Dredri8079

Hi all. I have a question regarding making a short visit to the US after receiving my immigrant visa but before relocating there permanently.

I am in the process of applying for a marriage-based immigrant visa via the USCIS at the London Embassy. My wife is the USC and has already moved back to the US to start a new job. I am a UK Citizen. I have submitted my DS230 and DS2001 forms and attended the medical (on 8th July) and am waiting to receive my interview date (hopefully soon!).

As the timetable for getting a visa application approved is uncertain and potentially lengthy I will not be resigning from my job here in the UK until my visa is approved. When I do resign I have to work a 3 month notice period and I will not therefore be moving permanently to the US until at least 3 months after my visa is approved (my intention is to resign immediately so I would move permanently to the US after 3 months and, say, 1 day of receiving my visa).

I would like to visit my wife in the US for a couple of weeks during the 3 month period after I receive the visa but before I finish work in the UK. However, I understand that the first visit I make to the US after receiving the visa (i.e. when I visit my wife) will be the visit in which I will be deemed to "activate" my permanent resident status and hand over the mysterious brown envelope etc. I am concerned that, as I will only be visiting the US for a short period and then returning to the UK for a month or two before moving to the US permanently, I will experience difficulties when re-entering the US as I will not have been permanently resident in the US since "activating" my permanent resident status.

Does anyone have any views on whether this is a legitimate concern or whether I'm just being paranoid? I have found some guidance online that the immigration officer at the airport has the discretion to refuse re-entry if he/she thinks that you have failed to establish and maintain a permanent residence in the US but that the rule of thumb that they use in considering whether this is the case is that you have been away from the US for more than a year. I will probably only be away from the US for around 1 to 2 months between visiting my wife and returning to the US permanently so am hoping this shouldn't be an issue.

Any thoughts very gratefully received!

Rete

All concerns are legitimate, however, your concern is unwarranted. You can enter the US, activate your visa, give your wife's address as the address that your green card will be mailed and then leave to return to the UK to finish up your termination notice at work.

The only time someone would have an issue doing this is if they were going to be outside of the US for six months or more. Then it is suggested that they file an I-131 for a returning resident permit. That requires them to remain in the US until they have had their biometrics done which is on the average 30-60 days after filing.

Since you will only be outside of the US for 2 months, there should not be a problem. Your passport will be stamped with the I-551 showing you as a permanent resident and coming back into the US will not be problematic.

Dredri8079

Thanks for the response Rete - that's really helpful and certainly puts my mind at ease.

jeffreyhy

By definition, when you " "activate" [your] permanent resident status" you will become permanently resident in the USA. If you then wish to make a 3 month visit back to the UK to wrap up your obligations there, go right ahead.

Regards, JEff

S Folinsky

The OP's scenario is quite common.

If one wants to read up on it -- the classic "mother" case is Matter of Huang.

Steve_

The problem isn't immigration, the problem is taxes. Under US law, as soon as you become an LPR that's what you are - a permanent resident and your tax home moves to the US. So if you keep working in the UK, you owe US taxes on that income, bank interest etc. to the IRS from the date CBP stamped your passport.

You are essentially resident in two places at the same time for tax purposes.

You can't claim to be non-resident in the UK because clearly you aren't given your length of residence and ties, until you actually leave and dissolve those ties, by filing a P85 with HMRC and an R105 with your bank and changing over your DL etc.

You can claim a foreign tax credit in the US on Form 1116 but the tax credit is designed to be used by people temporarily abroad so it doesn't cover everything, or you can file Form 2555 and claim to be non-resident for tax purposes but that is unwise as you will see from reading Form N-400 for example (essentially it can imperil your LPR status).

There's always a bit of fudge room when you emigrate when it comes to taxes, courts realize it takes time to move but it's best to keep it to the absolute minimum, imo.

Read IRS publication 519 for more information.

A common mistake I've seen in many threads on here is that people file their taxes incorrectly the first year they're in the US, you're supposed to file a dual-status return unless you moved your tax home on January 1st, I'm not aware of any software that can do a dual-status return. For some reason they removed the example of how to do one in 519, older editions explain in more detail how to do one. Essentially it is a pro-rated tax return for the period you were resident in the US.

jeffreyhy

One has to report the income to the IRS, but may not owe any tax on the income.

Regards, JEff

S Folinsky

I am NOT an expert on this -- but I seem to recall that the US-UK Tax Convention provides for avoidance of "double taxation."

Something to look into.

ian-mstm

No, you don't. What are they going to do... fire you?

Ian

BunnyGirl

Sorry for hijacking but I wondered about this, I'm supposed to give 3 months notice as well. Surely if I leave before my notice period they're going to give me a rubbish reference - or don't employers in the US worry about things like that?

Michael

Many US employers don't give out references (possible lawsuit if it is negative) so most companies usually don't expect a reference from employers. Normally if the company calls you previous employers, the only thing they will say is the employee left in good standing or they were fired. Usually they get their references from a list of people that the potential employee has worked with (supplied by the potential employee). Normally most potential employees provide a list of people that will give them a good reference and the company may or may not call them. Also US companies usually only require a two week notice so a three month notice would seem very strange.

Secondly you have 6 months following your medical to enter the US to activate your visa so normally even if you gave the three months notice, you should normally have time to activate your visa.

Rete

JEff is right on. You will be paying taxes in the UK anyway on the monies you earn for those few months until you leave your employment. It is not a big issue as you will have had income from January to whenever you stop working as your UK tax base. As for the US, there is an agreement in place that helps avoid the issue of double taxation if the income is under a certain amount. Years back it was something like $86,000. If you paid taxes on that in UK, then there is no US tax on that same amount.

jeffreyhy

I agree to a point. I don't think most US employers would even go as far as saying whether the former employee left on good terms or bad. They will only confirm the dates of employment. I think most corporate employers today will hire a firm to run background checks to confirm the educational, employment, and other background claims that the potential employee has made, as well as to find unflattering background information that the potential employee has not provided. I've no idea of the extent to which these firms may have access to non-US sources of information. Agreed. Agreed again. A US employer won't care that you gave less than 3 months notice, even if they somehow found out that you had given less. Regards, JEff

ian-mstm

Yes, they might. I'm not suggesting there isn't a downside... but only that you do have a choice in the matter.


I'd be surprised if a US employer contacts the UK to check your references.

Ian