Continuous stay requirement - URGENT

B

bulandhausla

Registered Users (C)
Hi,

I am an Indian citizen with exactly 3 years into my GC. I can apply for citizenship in Nov 2009 (ie after 4 years and 9 months of getting GC stamped).

I have a job offer with an American company that has operations in India. They want me to relocate to India and take care of their operations in India. My wife, son and I are all on GC and my daughter is a US citizen.

My questions are as under:-

1. If I move to India, how does that impact the continuous stay requirement for citizenship. I have stayed continuously for 3 years in the US after my GC (barring a couple of India visits due to work realted matters). I can be an employee of the US entity and I can show as if I was delegated /transferred to the Indian operations. So I can be on US payroll, but would work from India and relocate to India. I expect to visit the US quite frequently for work related matters ... say 2 - 3 times a year. I can even show a US address for tax return purposes, maintain US bank accounts, maintain investments, 401(K) etc in the US.

2. Is there any other way I can accomplish this - that is take up the job in India, and yet be eligible to apply for citizenship in Nov 2009?

3. What are the tax implications - If I get US payroll, pay social security, file US taxes, etc - do I pay taxes in India? I know there are some double taxation treaties ... but my head starts spinning when I see those docs.

4. Any examples would be greatly appreciated.

5. If you can point me to any reference material, that will be greatly appreciated too.

And as always ... thanks a trillion .. what would we do without these forums?

Buland
 
The only practical way you can make this move is if you are eligible for an N-470. The basic requirements are that, since getting your GC, you have at least one year of uninterrupted presence in the US (i.e. no trips at all for 1yr), and that you are employed by a US owned corporation. You will also need an I-131 reentry permit, as the N-470 only protects your continuous residence and not your LPR status.

As far as tax is concerned, I believe there are tax treaties between the US and India, so you shouldn't be subject to double taxation. The key things to bear in mind, are that you must continue to file tax returns with the IRS, and that you must not claim to be a non-resident. I would suggest consulting with a tax specialist who is aware of the special requirements associated with LPRs working overseas.

If you don't get the N-470, you will almost certainly be deemed to have broken continuous residence (regardless of how often you travel back to the US) and thereby cause a long delay in your N-400 eligibility.
 
Hi Boatbod,

Many thanks for your prompt reply. I really appreciate it. On reviewing the N-470, I thought I might be eligible under the following category.

Also, I haven't left the US since Dec 2006 ... so almost 16 months of continuous stay.

"For the purpose of engaging in the development of foreign trade and commerce of the United States on behalf of an American firm or corporation or a subsidiary thereof."

I guess, the question is what is included in foreign trade and commerce of the US ==> My prospective employer is a publicly traded company that is in the business of outsourcing. And they serve US clients from India. So the work I would do would add to the revenues of the US entity.

Would my situation qualify?

Thanks again.
Buland
 
My understanding is simply that the company must be a US owned corporation (i.e. minimum of 51% owned by US citizens). Relative to the number of N-400 applications, N-470 is a pretty small percentage, so it'd be worthwhile consulting with your company lawyers or other professionals.
 
I am living this exact situation. I am a green card holder since Nov 2004. I was transferred to Sydneyy-Australia to work on a project for the same US company. They have a branch in Sydney. The company's immigration attorney filed for both my N-470 and I-131. My N-470 was approved and I-131 is still pending. In addition to N-470 and I-131, my attorney asked me to keep making frequent visits to the US just so I won't have a hard time during my citizenship interview. But I still think that those frequent visits aren't really necessary if I have a N-470 and a re-entry permit on hand.

To qualify for N-470, you have to be working for a US company overseas. Also, you have to have lived for at least one continuous year in the USA with no interruptions whatsoever since you got your green card. Note that my N-470 approval is good for 2 years and it covers residence and physical presence for naturalization purposes.

As far as taxes, you really need to hire a professional. Expatriate taxation is very complicated and you won't be able to figure everything out by yourself. So have a tax specialist file your tax returns in both your home and host country. My company is paying a major tax preparation company to do my taxes in both Australia and USA.

Good Luck!!
 
Blkhawk,

Many thanks for your reply! It's comforting to know that there are others sailing in the same boat :)

1. Are you on payroll of the US company or the australian company? Is it necessary to be on payroll of US entity?
2. Are you maintaining your "physical" house/apartment in the US? I rent - so will not be able to maintain any pysical house in US. Although, I can use the US address of a family memebr as my address.
3. Is it necessary to maintain investments in the US till you get citizenship?
4. What happens if, after getting citizenship, I don't live in the US ... i.e. I live in India for the rest of my life? Is my intent in doubt? I guess, after becoming a citizen, I am a free bird.
5. What documentation should I start collecting, for the citizenship interview (air ticket stubs, tax returns, investment statements, details of bank accounts, etc) ... What else is required?
6. I understand that the N-470 gives me two years. If I file in April 2008, that gives me upto April 2010. I might fall short by 2-3 months as my citizenship interview might happen in June-July 2010 (given current timelines and potential future delays). Can you apply for an extention of N-470 or apply for a new one? Applying for a new N-470 may be difficult, as I will not be able to show 1 year of uniterrupted physical presence in April 2010. Or is it that with the original N-470, I am deemed to be in the US .... so applying for an extention should not be an issue?

Thanks for your help!

Can you provide me with your contact number in Australia, in case I need to talk live?

All the best with your Citizenship Journey.
Buland

P.S. Boatbod - your inputs would be greatly appreciated as well.
 
blkhawk said:
I am living this exact situation. I am a green card holder since Nov 2004. I was transferred to Sydneyy-Australia to work on a project for the same US company. They have a branch in Sydney. The company's immigration attorney filed for both my N-470 and I-131. My N-470 was approved and I-131 is still pending. In addition to N-470 and I-131, my attorney asked me to keep making frequent visits to the US just so I won't have a hard time during my citizenship interview. But I still think that those frequent visits aren't really necessary if I have a N-470 and a re-entry permit on hand.

To qualify for N-470, you have to be working for a US company overseas. Also, you have to have lived for at least one continuous year in the USA with no interruptions whatsoever since you got your green card. Note that my N-470 approval is good for 2 years and it covers residence and physical presence for naturalization purposes.

As far as taxes, you really need to hire a professional. Expatriate taxation is very complicated and you won't be able to figure everything out by yourself. So have a tax specialist file your tax returns in both your home and host country. My company is paying a major tax preparation company to do my taxes in both Australia and USA.

Good Luck!!
Click to expand...

When you applied for N-470, was there any requirement for the travel outside US to be more than 1 continuous year since application states that N-470 is for travel more than 1 year.
 
Bobsmyth said:
When you applied for N-470, was there any requirement for the travel outside US to be more than 1 continuous year since application states that N-470 is for travel more than 1 year.
Click to expand...

There is no such requirement. The N-470 instructions suggest "You should use Form N-470 if you are a lawful permanent resident who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes", however this is just an overview and not a law of any sort. You certainly won't find anything in 8.CFR that says you can only use an N-470 if you are absent longer than 1 yr.
 
The mention of traveling outside the US for more than a year is because it usually is not necessary to have an N-470 to preserve continuous residence for trips of less than a year, as long as you can show evidence of your ties to the US.
 
bulandhausla said:
Blkhawk,

Many thanks for your reply! It's comforting to know that there are others sailing in the same boat :)

1. Are you on payroll of the US company or the australian company? Is it necessary to be on payroll of US entity?
2. Are you maintaining your "physical" house/apartment in the US? I rent - so will not be able to maintain any pysical house in US. Although, I can use the US address of a family memebr as my address.
3. Is it necessary to maintain investments in the US till you get citizenship?
4. What happens if, after getting citizenship, I don't live in the US ... i.e. I live in India for the rest of my life? Is my intent in doubt? I guess, after becoming a citizen, I am a free bird.
5. What documentation should I start collecting, for the citizenship interview (air ticket stubs, tax returns, investment statements, details of bank accounts, etc) ... What else is required?
6. I understand that the N-470 gives me two years. If I file in April 2008, that gives me upto April 2010. I might fall short by 2-3 months as my citizenship interview might happen in June-July 2010 (given current timelines and potential future delays). Can you apply for an extention of N-470 or apply for a new one? Applying for a new N-470 may be difficult, as I will not be able to show 1 year of uniterrupted physical presence in April 2010. Or is it that with the original N-470, I am deemed to be in the US .... so applying for an extention should not be an issue?

Thanks for your help!

Can you provide me with your contact number in Australia, in case I need to talk live?

All the best with your Citizenship Journey.
Buland

P.S. Boatbod - your inputs would be greatly appreciated as well.
Click to expand...

1. I am on US payroll. the reason for that is because it made my life easier and not because it was a requirement for N-470
2. I maintain a US address which happens to be the last address I lived at (I shared a house with a co-worker)
3. it's preferrable. it's certainly a plus for naturalization.
4. I think once you become a citizen, then you can live wherever you want but why would you want to become a US citizen if you don't plan to live in the US?
5. I have no idea. I am sure there are dozens of threads talking about documentations relating to naturalization.
6. good questions, unfortunately I don't have the answer only because I have never experienced the situation you described. However, logically speaking, I believe you don't have to have a new one uninterrupted presence in the US after you have been out of the US for two years. so I would say an extension can be achieved without additional requirements.

Please post your questions on this forum and I will be more than happy to provide answers if I have them. Good Luck!!!
 
Jackolantern said:
The mention of traveling outside the US for more than a year is because it usually is not necessary to have an N-470 to preserve continuous residence for trips of less than a year, as long as you can show evidence of your ties to the US.
Click to expand...
Exactly my point. Why apply for N-470 if travel outside the US is less than 1 year?
 
Bobsmyth said:
When you applied for N-470, was there any requirement for the travel outside US to be more than 1 continuous year since application states that N-470 is for travel more than 1 year.
Click to expand...

Living outside the US for more than a year resets your naturalization clock so basically upon your return to the US, you will have to wait for another 4 years and one day to become eligible again for naturalization. To get around this problem, you apply for N-470. Note that N-470 doesn't relieve you from the fact that you still have to apply for I-131 re-entry permit in order to be able to be let into the country after a trip that is longer than 6 months.

Based on the above, I don't see a reason for N-470 if you know in advance that your trip overseas is NOT going to be longer than a year but in this case the I-131 is a must. Also, note any time you spend outside the USA does not count toward the 30-month physical presence required for naturalization.
 
blkhawk said:
Based on the above, I don't see a reason for N-470 if you know in advance that your trip overseas is NOT going to be longer than a year but in this case the I-131 is a must. Also, note any time you spend outside the USA does not count toward the 30-month physical presence required for naturalization.
Click to expand...

Having an N-470 relieves you of the need to rebut the presumption of a break in residence for a trip lasting 6-12 months. Certainly you can be naturalized without one, but having it makes life so much easier.
 
Is it a proven fact that the N-470 can be used for trips between 6-12 months instead of providing the required evidence (ie: immediate family in US, US business, tax records, etc) to show intent?
My understanding is that the N-470 is only used for trips greater than 1 year but less than 2 years to preserve continual residence since trips greater than 1 year automatically break continuous residence, whereas for trips between 6-12 months continual residence is presumed broken unless supporting documentation can be provided.
 
Probably, but I can't cite you a specific instance. What I can do is suggest that pretty much ANY business-person being sent on an overseas assignment for an extended period of time is HIGHLY LIKELY to have made one or more return trips to the US during the course of their assignment. Wouldn't that mean they could well have several absences less than 12 months, and hence incur a continuous residence penalty if the N-470 wasn't valid for periods of less than 12 months?
 
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