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    Published on 10-02-2012 10:23 AM

    The Taxman Cometh: When Taking A Foreign Earned Income Exclusion On Your Tax Return Can Hurt Your Ability To Naturalize

    by Cyrus D. Mehta and Gary Endelman

    Maintaining continuity of residence is paramount if one wants to naturalize and become a US citizen. For an in depth discussion, we refer you to our prior blog Naturalization In A Flat World and Gary Endelman’s recent article, The Enigma of Disruption: What Continuity of Residence In Naturalization Really Means, 17 Bender’s Immigration Bulletin 1437, August 1, 2012. Even though a naturalization applicant meets all the eligibility criteria, an examiner can still deny an application for failure to maintain the continuous residence requirement. Tax issues can further trip up the applicant, especially when one is trying to shield foreign earned income from US taxation, which this blog will focus on.

    But before we do so, we provide the basic eligibility criteria for naturalization.
    An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

    Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

    INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

    What precisely is continuous residence? INA § 101(a)(33) defines residence as follows: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” But that only tells us what residence means, not continuous residence. The regulation, on the other hand, at 8 C.F.R. §316.5(c)(1)(i) tells us what is not continuous residence. It says that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back ...
    Published on 10-02-2012 10:14 AM

    Bloggings on Immigration Law and Policy

    by Greg Siskind

    September 29, 2012

    Published on 10-01-2012 03:09 PM

    Bloggings on Deportation and Removal

    by Matthew Kolken

    TRUST Act Vetoed by California Governor Jerry Brown (D)

    Late last night California Governor Jerry Brown vetoed AB 1081, commonly known as the TRUST Act. The TRUST Act would have prevented California law enforcement officers from participating in the Federal immigration fingerprint data sharing program known as Secure Communities (SCOM).  

    SCOMM requires local law enforcement to detain suspected undocumented immigrants arrested for criminal violations until Immigration and Customs Enforcement can verify their immigration status. Fingerprints of suspected ...

    Published on 10-01-2012 03:07 PM

    Bloggings on Nurse and Allied Health Immigration

    Chris Musillo

    MU's Chris Musillo has been selected as the Discussion Leader on Thursday's AILA Teleconference, Third Party-Site Placement: Hs and Ls.  AILA members can register on AILA’s website.  The Teleconference will focus on the legal issues incumbent in staffing company businesses: Healthcare staffing, IT staffing, and Hospitalist organizations.
    Date: Thursday, October 4, 2012 @ 2:00 pm (EDT)
    Title: Third Party-Site Placement: Hs and Ls 

    This panel will discuss how to deal with situations where an H-1B or L-1 sponsor places a beneficiary at a third party location. The panel will discuss the key issues in third party site placement including how to determine if the beneficiary is actually an employee of the sponsoring entity sufficient for H-1B or L-1 approval. Panelists will also discuss practical ways to demonstrate the employer-employee ...
    Published on 10-01-2012 09:51 AM

    The "Cinderella" DV-2014 Lottery: "Winners" to Get another Dance at the Ball

    by Rahul Soni

    The U.S. diversity (DV) green card lottery opens on October 2, 2012 and applications can be submitted until November 3, 2012.  This year the U.S. government will register over 100,000 immigrant-hopefuls and issue 55,000 green cards to lucky winners.  Unfortunately, as with many government programs, the DV program has a deceptive appearance of simplicity, but has numerous pitfalls.  ...

    Published on 09-28-2012 10:36 AM

    E-Verify Fails in City Council's Legal Battle

    Ann Cun

    For those of you following the E-Verify saga that was Springfield, Missouri, you may be relieved to know that legal saga is (somewhat) over. (Don’t worry, we’ve got you covered if it’s slipped your radar.)

    July of 2011, voters submitted an initiative that would ultimately require all employers in the City of Springfield to enroll in the E-Verify program and check the work authorization of prospective employees. (We covered this development on our E-Verify State Legislation Map here.) The initiative contained a series of conditions and enforcement provisions for employers who failed to comply. In February of this year, voters approved the initiative, which the City Council adopted. The law would have gone into effect very shortly thereafter.

    In early May, multiple businesses in the city filed a lawsuit against the city on grounds that the E-Verify initiative was unconstitutional. A temporary injunction was sought by the plaintiffs and later granted by a U.S. District Court Judge. [This event occurred prior to the U.S. Supreme Court decision on Arizona v. United States, decided later in June.] What ensued in the following months appeared to be little legal wrangling on either side. According to local news reports, Springfield City Attorney ...

    Published on 09-28-2012 10:20 AM

    Bloggings on Immigration Law

    by Roger Algase

    Is There A Legitimate Argument Against The Diversity Visa Lottery?

    Ever since the Diversity Visa (DV) lottery was enacted in 1990 in order to make it possible for more people from low immigration countries  - mainly in Africa and Asia - to immigrate to the US without meeting family or employment-based requirements, this program has been under attack from immigration restrictionists. At a hearing before the Republican - controlled House Judiciary Committee's Subcommittee on Immigration, Border Security and Claims in 2004, all the expected aguments against the DV program were trotted out, and they have been repeated many times since, especially by people such as former Congressman Tom Tancredo, Center for Immigration Studies Director Mark Krikorian and other opponents of "mass immigration". 

    According to its detractors, the main arguments against the DV program are as follows:

    a) The DV program does not support the nation's traditional immigration goals for providing needed workers (skilled or unskilled), since any high school graduate is eligible regardless of whether US employers would need him or her to work for them; 

    b) The DV program does not support America's traditional goals of uniting families, since no US family ties are required for eligibility.,

    c) The DV program would make it easier for terrorists to enter the US, and 

    Read More Read More

    Published on 09-28-2012 10:10 AM

    Bloggings on I-9 E-Verify Immigration Compliance

    Bruce Buchanan

    Company and its Owner Plead Guilty to Cover-up of Unlawful Hiring

    In another instance of Immigration and Customs Enforcement (ICE) cracking down on employers who are hiring undocumented workers, the owner of Wazana Brothers International, which does ...

    Published on 09-28-2012 10:00 AM

    Bloggings on Immigration Update

    Carl Shusterman

    Today, in De Osorio v. Mayorkas, the Ninth Circuit joined with the Fifth Circuit in Khalid, and held that the plain language of the Child Status Protection Act (CSPA) provides automatic conversion and priority date retention to aged-out beneficiaries of all family-based preference categories. 

    The Court’s decision is an important victory in a battle that began with two lawsuits filed in 2008.  For those who have not been following this litigation, a bit of background:   

    Traditionally, when a child turned 21 years of age, she was no longer eligible to immigrate to the U.S. together with her parents. Once the parents become permanent residents, they have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entails years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, ...

    Published on 09-27-2012 10:21 AM

    Teaching Young Lawyers the Concept of Ownership

    by Ed Poll

    Today's business conditions continue to have a major impact on solo and small law firm financial performance. Yet there remains a far greater and more significant problem for any small firm's future health: preparation of the firm's young lawyer (or lawyers) to assume future responsibility. ...

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