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.
Posted onMarch 18, 2020|Comments Off on COVID-19 Update: USCIS Offices Temporarily Closed to the Public, March 18 to April 1
As of March 18, 2020, U.S. Citizenship and Immigration Services has suspended routine in-person services until at least April 1 to help slow the spread of COVID-19 (Coronavirus Disease 19). There will be no USCIS Field Office interviews, USCIS Application Support Center biometrics appointments, asylum interviews, or naturalization oath ceremonies during this period.
Field Office Appointments
USCIS Field Offices will send notices with instructions to applicants and petitioners with scheduled interview appointments. When normal operations resume, USCIS will automatically reschedule the interviews and issue new notices.
Persons who had InfoPass appointments with a Field Office must reschedule through the USCIS Contact Center, after the Field Office is reopened.
Check the USCIS Field Offices page to see if your field office has reopened before reaching out to the USCIS Contact Center.
Application Support Center (ASC) Appointments
All biometrics appointments at USCIS Application Support Centers are suspended. When normal operations resume, USCIS will automatically reschedule the biometrics appointments and issue new notices. If you do not receive a new appointment notice by mail within 90 days, call 800-375-5283.
USCIS is unable to automatically reschedule appointments for Canadian and United Kingdom visa applicants.
Asylum Appointments
USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date, and location.
Naturalization Oath Ceremonies
Naturalization oath ceremonies are cancelled. When normal operations resume, USCIS will automatically reschedule naturalization oath ceremonies. If you do not receive a new naturalization oath ceremony notice by mail within 90 days, you may contact the USCIS Contact Center.
During the temporary closure, USCIS staff will continue to perform duties that do not involve contact with the public. USCIS Service Centers and the National Benefits Center will receive and process applications and petitions; the National Records Center will receive and process FOIA requests; and the Administrative Appeals Office will receive and adjudicate appeals of denied benefits.
###
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 onMarch 15, 2019|Comments Off on Combined Approval of Form I-751, Petition to Remove Conditions on Residence + Form N-400, Application for Naturalization = A True Success Story
USCIS Field Office in California
A USCIS Field Office in California approved both our client’s Form I-751 petition to remove conditions on residence and Form N-400 application for naturalization in a single naturalization interview, held in early March 2019. With the conditions on his residence now removed, he is set to attend his naturalization oath ceremony and become a U.S. citizen.
Conditional Resident Awaiting I-751 Decision May Consider Filing For Naturalization
In many cases, conditional residents are eligible to file for naturalization before the conditions on their residence are removed and they get the regular, 10-year green card. Persons who are granted marriage-based permanent residence when the marriage to the U.S. citizen petitioner is less than two years old are issued a two-year, conditional green card. To get the conditions removed and maintain lawful permanent residence, the applicant and his spouse must file a joint I-751 petition before the two-year card expires, and no earlier than 90 days before the expiration. There are only three types of waivers (exceptions) to the joint filing requirement.
Continuous residence is one eligibility requirement for naturalization. You must reside continuously in the U.S. for at least 5 years as a permanent resident at the time you file your naturalization application. 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 at the time you file for naturalization. Continuous residence for naturalization purposes begins on the start date of your permanent residence, even if it is conditional.
As of June 2018, USCIS began issuing Receipt Notices for I-751 petitions that automatically extend the conditional resident status for 18 months past the expiration date of the two-year card. Previously, the extension was for 12 months, after which the person would need to obtain a temporary I-551 stamp (evidence of conditional residence) at a local USCIS office. The change was made to accommodate longer processing times for I-751s and to allow conditional residents to automatically keep their lawful status and maintain work and travel authorization in the interim.
Naturalization Interview Scheduled Before Conditions Removed
Our client’s naturalization interview was scheduled before he received a decision on the Form I-751 petition. At the naturalization interview, the USCIS officer exercised his authority to approve the I-751 even though it was still sitting at a USCIS Service Center awaiting adjudication. This cleared the way for the conditional resident to become a U.S. citizen.
Filing of Form I-751 Petition
Although both the Form N-400 and Form I-751 may be pending at the same time, the I-751 must be filed first in most cases. The two exceptions are if the conditional resident is filing for naturalization on the basis of qualifying military service or as the spouse of a U.S. citizen employed abroad, and thus may be naturalized without removal of conditions. In all other situations, such as our client’s, USCIS needs to first approve the I-751 petition before naturalization may be granted.
In December 2017, we filed a timely, joint Form I-751 petition with the USCIS California Service Center in Laguna Niguel, California. To demonstrate the conditional resident entered into and continued to have a good faith marriage with his U.S. citizen spouse, we submitted affidavits describing their relationship, shared car insurance policy, joint bank account and credit card account statements, and evidence of their home ownership.
The I-751 was initially transferred from the California Service Center to another USCIS Service Center. In June 2018, we received a Transfer Notice from the Service Center in Arlington, VA stating it was transferring the I-751 back to the California Service Center to speed up processing. Then in December 2018, we received a Transfer Notice from the California Service Center stating it completed a preliminary review of the petition and was transferring the case to the National Benefits Center in Lee’s Summit, MO for adjudication.
Filing of Form N-400 Application
The I-751 had been pending with USCIS for 10 months when the naturalization application was filed. Within three months of receiving the Form N-400, our client received his naturalization interview notice. It did not instruct him to have his U.S. citizen spouse accompany him or to bring evidence of their bona fide marriage. Nonetheless, I counseled him to do so, particularly because USCIS had yet to approve the I-751 petition and lift the conditions on his residence.
Attorney Appearance at Out-of-State Naturalization Interview
With our law firm based in Minneapolis, Minnesota, I flew out to California to attend the naturalization interview. My client could have retained local counsel to appear with him, but he insisted on having me there. (U.S. immigration is governed by federal laws, regulations and policies, which allow for representation at a USCIS Field Office by an out-of-state attorney.)
The naturalization interview started off with his completing and passing the Civics Test and English Test. Then the USCIS officer went through his naturalization application, page by page.
To prepare for the naturalization interview, my client and I had discussed potential questions about his marriage to the U.S. citizen petitioner, their relationship history, and his U.S. immigration record. Among his concerns was that he had been previously denied entry to the United States as a visitor by the U.S. Customs & Border Protection, after being employed in the country on a temporary worker visa for an extended period. I advised him on how to best respond truthfully to this issue, which did end up being raised by the USCIS officer at the interview.
Naturalization Expected
When the USCIS officer stated he would approve the N-400 application, I reminded him the I-751 petition was still pending. The officer was not aware of this because the file had not been flagged. He agreed to call in the U.S. citizen spouse, who had accompanied us to the Field Office and was seated in the waiting room.
Both the conditional resident and his spouse answered questions and presented documentary evidence on the bona fide nature of their marriage. At the end of the interview, the officer said he would also approve the I-751 petition. Even though he did not have the original I-751 filing, and did not review the copy we had with us, he favorably adjudicated the petition based on the testimony and evidence presented.
A day after the interview, USCIS issued the Form I-797, Approval Notice for the I-751 petition. My client soon sent me an email stating, “When I checked online the status of the N-400 on USCIS website it now says they approved my application, and the next step is to wait for the Oath Ceremony invitation letter in the mail, so looking forward to this very much…Thanks again for all your help. You really made a difference in our lives.“
We expect him to be scheduled for a naturalization oath ceremony and to become a U.S. citizen. This is a true success story.
Cheers,
Dyan Williams
Founder & Principal Attorney Dyan Williams Law PLLC (612) 225-9900 info@dyanwilliamslaw.com
###
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 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.
Comments Off on Combined Approval of Form I-751, Petition to Remove Conditions on Residence + Form N-400, Application for Naturalization = A True Success Story
