Would my plan work?

B

beanlee

Registered Users (C)
Hi,

I will take a job in my home country and will be traveling back and fro between my home country and USA January next year (will be outside US less than 6 month for each stay). So most likely I can't get my N-400 approved or my GC may be confiscated.

Right now I am planning my wife to get N-400 approved 3.5 yrs from now and I need your advice.

Here is my plan:

My wife will stay till Oct 2011 to get 27 months of physical residency, stay in home country from 2012-2014 and then come back mid-2014 for 4 months to complete N-400 requirement (>30 months/5 yrs).

My questions are:

1. Between 2012 to early 2014, do you guys suggest her getting a re-entry permit? Or travel back and fro to prevent breaking 6-month continuous residency requirement?

2. When she submit her N-400, she also needs tax return. We used to file jointly. However since my income will be from foreign employment next year, would it be an issue? Could she file married separately return (use US stock investment gain as income) to prevent the issue ?

Your input is very appreciated.
 
Regardless of where you earn, you should file your US taxes on the "worldwide income." Also, if your wife keeps traveling back and forth, but fail to file taxes and other errands that would vouch for significant ties to the US, she can be denied entry at the Port-of-Entry by a CBP officer. Assuming, all of those things are taken care and the continuous-residency requirement is met, you should be fine.
 
Thanks poongunranar.

Yes I will file income tax return. To make my case clear, my concern is if the source of income is not from US and do joint file, will my wife get trouble during N-400 interview? That's why I came up with the idea of separate filing. Her source will be from US stock investing and renting out part of my house.

If the tax issue is fine, could she travel back and fro between 2012 and 2014 (with no more than 6 month stay outside US) or to get a re-entry permit instead?

Thanks again!
 
beanlee said:
Thanks poongunranar.

Yes I will file income tax return. To make my case clear, my concern is if the source of income is not from US and do joint file, will my wife get trouble during N-400 interview? That's why I came up with the idea of separate filing. Her source will be from US stock investing and renting out part of my house.
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Doesn't matter. Even if she makes $0 in the US, the act of her filing jointly with you (who BTW makes 100% of earnings outside of US), will show that she is filing her taxes to the US Government on the worldwide income, which either happens to be $0 or whatever she rents out of the home in the US and stocks!
 
I will be making 100% of earnings outside of US. That's my concern. Here is an example

Husband Wife
Income: 100k 30K
Source: Outside US (salary) Inside US (stock, rent)

I haven't done any "married file separately" before. So if doing separate filing, does she just need to report the 30k income?
 
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beanlee said:
I will be making 100% of earnings outside of US. That's my concern. Here is an example

Husband Wife
Income: 100k 30K
Source: Outside US (salary) Inside US (stock, rent)

I haven't done any "married file separately" before. So if doing separate filing, does she just need to report the 30k income?
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As I said before, that shouldn't be a problem. She has the option to file "Married filing jointly" or "Married filing separately". The tax-rate is higher for the latter.
 
beanlee said:
My wife will stay till Oct 2011 to get 27 months of physical residency, stay in home country from 2012-2014 and then come back mid-2014 for 4 months to complete N-400 requirement (>30 months/5 yrs).

1. Between 2012 to early 2014, do you guys suggest her getting a re-entry permit? Or travel back and fro to prevent breaking 6-month continuous residency requirement
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Sounds like a risky plan.

If you or her are away for so long, whether you go on a single 2 year trip with permission, or multiple 5 months trip, you risk giving the impression that you are not residing in US. And to top that, filing separate shows that there are no residential ties for her in US since the hubby is not in US ... and not even filing US taxes. [ As long as you have GC ... not formally surrendered, not revoked, you are liable to file US taxes. ]

People on GC who are away on reasonable business are expected to maintain ties with US and be able to prove residential ties to US in order to naturalize.
 
beanlee said:
My wife will stay till Oct 2011 to get 27 months of physical residency, stay in home country from 2012-2014 and then come back mid-2014 for 4 months to complete N-400 requirement (>30 months/5 yrs).
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Her absence from 2012 to 2014 will break continuous residency, and cause her N-400 to be denied.
 
sanjoseaug20 said:
Sounds like a risky plan.

If you or her are away for so long, whether you go on a single 2 year trip with permission, or multiple 5 months trip, you risk giving the impression that you are not residing in US. And to top that, filing separate shows that there are no residential ties for her in US since the hubby is not in US ... and not even filing US taxes. [ As long as you have GC ... not formally surrendered, not revoked, you are liable to file US taxes. ]

People on GC who are away on reasonable business are expected to maintain ties with US and be able to prove residential ties to US in order to naturalize.
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I am very scared now. We will still own our house in the states before getting the citizenship. She will keep paying telephone bill, US bank/credit card active etc..For income, the $ she got will be derived from US stock gain and renting, do you mean this does not regarded as "residential ties to US"? The reason for filing separately is to avoid reporting my oversea income, so that there is no indication that she has any tie with overseas.

Really need you guys input on this. I got to finalize my plan by sunday!
 
If you have a GC, how can you avoid paying US taxes on that? Unless you surrender it ... if you just keep the GC, it might get questioned as part of her naturalization. I am not saying they will, but they can.

Keeping a house will help. But will it be rented? If you rent it to someone, you are actually not maintaining residential ties.

Think of it this way ... she fills out N400, and lists husband living in a foreign country. The discussion is not going to start from the tax forms, it is going to start from N400. Husband lives in foreign country, taxes are not filed with him, she is mostly living abroad coming to US for a few weeks every 6 months. What should the officer think? The officer may ignore and approve. Or the officer may ask further questions. What happens under questioning is what we are talking about...
 
No I didn't mean not paying any taxes, just do married separate file. I will file with my foreign income while my wife will file with her income from US.

Let's forget the renting part, and assume the sole income for my wife is US stock investment.

As I said the later half of 5yr continuous residency requirement will be fulfilled by frequent travel or travel permit. And she will come back to stay for about 6 months before filing n-400.

So my question is: would this plan work?

Thanks again.
 
TheRealCanadian said:
What makes you think this will avoid such a thing? Your wife is spending the majority of her time abroad, she has no job or spouse in the US.
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As the rule of N-400 indicated, if a PR spend half of 5yrs in the US, he/she can file N-400. Since she stays 2009-2011 and half of 2014, I think she qualifies for N-400 submission.

So if she file on her *own* N-400, does my immigration status (PR, keep traveling back and fro 4-5 times a year) or income really matter to her application? That really confuse me.
 
beanlee said:
As the rule of N-400 indicated, if a PR spend half of 5yrs in the US, he/she can file N-400. Since she stays 2009-2011 and half of 2014, I think she qualifies for N-400 submission.
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That would satisfy the physical presence requirement.

But continuous residence is another requirement, and it requires primarily residing in the US for the entire 5 years, not merely spending 2-4 weeks per year in the US. It is not good enough just to keep touching US soil once every 6 months.

Somebody who spends 90% of a 2-year period outside the US is not going to be seen as being primarily resident in the US, unless there is strong evidence of US residential ties such as having a spouse and/or minor children who remained in the US, or keeping an apartment or house (not rented out to somebody else) during those 2 years.

Sorry dude, but your plan simply is not going to work unless you get an N-470.
 
Jackolantern said:
That would satisfy the physical presence requirement.

But continuous residence is another requirement, and it requires primarily residing in the US for the entire 5 years, not merely spending 2-4 weeks per year in the US. It is not good enough just to keep touching US soil once every 6 months.

Somebody who spends 90% of a 2-year period outside the US is not going to be seen as being primarily resident in the US, unless there is strong evidence of US residential ties such as having a spouse and/or minor children who remained in the US, or keeping an apartment or house (not rented out to somebody else) during those 2 years.

Sorry dude, but your plan simply is not going to work unless you get an N-470.
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Thanks for the explanation. If she are not qualified for N-470. Could she get a re-entry permit for the 2 year stay aboard? Say something happened to her parents and got to go back to take care of them? I believe this 2 yr will be counted towards continuous residence requirement, right? Again, we will keep the house/bank account/pay tax to show a tie to US.
 
The reentry permit will preserve the green card for 2 years, but it will not make the 2 years be counted towards the continuous residence requirement. The N-470 is what is used to make those years count; if you qualify for it, she as your spouse can also benefit from it.
 
beanlee said:
Thanks for the explanation. If she are not qualified for N-470. Could she get a re-entry permit for the 2 year stay aboard? Say something happened to her parents and got to go back to take care of them? I believe this 2 yr will be counted towards continuous residence requirement, right? Again, we will keep the house/bank account/pay tax to show a tie to US.
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Using Re-entry permit isn't counted towards continuous residency when applying for citizenship. Only N 470. sorry dude..
 
beanlee said:
Thanks for the explanation. If she are not qualified for N-470. Could she get a re-entry permit for the 2 year stay aboard? Say something happened to her parents and got to go back to take care of them? I believe this 2 yr will be counted towards continuous residence requirement, right? Again, we will keep the house/bank account/pay tax to show a tie to US.
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My opinion is you should proceed on N-470 and your wife keep the GC alive by not being absent from US for more than 6 months. There is a good chance she will be approved for citizenship as long as she meets physical residency and you file tax jointly. She can always explain her absence to your employment abroad.

If she proceeds on re-entry permit for 2 years she has to wait for 4 years and 1 day since her return to file N-400. Clock has to be reset.
 
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