lawyers in India

Preserving Residence as a US Green Card Holder While Residing in India

Poorvi Chothani - An attorney, licensed to practice law in India and in the State of New York, USA
Immigration Law
Legal Service
  • Registration of Foreigners in India | Regulations Applicable To Foreigners In India | Preserving Residence as a US Green Card Holder While Residing in India

    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.

    The author can be reached at: [email protected]

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