World Journal Weekly Q & A - July 15, 2007

Q & A 1.


Q&A 1.

Fellow Lawyer Asks Questions Including Appeal or Re-filing for Naturalization Client Denied for Not Maintaining Residence

A colleague asks:

Client had counsel and was denied naturalization.

First, CIS says she was outside the U.S. 906 days (client says CIS miscounted and it is 899) and thus lacked physical presence. She and two immigration attorneys count the days and each agreed she did not lack physical presence.

Second, in 2004 and 05 she filed Form 2555 Foreign Earned Income and listed Nepal as her tax home, according to the denial. Client says she checked with a CPA prior to filing for naturalization who said she can legitimately file this Form and not lose residence in the US. She also says of the tax home test, she was clear and that CIS misstated the law.

Third, she still has the option for the rehearing.

My questions:
In NY City, how much time does it take to have a rehearing scheduled?
If we do not opt for a rehearing, could she refile the application (she has now accrued 8 months of continuous presence) right away or do we have to wait one year and a day?
Can she overcome this tax filing going forward on the case if she files as a New York resident? Is there any other advice you would give?

Dear Colleague:

We have not done a naturalization rehearing request for quite some time, but the last one that we did in 2006 took approximately four months from the date of filing until the interview. Persons who skate close to the edge on days of residence and file for an exemption of income earned overseas are vulnerable to denials from U.S.C.I.S. that they have not been maintaining their residence for naturalization purposes. I suggest that your client accrue more time in the United States (hopefully she does not lose good time on the back end of the five years) before refiling her naturalization application. Filing taxes as a New York resident going forward might certainly help in a subsequent naturalization filing. In addition, I do note that in a case that we had in the past, an examiner was more amenable to granting naturalization where the client was willing to amend the tax returns for the years in which she took the foreign earned income exemption. I would further suggest that your client bring to interview whatever proof that she has of ties and bonds that she had with the U.S. during the years in question, e.g. ownership of real and personal property in the States, bank accounts, driver's licenses, memberships and associations in clubs, etc.

 

Copyright © 2003-2007 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.