Posted onFebruary 24, 2021|Comments Off on Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars
On February 18, the U.S. Citizenship Act of 2021 was introduced in the House by California Congresswoman Linda Sánchez and in the Senate by New Jersey Senator Robert Menendez. The White House first announced the bill on January 20, which was the first day of the Biden Administration.
The bill is 353 pages long. It contains sweeping provisions that, if passed, will overhaul many parts of the U.S. immigration system.
It seeks to give certain undocumented immigrants Lawful Prospective Immigrant (LPI) status and an 8-year path to U.S. citizenship; allow eligible DREAMERS, TPS holders and farmworkers to immediately apply for permanent residence; repeal the 3/10 year unlawful presence bar under INA 212(a)(9)(B) and the permanent bar under INA 212(a)(9)(C); and create an exception to the misrepresentation of citizenship bar for any person who was under age 21 when the false claim was made.
In Episode 8 of The Legal Immigrant podcast, I focus on the following provisions in the reform bill:
1. Section 1101, Adjustment of Status of Eligible Entrants to that of Lawful Prospective Immigrant (LPI), and Section 1102, Adjustment of Status of Lawful Prospective Immigrants
Provides earned 8-year path to citizenship for certain undocumented immigrants who have been present in the U.S. on or before January 1, 2021, and certain persons who were removed from the U.S. on or after January 20, 2017, but were inside the U.S. for at least 3 years prior
2. Section 3104, Promoting Family Unity
Repeals the 3/10 year bar under INA 212(a)(9)(B) due to accrual of more than 180 days of unlawful presence in the U.S. prior to departure
Eliminates the permanent bar under INA 212(a)(9)(C) due to illegal re-entry following more than 1 year of unlawful presence or following a removal order
Creates exception to the false claim to U.S. citizenship bar under INA 212(a)(6)(C)(ii) for persons who made the misrepresentation when they were under age 21
Key points to consider:
1. The Immigration Reform bill is bicameral (introduced in the House and Senate on February 18), but is not bipartisan (sponsored by Democrats only and no Republicans).
The comprehensive nature of the bill and the big changes proposed will make it harder to get the necessary votes. Moderation could be needed especially when Democrats have a slight margin in the House and a 50-50 split in the Senate. Vice President Harris has the tie-breaking vote. But a supermajority of 60 senators is normally needed to pass major legislation in the Senate.
To move forward, the full legislation might have to be split up into separate smaller bills, or get added to the budget reconciliation process. Some Republicans have voiced opposition to the Biden Administration’s approach to immigration reform.
2. Even if the law is passed and signed by the President, it may take up to a year for the new rules to be drafted. And it will take some time for the new application processes and forms to be rolled out and implemented. The applicant will also have to gather documents, including evidence of identity, proof of physical presence in the U.S. for the period that is required by law, and supporting records for any waiver of inadmissibility that is needed.
3. If you already qualify for another way to immigrate to the United States, such as by employment-based immigration or by a legal, bona fide marriage to a U.S. citizen, it’s better to use the existing path instead of wait for the results of this reform bill.
4. You must not deliberately fall out of status or illegally re-enter the U.S in the hope that you will be eligible for LPI status or other immigration benefits that have yet to be passed into law. Unlawful presence and illegal re-entries to the U.S. continue to have serious immigration consequences unless the law is amended to get rid of them.
Republican Staff Report from Representative Jim Jordan and Representative Tom McClintock, How the Biden Administration’s Immigration Proposals Risk Undoing the Success of the Trump Administration, available on Republicans Judiciary Committee website
For more information on inadmissibility waivers, see:
The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onFebruary 2, 2021|Comments Off on Biden Administration Proposes Immigration Bill to U.S. Congress: The U.S. Citizenship Act of 2021
On January 20th (day 1 of the Biden Administration), the White House announced it is sending a bill to Congress to reform major parts of the U.S. immigration system.
It includes an earned roadmap for certain undocumented immigrants, Dreamers, TPS holders, and immigrant farmworkers to apply for green cards and, eventually, U.S. citizenship.
Other proposed changes include reducing the backlog in family-based and employment-based immigration; recapturing unused visas; allowing intended immigrants with approved family petitions to join relatives in the U.S. on a temporary basis while they wait for green cards to become available; and eliminating the 3/10-year unlawful presence bars to re-entry.
The bill authorizes additional funding to deploy new screening technology at U.S. ports of entry and to address the root causes of migration in the Central American region.
As of the date of this blog post, the bill has not been formally introduced in either the House or the Senate. It will NOT become law unless passed by Congress and signed by the President.
To hear more about the proposed bill, click HERE for Episode 6 on The Legal Immigrant podcast. And if you want to encourage others to listen to the show, please post a 5-star rating and positive review on Apple Podcasts or other app!
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onJanuary 4, 2021|Comments Off on The Legal Immigrant PODCAST is Now Up!
The month of January signals new beginnings and fresh starts. In December 2020 – with the new year approaching – I finally took steps to launch The Legal Immigrant podcast.
Through success stories and Q&As, the show will cover U.S. immigration problems that we help our clients solve.
At the start of 2020, I had tentative plans to launch a podcast. As a solo immigration lawyer and a productivity coach, I was conflicted on whether to start one or two podcasts. Over time, this project moved to the backburner while COVID-19, civil unrest, school closures, the November Elections, and other changes were at front and center.
Although the U.S. and other parts of the world are still not back to pre-COVID-19 “normal,” we can still attend to the essentials. We have a unique opportunity to build resilience, show grace to others, and learn new ways to maintain human connection.
Besides launching The Legal Immigrant podcast, I started another podcast, The Incrementalist. This productivity show will discuss how to make big changes or finish a big project in small steps, with the Incrementalist approach.
There’s a content strategy to release new episodes over the coming weeks. It will take systems – not goals – to keep the shows going. Stay tuned!
In the meantime, check out the first two episodes of The Legal Immigrant. If you find the podcast helpful, please share it with others. And subscribe so you don’t miss new episodes.
And if you’d like to check out my other podcast, The Incrementalist, click HERE for the show’s website.
Your downloads, shares and subscriptions will help to grow the shows. In return, I will aim to provide valuable content and build connection with listeners through podcasting.
Posted onAugust 14, 2020|Comments Off on Staying Abroad Too Long May Affect Eligibility for Naturalization
In general, to qualify for naturalization, you must have resided continuously in the U.S. for at least 5 years, as a permanent resident, to become eligible for naturalization. An exception is if you are a qualified spouse of a U.S. citizen, in which case your continuous residence must be at least 3 years to qualify for naturalization.
You must also maintain continuous residence from the time you file the Form N-400 up to the time of naturalization (i.e. take the naturalization oath and become a U.S. citizen).
Normally, you may file your naturalization application up to 90 days before reaching the 3/5-year continuous residence period. This is known as the 90 day early filing period.
Your LPR status begins when USCIS approves your adjustment application or when you are admitted to the U.S. on an immigrant visa. For certain groups, the start date of becoming an LPR may be earlier than the actual approval of the status (commonly referred to as a “rollback” date). For example, USCIS generally considers an asylee’s date of admission as an LPR to be one year prior to the date the adjustment application was approved.
Breaks in Continuity of Residence
Continuous residence involves your maintaining a permanent dwelling place or principal residence in the United States over the period of time required by the statute. The federal regulation defines residence as your domicile or principal actual dwelling place, without regard to your intent. The duration of your residence is calculated from the time you first establish residence in a particular location.
Thus, if you list a foreign residence and no concurrent U.S. physical address on the naturalization application, during the 3/5-year statutory period, you could face problems meeting this requirement.
If you broke the continuity of residence because you stayed abroad too long, you may not file your naturalization application as early as 90 days before you meet the continuous residence requirement.
Continuous residence relates to the time you resided lawfully in the U.S. without any single absence long enough to “break” continuity for naturalization. There are two types of absences from the U.S. that break the continuity of residence for purposes of naturalization:
1. Absence of more than 6 months but less than one year is presumed to break the continuity of residence.
Example: Melinda is absent from the U.S. from September 19, 2017 to June 26, 2018. Her absence of 280 days is presumed to break the continuity of residence because it lasted more than six months. Any time spent in the U.S. prior to September 19, 2017 presumably does not count toward her continuous residence.
She may, however, rebut the presumption of a break in continuous residence to be eligible for naturalization. She must provide evidence showing she did not disrupt her continuous residence during her stay abroad, such as keeping her job in the U.S. and not obtaining employment while abroad; maintaining a physical residence in the U.S. to which she retained full access (e.g. own or lease a home); and having immediate family members or strong family ties in the U.S.
Eligibility After Break in Continuous Residence (due to absence of more than 6 months but less than one year): Rebut presumption OR Wait at least until 6 months before reaching the end of the new statutory period
If the applicant is unable to rebut the presumption of a break in continuous residence, she must establish a new period of continuous residence to be eligible for naturalization.
Thus, if Melinda does not rebut the presumption of a break in continuous residence, she must wait until at least 6 months from reaching the 5-year anniversary of the new statutory period following her return to the United States. In this example, the new statutory period began on June 26, 2018, which is when Melinda returned to the United States. The earliest she may apply (or re-apply) for naturalization is December 26, 2022, i.e. at least 6 months from the end of the relevant statutory period.
2. Absence of one year or more (without an approved Form N-470, Application to Preserve Residence for Naturalization Purposes) absolutely breaks the continuity of residence.
Example: Jonas was absent from the United States from December 11, 2014 to January 11, 2016. His absence of 396 days absolutely breaks the continuity of residence because it lasted more than a year. Any time spent in the U.S. prior to December 11, 2014 does not count toward his continuous residence.
Unless the applicant has an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, USCIS must deny a naturalization application for failure to meet the continuous residence requirement if the applicant has been continuously absent for a period of 1 year or more during the statutory period. A Form N-470 preserves residence for LPRs who have qualifying employment abroad with the U.S. government, private sector, or a religious organization.
Eligibility After Break in Continuous Residence (due to absence of one year or more): Four Years and One Day | Two Days and One Day OR Four Years and Six months | Two Years and Six Months
When there is an absolute break in continuous residence due to absence of one year or more:
You must wait at least 4 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization, if you are subject to the 5-year continuous residence requirement. (Once 4 years and 1 day have passed from the date of your return to the United States, the period of absence from the United States that occurred within the past 5 years is now less than 1 year.)
You must wait at least 2 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization, if you are subject to the 3-year continuous residence requirement. (Once 2 years and 1 day have passed from the date of your return to the United States, the period of absence from the United States that occurred within the past 3 years is now less than 1 year.)
Merely counting out 4 years and 1 day or 2 years and 1 day from your return to the U.S. — following an absence of 1 year or more — is not sufficient to determine whether you meet the continuous residence requirement. Because the period of absence within the past 5 years (or 3 years) is still more than 6 months, you must also overcome the presumption of a break in continuous residence.
But if you wait to apply for naturalization at least 4 years and 6 months (or 2 years and 6 months) after returning to the United States and reestablishing residence, there would not be a presumption of a break in residence. The reason is the period of absence preceding the N-400 application date is now less than 6 months.
How Absence from the United States During the Statutory Period Affects Eligibility to Naturalize:
Duration of Absence
Must Applicant Overcome Presumption of a Break in the Continuity of Residence?
Eligible to Naturalize?
6 months or less
No *(See Note 1 below)
Yes
More than 6 months but less than 1 year
Yes
Yes * (See Note 2 below)
1 year or more (without USCIS approval via N-470 process)
Not eligible to apply
No
*NOTE 1: Absences of less than 6 months may also break the continuous residence depending on the facts surrounding the absence. An example is if you claimed nonresident alien status to qualify for tax exemptions or if you failed to file income tax returns because you consider yourself a non-resident alien.
*NOTE 2: If you are unable to rebut the presumption of a break in continuous residence, you must wait to apply for naturalization at least 6 months before reaching the end of the relevant statutory period. Example: if you returned to the United States on June 26, 2018, following an absence of more than 6 months but less than 1 year — and you’re unable to rebut the presumption of a break in continuous residence — the earliest you may apply (or re-apply) for naturalization is December 26, 2022.
Length of Time Needed to Re-Establish Eligibility for Naturalization and Residence in the United States Following An Absence of 1 Year or More:
Provision
Absence During Statutory Period
May Apply for Naturalization After…
INA 316 5-year statutory period
More than 1 year
4 years and 6 months, OR 4 years and 1 day (but must overcome presumption of break in continuous residence)
INA 319 3-year statutory period
More than 1 year
2 years and 6 months, OR 2 years and 1 day (but must overcome presumption of break in continuous residence)
Permanent dwelling place in the U.S.
You must have the intent to maintain lawful permanent resident status and consider all absences from the U.S. to be fixed, temporary visits abroad. Lengthy or frequent absences from the U.S. may result in a denial of naturalization due to abandonment of LPR status.
USCIS will consider the entire period from the LPR admission until the present when determining whether you meet the continuous residence requirement. It will focus mostly on whether you maintained continuous residence (permanent dwelling place) in the United States during the statutory period.
If you have taken a trip outside the U.S. that lasted 6 months or more since becoming a permanent resident, you should have evidence that you continued to maintain a permanent dwelling/physical address in the United States and kept ties to the U.S. during your absence.
Frequent trips or stays abroad, even when each lasted less than six months, can also create problems. If you’re not able to show your principal actual dwelling place is in the United States or show residence within the United States for the statutory period, USCIS may find that you do not meet the continuous residence requirement, even if all of your individual absences were under 6 months.
For more information on eligibility for naturalization, read our related article, 5 Questions to Ask Yourself Before You File for Naturalization (U.S. Citizenship). Consult a U.S. immigration attorney to verify when you may file for naturalization, especially if you had a trip abroad lasting more than 6 months during the statutory period.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onJune 5, 2020|Comments Off on COVID-19 Update: Certain USCIS Field Offices Plan to Reopen to the Public
As of June 4, some USCIS Field Offices are planning to reopen for in-person services to the public. The Application Support Centers plan to reopen later. The Field Offices and Application Support Centers have been closed to the public since March 18, in response to the COVID-19 pandemic.
The reopening of certain USCIS Field Offices will allow the scheduling and rescheduling of interviews for green cards, naturalization, and other U.S. immigration benefits. Biometrics appointment scheduling and rescheduling will also resume when the Application Support Centers reopen.
USCIS is following the Centers of Disease Control and Prevention’s guidelines to protects its employees and the public. USCIS intends to limit the number of appointments and interviews per day, regularly clean and sanitize its facilities, and restrict the number of persons in waiting rooms.
USCIS’ Health & Safety Guidelines
USCIS provided the following guidelines when visiting their offices.
You may not enter a USCIS facility if you:
Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
You may not enter the facility more than 15 minutes prior to your appointment (30 minutes for naturalization ceremonies).
You are encouraged to use hand sanitizer provided at entry points.
You must wear facial covering (face mask) that covers both the mouth and nose when entering facilities. If you do not have one, USCIS may provide one or you will be asked to reschedule your appointment.
You should pay close attention to markings and physical barriers in the facility and follow social distancing guidelines.
You may have to answer health screening questions before entering a facility.
You are encouraged to bring your own black or blue ink pens.
Individuals are encouraged to bring their own black or blue ink pens.
USCIS will send you an appointment notice when your interview or biometrics appointment is scheduled or rescheduled. The notice will provide more details for visiting USCIS offices. If you feel sick, you are urged to request a cancellation or rescheduling of your appointment.
While USCIS is readying certain offices to reopen on or after June 4, its employees are continuing to perform mission-critical services that do not involve face-to-face contact with the public. Most likely, the earliest date for reopening of some offices will be in July.
The reopening will not only provide relief to applicants, but may help bring much-needed revenue to USCIS. In Mid-May, the agency announced it will run out of money by the summer because the coronavirus pandemic led to a steep drop in applications and filing fees since March. Unlike most federal agencies, USCIS operates almost entirely on revenue from application fees. It requested $1.2 billion from Congress to help it stay afloat, and proposed a 10% surcharge to application fees in the coming months.
Not every application or petition for a U.S. immigration benefit requires a face-to-face interview with a USCIS officer. The USCIS Service Centers are also continuing to accept applications and petitions and issue Receipt Notices and other correspondences, even while Field Offices remain closed to the public.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Email or use the form below to request a consultation. Provide a basic description of your problem and objectives. If our expertise and availability match your needs, we aim to respond within one business day (Monday through Friday, excluding U.S. federal holidays).
