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The Enigma of Disruption: What Continuity of Residence in Naturalization Really Means

19 Jul

By Gary Endelman

“I cannot forecast to you the action of Russia. It is a riddle, wrapped in a mystery, inside an enigma…”
Winston Churchill, BBC broadcast (Oct. 1, 1939)

Of the many mysteries surrounding the naturalization process, few have created more confusion or been subject to greater misinterpretation than the requirement to preserve continuity of residence. Lawyers, accoun­tants and government adjudicators frequently say and do the wrong thing. Our clients should not have to choose between making a living and becoming American citizens. My colleague Cyrus Mehta and I have written before about your problem, Naturalizing in a Flat World, (July 08, 2010), available at http://cyrusmehta.blogspot.com/2010/07/naturalizing-in-flat-world.html. The tension between a global economy and an insular immigration law can be overcome. Let’s step back a moment and take a look at the rules of the road.

Let’s use a hypothetical to get started. For sake of discussion, we will call our model client by the sobri­quet of Anxious. More than anything, Anxious wants desperately to become a citizen of his adopted home, the United States of America. The problem is that his job as a widget salesman keeps him on the plane racking up lots of frequent flyer miles visiting customers outside the United States. He has been advised by his accountant to shield his foreign-earned income from US taxation, though he has not done that yet. Since his time away has tended to grow over time, last month he rented out his beachfront villa in Malibu. He is careful not to be away for too long at any one time, never more than six months, but there are tons of shorter trips. He knows that he has to be in the US most of the time. Over the past five years, his travel ledgers show 60% of the time inside America until the last two years when he has spent most of his time abroad, though he always comes back at least every 6 months. He does not want to give up his green card and, for that reason, has always filed tax returns as a lawful permanent resident. He has made sure to keep up his reentry permits. Still, Anxious has heard from some of his colleagues that his international travels could prevent him from becoming an American citizen or at least cause major heartburn.

Since our client is not married to a US citizen, § 316(a) of the Immigration and Nationality Act (INA) requires him to establish that, immediately before filing his application for naturalization on Form N-400, he has resided continuously within the United States for at least five years after getting his green card. Beyond that, he also must show that he has been physically present in the US for a total of at least 50% of the time. There is more. INA § 316(b) and 8 C.F.R. § 316.5(c)(1)(i) tell us that an absence from these blessed shores of more than six but less than twelve months during the five year period before filing the N-400 may disrupt the continuity of residence for naturalization. And even after applying, no relaxation is allowed: disruption of continuity of residence can occur during the interval between submission of the N-400 and the preliminary interview itself. Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D.Mich. 1995).

Should such a presumption arise, it can be swatted down by good, solid evidence of attachment to the US. While there is no exhaustive list, 8 C.F.R. § 316(c)(1)(i) (A-D) provides some helpful hints:

Did your client terminate his job in the US?

  • Did his immediate family stay behind when he departed?
  • Did he retain full and open access to his US home?
  • Did he obtain employment while abroad?

It is worth reading the fine print. If you do, please note that Anxious may cut the continuity of his resi­dence for naturalization even if he has been found not to have abandoned your permanent resident status. Despite a valid reentry permit and the continued vitality of substantial foreign commitments, such absence can still count against your client when it comes to satisfying threshold eligibility for naturalization. Matter of Vafaei Makhsoos, 597 F. Supp. 499 (D. Minn. 1984).

For some good insights as to how the various factors surrounding continuity of residence play out in the real world, you might spend a few moments perusing Li v. Chertoff, 490 F. Supp. 130 (D. Mass. 2007) where the judge ruled that a laid off LPR who moved with her husband to Canada to study dentistry did not disrupt the continuity of her residence for naturalization. There are several interesting side bars in this case. One is that the court did not base its decision on the generic definition of ‘‘residence’’ articulated by INA § 101(a)(33) under which intent is not a factor. My mentor, Ted Ruthizer, puts the Li case in its proper perspective:

Stated more plainly, to the limited extent provided by 8 CFR § 316.5(a) that one’s actual dwelling place without regard to intent (taking the language of INA Section 101(a) (33)) is relevant for N-400 eligibility, the actual dwelling place in fact is determined by periods of physical presence in the U.S., as provided in the accompanying provisions of 8 CFR § 316.5. In other words, the GENERAL requirement that residence be one’s actual dwelling place is determined solely by the SPECIFIC requirements defining what consti­tutes a disruption in the continuity of residence found in the same section of the regulations.

 – Undated E-mail exchange between Gary Endelman and Ted Ruthizer.

Because intent did not count, ‘‘residence’’ should not be confused with domicile. Chan Wing Cheung v. Hamilton, 98 F.2d 459, 461 (1st Cir.1962). This follows from the teaching of the Supreme Court in Savorgnan v. United States, 338 U.S. 491, 505, 70 S. Ct. 292, 94 L.Ed. 287 (1950). Indeed, in the landmark decision of Saxbe v. Bustos, 419 U.S. 65, 95 S. Ct. 272, 42 L. Ed. 2d 231 (1974), Justice Douglas conspicuously did not mention this definition when analyzing whether the commuter aliens had abandoned their lawful permanent resident status. From this silent if unspoken rejection, one may question the extent to which such a definition remains relevant to naturalization separate and apart from the objective criteria of the applicable regulations themselves. While critics may object that Saxbe v. Bustos does not apply to naturalization, it remains relevant to teach us that the definition of ‘‘residence’’ in INA § 101(a)(33) has no role whatsoever in terms of possible LPR abandonment and only a distinctly limited one in the naturalization context where threshold eligibility decisions on continuity of residence are governed by specific regulatory standards.

I would strongly advise against requesting tax treatment as a non-resident alien, no matter how strong the allure of an enticing tax treaty, since doing that will be viewed by the USCIS as a fatal, if implicit, admission that your client no longer regards himself as a lawful permanent resident. Memorandum from David Martin, General Counsel, to Michael Aytes, Ass’t Comm’r HQADN, HQ 70/11-P, HQ 70-33-P, The Effect of Filing Non-resident Income Tax Returns on an Alien’s Status as a Lawful Permanent Resident Alien (May 7, 1996), reprinted at 73 Interpreter Releases 948 (Appendix IV) (July 15, 1996). 8 CFR § 316.5(c)(2) offers this sober warning:

Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.

If Anxious ever finds himself in this unhappy state he might take solace in legacy INS Interpretation 318.4, available at http://1.usa.gov/anmm23 (last visited July 18, 2012) and Gordon, et al., Immigration Law and Procedure, Volume 15., which allows him to submit a corrected Form 1040 tax return on the theory that you ‘‘acted upon a mistake of fact and law.’’ Hopefully, a merciful Providence would then conclude that he had not thrown away his prized green card through ‘‘the prior claim to nonresident alien status for tax purposes.’’

Anxious should be on guard against trying to shield foreign-earned income from US taxation. Yes, I know that he can protect up to $91,500 by filing IRS form 2555 to take advantage of the foreign earned income exclusion, www.irs.gov > Forms and Publications > All Forms and Publications > Form 2555 and Inst 2555, but he does that at his peril. Saving tax dollars can put his green card under a most unfriendly microscope. Very few accountants know about the immigration conse­quences of filing the IRS 2555. If they did, perhaps they would never file one! There are two different ways your client can file for earned income exclusion: Either by claiming to be a bona fide resident of a foreign country for an entire tax year or by declaring physical presence there for a minimum of 330 days over 12 consecutive months. In either case, making such a claim will be viewed by the USCIS as strong evidence of green card abandonment and/or inability to satisfy the physical requirements for naturalization in INA § 316(a). www.uscis.gov > Laws > Immigration Handbooks, Manuals and Guidance > Adjudicators Field Manual > 52.3. Alarm bells can also be set off when a LPR client who spends lots of time abroad seeks to protect their green card against unintentional abandonment and files for a reentry permit on USCIS Form I-131 after having claimed to be a nonresident alien for tax purposes, www.uscis.gov >Forms >I-131. Guidance found in the Adjudicator’s Field Manual (AFM), 52.3(b)(5), available at www.uscis.gov > Laws > Immigration Handbooks, Manuals and Guidance > Adjudicator’s Field Manual >52.3, is chillingly relevant:

The immigrant … is an alien who, after admission for permanent residence, established residence in the U.S. and voluntarily elected to claim nonresident status to qualify for benefits under the income tax laws.

By such election, the alien has taken on a status which is patently inconsistent with a continuance of status as a lawful permanent resident. In claiming nonresident alien status under the tax laws, the alien has tacitly represented … the intention of abandoning residence in this country was formed. Abandonment of residence by an immigrant, for whatever purpose, effectively extinguishes status as a lawful permanent resident because it constitutes a change of status within the meaning of section 101(a)(20).

You should pay special attention to the responses to the question of Form I-131 regarding any claim the applicant may have made for nonresident alien status for federal income tax purposes. If the applicant admits having claimed nonresident alien status for federal income tax purposes (either by having filed a return because their income was earned abroad and the alien therefore regarded it to be exempt from tax due to being a nonresident), you should be alert to the possibility that the alien… may have abandoned residence for immigration purposes.

Anxious might be comforted to know that INA § 316(b) does allow a permanent resident working abroad for an American company to avoid the need to maintain continuity of residence. However, unless Anxious has accumulated one year since getting the green card when every single day has been spent in the US, he will not be eligible to get extended absence benefits through submission of an N-470 application. Matter of Graves, 19 I. & N. Dec. 337 (Comm’r. 1985); Matter of Copeland, 19 I. & N. Dec. 788 (Comm’r. 1988). For more on why this makes no sense, please see Cyrus D. Mehta and Gary Endelman, Naturalizing in a Flat World, (July 08, 2010), available at http://cyrusmehta.blogspot.com/2010/07/naturalizing-in-flat-world.html. Ironically, for some reason, probably because they have simply just not found the time to update it, the USCIS has left up a more charitable analysis in Interpretation 316.1(c)(3) that explicitly embraces the ‘‘brief, casual and innocent’’ departure exception to suspension of deportation applicants created by the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 183 (1963). For those inquiring minds who want to know how Uncle Sam defines ‘‘American firm or corporation’’ for naturalization purposes, do not focus on state of incorporation. Unless you are dealing with a closely held company where it is easy to show majority US ownership, try locating the exclusive stock exchange in the US where the shares of a publicly traded corporation change hands. Matter of Chawathe, 25 I. & N. Dec. 369 (AAO 2010).

Once the absence goes past the fateful twelve month marker, 8 C.F.R. § 316.5(c)(1), then the presumption of discontinuity can no longer be answered. Then, you have to wait another four years and one day after coming back on your green card before trying again; if married to an American, the waiting is shortened a bit to two years and one day. 8 C.F.R. § 316.5(c)(1)(ii). But, sad to say, we live in a cruel world and tales abound of naturalization examiners improperly club­bing two back to back lengthy trips although each one was less than 180 days. USCIS has been treating contin­uous absences of between six and twelve months much more harshly in recent years. It seems that our USCIS colleagues have little interest in finding that a natu­ralization applicant has effectively countered the presumption of disruption. Take note that any naturali­zation applicant who does not stay away from the US for one year must then be considered to have remained a resident of the same state where they lived before leaving. 8 C.F.R.§ 316.5(b)(5).

This is a key regulation. As my valued colleague and fellow Mets devotee Ted Ruthizer has taught me, it is key to a proper understanding of what continuity of residence means for naturalization and how it should be interpreted. When read together with 8 C.F.R. § 316.5(c)(1), it reminds us, and should remind both naturalization examiners and lawyers who may not know the pleasure of its tender mercies, that lengthy absences from these blessed shores are very much allowed so long as they are not continuous and provided that the naturalization applicant continues to satisfy the 50% physical presence test set forth in INA § 316(a). Legacy INS Interpretation 316.1(a)(6) offers the only true defense against a trap for the unwary:

(6) State residence during absence of less than 1 year. Since continuity of residence in the United States is not conclusively broken under section 316(b) by any absence of less than a year, unless it is established that such residence actually has been abandoned, the applicant’s residence during any such period of absence necessarily continues to be in the place (otherwise the State) where he resided at the time of his departure abroad. Accordingly, he will be regarded as having complied with the requirement of contin­uous State residence, either upon his return to that same State if at least 6 months (including any part or all of the absence period) had then elapsed since he first established residence therein, or on the date after his return when at least 6 months (including any part or all of the absence period) will have elapsed since he first established residence in the State. However, if upon his return he takes up residence in a State other than the one in which he resided at the time of his departure, he must complete 6 months’ residence in the new jurisdiction before he will be eligible to file a petition in that State.

Available at http://1.usa.gov/anmm23 (last visited July 18, 2012), and Gordon, et al. Immigration Law and Procedure, Volume 15.

This Interpretation has some grey whiskers on it, having been written before the 6 month requirement of INA § 316(a) was shaved down to a mere 3 months.

Continuity of residence is not disrupted and cannot be disrupted unless and until there is a change of residence within the contemplation of 8 C.F.R. § 316.5(b) (5). The main roadblocks to naturalization will be staying abroad for more than 6 months continuously; living in a foreign land without substantial contacts with the USA; and not having a firm and fixed place of residence to rest your weary bones when you do come home. Hold fast and true to what the law gives you. That and not time away is the only true test on which you or your clients can rely. Now go ahead and advise them to file that N-400 application. As the old World War I recruiting poster proudly proclaimed: ‘‘Uncle Sam wants you!’’

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* Copyright 2012 Gary Endelman All Rights Reserved. Special thanks are given for the insights and guidance provided by Ted Ruthizer whose encyclopedic knowledge of the subject is surpassed only by his laudable devotion to the New York Mets.