Preserve permanent residence through N470

H

heroquixote

Registered Users (C)
Dear "well-informed":

I have two urgent questions to be addressed.

My permanent resident status was granted in Oct, 2000. Ever since then I worked in the US consecutively until Aug. 2004, and then went to China for a field research.

During my field research, however, I accepted a position in Jan, 2005 with an international non-governmental organization (environmental research and policy consulting) headquartered in the Stockholm, Sweden to work on a high-profile China project. They in fact hired me through their Boston office (a US entity) and I was paid in the US with all my income tax withheld. This year, I had two mission-related trips to the US, and I have never been staying outside the US consecutively for more than 6 months. I will be in the US again next week to file my re-entry permit application. Initially I thought I would be eligible for naturalization by Oct this year; but all of sudden someone alerts me that I have already broken the continuous presence requirement by taking this Swedish position, because CIS now requires (beyond the 2.5 years continuous presence in the immediately preceding the time of naturalization application)that one cannot stay outside accumulatively for more than 6 months during the 2.5 years immediately preceding the time of application. My questions are therefore two-fold:

1. Is this indeed the case (meaning I have broken the rule)? As said, I have never been outside the US consecutively for more than 6 months.

2. How much chance do I stand if I file N470 now. I know i am eligible to file this application within a year of my taking the Swedish position, which takes effect in Jan. 2005.

Many thanks in advance.


Chris
 
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Thanks IMM New Jersey for your answer. But see my further questions below.

Heroquixote
 
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N 470

I have same case as you do, however two things I have done before taking assignment and leaving USA for International posting.

1. File N-470 protects you from contious residancy requirenment
2. Re-entry permits

However physical presance requirenment of 30 months is not wavied as I do not fall in to that category.

_________________________________________________________________

As far as ur case is concerned.

1. Is this indeed the case (meaning I have broken the rule)? As said, I have never been outside the US consecutively for more than 6 months.

Yes, however re-entry permits should help you and consult your lawyer for the same.

2. How much chance do I stand if I file N470 now. I know i am eligible to file this application within a year of my taking the Swedish position, which takes effect in Jan. 2005.

Yes you do and have it done ASAP.
 
further questions regarding my case

I have attempted to browse the CIS and other immigration sites to seek illumination on my case but I remain confused. Most frustrating is that the guidelines on CIS website (which are laid out on several documents) seems to be not consistent; but interpretations on several immigration lawyers' website seem to lean toward my preference.

The key point of confusion is how CIS calculates the effective days to be counted for the two test requirements for naturalization: "continuous residence" and "physical residence," especially the former in my case. In the less restrictive way as stipulated on most of the CIS documents as well as intepretation by immigration lawyers, "continuous residence" requirement can be fulfilled by (a) five years of residence after the green card is granted; (b) 2.5 years (30 months) of accumulative time spent in the US during whole course of these five years, so long as each absence does not exceed 6 months. According to this interpretation, I will be eligible for naturalization by Oct. 20 because I did not leave the US until July 18, 2005 after I got my green card in Oct. 2000, and since I left US to take this Swedish position I have had several trips back to the US to make sure I am not absent continuously for more than six month.

However, there seems to be a more restrictive way of calculating "continuous presence;" that is, the 30 months (2.5 years) are counted backward immediately preceding the date of naturalization application, instead of using the whole five years period after a greencard is granted. There is anothe even more restrictive interpretation, quote: "[one] has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with absences from the United States totaling no more than one year." This is mentioned ONLY ON 1 SINGLE CIS document (natinfo.doc, which is downloadable at the Naturalization Section of CIS Website). This seems to be a new add-on requirement, since I cannot find it is echoed in any immigration lawyers sites. I will fail only this single test since I do have accumulated more than 1 year's absences since I left the US in July 2004.
 
further questions regarding my case

JoeF said:
The only authoritative document is the law. It is online on the CIS website.
No, you are confusing continuous residence and physical presence here.
Continuous residence means that you have to have resided in the US for 5 years after getting the GC. Continuous residence is disrupted if any single absence is longer than 6 months, unless you can convince the examiner otherwise. It is always disrupted by absences over 1 year, although even in that case, the N-470 can be used to prevent that.
Physical presence means that during these 5 years, you have to been physically in the US for 1/2 that time, i.e, 30 months.
That's wrong.
That's wrong.
As I said, the law (INA 316 and 8 CFR 316) are the only authoritative documents.
Click to expand...

Thanks Joef: I feel relieved because according to your interpretation, then I meet both tests (having been staying in the States consecutively from Oct 2000 to July 2004; then left for my current post in Sweden with occassional trips back to the States; for the past five years I have not had a single absence exceeding 6 months). But my sense of complacence is now challenged by that more restrictive interpretion listed in my previous post (i.e., no absences totaling 1 years over the past five years immediately preceding the date of application). This stipulation is specified on an official CIS Natinfo.doc file downloadable at CIS website. Oddly enough, this stipulation sat in contradiction to other CIS guidelines.
 
JoeF said:
The only authoritative document is the law. It is online on the CIS website.
No, you are confusing continuous residence and physical presence here.
Continuous residence means that you have to have resided in the US for 5 years after getting the GC. Continuous residence is disrupted if any single absence is longer than 6 months, unless you can convince the examiner otherwise. It is always disrupted by absences over 1 year, although even in that case, the N-470 can be used to prevent that.
Physical presence means that during these 5 years, you have to been physically in the US for 1/2 that time, i.e, 30 months.
That's wrong.
That's wrong.
As I said, the law (INA 316 and 8 CFR 316) are the only authoritative documents.
Click to expand...

In fact, I copied and pasted that stipulation from that official CIS document entitle natinfo.doc, which is downloadable at the CIS website. As said, this stipulation is mentioned only in this document, and appears to be inconsistent with several othe self-help CIS guidelines also available at CIS website.
 
Further question

I have a furthe question: as said before, I am hired by an international organization through its US office to work on a China project, which involves frequently field trips to China. However, my compensation is paid in the US with all the taxes withheld. I know that in my employment situation I could opt to claim expatriat tax benefits for current tax year, so long as the total number of days I spent in the US do not exceed 35.

However, as I read 8 CFR PART 316 of Immigration and Nationality Act, I found following paragraph quoted ad verbatim below:

1) Preservation of residence under Section 316(b) of the Act.

(iii) An applicant whose Form N-470 application under Section 316(b) of the Act has been approved, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, raises a rebuttable presumption that the applicant has relinquished a claim of having retained lawful permanent resident status while abroad. The applicant's family members who were covered under Section 316(b) of the Act and who were listed on the applicant's Form N-472 will also be subject to the rebuttable presumption that they have relinquished their claims to lawful permanent resident status.

My question is: if I claim income tax exemption for 2005, will the above highlighted part apply, or that purported expatriate tax benefit can still be claimed under some special tax code? It is clearly not a wise course of action to take if tax benefits have to be claimed at the expense of lawful permanent resident status.

I asked my CPA friend, and following is the answer (quote):

Regarding to the question you cited from Immigration Law, I just first want to bring your attention that tax law and immigration law always have different explanation about US residence. But from what I understand by reading the quoted text under 8 CFR PART 316 of Immigration and Nationality Act. I think you don't have to "voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability". For claim Foreign earned income exemption, you can remain in your permanent resident status to be qualified under either "Bone Fide Test" (requires one calendar year oversea stay) or "Physical Presence Test" (requires 330 days oversea stay in any 12 month period).

Moreover, you are not asking US tax exemption because you are nonresident alien. You are claim foreign income exclusion as PR. In the other word, you are still reporting your worldwide income, but merely applying exclusion amount since you are qualified to do so.

Does this interpretation make sense? Thanks for your advice.

Chris
 
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