LPR Living with a Citizen Spouse Employed Abroad by an American Company: Any Risk of Abandonment?

Karen writes to ask:

I am a U.S. green card holder, but I live in Asia with my husband, who is a U.S. citizen employed here by an American company. Is there any risk that I may unintentionally lose my LPR status because I am spending too much time outside the U.S.?

Our law firm is often asked by lawful permanent residents (LPRs) about how to preserve their status while abroad for a variety of reasons, such as work, study, caring for an ill relative, etc. General information about this can be found here: Green Card Holders Staying Abroad Over 6 Months Risk Abandonment.

In cases similar to yours, Our firm has argued successfully to U.S. Customs and Border Protection (CBP) at ports of entry and to Immigration Judges in deportation proceedings that even an indefinite stay abroad does not result in abandonment if for purposes of accompanying a U.S. citizen spouse employed abroad by an American company.

Consider an analogous situation. If the LPR (not the U.S. citizen spouse) were employed overseas by a U.S. company, even indefinite employment abroad may be considered “temporary” and thus not cause “abandonment.” Matter of Kane, 15 I. & N. Dec. 258, 262-263 (BIA 1975), citing Matter of Wu, 14 I. & N. Dec. 290 (RC 1973), and Matter of Manion, 11 I. & N. Dec. 261 (DD 1965). The rationale is related to INA § 316(b), which provides that certain LPRs employed abroad for U.S. companies can file a Form N-470, Application to Preserve Residence for Naturalization Purposes, to seek an exemption from the continuous residence requirement for naturalization:

one purpose of section 316(b) was to benefit an American firm engaged in developing international trade by permitting its lawful permanent resident aliens to retain the continuity of their residence for naturalization purposes while employed abroad by such firm. It is inconsistent with the objectives of section 316(b) to hold that an alien who has been found eligible for the benefits thereof has lost his status as a permanent resident solely because of his extended absences abroad in the employment of the American firm.

Matter of Wu, 14 I. & N. Dec. 290, 293 (RC 1973).

The facts of Matter of Manion are striking. At the time he was granted LPR status, he had been employed abroad for a U.S. corporation for about 15 years. Just 4 days after obtaining LPR status, he applied for and was granted a reentry permit to continue that work abroad. The district director held that it had been error to deny him a new reentry permit five years later because his work abroad was “temporary” even though it was indefinite. (He “hopes” to return to the U.S. when “it is possible.”).

The facts of Matter of Wu are also illustrative. He had worked abroad for about 4 years after becoming an LPR, and he had no timeline to return to the U.S. except that it would be “upon termination of his assignment abroad.” His work involved the development of foreign trade and commerce of the U.S. Notably, he had an approved Form N-470, Application to Preserve Residence for Naturalization Purposes.

In your case, Karen, the difference from the above cases is that it’s not you, the LPR, but instead your U.S. citizen husband working abroad for the U.S. company, and you are abroad to accompany him. While there does not appear to be any direct authority for this proposition, it is nonetheless clear. The principle is similar to the above principle that an LPR whose presence abroad could qualify to preserve residence for citizenship under INA § 316(b) has also not abandoned LPR status. See Legal Opinion of INS General Counsel, HQ 319-C (Feb. 23, 1993). There is a separate statutory provision, INA § 319(b), providing that the spouse of a U.S. citizen employed abroad by a U.S. company is wholly exempted from the usual continuous residence and physical presence requirements for naturalization. The policy behind this “expeditious naturalization” statute is to benefit Americans firms engaged in developing international trade by allowing them to employ U.S. citizens abroad without the need for their LPR spouses to make the tough choice between either remaining in the U.S. to meet the residence requirement for citizenship or accompanying the U.S. citizen abroad. Just as in the above-cited cases, it would be inconsistent with the statute to hold that a wife eligible for “expeditious naturalization” on the basis of her husband’s employment for a U.S. company abroad has nonetheless abandoned LPR status.

So my feeling is if you would meet the requirements for expeditious naturalization under 319(b) then you should not be at risk of abandoning LPR status. For more on expeditious naturalization, see our Guide to Expeditious Naturalization.

Of course, when entering the U.S., you need to be ready to prove this. Feel free to schedule a consultation to discuss whether this line of reasoning applies in your case. Our firm could help you gather the proper evidence to show to CBP, provide you with a supporting legal brief, and help you prepare to answer the CBP officer’s questions in a way that is truthful and helpful to avoid abandonment.

 

 

 

Choosing Between U.S. and Chinese Citizenship: Pros and Cons

Are you in a position where you need to choose between U.S. and Chinese citizenship? For example, are you a U.S. green card holder from China considering applying for naturalization in the U.S.? Or are you a person who automatically acquired both Chinese and U.S. citizenship at birth but is now considering renouncing Chinese citizenship? The below table lists some specific factors to consider. Continue reading “Choosing Between U.S. and Chinese Citizenship: Pros and Cons”

U.S. Consulate in Shenyang on Pro Forma Visas for Dual Nationals

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Death by a Thousand Cuts: Naturalization Backlogs

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Guide to Acquisition of U.S. Citizenship by Birth Abroad

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What Counts as an American Institution of Research or International Organization for Purposes of Expeditious Naturalization?

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Check out the below lists to see if you may qualify. Then, for more on expeditious naturalization, see here. Continue reading “What Counts as an American Institution of Research or International Organization for Purposes of Expeditious Naturalization?”

Expeditious Naturalization under Section 319(b) for Spouses of U.S. Citizens Employed Abroad

This article covers the requirements and procedures for spouses of U.S. citizens employed abroad by U.S. employers to apply for expeditious naturalization under section 319(b) of the Immigration and Nationality Act.[1]

The main benefit of expeditious naturalization is that the applicant is exempt from the normal requirements that he or she (a) continuously reside in the U.S. as a lawful permanent resident (LPR) for 3 or 5 years immediately prior to filing the naturalization application[2]; and (b) be physically present in the U.S. for one half of that time.[3] Continue reading “Expeditious Naturalization under Section 319(b) for Spouses of U.S. Citizens Employed Abroad”

See if You Are Eligible for Expeditious Naturalization

Most applicants for naturalization must first reside in the U.S. as a lawful permanent resident for a continuous period of 5 years. However, that requirement can be waived if you are eligible for expeditious naturalization based on your U.S. citizen spouse’s employment abroad for one of the following types of employers: Continue reading “See if You Are Eligible for Expeditious Naturalization”

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President-Elect Trump last night tweeted a proposal that persons who burn the U.S. flag should “perhaps” lose their American citizenship. Regardless of one’s views on flag burning as protected free speech, the specter of the government depriving Americans of their citizenship is terrifying and unconstitutional. Continue reading “Trump’s Irresponsible Proposal: Deporting U.S. Citizens”

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Continue reading “Communist Party Membership Makes Some Ineligible for U.S. Green Card and Citizenship”

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CNN on Jeb Bush’s “Anchor Baby” Comments (Quoting Gary Chodorow)

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Continue reading “CNN on Jeb Bush’s “Anchor Baby” Comments (Quoting Gary Chodorow)”