GC Rules - NEED HELP

[Annie]

Hi,
I would appreciate if anyone could clarify my doubts.

I received my GC in Aug 2000. I am eligible to apply for citizenship in Aug 2005. I will be getting married an Australian passport holder(Origin-India) in April2004. I would like to retain my GC and apply for my citizenship.

What are the ways where I can retain my GC.

1. Can I be appointed as an employee in one of the US firms and physically work in Melbourne if it has a branch(through transfer of the same company)
- If so - How many months or years can I be out of USA at a stretch.
- If not - What is the best method to be adopted.

2. Can I apply for Australian permanent residency (thro spousal visa) while I am a GC holder. Will my GC be cancelled.

3. Am I eligible for dual citizenship. (Australia and US)
- if I am - should I wait for the US citizenship to come or can I apply while I am a PR.


Thanks

[kw177]

GC Rules - NEED HELP

Not legal advice - this is all from memory:

1 - Can I be appointed as an employee in one of the US firms and physically work in Melbourne if it has a branch(through transfer of the same company)
- If so - How many months or years can I be out of USA at a stretch.
- If not - What is the best method to be adopted.

Green Card's are based on residncy. It allows you to physically reside and work in the US. If you go outside the US (even if ordered to by your US employer) you are subject to the same rules about continuous residency etc as you would be if left for an extended vacation.

You can leave for up to six months with no problem. 6 months to a year and you need to reapply for admission (since you break the continuous residency requirement).

More than one year but less then two years and you need a re entry permit (which must be applied for before you leave) to get back in.

Over two years and you can't come back (except in special, and extreemly limited, circutances).

2. Can I apply for Australian permanent residency (thro spousal visa) while I am a GC holder. Will my GC be cancelled?

You can be an Australian Permanent resident but at that point you have indicated an intention to live permanently in Australia. Converlsy means that you are indicating that you don not live permanently in the US. In otherwords this action can (and probably will ) be interpreted as abandoning your US residence. There fore your GC would be cancelled.

3 Am I eligible for dual citizenship. (Australia and US)
- if I am - should I wait for the US citizenship to come or can I apply while I am a PR?

If you are a US Citizen you can become an Australian Permanent Resident without affecting your US Citezenship. If you become an Australian Citizen after that your US Citezen "probably" wont be in jepordy.

Australian law allows for Dual Citizenship however American Law does not. However under US law you have to renounce your Citizenship. You can do this by filling in paperwork and filing it with the State Department. You can also do it by taking an action that would signal an intent to abbandon your Citizenship.

In other words let's say you were a US Citezen and were elected President of Fiji. The State Dept. would see this and conclude that your intention is to renounce your US Citizenship (since you can't serve two countries at once). So even though you never filed the papers your actions have implied a renouncement of citizenship.

The State Department have said that a "routine" (foreign) citizeship oath is not enough to imply renouncement. However taking a "policy level" government job in your new country would imply renouncement.

So it seems that becoming an Australian Citizen will not cause you to lose your US Citizenship, however if you ran for Parliament over there and were elected you would be on shaky ground.

Run a search on google for "Dual Citizenship" and there should be some more complete discussions of this issue.

[JoeF]

Re: GC Rules

> More than one year but less then two years and you need a re entry permit (which must be applied for before you leave) to get back in.
>
> Over two years and you can't come back (except in special, and extreemly limited, circutances).

Basically right, but the reentry permit is valid for 2 years from issuance. Given that the issuance of a reentry permit currently takes over 1 year, you could in principle stay abroad for longer.

> Australian law allows for Dual Citizenship however American Law does not. However under US law you have to renounce your Citizenship. You can do this by filling in paperwork and filing it with the State Department.

That's wrong. US law allows dual citizenship. It just doesn't encourage it.
In the oath, you have to denounce all allegiance to foreign countries. That does not mean, however, that the authorities of these foreign countries recognize the renouncement. They may and often do consider you still as a citizen of their country. The US does not require to renounce foreign citizenships in front of the foreign country's officers.


> You can also do it by taking an action that would signal an intent to abbandon your Citizenship.

It is nearly impossible to abandon US citizenship unless you explicitly say so.

> In other words let's say you were a US Citezen and were elected President of Fiji. The State Dept. would see this and conclude that your intention is to renounce your US Citizenship (since you can't serve two countries at once). So even though you never filed the papers your actions have implied a renouncement of citizenship.

Even this is a gray area. It is not automatic, but is evaluated on a case-by-case basis by DoS officials.

" Currently, there is no general prohibition on U.S. citizens' running for an elected office in a foreign government."
[...]
"Pursuant to 349(a)(4), accepting, serving in, or performing duties of in a foreign government is a potentially expatriating act."
[...]
" Intent is determined on a case-by-case basis in light of the facts and circumstances of each individual's case. If expressed intent and conduct are consistent with a lack of intent to relinquish U.S. citizenship, the Department would generally conclude that no loss has occurred."

[kw177]

GC Rules - NEED HELP

> US law allows dual citizenship. It just doesn't encourage it.

My undestanding is that State Department Policy is to do nothing about it. However my point was under US Law you are recognized as a US Citizen ONLY. Under Australian Law you are recognized as both.

Translation: If your being a US Citizen requires you to violate some (minor) law you could use that as a Defence in court (wheras an Australian citizen only could not).

The reverse is certainly not true in the US legal system.

[JoeF]

Re: GC Rules

> My undestanding is that State Department Policy is to do nothing about it. However my point was under US Law you are recognized as a US Citizen ONLY. Under Australian Law you are recognized as both.

Wrong understanding. It is legal under US law to be a dual citizen. The main Supreme Court decision on this matter was in the late 60's, the case of Afroyim v. Rusk. It is not just policy that prevents the US State Department to do anything about it, they are prohibited by the Supreme Court decision to do anything about it.
The US simple does not care what other nationalities you have. It is completely irrelevant.

> Translation: If your being a US Citizen requires you to violate some (minor) law you could use that as a Defence in court

Huh? The US has no law whatsoever that you could violate by being a dual citizen. That was my whole point. It is absolutely, perfectly legal under US law to be a dual citizen.

Please read the ton of information on the Dual Citizenship FAQ that I mentioned earlier.

[kw177]

Re: GC Rules

US Law Allows dual citizenship. Australian Law Formaly Recognises it. There is a difference. Thats why A dual US/Australian Ctizen is required to enter the US on an American Passport only. When entering Austrealia they can use either.

[JoeF]

Re: GC Rules

> US Law Allows dual citizenship. Australian Law Formaly Recognises it.

Hmm, earlier in this thread you said "Australian law allows for Dual Citizenship however American Law does not." It is nice that you apparently accepted my correction.

> Thats why A dual US/Australian Ctizen is required to enter the US on an American Passport only. When entering Austrealia they can use either.

Hmm, dual US/Australian citizens still need proof of Australian citizenship. And that's usually the Australian passport.
See www.citizenship.gov.au/faq.htm#8
"I have just become an Australian citizen. Why must I use my Australian passport to leave and re-enter Australia?
Only Australian citizens have an unrestricted right to travel freely in and out of the country. All other people must have an authority, in the form of a visa, to enter and stay in Australia.
Australian citizens should use their Australian passports to pass through Immigration/Customs clearance when returning to Australia.
This is because an Australian passport is the only definitive evidence that proves the traveller is an Australian citizen. Without an Australian passport, delays may be experienced while the traveller's Australian citizenship is verified. Many dual/plural citizens hold passports of more than one country."

and www.citizenship.gov.au/faq.htm#13
"Do I have to use my Australian passport if I also have a passport from another country?
Many dual/plural citizens hold passports of more than one country. Australians re-entering Australia are required to present satisfactory evidence of their citizenship. An Australian passport is the preferred and most conclusive proof of Australian citizenship. People seeking entry as an Australian citizen without an Australian passport may face difficulties and delays in getting an airline to carry them and on entering Australia."