Preserving Permanent Residence for Citizenship / Naturalization
Posted February 15, 2008
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A common problem faced by some permanent residents (green card holders) in the modern U.S. workforce is the preservation of their continuous residence in order to qualify for naturalization as U.S. citizens. We at the Murthy Law Firm are receiving more questions on this matter than ever before. This problem arises when a permanent resident needs or desires to spend extended periods of time outside of the U.S. One way for lawful permanent residents (LPRs) to address the situation of employment outside of the U.S. is the filing of Form N-470, Application to Preserve Residence for Naturalization Purposes.
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Requirements for Naturalization
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Clarity of the naturalization process is available on MurthyDotCom in our Citizenship section and in our recently updated Frequently Asked Questions on this area. Issues relating to travel by LPRs and the consequences on applications for naturalization were addressed specifically in our December 22, 2003 article, Permanent Residents: Keep These Things in Mind!
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Preservation of Residence to File for Citizenship
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U.S. Immigration law provides a mechanism that allows some LPRs, who are absent from the U.S. for more than one year, to preserve their residence for naturalization purposes. It should be noted that the granting of an N-470 application does not relieve an LPR from the physical presence requirement in the U.S. unless s/he is an employee or contractor of the U.S. government. It also does not preserve her/his permanent residence, which is a separate matter when spending extended time abroad. Information on this topic is available in our April 12, 2002 article, Immigration Rumor: Travel by Permanent Resident, also available on MurthyDotCom.
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Employer Must be U.S. Company / U.S. Citizen
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There are two provisions that provide for the preservation of residence for naturalization purposes. The first provision is for employees and contractors of the U.S. government, and certain American institutions of research, as well as employees of American firms or corporations (or subsidiaries) involved in foreign trade or commerce and public international organizations. The second provision is for persons performing specific religious duties outside the U.S. The focus of this article is those persons working for American firms or corporations, as that is the most typical situation faced by our clients and readers of MurthyDotCom and the MurthyBulletin.
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Employee Requirements : One Year and Foreign Trade or Commerce
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An employee of a U.S. corporation may qualify for such preservation of residence if s/he meets three important requirements.
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1) The individual must have been physically present in the U.S. for an uninterrupted period of at least one year after being lawfully admitted for permanent residence. This means any one-year period after becoming a permanent resident. This is often a difficult hurdle to overcome. Many of those who might be in need of the N-470 have international careers and travel frequently. Others simply travel at least once per year to see family members who live abroad.
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2) The individual must be employed by an American firm or corporation engaged in the development of foreign trade or commerce of the U.S. The employment can also be with a subsidiary of such an American firm or corporation 50 percent or more of whose stock is owned by an American company.
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3) The individual must establish that the purpose of his/her absence from the U.S. will be to engage in the development of foreign trade and commerce on behalf of the qualifying company, or to protect the company's property rights abroad. The preservation of the continuity of residence accorded by the N-470 also extends to the individual's spouse and unmarried sons or daughters who are members of the household during the period that they reside abroad as dependent family members.
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Interpretations of Foreign Trade or Commerce
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The requirement that an LPR's employer be engaged in the development of foreign trade or commerce of the United States has been interpreted by Legacy INS. There can be subtle nuances and issues that depend upon the exact facts of the situation; for example, the sole owner of a firm, who goes abroad to represent that firm, may not obtain preservation of residence by using Form N-470. However, an LPR, other than a sole owner, who is employed abroad representing a sole proprietorship doing business under a trade name, is eligible for such preservation. An LPR who is not an employee of a U.S. firm, but rather who goes abroad voluntarily for the purpose of soliciting business for that firm to be paid solely on a commission basis, is not entitled to preservation of residence because the LPR is not considered an employee but rather an independent contractor.
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The development of foreign trade and commerce has been interpreted broadly enough to include the work done by refugee relief agencies and other nonprofit organizations. The basis of this interpretation is that these nonprofit organizations purchase relief supplies in the U.S., pay ocean freight to U.S. shipholding companies to transport these supplies, and pay U.S. shipping companies to transport refugees into the U.S.
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LPRs who are employed abroad on a part-time basis may not receive preservation of residence unless they devote a substantial amount of time to this employment. This means that such employment must not be incidental to other activities in which the LPR engages abroad.
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Corporate Requirements for Preservation of Residence
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Publicly traded companies are considered to be American firms or corporations, if they are incorporated in the U.S. and traded exclusively on the U.S. stock exchange markets. If those requirements cannot be met, then it is necessary to demonstrate that 51 percent or more of the company's owners are U.S. nationals. Subsidiaries of U.S. firms or corporations are considered to include foreign firms owned by a U.S. company through a third corporation. However, one U.S. company must own more than 50 percent of the foreign company. There are other possible complexities that depend upon company structure.
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Conclusion
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The N-470, Application to Preserve Residence for Naturalization Purposes, remains a powerful tool to protect eligibility for citizenship for some LPRs who must perform the duties of their employment outside of the U.S. Because the requirements for the purposes of preservation of one's residence are complex and depend on each individual situation, however, anyone considering this type of application should consult with a knowledgeable, experienced attorney for an assessment of his/her eligibility.