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.
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