CITIZENSHIP RESIDENCY WHEN WORKING FOR AMERICAN FIRM ABROAD

WORKING ABROAD IN DUBAI FOR AN AMERICAN COMPANY

January 10, 2012

Ordinarily, in order to be naturalized as a United States citizen, a green card holder is required (in part) to “reside continuously” in the USA for at least 5 years prior to filing their N400 naturalization application.  In order to prove that they have “resided continuously in the USA for 5 years, the green card holder must prove they were physically present in the USA for at least one half of the 5 years.

For spouses of U.S. citizens who have a marriage green card who are still married, they have to prove they were physically present in the USA for at least one half of 3 years of “continuous residence.”

There is an important exception to the 3-5 year continuity of residence rules when applying for citizenship . Section 316(b) states that certain periods of absence from the USA will not break the continuity of residence IF the green card holder (A) lived and was physically present in the USA for 1 year after getting their green card; AND (B) is employed abroad by certain American employers as well as some other entities. For spouses of U.S. citizens seeking USA citizenship, they do not have to prove they were physically present in the USA for one year (see below).

The “continuity of residence” rule requires that the green card holder, in general, ”live continuously in the USA,” which is defined as not being gone for periods over 6-12 months (there are different rules for each of those time periods) during any one trip abroad.

How Do I Prove My Employer is an “American” Company?

Sometimes it is difficult for an applicant or their immigration attorney to prove that an American employer is really owned by Americans.  What if there is an America company, incorporated in one of the 50 American states, and it owns another company abroad?  It can be quite difficult to identify the ownership interests (and nationalities) of modern, publicly held corporations that have thousands of stockholders and capital stock that are traded on a daily basis on stock markets.

On October 20, 2010 a rule was re-established regarding the “continuous residence” required by the American naturalization rules for citizenship. The new rule is that when an applicant’s employer is a publicly held corporation that is incorporated in the USA and trades its stock exclusively on USA stock markets, the employer is deemed an “American firm or corporation.”  See Matter of Chawathe, 25 I & N Dec. 369 (AAO) 2010.

The USA public stockmarkets include the NYSE (New York Stock Exchange), NASDAQ (Nasdaq Stock Market), the AMEX aka NYSE Amex Equities (American Stock Exchange) the PHLX (Philadelphia Stock Exchange), the CHX (Chicago Stock Exchange, the BSE (Boston Stock Exchange and the NSX (National Stock Exchange).

An SEC Form 10-K is the name of a report that publicly held American corporations must file with the SEC (Securities and Exchange Commission) on an annual basis and the report provides a comprehensive overview of a company’s business.  The SEC Form 10-K report has been accepted by immigration officials as credible proof that a company is both incorporated in the United States and that it is a publicly held corporation whose stock is exclusively sold on an American stock exchange.

What If I Work for a Foreign Subsidiary of an American Company?

Under INA §316(b), the naturalization applicant must either prove that she or he is employed by either an American company, OR “a subsidiary thereof more than 50 % of whose stock is owned by an American company.” See Matter of Warrach, 17 I&N Dec. 285, 286-87.

Most often the SEC Form 10-K will include information about the foreign subsidiary.  It is best if the SEC Form 10-K has the words “wholly owned subsidiary” in it when describing ownership of the subsidiary.  Often a letter from management of the American company stating that the subsidiary is owned by the American company and that the applicant will be paid by the American company while working abroad is very helpful.  Any other evidence that the foreign company is a subsidiary of the American company with at least 50% of its stock owned by the American company is a plus.

Does it Matter What Type of American Firm I Work For Abroad?

Yes, the American company must be a U.S. firm engaged in the development of foreign trade and commercie, or a public international organization of which the U.S. is a member. The American company or organization what employs the green card holder must file Form N-470 (available under “Forms” on www.uscis.gov) within a certain timeframe, and when it is approved it will “preserve” the green card holder employee’s “residency” for purposes of future naturalization.

How Long Do I have to Live in the USA After I Get LPR Status?

For the employee of the American firm or organization, one year of uninterrupted physical presence is required after getting LPR status, and that rule is strictly enforced.   Even a trip to Canada or Mexico for a few hours or a single day disrupts the one year of uninterrupted physical presence. See Matter of Copeland, 19 I&N Dec. 788.

What about my Spouse?

Pursuant to 8 U.S.C. §1430(b), the physical presence and residence requirements are waived in limited circumstances for applicants whose U.S. citizen spouse is employed abroad by the U.S. government, a public international organization in which the U.S. participates by treaty or statute, an American institution of research recognized by the the Dept. of Homeland Security, a religious organization ministering or doing missionary work, or an American firm engaged in whole or in part in the development of foreign trade and U.S. commerce.

Therefore, the spouse of a U.S. citizen who is eligible for naturalization processing under 316(b) does not have to prove they were physically present in the USA for one year.

Questions? Email danielle@immigrationworkvisa.com