Complicated situation - Gurus please help !!

[Muhammad Ali 0]

Hi

I have got a complicated situation. I was living in the UK - got married to a US citizen - Got the "10 Years" Green card through my wife in October 2010. I had plans to continue working in the UK for a while so I passed my driving license / SSN / started bank accounts and credit cards in New York and then came back to the UK after few weeks of receving the Green card.

So Since Novemeber 2010 we are living and working full time in the UK but I am keeping my residence in NY and I visit America every 5 months and 3 weeks to keep my green card up and running.

Now we both are planing to go back to the US and get my citizenship done so we can travel and live any where we like freely. I beleive I can apply for

Naturalization after 3 years of my GC and I also need to be physically present for 18 months so If I start living in America from April 2013 - I will be eligible

to apply in October 2014?

Am i correct there?

Me and my wife do not have loads of documents to prove our relationship/living together except some bank/credit card statements on the same address in NY plus our new born baby (Born in NY - May 2012).

Me and my wife filed the joint tax return in 2010 - In 2011 my accountant told me not to file because we both did not earned any thing ( As we both are living and working in the UK) The accountant also said that I dont have to declare my foreign income unless it is more than 80 thousand US Dollars, So we did not file in 2011.

Can you guys please help me decide the most important step of my life - Do you think the above mentioned will work for Naturalization? Any comments/suggestions/watch outs will be appreciated............. Many thanks for reading

[Sandra G. 5,048]

You need to prove you were physically present in the United States for at least 18 months out of the 3 years immediately preceding the date of filing the application

I don't think you will be able to prove that now because you spent basically the last 2 years living abroad.

[Muhammad Ali 0]

You need to prove you were physically present in the United States for at least 18 months out of the 3 years immediately preceding the date of filing the application

I don't think you will be able to prove that now because you spent basically the last 2 years living abroad.

I just want to confirm I can apply for Naturalization living 18 months in America like If I start living in America from April 2013 - I will be eligible

to apply in October 2014?

[Que Saudade 284]

Your accountant was wrong. All income must be reported to IRS as a US Citizen or a LPR.

This is especially more important for a LPR to maintain your permanent residence.

See here especially the line where it says "You abandon permanent residence if you fail to file income tax returns while living outside of the United States for any period."

You are a U.S. resident for tax purposes beginning on the first day you are present in the U.S. as a lawful permanent resident. As a resident taxpayer you must report, for U.S. tax purposes, your worldwide income.

Edited August 27, 2012 by Que Saudade

[Muhammad Ali 0]

Your accountant was wrong. All income must be reported to IRS as a US Citizen or a LPR.

This is especially more important for a LPR to maintain your permanent residence.

See here especially the line where it says "You abandon permanent residence if you fail to file income tax returns while living outside of the United States for any period."

You are a U.S. resident for tax purposes beginning on the first day you are present in the U.S. as a lawful permanent resident. As a resident taxpayer you must report, for U.S. tax purposes, your worldwide income.

So where do i stand now.... What can i do to come out of this situation. Can i pay some penalty and file late?

[sasaqlain 24]

I concur. Your accountant misguided you. You must file for taxes, regardless of your income. And most importantly any Income earned outside the US must be declared, regardless of value. I have been a full time student for the last two years and have never worked in the US. With zero $ as income, I still filed for taxes for the last three years. You should apply for late filing as the last three years of taxes would be asked when you are eligible to apply. You must have proof of 18 months of physical presence in the US, as well as three months of residence in the state you are filing for naturalization.

Edited August 27, 2012 by PathaN

[LA80 3]

Taxes should be filed to avoid headache because the USCIS officers are not tax experts. It is true that there are cases when people are not required to file and same IRS rules should apply to both the U.S. citizens and permanent residents. This is what the IRS says. No income or not enough income in theory means that one is not required to file (IN THEORY). I remember one specific case on this forum where the applicant has never filed taxes but got approved (her name is antda and her situation was specific). HOWEVER, you MUST have an explanation, some kind of legal evidence, proof from the IRS, some type of correspondence saying that you are good to go, that you do not owe anything, or even that you were not required to file. And again, the question is if the officer is going to be happy with your proof, and if not, then what? So, file your taxes. Another issue here is your absence. You should work on your continuous residence first before you apply.

[Deputy Purple 1,294]

I would be worried that your entry pattern will be closely examined when you file for naturalization as the greencard was issued so you could live with your USC spouse in the US but clearly that hasn't been the case thus far.

If they determine you have misused the privilege USCIS can put you in removal proceedings.

FWIW, US Citizenship should have more meaning than giving you access to broader travel options.

[Que Saudade 284]

So where do i stand now.... What can i do to come out of this situation. Can i pay some penalty and file late?

I imagine it is possible. Here are options to come to my mind as I am not an "expert".

1. File now even though it is late.

2. Consult with a tax attorney who is also knowledgeable about LPR requirements to maintain status.

Personally, I would file late. Then I would have the tax transcripts in hand.

You truly need to examine the laws about what constitutes maintaining status for immigration purposes. Legal Permanent Resident (LPR) status is not a legal right but a revocable privilege, which means you can, or may, lose status even though you have already received a green card under certain defined conditions.

You have admitted that you have lived "Since November 2010 we are living and working full time in the UK", in my opinion it appears you have abandoned residence. But, I am not the one to judge, just making sure you now understand that USCIS may have an issue with this. (and then again.... maybe not... who truly knows anymore)

Good luck with your conundrum....

Edited August 27, 2012 by Que Saudade

[JohnR! 5,495]

1/So Since Novemeber 2010 we are living and working full time in the UK but I am keeping my residence in NY and I visit America every 5 months and 3 weeks to keep my green card up and running.

2/Now we both are planing to go back to the US and get my citizenship done so we can travel and live any where we like freely. I beleive I can apply for

Naturalization after 3 years of my GC and I also need to be physically present for 18 months so If I start living in America from April 2013 - I will be eligible to apply in October 2014?

3/Am i correct there?

4/Me and my wife filed the joint tax return in 2010 - In 2011 my accountant told me not to file because we both did not earned any thing ( As we both are living and working in the UK) The accountant also said that I dont have to declare my foreign income unless it is more than 80 thousand US Dollars, So we did not file in 2011.

1/By your own admission you are living and working in the UK full time. By coming to the US just short of a six-month absence is only helping you go undetected by immigration, it is not keeping you residence.

2/In order to apply for citizenship by marriage, you need to be living in the US for three-years while married; time spent abroad does not count. During these three years you must have been present in the US for 18+ months. So, in order for you to qualify you and your wife will have to spend at least three years of physical presence in the US beofre you can apply. Check out this link: http://www.uscis.gov...le/chapter4.pdf

3/No. Sorry.

4/This is the most pressing of all your circumstances. By not filing taxes in the US you are considered to have lost your residence privilege. Check out this link: http://www.uscis.gov...000082ca60aRCRD

As it stands right now you are not a resident of the US, before the law, your greencard notwithstanding. If you plan to become a US citizen, I would recommend you become a full-time resident first, correct your tax situation and complete the residence requirement.

On a separate note, if your life and your home are in the UK, wouldn't it make more sense for you to apply for British citizenship, thus being able to travel and live anywhere you please, just as easily?

Good luck, whatever your decision.

Edited August 27, 2012 by Gegel

[Boiler 45,525]

You need to talk to a lawyer familiar with maintaining residency issues.

That is your first issue.

[Dave&Roza 748]

Given your situation I would move back to the US and live here as a married couple for 3 more years in the US and then file for naturalization. You will have been a GC holder for more than 5 years and have been married to a US citizen and a LPR for at least 3 years--look at the form and see how you will explain those long absences you must put down to an IO. To file sooner would place you under a microscope given all the things you have not done correctly to maintain your LPR status. Be thankful you still have your GC. Do you really want to do something that could have it revoked and you deported? You have been very, very, very fortunate that some CBP officer has not seen your entries into the US as a means to live abroad while avoiding the residency rules of the US. I would file your back taxes and wait 3 more years. Look at it this way: wait three years and you become a US citizen or file in 18 months and you loose your LPR status and get a lifetime ban of ever setting foot in the US again. Your choice.

Good luck,

Dave

Edited August 27, 2012 by Dave&Roza

[Boiler 45,525]

What is this lifetime ban that gets mentioned so often?

[EgonRonay 2]

I would be worried that your entry pattern will be closely examined when you file for naturalization as the greencard was issued so you could live with your USC spouse in the US but clearly that hasn't been the case thus far.

If they determine you have misused the privilege USCIS can put you in removal proceedings.

This is good advice - you're potentially opening up a can of worms if you apply for citizenship now or soon. The USCIS will be obliged to look at your presence in the US very closely, and may find that you've not been using the US as your actual residence. It's called Permanent Residency for a reason - if you're found to have breached the terms the consequences could be very problematic.

[Que Saudade 284]

It is not just the fact of moving back to US to complete residency requirements. There is the issue that I, and others, pointed out about the non-filing of taxes. As it stands right now, according to USCIS requirements, USCIS "can and may" consider that he has abandoned his residency.

It is a multi-faceted problem.

Please see this link and specifically the part that says "

Fail to file income tax returns while living outside of the United States for any period"

It is a straight forward statement.

The OP has created a difficult situation and I concur with Boiler that legal counsel should be obtained.

Edited August 27, 2012 by Que Saudade