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When Is My Mother Eligible To Apply For Naturalization?

Discussion in 'Retention of US residency' started by RaaR, Dec 16, 2014.

  1. RaaR

    RaaR New Member

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    Hello Ron,

    My mother became an LPR in June 2008.

    She would like to apply for Naturalization in early 2015.

    She seems to have met the physical presence requirements of 30 months or more in the preceding immediate 5 years. She also has a US permanent address, social security number and has filed taxes for year 2013.

    However she has the following breaks in continuous residency requirement under the " > 6 months but < than 1 year" category:

    (1) In 2010 she was away --March 4, 2010 to Feb 02, 2011 approx 350 days. The reason was the progressive ill-health/hospitalization and subsequent death of her husband (my father, also an LPR) on Dec 12, 2010, followed by mourning, paperwork, and liquidation of movable assets etc.

    (2) in 2014 she was away --May 23, 2014 to Dec 15, 2014 (1 week shy of 7 months). The reason is a medically documented fall on July 2,2014 while in India resulting in an L1-L2 vertebrae compression fracture. We have all the xrays(dated July 3 and Sep 7 and MRI Nov 15, as well as doctor travel advisory and other documentation. She also has evidence of the original return ticket for Sep 6, 2014 i,e., plans to return within 6 months but could not.

    From a USCIS point of view, is she eligible for applying for Naturalization 90 days from her arrival date of Dec 15, 2014? If so how best (what relevant clauses) to present this case to USCIS when filing Mar 15, 2015?

    I would like to apply on her behalf since i have all the necessary detailed paperwork - but what would be approximate costs of hiring an attorney to do the filing to make USCIS take the case more seriously if needed?

    thanks!
    raar
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Since your mother was never absent for more than 365 consecutive days, there is no conclusive break in her continuity of residence. She will need to explain that there were unexpected reasons for the length of her stays abroad, but based on what you have written, I don't see any problems there.
     
  3. RaaR

    RaaR New Member

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  4. RaaR

    RaaR New Member

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    Hello Ron,
    From one of the USCIS official brochures online on N-400 i saw the following:

    Have you reported your income on your income tax forms?
    Your tax returns are very important proof that you are eligible for naturalization. On the day of your interview, bring certified tax returns for the last 5 years (3 years if you are married to a U.S. citizen). Certified tax transcripts may be ordered by using Internal Revenue Service (IRS) Form 4506-T available at www.irs.gov or calling 1-800-829-1040.
    -----------------------------------------------------------------------------------
    Here are my details:

    1) My mother filed with IRS for the first time in 2013, and she plans to continue filing in 2014 and in the future.

    2) However for 2010,11 and 12 she did not file a tax return, over confusion that the double taxation avoidance treaty existing between USA and her native country (India) was enough.

    3) while she had a social security number, she earned zero ($0) dollars in income in the USA throughout her status as a LPR,

    Kindly help me understand the implications of this non-filing for 2010,11 and 12 while filing her N-400, and the corrective actions if/as needed. Would you recommend back-filing with IRS first before proceeding to file the N-400, or would explaining the factual circumstances to USCIS on N-400 on a separate sheet be sufficient?

    Kindly advise,

    thanks for your help
    RaaR
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Your mother needs to consult with a tax expert to determine whether she owed taxes on her income from India. Most likely she does not, but she may have to file late returns and at least declare it. If it turns out that she was not obligated to file returns for those years, this won't be an issue.
     
  6. maheshg

    maheshg Member

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    Hello Ron,

    Many years ago you helped me get my LPR. I feel indebted to you for you excellent service and still keep referring my friends to your office.

    My parent are in a different situation than the original poster. My parents are currently here as LPR and just completing their second year. But they will need to return to home country to get medical treatment for my father, due to lack of insurance here. They may have to be away for several months, possibly more than 6. I will make sure they are back in less than a year, so as not to break their continuity of residence.

    - At time of citizenship application, what kind of documentation would they need to prove that their stay was for medical purposes? Do they need to get letters from the doctors, save XRays, save lab reports, etc. How detailed does the documentation need to be?
    - They live with me. They will continue to maintain their bank account and my home's electric account . Would those statements help prove they did not abandon residence?

    Thanks
    Mahesh
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Medical records are the best evidence, though they will usually take the applicant's word for it.
     
  8. maheshg

    maheshg Member

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    Thanks Ron!
    What else should they maintain as evidence of not abandoning status? They will maintain their bank account. Any other suggestions? Credit cards? Utility bill?
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    There is no specific list. Just think in terms of what would convince a reasonable person of ordinary intelligence that they did not intend to relocate abroad permanently.
     
  10. maheshg

    maheshg Member

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    Hi Ron,

    My parent are leaving next month for medical treatment and will need to stay out for more than a year. So that will break in their residency. I see N-470 needs to be filed to maintain residency.
    - Would I file it right before their 1 year is up?
    - Does each of my parent need a N-470 each or will one N-470 apply for the family?
    - With N-470 approval, generally how long a stay out of the US does USCIS grant?​

    Thanks!
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    An N-470 is not applicable in this situation since your parents won't be working for an American owned company abroad.
     
  12. maheshg

    maheshg Member

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    Ron, thanks for pointing this out. I completely missed that when I was researching. What are my options if they have to stay overseas for a year or two?
     
    Last edited: Mar 16, 2015
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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  14. maheshg

    maheshg Member

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    Thanks for the link. The intention for stay overseas in for medical reason ONLY. He has been treated by many doctors here and we feel that traditional remedies may help for his severe arthritis. So while they are there he will undergo medical treatment.

    Just for record sake, I will get letters from his current doctors here. Also have them maintain history of medical visits , maintain their bank account and credit cards here.

    After having stayed longer than a year overseas, when an immigrant wants to return, does he show up at the port of entry hoping to be let in? Or is there a process for getting pre-approval before arriving here?
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If they stay out more than 365 consecutive days, they need to get returning resident visas from the nearest consulate.
     
  16. maheshg

    maheshg Member

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    Thanks Ron!
    Is Returning Resident Permit (Form I-327) an option for them? They are still here in the States and have a month before they leave.
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes, but that has to be filed abroad, before they return.
     
  18. maheshg

    maheshg Member

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    ok, what is the difference between two options
    SB-1 (returning resident visa) and
    I-327 (returning resident permit)
    Both apply to my parents? Relative benefits?
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    One is a visa category and the other is a form.
     
  20. maheshg

    maheshg Member

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    I asked
    ok, what is the difference between two options
    SB-1 (returning resident visa) and
    I-327 (returning resident permit)
    Both apply to my parents? Relative benefits?

    From your response, it sounds like the two are related. If and when they need it, they would use I-327 to apply for SB-1 at the local consulate?
     

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