N-400 Continuous Residency Work Abroad (Tricky One)

[dxie_us]

I got my GC in July 2007 and plan to submit N-400 in April 2012 (90 days before 5 years of GC). However, I have to work for a UK company in UK starting in Jan 2012 while leave my family in the US.

Facts:
- I took a 3-month trip out of US from June ~ August 2008.
- My family and I have resided in current address for about 2 years, and my family will continue to stay here until I get citizenship.

Question2:
- Can I file N-400 in April 2012?
USCIS stated that conditions to file N-400 are:
1) I have resided in the district or state in which I am applying for citizenship for the last three months
2) during the last five years I have not taken a trip out of the United States that lasted one year or more

- If I am eligible to file in April 2012, do I need to take short visit back to the US every 6 months before getting the citizenship? Or shall I file permit to reentry?

Thanks!

 

[BigJoe5]

A Very Bad Move

I got my GC in July 2007 and plan to submit N-400 in April 2012 (90 days before 5 years of GC). However, I have to work for a UK company in UK starting in Jan 2012 while leave my family in the US.

Facts:
- I took a 3-month trip out of US from June ~ August 2008.
- My family and I have resided in current address for about 2 years, and my family will continue to stay here until I get citizenship.

Question2:
- Can I file N-400 in April 2012?
USCIS stated that conditions to file N-400 are:
1) I have resided in the district or state in which I am applying for citizenship for the last three months
2) during the last five years I have not taken a trip out of the United States that lasted one year or more

- If I am eligible to file in April 2012, do I need to take short visit back to the US every 6 months before getting the citizenship? Or shall I file permit to reentry?

Thanks!

Moving abroad for employment for a foreign employer is not only disqualifying for naturalization, it also is an action that will cost you your greencard.

 

[dxie_us]

Thanks BigJoe5.

Anything else I can do? I lost my job and that's the only job I can get now. I am the sole bread earner for my family.

Moving abroad for employment for a foreign employer is not only disqualifying for naturalization, it also is an action that will cost you your greencard.

 

[Jackolantern]

Get a reentry permit, and accept that you're going to have to wait a few years longer than usual to be eligible for citizenship.

 

[dxie_us]

Thanks. What if I postpone starting date with UK company until end of April after I file N-400?

The bet is I will get interviewed within 6 months after filing, will there be any complication?

Get a reentry permit, and accept that you're going to have to wait a few years longer than usual to be eligible for citizenship.

 

[sicce]

Thanks. What if I postpone starting date with UK company until end of April after I file N-400?

The bet is I will get interviewed within 6 months after filing, will there be any complication?

Leaving the country after you have filed N-400, to work abroad is not a good idea. You will be asked if you left the US, since filing the N-400 at your interview.

Either get a reentry permit, and wait a few years to file or remain in the US until after you get your US citizenship.

 

[dxie_us]

Thanks everyone for the advices.

I read through all related USCIS regulations and threads on this forum. Working abroad before naturalization is too risky.

 

[Jackolantern]

Thanks. What if I postpone starting date with UK company until end of April after I file N-400?

The bet is I will get interviewed within 6 months after filing, will there be any complication?

If as of the interview date you're still working abroad for a non-US company, your N-400 probably will be denied.

You should either apply sometime after you're finished working abroad and returned to the US, or complete the citizenship process before working abroad. Or work abroad for a US company that can qualify you for N-470.

 

[BigJoe5]

If as of the interview date you're still working abroad for a non-US company, your N-400 probably will be denied.

You should either apply sometime after you're finished working abroad and returned to the US, or complete the citizenship process before working abroad. Or work abroad for a US company that can qualify you for N-470.

For more on the N-470, please see my article from Tuesday's Immigration Daily at: http://www.ilw.com/articles/2011,1129-Whalen.shtm

 

[baikal3]

Thanks. What if I postpone starting date with UK company until end of April after I file N-400?

The bet is I will get interviewed within 6 months after filing, will there be any complication?

The continuous residency requirement for naturalization must be satisfied all the way to the moment of the naturalization oath, not just until the interview. Even if you take a job abroad after the interview but before the oath date, that will still be an issue. The oath appointment letter has a questionnaire, and one of the questions there is whether you travelled abroad between the interview date and the oath date. At the oath, there is a check-in process where the IO checking you in will review your answers to that questionnaire, and ask you about the reason for and the circumstances of any foreign trips that happened after the interview. If it turns out that you have taken a job abroad after the interview, you will most likely not be allowed to take the oath, and your N-400 will be sent back for additional review.

 

[Bearish1]

Employment abroad (for a foreign company) alone is reason to deny N-400?

Moving abroad for employment for a foreign employer is not only disqualifying for naturalization, it also is an action that will cost you your greencard.

So, is employment for a foreign employer a reason alone to deny a naturalization application? But what is the basis for that? Any caselaw, actual law, interim decision, uscis memo etc?

And suppose someone leaves wife and kids back in the US, leaving them continue living in their (say) 10-year family house, and goes abroad staying in a guesthouse (or in the guestroom of his old folks' house). And works there for a non-US company. Would you really consider the guesthouse in France (or the guest bedroom in parents' house) as the "principal actual dwelling place" of this person? It rather seems to me the 10-year family house where the family continues to live would be the true principal dwelling place for this person.

 

[BigJoe5]

So, is employment for a foreign employer a reason alone to deny a naturalization application? But what is the basis for that? Any caselaw, actual law, interim decision, uscis memo etc?

And suppose someone leaves wife and kids back in the US, leaving them continue living in their (say) 10-year family house, and goes abroad staying in a guesthouse (or in the guestroom of his old folks' house). And works there for a non-US company. Would you really consider the guesthouse in France (or the guest bedroom in parents' house) as the "principal actual dwelling place" of this person? It rather seems to me the 10-year family house where the family continues to live would be the true principal dwelling place for this person.

8 CFR 316.5 (c)(1)(i)(A-D) and INA 101(a)(13)(C)(i-vi)

(ID 3731)

Matter of RIVENS, 25 I&N Dec. 623 (BIA 2011)

(1) In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, the Department of Homeland Security has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), applies.

(2) The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime.

http://www.justice.gov/eoir/vll/intdec/nfvol25.html

 

[Jackolantern]

The mere fact of employment abroad for a non-US company is not enough for denial. It is considered in the overall context of facts including the length of such employment, the entire travel pattern and ties to the US.

The OP is planning to work abroad throughout most or all of the naturalization process, and it's not a short-term contract with a known end date in the near future. Being employed abroad throughout the naturalization process is an indicator of the beginning of a permanent relocation abroad, even if the immediate family remains in the US for that time. However, if the employment abroad ends before the naturalization application is filed and the applicant returns to stay in the US, that is a good indicator that the employment abroad was indeed temporary.


See http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11185/0-0-0-30650/0-0-0-30706.html

(c) Disruption of continuity of residence

(1) Absence from the United States .


(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not dis rupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)

(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad.

 

[Bearish1]

(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad.

Thank you for the response Jackolantern.

But the OP did not terminate his US employment. In fact he is taking up a UK job because he cannot find one in the US. So isn't it technically just (D)?

(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad.

 

[Bearish1]

8 CFR 316.5 (c)(1)(i)(A-D) and INA 101(a)(13)(C)(i-vi)

This was a cryptic response.

1. As for 8 CFR 316.5(c)(1)(i), it says:

"The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:
(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad."

There is an or before (D) rather than an and. So by itself this clause (or subclause?) suggests employment abroad alone does not break continuous residence.

2. As for INA 101(a)(13)(C), there we read:

“(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,”

(iii) through (vi) do not appear related to this case so I am not quoting them. (ii) does not apply because the OP is planning to come back before 180 days. So I conclude that BigJoe5 must be implying (i) may be violated.

But what makes us think that the alien is abandoning LPR status? (How does employment abroad amount to abandoning or relinquishing the LPR status?)

3. As for Matter of Rivens: I have read other BigJoe5 posts and intrigued by the knowledge and expertise displayed in many of them. But I could not understand the reason for citing the Matter of Rivens here.

 

[Bearish1]

I am also curious as to how folks would answer this particular question I posed earlier (I am copying it here with apology for the repetition):

Suppose someone leaves wife and kids back in the US, leaving them continue living in their (say) 10-year family house, and goes abroad staying in a guesthouse (or in the guestroom of his old folks' house). And works there for a non-US company. Would you really consider the guesthouse in France (or the guest bedroom in parents' house) as the "principal actual dwelling place" of this person?

To give more detail, suppose the person will be abroad for 5 months in each absence, for a total of 2 years of physical absence from the US over the 5 year period. And also suppose the person has returned before filing (I realize this is different than the OP but I want to isolate the question of continuous residence here from this business of being in US between the filing and the oath).

 

[BigJoe5]

This was a cryptic response.

1. As for 8 CFR 316.5(c)(1)(i), it says:

"The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:
(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad."

There is an or before (D) rather than an and. So by itself this clause (or subclause?) suggests employment abroad alone does not break continuous residence.

2. As for INA 101(a)(13)(C), there we read:

“(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,”

(iii) through (vi) do not appear related to this case so I am not quoting them. (ii) does not apply because the OP is planning to come back before 180 days. So I conclude that BigJoe5 must be implying (i) may be violated.

But what makes us think that the alien is abandoning LPR status? (How does employment abroad amount to abandoning or relinquishing the LPR status?)

3. As for Matter of Rivens: I have read other BigJoe5 posts and intrigued by the knowledge and expertise displayed in many of them. But I could not understand the reason for citing the Matter of Rivens here.

Cryptic, my butt. You asked for citations to statutes, regs, & cases and that's exactly what you got.

I KNEW you had the regulations already with complete explanation because you downloaded this: http://www.slideshare.net/BigJoe5/understanding-n400-early-filing previously.

Rivens explains some more about the definition of admission in the INA.

 

[Jackolantern]

1. As for 8 CFR 316.5(c)(1)(i), it says:

"The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:
(A) The applicant did not terminate his or her employment in the United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States abode; or
(D) The applicant did not obtain employment while abroad."

There is an or before (D) rather than an and.

That "or" is not an "exclusive or". The applicant is not restricted to just one of those items, he/she may present evidence to support one or more than one of the items on the list, the more the better. If they wrote "and", it would imply the applicant must have evidence for all those items.

So by itself this clause (or subclause?) suggests employment abroad alone does not break continuous residence.

Like I said before, the mere fact of employment abroad alone doesn't necessary break continuous residence. The employment is one (negative) factor that is taken into consideration in the context of all the facts, including the timing and length of the employment. An isolated one month trip working in Australia back in 2008 would almost surely be ignored, but 5+ months of still-ongoing employment abroad during the naturalization process would count very negatively. The first doesn't imply any abandonment of US residence, whereas the latter suggests a permanent relocation.

2. As for INA 101(a)(13)(C), there we read:

“(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,”

This stuff you quoted is related to admission at the POE, and is irrelevant to naturalization. When an LPR is classified as "seeking admission", they may be refused entry or have LPR status revoked by a judge for reasons that would not apply if not "seeking admission."

But what makes us think that the alien is abandoning LPR status? (How does employment abroad amount to abandoning or relinquishing the LPR status?)

LPR status requires one's primary residence to be the US. Long-term employment abroad indicates that one's primary residence is the country of employment (again, this depends on the overall facts -- does the contract have a specific end date, was the employee living in temporary accommodation provided by the employer, etc.). Note that our comments are specific to the OP's scenario, who has not given any information to support that the employment abroad is really temporary. The apparent plan is to obtain US citizenship and then bring the family to the UK.

 

[Bearish1]

Cryptic, my butt. You asked for citations to statutes, regs, & cases and that's exactly what you got.

Why the negative reaction? In any event, I am aware I do not have the seniority in this forum to challenge you guys (BigJoe5, Jackolantern and some others). You as a group are who make up this forum, and I did not mean any offence. I called the response cryptic because I could not see how the references in that response justified the following claim:

Moving abroad for employment for a foreign employer is not only disqualifying for naturalization, it also is an action that will cost you your greencard.

(or answered my question “is employment for a foreign employer a reason alone to deny a naturalization application?”). And although I still don’t see how those references explain the claim or answer my question, Jackolantern gave an answer that I think I understand, and it is "no, but..." . So I'm good, I think.

 

[BigJoe5]

Why the negative reaction? In any event, I am aware I do not have the seniority in this forum to challenge you guys (BigJoe5, Jackolantern and some others). You as a group are who make up this forum, and I did not mean any offence. I called the response cryptic because I could not see how the references in that response justified the following claim:


(or answered my question “is employment for a foreign employer a reason alone to deny a naturalization application?”). And although I still don’t see how those references explain the claim or answer my question, Jackolantern gave an answer that I think I understand, and it is "no, but..." . So I'm good, I think.

1.) You resurrected and highjacked someone else's thread that had come to an end.
2.) You have been shopping around for answers across various threads and forums and playing dumb about it.
3.) You complained about getting a direct response to the actual question asked.
4.) You refuse to accept the answers given.
5.) You are being lazy about following up on the references given.

6.) You are concentrating on finding a way to gain citizenship with an obvious ulterior motive and appear to lack any desire to actually become a part of American society.

7.) Under the right set of circumstances foreign based employment might be OK. However, the usual consequence of foreign based employment is that it rarely falls under an exception and therefore, is a normally a clear sign of abandonment of LPR status as demonstrated by one's actions.

8.) When one is deemed to have abandoned status, they may be refused re-entry (FOUND INADMISSIBLE as an immigrant without a visa INA 212(a)(7)(A)(i)(I)) and stripped of their greencard.