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Introduction
With what is perceived as the reverse brain drain, there are
several foreign nationals of Indian origin returning to India to
take part in India’s current economic boom. Many of these are US
nationals or US Lawful Permanent Residents (LPRs), commonly known
as Green Card holders. US nationals of Indian origin can obtain an
appropriate visa or be registered as Overseas Citizens of India,
enabling them to reside and work in India for extended periods.
But, when LPRs reside outside the US for extended periods they run
the risk of losing their Green Card or permanent resident status.
An LPR becomes a citizen of
the US by a process termed naturalization. Generally, to qualify for citizenship by
naturalization an LPR must have been a permanent resident of the
US for at least 5 years (three years if qualifying under the
citizen-spouse exemption described below) and also meet certain
requirements of physical presence in the US. The naturalization
applicant is required to have resided in the US, being physically
present in the US for at least half of that time, i.e. at least 30
months of those five years. It should be noted that the LPR spouse
of a US citizen may seek US citizenship only after three years as
a permanent resident, rather than five years as under the general
rule. One half of this time or 18 months must be spent physically
in the US. In addition, the couple must be married for the entire
three years, with the US citizen spouse being a US citizen for the
entire three-year period. The couple must have also been
living
in marital union for the three years prior to filing the
naturalization application and must still be married to each other
at the time of naturalization.
An individual may travel during this period in LPR status, but
must not be absent for a continuous period of more than one year
during the periods for which continuous residence is required. All
absences from the country do not terminate the continuous period
of physical presence as certain brief absences from the country
may be allowed. Absences even for six months up to a year in the
five years prior to a citizenship application, does not terminate
the period of physical presence. But such absences should be
handled cautiously. Absences that last for more than six months
are presumed to break the period of continuous stay, but the
presumption can be overcome by demonstrating that the applicant
did not abandon the US residence. Absences of more than one year
will terminate continuous residence unless the applicant complies
with certain requirements.
In addition, during the three months period, prior to filing the
application for naturalization the person must have resided in the
district of the US Bureau of Citizenship and Immigration Services
(USCIS), where he or she wishes to file the application. Once the
application for naturalization has been filed the LPR must
continue to reside in the US.
Application to Preserve Residence for Naturalization Purposes
An LPR that remains outside the US for more than one year will
disrupt the naturalization residence requirement, unless he or she
is absent due to a qualifying employment as described below and is
the beneficiary of an approved N-470 application. In certain,
limited situations, a person may be able to preserve residency,
previously accumulated for naturalization purposes, even though he
or she may be residing outside the US for longer than one year. In
such cases the time spent outside the US may be counted toward the
residency requirement. Eligible persons include persons employed
in specific jobs in the US government, private sector or religious
organizations and foreign nationals that are members of the US
armed services. In addition, certain LPRs may be eligible for
expeditious processing if his or her US citizen spouse is employed
outside the US as a missionary, or by a US corporation or is a
member of the US military.
The benefit of qualifying for preserving the residency may be
extended to the qualifying person’s spouse and dependant children
who are all members of the same household and have lived with the
principal applicant while abroad.
An LPR who will be absent from the US, for more than one year due
to a qualifying employment, should file an N-470 application to
preserve his or her residence for the naturalization process. An
LPR should have been physically present and residing in the US for
an uninterrupted period, without any absences whatsoever, for at
least one year, after admission as an LPR, before he or she is
eligible to file an N-470 application. In addition, the N-470
application should be submitted to the USCIS before having been
absent from the US for a continuous period of one year. To obtain
approval to preserve residence, qualifying LPRs must file their
N-470 application before departing from the US. The LPR must also
explain his or her employment with one of the qualifying
organizations. Furthermore, certain specified religious workers
are exempt from this requirement.
To qualify for an N-470 application the applicant must have been
physically present in the US for an uninterrupted period, without
any absences whatsoever, for at least one continuous year
following admission as an LPR. Any absences, even brief ones, from
the US, during this period are not allowed. Additionally, the
applicant should be employed outside the US by either (i) the US
Government, or (ii) a US research institution recognized by the US
Department of Homeland Security, or (iii) a US business (a US firm
or subsidiary thereof) engaged in whole or in part in the
development of foreign trade and commerce of the US, or (iv) a
public international organization of which the US is a member. The
LPR must also prove then the absence from the US was because of
the employment.
Religious workers may apply before or after departure, or after
returning to the US. They are not required to have lived in the US
for a specific period of time prior to filing an N-470
application.
It should be noted that filing a form N-470 application to
preserve residence for naturalization purposes does not relieve an
LPR from obtaining a re-entry permit, in advance of trips outside
the US for a year or more.
Spouse of Permanent Resident Employed Abroad
An exception to these requirements is for time spent outside the
US during which a person is considered to be constructively
present in the US. Under the US Immigration and Nationality Act,
the residence requirements are waived if the applicant is the
spouse of a US citizen who is (i) a member of the U.S. Armed
Forces, or (ii) an employee or an individual under contract to the
US Government, or (iii) an employee of an American institution or
research recognized by the US Department of Homeland Security, or
(iv) an employee of an American-owned firm or corporation engaged
in the development of foreign trade and commerce for the US, or
(v) an employee of a public international organization of which
the United States is a member by law or treaty, or (vi) a person
who performs ministerial or priestly functions for a religious
denomination or an interdenominational organization with a valid
presence in the US. If the citizen spouse is employed for at least
one year according to an employment contract or order, then the
residency requirements are waived. As per the applicable law, the
citizen spouse’s employment abroad must be for a period of at
least one year. If this requirement is met, the naturalization
application can be filed before the employment abroad begins.
There is no minimum required residence in the US or a minimum
period for which the applicant must have been a permanent
resident. The applicant must, however, declare his or her
intention to reside permanently in the US upon the termination of
the spouse’s foreign employment.
If a person has broken the continuity of residence he or she may
re-apply for naturalization four years and one day following the
date of his or her return to the US to resume residence. If the
statutory 3-year period is involved, then it is two years and one
day following his or her return to the US. In addition, during war
times, soldiers being deployed overseas are eligible for
citizenship without meeting the normal residency requirements.
Immigration Laws in India:
Immigration Laws, provisions under the Constitution of India,The
Immigrants (Expulsion from Assam) Act, The Immigration (Carriers'
liability) Act, 2000 and the complete procedure to be followed for
immigration into India...
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Preserving
Residence as a US Green Card Holder While Residing in India
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The
author can be reached at: lawquest@legalserviceindia.com /
