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CITIZENSHIP N-470 PRESERVING PHYSICAL PRESENCE WHILE ABROAD

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Abu Dhabi International Airport

One of the key requirements when applying for USA citizenship under INA §316 (a) is the need to be physically present in the USA for half the time during the qualifying period, which may be 5 years or 3 years (if one is married to a U.S. Citizen) and also to have resided continuously (no trips over 6 months in duration*) during this period.

Some green card holders may preserve their presence in the USA for purposes of USA citizenship while they are working abroad in certain situations by filing Form N-470. Here are the six choices on Form N-470:

Choice of 6 Options on Form N-470

  1. Work abroad for U.S. Government
  2. Work abroad doing Scientific Research for American institute of research
  3. Work abroad as employee for American company that is engaging in development of foreign trade and commerce
  4. Work abroad to protect property rights of American company
  5. Work abroad for public international organization of which USA is member
  6. Work abroad in Religious position with qualifying religious or interdenominational mission organization

This blog article is only addressing Option #3 (work abroad as employee of an American company). Here are the requirements:

Requirements to File Form N-470 for Option #3:

  1. Have a green card;
  2. Live in USA for 1 year (no trips, not even a few hours to Canada or Mexico) prior to their employment abroad for the American company;
  3. Job offer from the American company is for a full time job position paid by a salary (not part time and not paid by commission);
  4. Green card holder is not the sole owner of American company or independent contractor; and,
  5. American company has proof that it is an “American company.”
A green card holder does not have to be eligible for naturalization before filing the N-470.

Hypothetical Example of Green Card Holder Obtaining Extended Absence Benefits by Filing Form N-470 

Let’s say we have a green card holder who needed to prove he was physically present in the USA for half of the 5 year period of 2007 to 2012.  He also has to prove that none of his trips abroad during that 5 year period were over 6 months in duration. Let’s also assume that an American company wanted him to work abroad as an Engineer in the UAE for the years 2009 and 2010.  He already works for that American company as an Engineer (even before he got his green card) in America full time on salary (not commission).  He has a wife and children who will come with him and live in his house as his dependents.

First, the green card employee needs to file a Re-Entry Permit application for every green card holder in his family so that they can re-enter the USA after being abroad for more than 1 year.  Green cards are not valid for re-entry after being 1 year abroad, even if they are unexpired.  Second, the green card employee should see whether he/she can file Form N-470 Application to Preserve Residence for Naturalization Purposes.  FYI, the form, instructions, and fee information is found on http://www.uscis.gov. However, it is impossible for the instructions to cover all bases, so this blog article provides some further information.

Real Example of N-470 Case Decided by Immigration Judge:  Matter of Chawathe (2010)

In this case, the green card holder (since June 2000) was an employee of the ChevronTexaco Corporation.  His employer wanted to transfer him to Saudi Arabia.  He already had spent one year (without a single interruption) in the USA since he got his green card. So far so good.

In January 2003 he filed Form N-470, which is the form a person has to file to get approved in order to preserve physical presence for citizenship during a future absence from the USA while working abroad. He submitted what he thought was proof of having a green card, proof of being in the USA for one continous year, proof of his full time job offer for a salary, and proof that his American employer was an “American company.”  That’s where there was a problem.

After he filed his Form N-470, the USCIS wrote to him and told him that they did not feel ChevronTexaco Corporation was an American company. Further, the USCIS told him that they were not convinced by the documents he provided that the ChevronTexaco Corporation’s overseas company (called Saudi Arabian Texaco) was not officially a subsidiary.

Obviously, the correct evidence must be submitted with the N-470 in order to get it approved. IN ADDITION TO THE EVIDENCE PROVING THE ABOVE REQUIREMENTS, here is the evidence that was submitted with the N-470 in Matter of Chawathe to prove it was an American company and to prove the American company owned the foreign subsidy:

usa citizenship

Shanghai International Finance Center

  • A copy of ChevronTexaco Corporation’s 2002 Securities and Exchange Commission (SEC) Annual Report, also called Form 10-K was submitted.

The SEC Annual Report contained the information that (a) the company was incorporated in the State of Delaware, which is an American state; (b) that the company was publicly traded on the New York Stock Exchange (NYSE), which is an American stock market; and, (c) that Saudi Arabia Texaco is a subsidiary of ChevronTexaco Corporation.

  • A letter from the Saudi Arabia Texaco subsidiary was submitted.

This letter stated that ChevronTexaco Corporation was engaged in the development of foreign trade and commerce of the USA through its wholly owned subsidiary called Saudi Arabia Texaco, and that the green card holder would work full time for 2-3 years (temporarily) abroad in the same job at a specified salary.

The USCIS immigration officers did not feel that this evidence was good enough and denied the N-470.  The green card holder appealed the case to an Immigration Judge. The Immigration Judge disagreed with the initial decision made by the USCIS officers and made a court order that the N-470 be granted. The judge said that the SEC Form 10-K and the letter was enough evidence.

Difference between “Closely Held Stock” and “Publicly Held Stock”

The definition of a closely held corporation is one that issues stock to only a few stockholders and that stock is not traded on the stock markets. the definition of a publicly held corporation is when the stock of the publicly held corporation is officially listed on a stock market and is traded to the public.

There are 7 official American stock markets:

  • NYSE
  • NASDAQ
  • AMEX (now known as NYSE Amex Equities)
  • CHX
  • PHLX
  • BSE
  • NSX

Deadline for Filing Form N-470

Green Card Holder Working Abroad

Green Card Holder Working Abroad

You do not have to be in the USA to file Form N-470, but normally the N470 application is supposed to be submitted to the USCIS before the green card holder has been absent from the USA for a continuous period of one year.

However, there have been cases of the USCIS granting 316(b) extended absence benefits even though the N-470 was not received and approved until after the green card holder was absent for more than the one year period (see Application of Suilin Ling, A-7362899, July 10, 1963).

If you file the N-470 while you are in the USA, it is ok to go abroad before finding out the answer (just make sure the American mailing address you gave them is reliable).

Biometrics Not Required

No biometrics fee is required for the N-470 because biometrics (fingerprints) are not required.

What American State Will Be Designated as Residence for N-400?

If an extended absence is approved (i.e., N-470 is approved), the green card holder’s last residence in the USA continues to be their residence during their absence.  If the green card holder returns to that same residence, the 3 months required local residence will be granted automatically to the green card holder for purposes of the citizenship application.  However, if residence is resumed in a different state upon return to the USA, 3 months residence must be completed in the new state before the petition for citizenship can be filed.

Military Personnel Get a Pass

Regardless of its duration, a member of the USA armed forces of the USA who serves abroad pursuant to military orders is regarded as being legal physically present in the USA during all the periods of their military service abroad. This is because his/her location of work is not voluntary – military personnel have no choice as to the location where they work. But that is another blog article.

Questions about hiring an immigration attorney? Email danielle@immigrationworkvisa.com

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One comment on “CITIZENSHIP N-470 PRESERVING PHYSICAL PRESENCE WHILE ABROAD

  1. JGD
    September 30, 2013

    Dear Sir,
    We got our GC on Sept 2nd, 2009. We stayed in US till Oct 2010. Due to work reasons, my husband had to work from India, so we temporarily moved to India. We are continuing to keep our apartment, pay bills, taxes, bank accounts, etc. We applied for N470 and got the approval in June 2011. Between Oct 2010 and June 2011, we made sure we did not stay out of US for more than 4 and half months, just to be safe. We have an approved N470 and re-entry permit . My husband travels between US and India. He works mostly from India, as per N470 approval and terms. He visits US twice a year each time for roughly 2 months or so.

    Our family is planning to come to US in April 2014 and stay for 3 months and then, my husband will apply for citizenship in July 2014. By that time, he will have completed 30 months (maybe 15 days or so more) physical presence also.

    The confusion we have now is regarding the travel after applying for USC..

    Do we have to maintain continuous residence AND physical presense, up until interview/oath
    OR
    Do we need to maintain only continuos residency till interview/oath ???

    This will make a difference to us, since my husband will have just around 30-31 months of physical presence by July 2014..
    Will the following plan be ok?

    Here is a rough plan. Please advice.

    1. My husband will stay for 3 months in US district (chicago in ourcase) before applying for citizenship.
    2. He will complete fingerprinting in chicago itself.
    3. After he completes fingerprinting, he will go abroad and work from India, until he gets the interview call. This is the part where I need your input. Since he will still be on N470 (it has no end date), he will be carrying on his work as per the permission given in N470, from India. He will make sure he doesn’t stay for more than 4-5 months at a time, so that continuous residency is not broken. Will that be ok??
    4. Related to point 3, is it enough if he has accumulated physical presence of 30-31 months before applying for USC, by July 2014 (Sept 2009-July 2014)? Or, will the physical presence be re-calculated at the time of interview and oath? For example, say he gets his interview/oath appointment in October.If he has applied in July, then Oct-July = 4 months. Now, should he stay in US for atleast half of 4 months ie., 2 months so that physical presence too is satisfied all the way till interview/oath? Will USCIS re-calculate his physical presence from Oct 2014 backwards to Oct 2009, or will it be considered 5 years backwards from July 2014? Will having N470 make any difference in this regard and make it easier for him to continue his work from India??

    Kindly advice and clarify.

    Thanks a ton!
    JGD

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