inside immigration information about marriage green cards and work visas in America
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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
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:
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:
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.
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:
Deadline for Filing Form N-470
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.