Category Archives: citizenship

White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail

Posted on February 19, 2018 | Comments Off on White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail

Of the four immigration bills that were recently considered by the Senate, three offered a path to citizenship for 1.8 million undocumented immigrants brought to the U.S. when they were children. But the White House’s calls to end “chain migration” by limiting family-based immigration to only spouses and minor children of U.S. citizens (and possibly permanent residents), as well as scrap the Diversity Visa Lottery program, have made it harder for a divided Congress to address the nation’s immigration problems with a legislative fix.

Comprehensive immigration reform remains a divisive issue in Congress, as reflected in the Senate’s failure to advance any of the four immigration bills up for a vote on Thursday, February 15. On immigration, a supermajority of 60 out of 100 senators must agree to end debate and force an up or down vote on a bill. The Chuck Grassley (R-Iowa) immigration bill, which was backed by President Trump and mirrored the White House “four pillars” immigration framework, received the least number of votes to move forward.

Dreamers and DACA Holders in Limbo

There seems to be bipartisan support for protecting “Dreamers” or young undocumented immigrants who qualify for the Deferred Action for Childhood Arrivals (DACA) program, which was introduced by the Obama Administration on June 15, 2007, and rescinded by the Trump Administration on September 5, 2017.

DACA is a temporary immigration relief for undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

Although DACA provides authorized stay and work authorization on a temporary basis, it does not provide a path to permanent residence or citizenship in the U.S.

When the Trump Administration announced the ending of DACA, and left it up to gridlocked Congress to address the ramifications, it set an expiration date of March 5, 2018. But with federal courts in New York and San Francisco issuing temporary injunctions on February 13 and January 9, respectively, which block the Administration’s September order rescinding the DACA program, USCIS issued a statement noting it will, for now, continue accepting requests for DACA renewals under pre-existing terms.

The end of DACA does not mean there will be mass deportations of young, undocumented immigrants. The U.S. Department of Homeland Security (DHS) has to issue a Notice to Appear and file it with the Immigration Court to initiate removal proceedings against an applicant, who may seek available relief  (e.g. asylum, cancellation of removal) from the Immigration Judge. The DHS may also set enforcement priorities so that Dreamers or DACA holders are low priorities for removal.

White House Calls for Limits on Family-Based Immigration and an End to Diversity Visa Lottery Program

In his first State of the Union address before a joint session of Congress on January 30, Trump expressed concerns with family-based immigration, which he referred to as “chain migration.”  He claimed, “under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives.”

He stated his immigration plan “protects the nuclear family by ending chain migration” and would “focus on the immediate family by limiting sponsorships to spouses and minor children.”

Trump also called for an end to the Diversity Visa Lottery, which he said is “a program that randomly hands out green cards without any regard for skill, merit or the safety of our people.” He previously noted in a December 15, 2017 speech, “they give us their worst people, they put them in a bin,” and “the worst of the worst” are selected in the Diversity Lottery.

Using anecdotal cases, the President has linked family-based immigration and the Diversity Visa Lottery program to terrorist attacks and threats to the national security of the United States.

In a December 11, 2017 statement, Attorney General Jeff Sessions wrote, “The President is exactly correct about the changes we need to our immigration system. We have now seen two terrorist attacks in New York City in less than two months that were carried out by people who came here as the result of our failed immigration policies that do not serve the national interest —the diversity lottery and chain migration.”

Of the two examples, the first is Sayfullo Saipov, from Uzbekistan, who entered the United States in 2010 on a diversity immigrant visa. Saipov is accused of killing eight people and injuring a dozen others when he drove a rented truck through a Manhattan, New York City bike lane in October 2017.

The second example is Akayed Ullah, a permanent resident from Bangladesh, who is suspected of carrying out a terrorist attack in New York City in December 2017. Ullah is accused of attempting to bomb a subway station with a low-tech explosive device, but only he was injured when the device failed. He came to the United States in 2011 as the minor child of a parent who was petitioned by an adult U.S. citizen sibling (in fourth preference, family sponsored category).

Family-Based Immigration, As It Stands

U.S. citizens and lawful permanent residents/green card holders may sponsor only certain relatives for immigrant visas. Except for the immediate relative category (spouses and minor children of U.S. citizens, and parents of adult U.S. citizens), there is a limited number of visas available and lengthy waiting lists (some lasting more than a decade) in family-based, preference categories.

The preference categories include unmarried sons and daughter of U.S. citizens and their minor children (if any);  spouses, minor children, and unmarried sons and daughters 21 or older of permanent residents; married sons and daughters of U.S. citizens and their spouses and minor children (if any); and siblings of adult U.S. citizens and their spouses and minor children (if any).

The beneficiary (immigrant visa/green card applicant) also must not be inadmissible to the United States based on likelihood of becoming a public charge, certain criminal offenses, immigration violations, or other grounds defined by statutory law.

For more information on the existing family-based immigration system, read Immigrant Visa Process: Delays and Setbacks; Changes to the Visa Bulletin: Understanding the Two Filing Charts; and Priority Date Recapture and Retention in Family-Based Immigration.

Current Diversity Visa Lottery Program

Contrary to Trump’s claims, countries do not choose which of their citizens to put in the Diversity Visa Lottery.  Rather, the program issues up to 50,000 diversity visas each year to qualified applicants from U.S.-designated countries with low rates of immigration to enter the U.S. as permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

To be eligible, applicants must be born in an eligible country. Natives of countries with relatively high rates of immigration – such as Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam – do not qualify.

Applicants must also have at least a high school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

After being selected in the lottery, applicants must clear a background check and demonstrate they have no health problems, criminal records, national security concerns, or other inadmissibility grounds barring them from the United States.

For more information on the current Diversity Lottery program, read Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider.

White House “Four Pillars” Immigration Framework and Its Influence on Congress

In some respects, the White House’s immigration framework takes a harder line on legal immigration than on young, undocumented immigrants – many of whom came to the United States as children without proper travel authorization or lawful admission.

Immigration Bills in the Senate

On Wednesday, February 14,  before the Senate voted on the four immigration bills, Trump issued a statement calling on Congress to support the Grassley proposal. He wrote, “The Grassley bill accomplishes the four pillars of the White House Framework: a lasting solution on DACA, ending chain migration, cancelling the visa lottery, and securing the border through building the wall and closing legal loopholes.”  He also asked all senators to oppose any legislation that fails to fulfill these four pillars.

Each bill needed at least 60 votes to advance in the Senate. The four proposals included:

Sen. Chris Coons (D-DE) and John McCain (R-AZ) Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included no funding for Trump’s border wall, but did include measures to improve border security.

Failed 52 to 47. Democrats were almost united in favor and Republicans mostly voted against it.

Sen. Pat Toomey (R-PA) Bill: withheld federal funding for municipalities (dubbed “sanctuary cities”) that refuse to enforce federal immigration policy through their local police officers and other state law enforcement agencies.

Failed 54 to 45. Republicans and a few Democrats backed it, but most Democrats voted against it.

Sen. Susan Collins  (R-ME), endorsed by Minority Leader Chuck Shumer (D-NY), Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border security; prevented DACA recipients from sponsoring parents for legal status.

Failed 54 to 45. Democrats almost unanimously supported it, along with eight Republicans.

Sen. Charles Grassley (R-IA), based on proposal backed by White House, Bill: provided path for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border wall; severely restricted legal immigration by limiting family-based immigration to spouses and minor children of U.S. citizens and ending diversity visa lottery program.

Failed 39 to 60. Democrats opposed the bill en masse, joined by a notable number of Republicans, while most of the GOP conference and a couple Democrats supported it.

Immigration Bill in the House

Immigration reform will be even harder for the more conservative House to tackle. Republican leaders are scrambling for sufficient votes on an immigration proposal in the House that is more restrictive than the Trump-backed Grassley bill in the Senate.

The immigration bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Homeland Security Committee Chairman Michael McCaul (R-Texas) offers a temporary, renewable legal status — rather than a path citizenship — to DACA holders in exchange for funding Trump’s border wall, cracking down on so-called sanctuary cities, requiring U.S. employers to use the E-Verify system to check the immigration status of job applicants, restricting family-based immigration, and scrapping the diversity visa lottery program.

Although Trump has expressed support for this bill, it is expected to meet its demise in the divided Senate, even if it passes through the House.

Worries Prevail With No Clear Path to Immigration Reform

If limiting family-based immigration and ending the Diversity Visa Lottery program are non-negotiable components of a White House-backed immigration plan, Congress faces steep obstacles in creating a legislative solution for Dreamers or DACA holders.

Worries prevail as the immigration fate of Dreamers and DACA holders hang in the balance, and some family-based immigration and the diversity visa lottery program are potentially on the chopping block.

In the meantime, eligible DACA holders may file renewal applications according to the latest USCIS policy, while federal court litigation ensues. U.S. citizens and permanent residents may also continue to file family-based petitions for certain relatives, and applicants from eligible countries may seek diversity immigrant visas under existing programs. Any change to U.S. immigration law is expected to apply prospectively and have no retroactive effect.

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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.

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5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS

Posted on January 25, 2018 | Comments Off on 5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS

When you receive notice of your in-person interview with U.S. Citizenship & Immigration Services (USCIS), you might be tempted to attend it without counsel to save on legal fees.  Many applicants, however, end up spending more money down the line because they did not have a qualified attorney helping them deal with unexpected problems at the interview.

If you filed the application or petition on your own, you could tell yourself the wait is over and the interview is just a formality before USCIS grants the immigration benefit. If you had counsel helping you with the filing, you might decide her presence at the interview is excessive because your important questions have already been addressed.

But the advantages of having reputable, experienced counsel appear with you at the interview far outweigh the disadvantage of incurring legal fees for representation.

In-person interviews with USCIS are necessary to obtain most immigration benefits, including asylum, permanent residence (green card) and naturalization (U.S. citizenship). The interview usually occurs at the USCIS Field Office with jurisdiction over the applicant’s place of residence.

Here are 5 main benefits of having immigration counsel at your in-person interview with USCIS:

1. Provide protection against excessive screening or vetting

The in-person interview is a screening and vetting procedure for persons seeking immigration benefits to reside or stay long-term in the United States. While USCIS officers are trained to be professional, courteous, and respectful of your legal rights, some may turn (or may seem) hostile when there is reason to believe the applicant is committing immigration fraud, is a danger to the community, or is ineligible for or undeserving of the benefit sought.

Interviews with USCIS are not supposed to be adversarial in nature. They are meant to gather complete and accurate information (both favorable and unfavorable) to properly adjudicate the case, not to find a reason to deny the requested benefit.

Nevertheless, due to expansions in immigration enforcement priorities under the Trump Administration, there are more reports of certain applicants being arrested by U.S. Immigration & Customs Enforcement (ICE) at their interviews with USCIS.  (NOTE: These cases involve only beneficiaries attending interviews who have prior or outstanding removal orders and have remained unlawfully in the country. Therefore, they have no due process rights to be placed in removal proceedings because there is an already-existing removal order to be executed by the U.S. government.) 

Prior to the interview, the attorney can review your criminal record and immigration history to evaluate the risks of interview attendance. While attorneys have no authority to stop ICE from lawfully apprehending or detaining an applicant at the USCIS interview, they may ask critical questions to verify where the applicant will be held and the next steps in the detention and removal process. Unless there is an express agreement, however, the attorney is not obligated to represent you beyond the interview with USCIS.

In less complicated cases — such as where ICE apprehension or detention is unlikely because the only violation is a visa overstay — your having counsel at the interview is still crucial. Attorney appearance encourages the USCIS officer to remain professional and courteous and stick to relevant issues.

2. Clarify unclear questions and complex issues

At the in-person interview, the USCIS officer may ask for any information related to questions on the application forms, your eligibility for the benefit sought, your marital history, your manner of entry into the U.S., your admissibility to the U.S. (such as any arrests, charges or convictions, or misrepresentations made to an immigration official), your educational background, and your past and present employment (including the documents you used to obtain a job in the United States).

When a USCIS officer asks a vague or unclear question, the attorney may request clarification to ensure the applicant understands what is being asked. If the attorney knows the answer is factually or legally incorrect, she may also ask the officer to rephrase the question or point to objective records in the file to show the applicant is mistaken.

3. Help prevent unnecessary delays and complications

USCIS stated the new interview requirement, which became effective on October 2, 2017,  will amount to approximately 17% of the agency’s total workload. Thus, longer processing times and increased delays in all adjudications, especially interview-based applications, are expected.  These days, USCIS is taking one year or more to adjudicate green card and naturalization applications, as opposed to six to nine months in the past.

At the interview, you should strive to present all the necessary information and requested documents to facilitate approval. Otherwise, it may take several weeks or months for USCIS to issue a Request for Evidence or Notice of Intent to Deny, to which you must respond within a specified time frame (e.g. 87 days and 30 days, respectively.)

Your attorney can help you figure out what you need to bring to the interview, based on the instructions in the interview notice and the unique facts of your case. The attorney is also better equipped to evaluate whether a favorable decision or adverse notice is expected, depending on what occurred at the interview, and prepare you for next steps following the interview.

4. Serve as an advocate

Unlike in court hearings before a judge, interviews with USCIS do not involve your attorney asking you direct questions to solicit testimony. The USCIS officer asks the questions and  you provide the answers.

Questions on issues that may seem inappropriate or unimportant to you might be relevant to your eligibility for the immigration benefit and be in line with USCIS policy. Having counsel at the interview helps you determine when it’s better to answer, ask for clarification, or object (for good cause).

Your attorney cannot respond to questions the USCIS officer directs to you. She also may not coach you on how to lie about facts or hide information that is requested. But she may advise you on legal issues or raise objections to inappropriate questions or, as a last resort, ask to speak with a supervisor (particularly if the interview becomes argumentative or antagonistic).

Having an attorney present at the interview helps to protect and advocate your legal rights. If USCIS instructs you to provide a sworn, written statement on controversial points, the attorney can verify that you understand what you are providing and signing.

Counsel can further help you avoid misrepresenting material facts to the USCIS officer and explain unfavorable information to defuse a difficult situation. They advise you on pitfalls and weaknesses in your case that will likely be at issue in the interview. They determine when and how to best present testimony and documentary evidence to highlight positive factors and offset negative factors in your case.

It is rare for interviews to be video-recorded. Without counsel, it will just be the USCIS officer and you (and possibly your interpreter) in the interview room. The officer will take notes for the file, but you typically will not have access to them unless you submit a Freedom of Information/Privacy Act Request, which normally takes several months to process. Moreover, in the FOIA response, the agency may redact, or black out, any information protected by one of the nine FOIA exemptions to prevent certain harms, such as an invasion of privacy, or harm to law enforcement investigations.

An attentive attorney at the interview will carefully observe the discussion and take informative notes on questions asked and answers given. If USCIS issues a Notice of Intent to Deny or other adverse notice based on purported discrepancies and inconsistencies at the interview, an attorney may provide a credible explanation on what was said in the interview and how it was conducted. It won’t just be your word against the allegations of the interviewing officer.

5. Add credibility to your claim

Having an attorney present does not mean you have something to hide. On the contrary, many USCIS officers prefer applicants to bring counsel to the interview for it to run more smoothly and effectively.

In addition, because attorneys have a duty of candor to the tribunal, their presence generally adds credibility to your claims.  An attorney cannot knowingly present false information or false documents or perpetuate fraudulent claims without running afoul of the professional responsibility rules.

The attorney can help prepare you for interview by describing what questions to expect and which issues are likely to arise, and how to best address them. They can further prepare and submit a legal memorandum to stave off concerns and persuade the officer to approve your case.

Conclusion: Bring Counsel to the Interview

There are many applicants who attend their interviews without counsel and get their applications or petitions approved. But these cases are usually very well-documented with positive information and no adverse factors to consider. The applicant also has to be very fortunate having a relatively short interview where no problems arose. It is hard to know how exactly your interview will go.

Many things can go wrong at the interview with USCIS, which may lead to severe consequences including denial decisions and even a Notice to Appear in removal proceedings before an Immigration Court. This can occur under statutory law, regardless of the U.S. immigration policies of any existing Administration.

For example, the USCIS officer may conduct separate interviews of the U.S. citizen (I-130 petitioner) and his foreign national spouse (I-485 applicant) and determine they entered into a sham marriage for immigration purposes. The officer may review the entire immigration history and/or criminal record of a naturalization applicant and find that he is not only ineligible for citizenship, but is subject to removal from the United States.

Even if you prepared and filed the application or petition with USCIS on your own, or with the help of an immigration consultant or online immigration service, you may have counsel enter her appearance at the interview by submitting a Form G-28, Notice of Entry of Appearance as Attorney, to the USCIS officer.  Once the G-28 is accepted, the appearance will be recognized until the matter is concluded (absent a withdrawal of representation).

It’s best to secure counsel for the interview at least two weeks in advance to avoid scheduling conflicts and lack of preparation.

In some cases, the interview goes so well that having counsel seems to be an added expense with no benefit. But more than likely, counsel’s presence at the interview contributes to the successful outcome, even though you might not be able to measure the effects. And when the stakes are high, it’s better to be over-prepared than under-prepared and to err on the side of caution by having counsel at the interview.

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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.

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Posted in adjustment of status, bona fide marriage, citizenship, green card, immigrant visa, marriage fraud, naturalization, The Legal Immigrant - Immigration Blog

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B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit

Posted on March 27, 2017 | Comments Off on B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit

When you seek to enter the U.S. for tourism or a temporary visit, the B-2 visa or combined B-1/B-2 visa is appropriate. Only certain activities are allowed on this visa. The U.S. consular officer will not grant the B-2 visa and the U.S. customs officer will deny your entry on this visa if your reasons for travel do not fit the criteria.

WHICH ACTIVITIES ARE ALLOWED ON THE B-2 VISA? 

Legitimate B-2 visitor activities are described below. The list is not exhaustive, but is specified in the Department of State’s Foreign Affairs Manual and other official guidance as appropriate reasons for the consular officer to issue the B-2 visa.

Visitor for Pleasure

You may use the B-2 visitor visa to:

  • Engage in tourism, i.e. take a vacation (holiday) and visit places of interest
  • Make social visits to family members and friends
  • Receive medical treatment to protect your health (NOTE: the consular officer or customs officer must be satisfied you have the means to pay for the treatment, which includes doctors and hospitalization fees and related expenses.)
  • Participate in social events hosted by fraternal, social, or service organizations
  • Participate in entertainment or athletic activity (e.g. event or contest) as an amateur who is not a member of any profession associated with the activity, but instead normally performs without compensation (except for reimbursement of incidental expenses)
  • Take a short course of study, which is incidental to the visit and not for credit toward a degree
  • Temporarily stay as dependent of alien member of any branch of the U.S. Armed Forces temporarily assigned for duty in the U.S.
  • Temporarily stay as dependent of D visa crewman if you are coming to the U.S. solely to accompany the principal D visa holder

Visitor Under Special Circumstances

You may also receive the B-2 visitor visa under the following special circumstances:

Fiancé(e) of U.S. Citizen or Permanent Resident

Foreign nationals must obtain a K-1 fiancé(e), instead of the B-2 visa, if they seek to come to the U.S. to marry a U.S. citizen and apply for adjustment to permanent resident status (green card).  The U.S. Consulate, however, may grant the fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) a B-2 visa if it determines the fiancé(e) will return to a residence abroad soon after the marriage.

B-2 status may also be granted if you are traveling to the U.S. to:

  • Meet the family of your U.S. citizen or permanent resident fiancé(e);
  • Become engaged;
  • Plan the wedding; or
  • Rekindle or maintain a relationship with your prospective spouse

In reality, however, B-2 visas are not routinely granted in this situation. The Consulate tends to find that fiancé(e)s of U.S. citizens (in particular) or permanent residents (in some cases) will simply overstay until they can eventually get a marriage-based green card within the U.S. Therefore, it’s necessary to present strong evidence and persuasive testimony showing you will in fact depart on time, following a temporary visit, before you proceed with the K-1 or immigrant visa process.

Fiancé(e) of Nonimmigrant in United States

Fiancé(e)s who have a residence abroad to which they intend to return, and who are eligible to receive visas, may receive B-2 visas if the purpose of the visit is to marry a nonimmigrant in the United States, who has valid nonimmigrant F, H, J, L M, O, P, or Q status.  The U.S. Consulate will not grant the visa if it determines you will remain in the U.S. after admission and apply to adjust to permanent resident status, or request a change to a non-immigrant status that does not require a residence abroad.

Proxy Marriage Spouse of Nonimmigrant in United States

A spouse married by proxy to a foreign national in the United States in valid nonimmigrant status may receive a B-2 visa to join the spouse.  Following entry to the U.S., the joining spouse must file a timely request to change to the appropriate derivative nonimmigrant status (e.g. H-4 or F-2) after the marriage is consummated.

Spouse or Child of U.S. Citizen or Permanent Resident

A foreign national spouse, biological child, or adopted child of a U.S. citizen or permanent resident may be issued a B-2 visa if he or she is only accompanying or following to join the spouse or parent for a temporary visit.

Cohabitating Partners, Extended Family Members, and Other Household Members Who Do Not Qualify for Derivative Status

 The B-2 visa is issued to those who belong to the same household of another person in long-term nonimmigrant status, but who are ineligible for derivative status. These include cohabitating partners or elderly parents of temporary workers, students, diplomats assigned to the U.S. and accompanying parent(s) of minor F-1 student. It is also appropriate for persons who belong to the same household of a U.S. citizen who normally lives and works overseas, but will be in the U.S. temporarily.

The B-2 visa is also granted to a spouse or child who qualifies for derivative status (other than derivative A or G status) but who finds it difficult or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, as long as he or she intends to maintain a residence outside the U.S. and is eligible for the B visa. Those who plan to remain in the U.S. for more than six months may request a one-year stay when they apply for admission at the U.S. port of entry.  They may then apply for extensions of stay, in six -months increments, while the principal applicant holds nonimmigrant status in the U.S.

Foreign Nationals Seeking Naturalization under INA 329 (Naturalization Through Active Duty-Service in the Armed Forces During World War I, World War II, the Korean Hostilities, or in Other Periods of Military Hostilities) 

A person who qualifies for naturalization under INA 329, and who seeks to enter the U.S. to make use of this benefit, may receive a B-2 visa without being required to maintain a foreign residence.

Children Seeking Expeditious Naturalization under INA 322 (Children of U.S. citizens who are born and residing outside the U.S. and meet the conditions to acquire certificate of citizenship)

The U.S. Consulate may grant a B-2 visa to a foreign-born child who is eligible for expeditious naturalization under INA 322.  But even when the child intends to naturalize, he or she must intend to return to a residence abroad after naturalization, i.e. overcome the presumption of immigrant intent.  The child whose parents are living abroad will normally meet this requirement, but a child whose parents reside in the U.S. will not.

The U.S. Consulate may also issue a B-2 visa to an adopted foreign-born child of a U.S. citizen who seeks to naturalize under INA 322 if he or she presents a DHS-issued Form G-56, General Call-In letter for a naturalization interview; maintains a residence abroad and does not intend to stay permanently in the U.S,; and meets other eligibility requirements.

Dependents of Alien Members of U.S. Armed Forces Eligible for Naturalization under INA 328 (Naturalization Through Service in the U.S. Armed Forces) 

A dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under INA 328 and who seeks to accompany the spouse or parent on the service member’s assignment to the U.S. may be issued a B visa. The possibility of adjustment to permanent resident status does not require a visa denial.

Foreign Nationals Enrolled in an Avocational or Recreational School

A person may receive a B-2 visa to attend a school for recreational or avocational purposes.  When the U.S. Consulate is unable to determine the nature of the school’s program, it normally asks DHS to confirm whether approval of Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students (for an F-1 student visa) is required.

Lawful Permanent Residents Who Need to Come to the U.S. for an Emergency Temporary Visit 

 The I-551, Permanent Resident Card, becomes invalid for re-entry if the lawful permanent resident (LPR) remains outside the U.S. for more than one year. If the LPR needs to return to the U.S. sooner than when a returning resident visa can be obtained, the U.S. Consulate may issue a B-2 visa for re-entry purposes.

Adoptive Child Traveling to the U.S. to Acquire Citizenship foreign-born children who did not acquire U.S. citizenship at birth through a U.S. citizen parent to acquire U.S. citizenship automatically upon fulfillment of certain conditions while under the age of 18.

The U.S. Consulate may grant a B-2 visa to a child seeking to enter the U.S. to acquire U.S. citizenship under the Child Citizenship Act of 2000 (Public Law 106-395), as long as the child shows an intent to leave the U.S. after a temporary stay.

WHO IS ELIGIBLE FOR THE B-2 VISA? 

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds and make arrangements to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer will likely conclude that you will work in the U.S. without authorization to defray expenses. You could even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

Whether remote work for a foreign employer on U.S. soil is allowed on a visitor visa does not have a clear-cut answer. During a business trip or vacation, for example, you might need to check in with your boss or team overseas. This is a grey area where it’s better to err on the side of caution.

Even if you are a freelancer, independent contractor or employee of a foreign employer, and the income source is outside the United States, you might still face U.S. immigration issues if you perform work during your temporary visit. This is especially problematic if some clients or customers are in the U.S. or you get paid while you’re physically in the U.S.

U.S. tax law states that income from services performed for a foreign employer by someone present in the United States is deemed to be U.S. income — unless ALL THREE of the following conditions are met:

  1. You perform personal services as an employee of or under a contract with a nonresident alien individual, foreign partnership, or foreign corporation not engaged in a trade or business in the United States; or you work for an office or place of business maintained in a foreign country or possession of the United States by a U.S. corporation, U.S. partnership, or U.S. citizen or resident.
  2. You perform these services while you are a nonresident alien temporarily present in the United States for a period or periods of not more than a total of 90 days during the tax year.
  3. Your pay for these services is not more than $3,000.

Chapter 3 of IRS Publication 519, US Tax Guide for Aliens, states that if you do not meet all three conditions, your income from personal services performed in the United States is U.S. source income and is taxable in the U.S. 

The visitor visa does not permit you to have U.S. income. Although some lawyers argue tax law is independent from immigration law, a U.S. immigration officer might find that you violated your visitor status simply because you worked on U.S. soil.

At the U.S. port of entry, the U.S Customs & Border Protection has broad discretion to refuse admission and even issue an expedited removal order if it determines that you intend to work in the U.S. or you have worked in the U.S. on a prior visit. The B-1 visa and status allow you to negotiate contracts, attend business meeting and make deals to perform the work outside the United States, but not to actually do the work during your visit. The B-2 visa and status permits you to engage in tourism and recreational visits only, with limited exceptions in special circumstances.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver 

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. . A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

B-2 IS DIFFERENT FROM B-1

The B-2 is under the same B-visa classification as the B-1 Temporary Business Visitor visa, but is more limited. If you have only a B-2 visa – and not a B-1 visa or combined B-1/B-2 visa, you may not engage in any business visitor activities, such as attend business meetings or negotiate contracts.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-2 or combined B-1/B-2 visa.

For more information, read our related articles, B-1 Visitor Visa: Traveling to the U.S. for Business and B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal/Domestic Employee.

Keep in mind that entering the U.S. too frequently for extended visits on a B-2 or combined B-1/B-2 visitor visa may lead to problems at the U.S. port of entry. See Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited).

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.

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Why hire an immigration lawyer?

Posted on November 21, 2016 | Comments Off on Why hire an immigration lawyer?

Why hire a lawyer when there is lower-cost help available through immigration consultants and online immigration services?  Do you really need a lawyer when you could fill out the forms and follow the instructions yourself?

The reasons are many, from ensuring you fully understand the process to avoiding unnecessary delays.

The main advantages of hiring a trusted immigration lawyer, instead of depending on an immigration consultant or online immigration service or working on the case yourself are:

1. You receive guidance on which forms and documents to submit

A lawyer is not required to fill out application forms for immigration benefits. Anyone can complete the forms, which are, along with the instructions, available for free on U.S. Citizenship & Immigration Services and the U.S. Department of State’s websites.

But U.S. government agencies are not your advocates and do not consider your individual situation when providing resources and information to you. Only an immigration lawyer, who truly understands the eligibility requirements, can give you the most reliable advice on which forms and documents to submit to receive immigration benefits.

Legitimate immigration consultants and online immigration processors can certainly help you complete forms and submit the paperwork to USCIS and DOS at a much lower cost than what lawyers charge.

Nevertheless, your knowing which forms and documents to submit is not always clear by just reading instructions or doing your own research. Immigration consultants and online immigration services are prohibited from giving any legal advice concerning your immigration case, including which forms and documents to submit. Rather, you yourself have to make this determination before they then fill out the forms with your answers and prepare the documents you have given them for filing with the appropriate U.S. government agency.

Even qualified immigration consultants and highly-rated online immigration services are just document preparers. While they are distinguishable from shady Notarios who prey on vulnerable immigrant groups and engage in immigration scams, they provide limited service that does not always meet your immigration needs.

Questions on applications forms and questions from immigration or consular officers might seem simple, but often relate to legal issues that can result in denials and setbacks in your case. Immigration consultants and online immigration processors cannot counsel you on how to best answer a question or cross-check or verify your answers on the forms. All they can do is replicate and type out your responses to the questions asked on the forms.

When non-lawyer immigration consultants or online immigration processors advise you on which immigration benefit to apply for and how to prove you qualify for it, they essentially engage in unauthorized practice of law.

In contrast, immigration lawyers advise you on which exact forms and documents to submit for a particular immigration benefit. They will cross check your answers on application forms with your biographic and immigration records to help ensure accuracy and completeness. They will also counsel you on the implications of your answers to questions, as well as the effects of providing or not providing certain documents.

2. You get legal advice on how to best present your case

A good lawyer will counsel you on eligibility standards and evidentiary requirements, including those that are not spelled out in the instructions for forms or are otherwise readily known.

For instance, while an immigration consultant or online immigration service will accept your marriage certificate and divorce decrees for prior marriages as sufficient in an I-130 spousal immigrant petition, a lawyer will counsel you on additional documents to submit to prove your marriage is valid and bona fide.

A lawyer might be unnecessary in very simple cases, where the bare minimum is all that’s required to get the case approved. But in many cases, a high volume of documentary evidence, as well as credible testimony, are needed to achieve a favorable outcome.

One of the fastest growing online immigration processors, RapidVisa, states specifically that it does not give legal advice or representation, but offers a service similar to TurboTax for visa applications. At a low price, they provide online processing of K-1 fiancée visas, spousal visas, parent visas, green cards (adjustment of status), removal of conditions, citizenship (naturalization), joint sponsorship, and deferred action (Deferred Action for Childhood Arrival, under President Obama).

RapidVisa boasts an approval rate of 99.7% and 4-hour turnaround time. But it’s fair to say that these cases most likely had no complications to require the work of a lawyer, and could have been handled just as well by an applicant who was willing and able to deal with the paperwork alone.

Reputable immigration lawyers, who have the expertise to deal with the worst types of cases, are best equipped to help you present the strongest case possible. They can steer you away from pitfalls that lead to complications in your case, such as USCIS issuing a Request for Evidence or a Notice of Intent to Deny Petition. They are trained to spot issues and weaknesses that can tank your case. Unlike immigration consultants and online immigration processors, they do not merely rely on generic templates and checklists that do not account for unique situations.

3. You obtain verification on whether you actually qualify for the benefit sought

An immigration lawyer will gather facts and review your record to confirm whether you are eligible for the immigration benefit you seek. For example, under current law, you cannot apply for a marriage-based green card within the U.S. if you were not lawfully admitted to the U.S. with inspection, and you do not qualify for 245(i) benefits. If your immigrant petition is not in the immediate relative category, you may not file for adjustment to permanent residence unless you are maintaining lawful nonimmigrant status after entry as an F-1 student, H-1B worker, etc. or certain narrow exceptions apply.

Immigration consultants and online immigration processors are not equipped or authorized to verify your eligibility for a benefit sought. They cannot give advice as to which immigration status you should seek. These are legal issues that requires a lawyer’s guidance, especially when there are complications in your case.

Complications include previous marriage(s)/divorce(s), a history of visa denials, visa overstays, unlawful presence, prior removal orders, illegal entries and re-entries to the U.S., immigration fraud or willful misrepresentation, false claims to U.S. citizenship, a criminal record, and being from a high-fraud country.

In June 2016, the State of Colorado passed a law that forced RapidVisa to relocate out of Colorado Springs, Colorado to Las Vegas, Nevada, where regulations related to the document-preparation industry are favorable. Known as Immigration Consultants Deceptive Trade Practice, the Colorado law targets deceptive “notarios”, which are small operations common in Hispanic communities, but it further forbids any person from offering any immigration service, regardless of whether it involves practicing law, unless that person is a lawyer.

In a press release, Ben Ives, President of RapidVisa, stated “this was simply a case of lawyers protecting their income.” He noted, “Petitioning for a family visa is a benefit request, not a legal issue. Do you hire a lawyer to apply for your driver’s license?”

Contrary to Mr. Ives’ claim, applying for an immigration benefit involves many legal issues that determine whether a person can live, study or work in the U.S., and even visit the country. Filing for an immigration benefit has a much more serious and broader impact than applying for a driver’s license.

A U.S. citizen’s decision to bring a fiancée, spouse,  or parent to the U.S. , for example, affects the fate of the family and their reunification.  An applicant’s mistake in filing for an immigration benefit, such as a green card or citizenship, for which he does not qualify can sometimes lead him into removal proceedings and get him deported from the United States.

4. You have comprehensive counseling from start to finish

In the initial evaluation of your case, and during the course of representation, an immigration lawyer can identify your priorities and pinpoint issues to help you achieve your objectives. They can lay out your various options and describe the pros and cons of pursuing each path.

An immigration lawyer can guide you on how to avoid complications or address them as they arise, such as responding to a Request for Evidence, a Notice of Intent to Deny, a Notice of Intent to Revoke, an inadmissibility finding, or a denial decision. He or she can intervene on your behalf to resolve problems.

An immigration lawyer can also prepare you for interviews before USCIS and the U.S. Consulates by describing what questions to expect and which issues are likely to arise. Although they should not “coach” you on what to say, they may advise you on how to best present both positive and negative information.

A lawyer may appear with you at green card interviews and naturalization interviews to help protect your rights, present documentary information, and ask clarifying questions. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Lawyers must keep up with changes in the law, the risks (not just the benefits) of applying for immigration relief, and the nuances in the immigration process, and advise you accordingly.

A non-lawyer immigration consultant or online immigration processor cannot perform these vital services.

5. You get legal help from a licensed professional who is held to the highest ethical standards

When an immigration consultant or online immigration processor overlooks critical pieces of information or documents — which results in an avoidable revocation process, denial or delay — there is generally no recourse. You typically have to rectify the harm through their channels or file a consumer complaint with the state attorney general.

Lawyers, on the other hand, are held to ethical standards in their state rules of professional conduct. They can face disciplinary action, such as a suspension or disbarment, for failing to perform duties owed to clients. As a licensed professional, a lawyer has obligations and responsibilities that go above and beyond those of a non-lawyer immigration service.

Consult an immigration attorney at the very least 

Some states, such as California, Minnesota, and New York regulate the conduct of immigration consultants, instead of forbid them from performing any immigration service. While they may provide document preparation, they cannot offer legal advice in any situation.

Legitimate immigration consultants and online immigration processors can ease the stress that comes with handling the immigration paperwork yourself. But realize they do nothing more than document preparation. A complete reliance on non-lawyer immigration services gives you a false sense of security and could open you up to making mistakes and bungling your immigration matter.

Reliable legal representation may be more affordable than you assume. There are solo practitioners and small firm lawyers who charge reasonable fees for high-quality, comprehensive service. There are also non-profit legal service providers and pro-bono attorneys who will accept your case for sliding scale or reduced fees or no fees.

Almost everyone can gather funds to consult an experienced immigration lawyer at least once, or retain unbundled legal service to address the complicated parts of the case. Before you file for an immigration benefit, talk to a reputable immigration lawyer about the eligibility standards, documentary requirements and filing process. Relying on immigration consultants and online immigration processors can save you money upfront, but cost you a lot more in the long run.

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.

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5 Questions to Ask Yourself Before You File for Naturalization (U.S. Citizenship)

Posted on September 30, 2016 | Comments Off on 5 Questions to Ask Yourself Before You File for Naturalization (U.S. Citizenship)

Before you file a Form N-400, Application for Naturalization, to obtain U.S. citizenship, there are five key questions to ask  yourself. Your answers will help you determine whether you qualify for naturalization and may become a naturalized U.S. citizen.

QUESTION #1: Were you lawfully admitted to the U.S. as a permanent resident? (Do you meet the LPR Admission requirement?)

With few exceptions (which apply to U.S. nationals and certain members of the U.S. armed forces), you must first be lawfully admitted as a permanent resident before you may file for naturalization when you are 18 or older.

If you were granted a green card or immigrant visa in error, or if you obtained permanent residence by fraud or willful misrepresentation, you do not meet the lawful admission requirement for naturalization.

Fraud or Misrepresentation

In reviewing your naturalization application, USCIS will make sure your permanent resident status was lawfully obtained, instead of merely rely on your having a green card. If USCIS determines you were granted lawful permanent resident (LPR) status by mistake or fraud, it will not only deny your Form N-400, but will likely place you in removal proceedings.

QUESTION #2: Have you continuously resided in the U.S. for at least 3/5 years?(Do you meet the Continuous Residence requirement?)

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. 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 Rule | Two Days and One Day Rule 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 after returning to the United States and reestablishing residence, there would not be a presumption of a break in residence because the period of absence preceding the application date is now less than 6 months.

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. Abandonment of LPR status makes you ineligible for naturalization.

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.

For more details on the continuous residence requirement, see our related article,  Staying Abroad Too Long May Affect Eligibility for Naturalization. 

QUESTION #3: Have you been physically present in the U.S. for at least half the continuous residence period? (Do you meet the Physical Presence requirement?)

You  must have been physically present in the U.S. for at least 30 months of the five years prior to filing your naturalization application (or at least 18 months if the 3-year continuous residence requirement applies).

Physical presence concerns the total number of days you are actually or physically in the U.S. during the period required for naturalization.

You also must have resided for at least three months immediately prior to filing the Form N-400 in the USCIS district or state where you claim to reside.

QUESTION #4: Are you a person of good moral character? (Do you meet the Good Moral Character requirement?)

You must show good moral character (GMC) during the applicable statutory period, i.e. 3/5-year period immediately before you file for naturalization and up to the time of the Oath of Allegiance.

USCIS is not limited to reviewing your conduct only during the statutory period. Your conduct prior to the 3/5-year period may also affect your ability to establish GMC if your present conduct does not reflect a reformation of character or the earlier conduct relates to your present moral character.

USCIS will consider the totality of the circumstances and weigh favorable and unfavorable factors, when considering reformation of character, including family ties; absence or presence of other criminal history; education; employment history; other law-abiding behavior (e.g. paying taxes); community involvement; your credibility; compliance with probation; and length of time in the U.S.

If you lie on your Form N-400 application or during the naturalization interview,  and you are caught, USCIS will deny your application for lacking good moral character. If you are granted naturalization and you are later found to have lied about a material fact in your naturalization application, your citizenship may be revoked through rescission proceedings.

USCIS will consider your criminal history when determining whether you meet the GMC requirement. Committing certain crimes may lead to permanent bars or conditional bars to naturalization.

Permanent Bars to Establishing Good Moral Character

There are certain convictions or criminal offenses that permanently bar you from establishing GMC for naturalization. They include a conviction for murder at any time, and a conviction for an aggravated felony on or after November 29, 1990 (e.g. murder, rape, or sexual abuse of a minor; illicit trafficking in controlled substance; and crime of violence, theft offense and passport/document fraud leading to imprisonment of at least 1 year). They also include involvement in Nazi persecutions, genocide, torture, and particularly severe violations of religious freedom.

Conditional Bars to Establishing Good Moral Character

Other offenses are conditional bars to naturalization. These temporary bars are triggered by acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance.

Conditional bars include a conviction or admission of one or more Crimes Involving Moral Turpitude (other than political offense), such as theft, forgery, and terrorist threats – except for one petty offense; violation of any law on controlled substances – except for simple possession of 30g or less of marijuana; prostitution offenses; and willful failure or refusal to support dependents, unless extenuating circumstances are shown.

Criminal History May Lead to Denial of N-400 and, In Some Cases, Cause You to be Placed in Removal Proceedings 

The Form N-400 asks several questions about arrests, charges, and convictions. You should report all criminal offenses, including those that have been expunged or sealed or those that occurred before your 18th birthday.  You are required to submit the certified court disposition and, in many cases, USCIS will request the police report and other related documents.

If you have committed certain serious crimes that make you removable from the U.S., USCIS will not only deny your naturalization application but may also place you in removal proceedings before the Immigration Court.  Be sure to read Immigration Consequences of Criminal Offenses: Myths & Facts. 

QUESTION #5: Can you pass the English and civics tests? (Do you meet the English or Civics requirements?)

You must be able to read, write and speak basic English. During the naturalization interview, the USCIS officer will instruct you to write a certain phrase in English and will give you an English phrase to read, e.g. “Only U.S. citizens may vote.”

You also have to know the fundamentals of U.S. history and the form and principles of the U.S. government. The USCIS officer will have 10 civics questions to ask, and you must answer 6 correctly. You need to study for the civics test; you have one opportunity to retake it if you fail it the first time.

Certain applicants, because of age and time as a permanent resident, or because of a disability, have different English and civics requirements. Those over 50 years old and have lived in the U.S. for at least 20 years as a permanent resident, or those over 55 years old and have lived in the United States for at least 15 years as a permanent resident, or those with a disability that prevents them from fulfilling this requirement and will be filing a “Medical Certification for Disability Exceptions” (Form N-648) qualify for an exemption.

Consult an experienced immigration attorney

Sometimes the answers to these five key questions are clear. Sometimes they are not. Consult an immigration attorney, who fully understands the naturalization requirements, to verify your eligibility for naturalization before you file a Form N-400 application with USCIS. The attorney can also help you assess and maximize your likelihood of becoming a naturalized U.S. citizen.

Getting counsel to prepare and file the naturalization application, advise you on what to expect at the interview, and attend the interview with you typically makes a positive difference.

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.

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