 day period will not be broken. Or the person may file N-470 and be out for a whole year.

My feeling is yes but I don't know. And since I am not a lawyer - can't say for sure. Don't take this advice seriously.
 
continuity of residence, filing IRS 1040 & 2555

Thank You, namedude!
at a detailed response ready for you but lost it all when the server came back "too busy"
an essence in said: "I agree", always used to 35 days to travel back to the U.S. so as never to break the 180 day rule.

you know quite a bit more than the three immigration lawyers in Miami area that I asked the same question and they responded with: "ask your accountant" I don't know what form to 2555 is
 
I'm not a lawyer or an accountant. However, I was curious, so I took a look at Form 2555 (instructions at http://www.irs.gov/pub/irs-pdf/i2555.pdf). I don't see how this would affect your residency -- it is for citizens and permanent residents only. By filling out the form you are acknowledging that you intend to continue to be a permanent resident.

However, if you fill out a non-resident 1040, you are saying "hey, I shouldn't pay so much tax -- I wasn't here long enough to be a permanent resident", in effect, you are abandoning your residency. That's why they ask. If you fill out a 1040NR you are signing a form that is effectively stating that you are no longer a PR.

I wouldn't worry, and I wouldn't even mention it (read the Guide and the instructions to be sure, and, of course, don't believe anything I say)
 
my concerns arose when I read the Adjudicator's Field Manual available on the Web at:

http://www.uscis.gov/lpbin/lpext.dl...d-13707?f=templates&fn=document-frame.htm&2.0

I quote:
(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.
and
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)).

just in case I will be taking copies (to my interview) of my tax returns going back to 1983 when I first came to the U.S. under an H1B
 
OK. I see.

But does bona fide residence test require you to move to a foreign country indefinitely? If this is the case - then they might have a point there. But if you move to a foreign country temporarily then I am not sure how to work with this. You can file for a reentry permit.

Why not file amended tax return for this in that case? Would that help at all?
 
Hi Neverthere,

Please continue to update your case. I am in the same situation as yours with regard to filling form #2555.

** I got my GC in 5/21/2001
took on couple 1-2 weeks business trips overseas, between then and March 2002.

** I took on a 2-year assignment with my company, a US public listed company, starting March 2002. I came back to US in 2004 and made only shorter trips since then.

** During the 2-year assignement, I travel back to US very frequently and never leave US for more than 4-months at any trip.

** I have qualified for the continuing residence (never leave for more than 6 month) and Physical presence test (accumulated more than 1000 days in the past 5 yr, since GC).

** However, I did file IRS form # 2555 claiming Bona Fide residence test in year 2002-2004. And rented our my House during the time (another red flag for INS??)

I think I qualified for every requirements for the INS, but I never realized that tax filling with IRS mgiht get in the way.

I plan to move forward with the filling anyways, but will be interested in learning any updates from your case.

Thanks and good luck.
 
It seems to me that since the forms all say "filing as a non-resident" (and may mention the 1040NR - I don't remember), you could argue that you were merely following the advice of a tax professional and had absolutely no intention of relinquishing your PR status.
 
exactly as you say, Flydog, and I can proove it. that is pretty well how it happened. The first year I filled in form 2555 myself based on physical presence the next year the accountant proceeded on his own without, my intervention and got lazy and placed and checked bona fida box. Therein lies my concern. I have a letter from my employer that this was a temporary overseas assignment and a very limited work permit from West Germany at the time. At all times I was paid in U.S. dollars by the U.S. company and given a temporary living allowance in Germany. Thanks for the reminders it helps me prepare for the interview. (for which I am still awaiting the invitation)I will certainly place my experiences on this forum
 
sheng101,

Our case is similar and I will keep updating this post. I had my FP taken a month ago and am awaiting interview date (in the US).

Nevertheless, I will point out that I filed form 2555 back in 1987 and again in 1996, in both cases on work assignments (that lasted much longer than initially predicted) for a major US global corp. So, can sombody confirm that the continious residence requirement only applies for the staturory 5-year period or all time since becoming a PR? I took great pains to make sure that I maintained a residence in the US and kept returning well under the 180 day window.
 
Hi Neverthere,

I think that the continuous resident requirement only applies for the 5 years period preceeding to the application of N-400. I think you are safe.

let me know if this question even came up in your interview.

One quick question, did you check "yes" to Question 13 on part C anyways? the questions says "have you ever called yourself "nonresident" on a Federal, state or local tax return?


So, can sombody confirm that the continious residence requirement only applies for the staturory 5-year period or all time since becoming a PR? I took great pains to make sure that I maintained a residence in the US and kept returning well under the 180 day window.[/QUOTE]
 
sheng101 said:
Hi Neverthere,

I think that the continuous resident requirement only applies for the 5 years period preceeding to the application of N-400. I think you are safe.

let me know if this question even came up in your interview.

One quick question, did you check "yes" to Question 13 on part C anyways? the questions says "have you ever called yourself "nonresident" on a Federal, state or local tax return?


So, can sombody confirm that the continious residence requirement only applies for the staturory 5-year period or all time since becoming a PR? I took great pains to make sure that I maintained a residence in the US and kept returning well under the 180 day window.
Click to expand...

Continuous residence definitely only applies during the statutory period, otherwise someone who broke residence just once would never be able to nauralize.

The same may not apply to the question of non-resident status on tax returns as claiming that may affect your GC eligibility. i.e. by doing so you are effectively saying to IRS & USCIS that "I no longer permanently reside in the US".
 
N-400 and working overseas

My N-400 is in processing. I have had my finger prints done last month.

I may get a very good job offer in Dubai with a 2-3 months time to join. Ideally, I hope to have my citizenship interview get done within in the next 2 months. If not how could it impact my case? What can I do to work it out?

I will be traveling back and forth between Dubai and the US, as my wife and kid will remain in the US for some time due to my wife's work-related commitments. My GC is marriage based.

Thanks in advance.
 
My recommendation would be no foreign employment until after you 've taken the oath - USCIS considers such action a big negative against residency. (Note: this is not the same as taking an overseas assignments for a US-based company.)
 
sheng101,

To answer your question:
One quick question, did you check "yes" to Question 13 on part C anyways? the questions says "have you ever called yourself "nonresident" on a Federal, state or local tax return?
I answered "no" because I never filled out a 1040NR nor checked the "non-resident" box on a state return.

Except for very short trips I have not left the country since my N400 applycation. Still waiting for my Interview Letter ( FP late Aug 06). I have requested my name check from the FBI under FOIPA hoping to give them advance warning to accelerate the process.
 
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