Category Archives: naturalization

Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

Posted on February 9, 2015 | Comments Off on Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

If you lie about being a U.S. citizen to work, vote in elections, or receive public benefits in the United States, this could stop you from getting a green card or U.S. visa. It can also get you deported from the United States, even if you are already a permanent resident.

A false claim to U.S. citizenship creates a lifetime ban to obtaining permanent residence through a family or employment-based petition.

While a false U.S. citizenship claim seems relatively harmless, it is one of the most serious forms of fraud or willful misrepresentation to obtain immigration benefits. It can also have more dire consequences than a criminal conviction.

If getting a green card or U.S. visa is on your wish list, you should avoid lying about being a U.S. citizen to gain immigration benefits or any benefits under federal or state law.

When Does a False U.S. Citizenship Claim Arise? 

Multiple Situations

False U.S. citizenship claims arise in multiple situations. They include registering to vote in a local, state, or federal election when only U.S. citizens are allowed to do so; claiming to be a U.S. citizen on a job, college, student loan, or mortgage application; and stating that you are U.S. citizen to obtain any benefit for which U.S. citizenship is required.

Most Common Situation: I-9, Employment Eligibility

False U.S. citizenship claims most commonly arise when the non-citizen completes and signs the Form I-9, Employment Eligibility Verification, upon being hired for a job.

All U.S. employers must use the I-9 to document verification of the identity and employment authorization of each new employee (both citizen and non-citizen) hired after November 6, 1986, to work in the United States.

In the Employee Information and Attestation section of the Form I-9, the employee is required to check one of four boxes to show why he is eligible to work in the United States. Section 1 of the Form I-9 (Rev. 03/08/13) states:

I attest, under penalty of perjury, that I am (check one of the following):

  • A citizen of the United States
  • A noncitizen national of the United States (See instructions)
  • A lawful permanent resident (Alien Registration Number/USCIS number) __________
  • An alien authorized to work until (expiration date, if applicable, mm/dd/yy) ________. Some aliens may write “N/A” in this field.

Wrongfully checking that you are a citizen of the United States generally amounts to a false U.S. citizenship claim.

The use of a U.S. citizen’s social security number or other identification, or the use of a fake U.S. birth certificate or a fake social security card (that contains no employment restrictions) is further evidence of a false U.S. citizenship claim.

Employers must record the document title (e.g. driver’s license and birth certificate) on the Form I-9. They may, but are not required, to retain copies of the documents.

Employers must retain a Form I-9 for all current employees. They also have to retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later.

When you seek to adjust to permanent resident status, you need to complete the Form I-485 and file it with U.S. Citizenship & Immigration Services (USCIS). [UPDATE, JANUARY 2018: In prior versions of the I-485, there was no question on whether you have ever misrepresented being a U.S. citizen. But the newer version of the I-485, starting in June 2017, has questions on whether you ever worked without employment authorization, made a false claim to U.S. citizenship, or engaged in unlawful voting.]

Those who are applying for an immigrant visa at the U.S. Consulate must complete and file the DS-260, online immigrant visa application. The DS-260 ask questions about your employment history.

At your I-485 or immigrant visa interview, the adjudication officer could ask whether you have ever made a false claim to citizenship. The officer may also ask about what documents or information you presented to the employer to be eligible to work. This line of inquiry is not very common, but is generally relevant.

Although the employer — not the employee — is responsible for keeping the I-9 records, the officer could request you produce the I-9s from past employers or current employers as a condition for approving your immigration case.

Some USCIS officers might also subpoena the I-9 records from your prior employer or current employer. If the employer is not under investigation for violating I-9 requirements or hiring unauthorized workers, it might refuse to hand over the I-9 records. But many employers simply forward the available records to USCIS upon request, without objection.

If the citizen box is checked on the I-9, the officer may find that you made a false claim to U.S. citizenship and therefore do not qualify for a green card or immigrant visa.

The U.S. Supreme Court, in Chamber of Commerce of the United States v. Whiting, stated that the I-9 and any information contained in it or attached to it may not be used for any purpose other than for enforcing the Immigration Reform and Control Act of 1986 (IRCA) and other specified provisions of federal law. False U.S. citizenship claims did not make a person inadmissible or removable until 1996, which was after IRCA was passed in 1986.

But federal courts, including the Eighth Circuit Court of Appeals, have found that an I-9 form can serve as evidence of a false claim to U.S. citizenship, particularly in removal proceedings.

What are the Possible Consequences of a False U.S. Citizenship Claim? 

Since September 30, 1996, non-citizens who made false U.S. citizenship claims “for any purpose or benefit” under the Immigration & Nationality Act (INA) or any federal or state law are permanently inadmissible. This means you have a lifetime bar to obtaining a family-based or employment-based green card or immigrant visa.

False U.S. citizenship claims not only makes a foreign national inadmissible to the U.S, but also removable from the country. A non-citizen who is in the U.S. and who is found to have lied about being a U.S. citizen to obtain immigration benefits or other benefits under any federal or state law may be placed in removal proceedings before the Immigration Court.

Unlike those who are convicted of crimes involving moral turpitude or those who engaged in fraud or willful misrepresentation to obtain immigration benefits, a person who is found to have made a false U.S. citizenship claim does not qualify for an immigrant waiver to overcome this permanent bar. There is no such waiver available, even if the person has a U.S. citizen spouse who will suffer extreme hardships without his presence in the U.S.

(NOTE: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the Immigration & Nationality Act.  Whether you qualify for the nonimmigrant visa itself is a separate issue.)

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It can be tempting to falsely claim U.S. citizenship when there is no other way to find employment or gain entry into the U.S.  But this could later cause harm to your green card or immigrant visa application if, for example, you marry a U.S. citizen or find a U.S. employer who is willing to petition for you.

If you are already a permanent resident, a false claim to U.S. citizenship can prevent you from establishing good moral character for naturalization and subject you to removal from the United States.

False U.S. citizenship claims do not prohibit foreign nationals from applying for certain types of relief, such as a U visa and asylum (which can lead to permanent resident status) and Form EOIR-42B, cancellation of removal (which results in permanent resident status). But these forms of relief carry strict eligibility requirements. For example, an Immigration Judge may find that a Cancellation of Removal applicant who makes a false claim lacks the “good moral character” necessary to obtain this relief.

If you ever want to become a permanent resident through a family or employment-based petition, your best choice is to avoid making false claims to U.S. citizenship for benefits under immigration law or benefits under federal or state law. The potential defenses are sometimes hard to establish and don’t always work.

For more information, read:

Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

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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How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Posted on January 19, 2015 | Comments Off on How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Becoming a permanent resident of the U.S. is not a quick process.

Yet green card holders sometimes take their status for granted and lose it through unintentional abandonment.  This results from a host of reasons, such as staying outside the U.S. too long, being employed in the home country, and filing tax returns as a non-resident.

You may voluntarily and officially give up your U.S. residency by turning in your green card and filing a Form I-407, Record of Abandonment of Lawful Permanent Resident Status, with the appropriate U.S. Consulate or USCIS office.

But if you want to keep your lawful permanent resident (LPR) status, you should take these 6 critical steps to avoid unintentionally abandoning it:

1. Keep each trip abroad short (six months or less) 

Being a permanent resident gives you freedom to travel overseas and re-enter the U.S. with your green card and a valid passport, without needing a visa.

Short visits outside the U.S. lasting less than six months are usually not a problem. Frequent travelers should return to the U.S. as often as possible and within six months of any departure.

Trips outside the U.S. lasting six to 12 months bring greater scrutiny and suspicion that you abandoned your residency. And trips outside the U.S. lasting more than 12 months lead to a presumption that you abandoned your residency. You will then have to convince the U.S. Customs & Border Protection (CBP) officer or the Immigration Court that you did not abandon your residence.

If you are absent from the U.S. for six consecutive months or more, you risk losing your green card when you try to reenter the U.S. This is especially true when you have multiple, prolonged absences or when you have received prior warnings from a CBP officer at the port of entry.

2. Make sure your visits abroad are fixed and temporary and that you return to the U.S., as your permanent home, for extended periods 

Coming back to the U.S. before you hit the six to 12-month mark of being absent is not a surefire way to preserve your residence. The length of time abroad is not the only factor to consider.

When your trips abroad (particularly to your home country) are frequent, you run the risk of being subject to scrutiny by the CBP each time you seek re-entry. Regular, extended trips outside the U.S., followed by relatively short stays, will cause CBP to doubt whether your true residence is in the U.S. The CBP may question  you about your travel patterns, employment history and other factors to determine if you just return to the U.S. to hang on to the green card, but do not really have a permanent home in the country.

Returning to the U.S. within one year is necessary to maintain LPR status and to re-enter the U.S. without a reentry permit. But such a return is not always enough to show that you did not abandon your residence.

Following a trip abroad, a permanent resident must be returning to an unrelinquished residence in the U.S. In Matter of Kane, the Board of Immigration Appeals found that a Jamaican citizen abandoned her LPR status when she spent 11 months of every year living in her native country and returned to the U.S. for one month every year.

LPR status is granted to those who intend to make the U.S. their permanent home. When you leave the U.S. with the intent of making another country your true home, you in effect abandon your U.S. residency.

The purpose of your leaving the U.S. must be temporary; your visit abroad must have a fixed timeline; and you must intend to return to the U.S. as a place of permanent employment or as an actual home.

A visit abroad of any length will be considered temporary and fixed if it will end on a certain date (e.g. temporary placement abroad by your U.S. employer; “round the world” travel; professional training; attendance at school; sabbatical) or when a certain event takes place (e.g. travel to care for a sick relative; travel to liquidate assets or business abroad; travel for a work project with a clear end date).

Be prepared to show proof that you intended to return to your U.S. residence, especially if your trip abroad lasted six months or more.

3. Maintain your ties to the U.S. 

Any absences from the U.S. – even if is less than one year – may be considered in deciding whether you abandoned your residence.  Permanent residents must maintain family, employment, financial and property ties in the U.S. and have documentation to prove these ties.

Proof that you did not abandon your U.S. residency includes:

  • Evidence of your filing U.S. income tax returns for the past year(s).
  • A valid U.S. based driver’s license
  • The name and address of your U.S. employer and evidence that it paid your salary.
  • Evidence of ownership or leasing of property, such as a home, in the U.S.
  • Evidence of ownership of assets, such as a bank account, in the U.S.
  • Evidence of immediate family members, such as a U.S. citizen child or spouse, in the U.S.
  • Evidence of registration or attendance at a U.S. school.
  • Evidence of professional affiliations or club memberships in the U.S.

4. Minimize your ties to your native country or to a third country

If you maintain strong ties to another country and stay there frequently or for extended periods, you could be found to have abandoned your U.S. residence, based on the totality of the circumstances.

Avoid actions that strengthen your ties overseas, such as extended visits to family members in your home country; owning property in your home country; working abroad for a foreign employer;  being self-employed or running a business in your home country; voting in foreign elections; running for political office in a foreign country; and failing to file your U.S. income tax returns or filing them as a non-resident alien.

5. Get a reentry permit or a returning resident visa for admission to the U.S. following a long absence

Your green card becomes technically invalid for reentry into the U.S. if your trip abroad lasted one year or more.  While your green card can be used for reentry following an absence of less than one year, you may be treated as seeking admission to the U.S. if you were gone for six months or more.

A reentry permit is a must-have for permanent residents who plan to stay outside the U.S. for one year or more, but want to keep their U.S. residency. A reentry permit is also recommended when each stay abroad lasts less than one year, but the permanent resident travels frequently and spends considerable time outside the U.S.

To get a re-entry permit, you must file a Form I-131, Application for Travel Document, with USCIS and complete the biometrics (photo and fingerprinting) before you depart the U.S. If you leave the U.S. while the application is still pending, you may request USCIS to send the reentry permit to you through a U.S. Consulate or USCIS office overseas.

A re-entry permit helps to show you did not intend to abandon your status. It also permits you to apply for admission to the U.S. following an absence of up to 2 years without needing a Returning Resident (SB-1) immigrant visa.

If you did not apply for a re-entry permit before you left the U.S for a period lasting one year or more, you should apply for a Returning Resident visa at the U.S. Consulate. The consular officer will grant the visa  if he finds that you departed the U.S. with the intent of returning to an unrelinquished U.S. residence, and your stay abroad was for reasons beyond your control and for which you were not responsible.

With a re-entry permit, you may not be found to have abandoned your residence based only on the length of time spent abroad. The re-entry permit, however, does not guarantee retention of LPR status or prevent a finding of LPR abandonment.  You may still be found to have abandoned your residency based on other relevant factors, such as weak ties in the U.S. and strong ties overseas.

6. Be prepared to explain the temporary purpose of your trip abroad and avoid signing a Form I-407 at the port of entry

Following any trips abroad, permanent residents need to present a valid green card  to the CBP officer at the U.S. port of entry. Based on travel history, employment ties, etc., the CBP may find that a permanent resident is really living outside the U.S. and has abandoned his U.S. residency.

If the CBP believes you abandoned your LPR status, they can take steps to have it officially revoked or cancelled. The officer may give you an opportunity to withdraw your application for admission or grant you Deferred Inspection.

If you wish to keep your U.S. residency, it’s better to avoid withdrawing your request for re-entry. Instead, explain the temporary purpose of your trip abroad and the compelling circumstances that led you to stay overseas as you did.

If the CBP still believes you abandoned your residency, it  may confiscate your green card, defer your inspection, and issue a parole document temporarily allowing you into the U.S. on the condition that you report to them at a scheduled date with proper documentation proving you reside in the U.S. Being paroled into the U.S. and receiving Deferred Inspection is short of lawful admission as a permanent resident.

At your Deferred Inspection appointment, the CBP may agree that you reside in the U.S. and give you back your green card. But if it finds you do not maintain a permanent home in the U.S., you may be detained in the custody of U.S. Immigration & Customs Enforcement (ICE) or released conditionally, and placed in removal proceedings before the Immigration Court.

In removal proceedings, ICE has the burden to prove by clear and convincing evidence that you abandoned your residence. An immigration judge may terminate removal proceedings and allow you to keep your green card if you prove you did not abandon your residence. If the Immigration Court finds that you abandoned your status, you may defend yourself against removal by filing a form of relief for which you qualify.

At the port of entry, the customs officer may give you a Form I-407, Record of Abandonment of Permanent Residence Status, to sign (sometimes in exchange for being admitted to the U.S. as a temporary visitor).

If you want to keep your status, do not sign the Form I-407 if one is given to you. Instead, ask for Deferred Inspection or a Notice to Appear in Removal Proceedings before the Immigration Court.

A signed Form I-407 can be used to show that you affirmatively abandoned your residence. It makes it much harder to prove that you you did not abandon your U.S. residency or did not intend to abandon it.

When Does the Question of Whether You Abandoned Your U.S. Residency Come Up? 

Applying for Admission at the U.S. Port of Entry

Each time green card holders return to the U.S. from a trip overseas, CBP officers may ask questions to determine whether they abandoned their U.S. residency. Common questions include:

  • Where have you been outside the U.S.?
  • How long were you there?
  • What were you doing there?
  • Why are you coming to the U.S. now?
  • What ties to the U.S. did you keep while you were away?

Filing a Naturalization Application with USCIS

When permanent residents apply to become naturalized U.S. citizens, they are asked questions about their trips abroad on the Form N-400 application. They are also asked about their current and past addresses; employers and schools; and whether they filed their federal, state or local taxes as a nonresident.

Information on the N-400 concerning where you have lived, worked, and kept ties, as well as the frequency and lengths of your trips abroad, could lead to complications. USCIS may find that you not only fail to meet the continuous residence and physical presence requirements for naturalization, but that you also abandoned your U.S. residency.

If USCIS finds that you abandoned your U.S. residency, it will deny the naturalization application and may issue a Notice to Appear in Removal Proceedings. If placed in removal proceedings before the Immigration Court, you would need to prove that you did not abandon your LPR status and defend yourself against removal.

* * *

Consult with an experienced immigration attorney to help you determine whether your long absences from the U.S., frequent trips abroad, weak ties to the  U.S., or strong ties to another country could cause problems with re-entering the U.S. or becoming a naturalized citizen.

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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Veterans Day honors non-citizens serving in the military

Posted on November 11, 2014 | Comments Off on Veterans Day honors non-citizens serving in the military

U.S. citizenship is not required to serve in the U.S. Armed Forces. In a Veterans Day post titled, Honoring the Contributions of Immigrants Serving in the Military, the White House noted, “Currently, we have more than 30,000 lawful permanent residents who are serving in our Armed Forces.” 101110-N-6477M-070The White House added, “Since 2002, more than 102,000 men and women, including individuals serving in Iraq, Afghanistan, South Korea, Germany, Japan and elsewhere, have become citizens while wearing the uniform of the U.S. military.”

Once they join the military, non-citizens are eligible to naturalize more quickly than their civilian counterparts. In wartime, any non-citizen who serves honorably during specified periods of conflict may naturalize even if he or she does not yet have a green card.  In peacetime, anyone with a green card and one year of military service may naturalize, even if he or she has not served on active duty or in the Selected Reserve.

The Military Accessions Vital to the National Interest (MAVNI) Program also allows certain non-citizens who are lawfully present in the United States to join the U.S. military and apply immediately for U.S. citizenship without first obtaining lawful permanent residence. The program applies to lawful nonimmigrants with critical skills — physicians, nurses and certain experts in languages with related cultural backgrounds.

In late September, the Department of Defense extended the MAVNI Program to undocumented immigrants (specifically, those who came to the U.S. with their parents before age 16 and are approved under a 2012 Obama policy known as Deferred Action for Child Arrivals, or DACA). For more information, see the DOD’s Fact Sheet.

This article provides general information only. 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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Fraud, Lies, and USCIS : Pitfalls in Naturalization

Posted on October 31, 2014 | Comments Off on Fraud, Lies, and USCIS : Pitfalls in Naturalization

Filing for naturalization is relatively simple when compared to applying for aNaturalization Oath Ceremony green card. Becoming a U.S. citizen is generally recommended: you get to vote for elected officials, obtain federal jobs, sponsor immediate relatives for green cards, travel freely with a U.S. passport, and gain immunity from deportation or removal.

But the naturalization process opens you up to further scrutiny by the U.S. Government. You are inviting U.S. Citizenship & Immigration Services (USCIS) to review your entire immigration record. So beware of the pitfalls.

Fraud, lies and misleading statements that were previously overlooked could come to USCIS’ attention when you file for naturalization. In some cases, the misrepresentation is innocent, unintentional, or purely out of embarrassment. In others, a finding of misrepresentation is based on USCIS’ faulty reasoning or misguided assumptions. Either way, you are on the defensive.

If USCIS finds that you previously committed fraud, lied, or made misleading statements to the U.S. government or to gain immigration benefits, it may deny your application. Even worse, you could be placed in removal proceedings and risk losing your permanent resident status. Furthermore, through denaturalization proceedings, a citizenship grant may later be revoked based on a fraud finding – leaving you with no status.

The following are common cases in which USCIS may detect fraud or misrepresentation during the naturalization process:

Case #1: Natalia is granted lawful permanent resident status based on an approved Form I-360 (religious worker) petition.

After being a permanent resident for five years, she files for naturalization. USCIS then investigates the religious organization that petitioned for her and finds that it does not exist and was not in operation when it filed the I-360 petition for Natalia. USCIS concludes that Natalia never worked for the religious organization.

Case #2:  Sergio is granted a K-1 visa based on a Form I-129F petition that his U.S. citizen fiancée filed for him. After arriving in the  U.S., he marries his fiancée within 90 days and files his Form I-485 application to adjust to permanent resident status. The USCIS Service Center grants him conditional resident status without an interview. Two years later, Sergio files a timely Form I-751 petition to remove the conditions on his permanent residency. The USCIS Service Center approves the petition without an interview.

After being a permanent resident for three years, Sergio files for naturalization. At the naturalization interview, he reveals that he is separated from his U.S. citizen spouse and that they no longer live together. USCIS then conducts an investigation that leads them to believe the couple entered into a sham marriage to gain immigration benefits.

Case #3: Maya enters the United States on a tourist visa and files for asylum within one year of her arrival. On her asylum application, she falsely claims her brother as her spouse with the hope that he can later come to the United States as a derivative beneficiary. She next enters into a bona fide marriage to a U.S. citizen, who files an immigrant petition for her. USCIS approves Maya’s marriage-based green card application, which does not list any prior marriages.

When Maya applies for naturalization, USCIS reviews her file and finds the asylum application. USCIS requests the divorce decree showing that she terminated the prior marriage, which she claimed on her asylum application. USCIS wants the divorce decree to confirm whether Maya was legally free to marry her U.S. citizen spouse. Maya cannot produce the divorce decree because the spouse she claimed on her asylum application is actually her brother.

Case #4:  Igor enters the United States on an immigrant visa based on an I-130 petition that his lawful permanent resident mother filed for him.  But between the time his mother filed the petition and the time he obtained the immigrant visa, Igor secretly married his high school sweetheart without their parents’ consent.  Igor is unaware that the marriage disqualified him from immigrating under the family second-preference category, which applies to unmarried (but not to married) children of permanent residents.

During the naturalization process, USCIS investigates Igor’s immigration history and discover the marriage certificate.

These cases are common scenarios that attorneys are asked to evaluate after the applicant has already filed for naturalization and is now facing a denial or a Notice to Appear in removal proceedings. The better choice is to consult the attorney before you file for naturalization.

Fraud, lies and misleading statements go hand in hand with whether you lawfully obtained your permanent residence and meet the good moral character requirement to qualify for naturalization.

If you did not qualify for permanent residency in the first place, then you are not eligible for naturalization.

And to naturalize, you must show that you have been a person of good moral character during the statutory period. In general, the statutory period begins 3 to 5 years prior to filing the application. USCIS can also consider bad acts before the statutory period, if during the current 3 or 5 year period, you haven’t shown rehabilitation, or if the past bad acts relate to your current moral character. All applicants must show they continue to be a person of good moral character until they naturalize.

Giving false testimony, under oath or affirmation, to obtain immigration benefits during the statutory period prevents you from showing good moral character. This  mandatory bar applies even if you were granted a waiver of misrepresentation during the green card application process.

As of the date of this post, the latest 9/13/13 version of the N-400 form, asks:

Have you ever given any U.S. Government official(s) any information or documents that was false, fraudulent or misleading? [Question 31, part 11, page 17)]

Have you ever lied to any U.S. Government official to gain entry or admission into the United States or to gain immigration benefits while in the United States? [Question 32, part 11, page 17)]

Past misrepresentation or misrepresentation on the naturalization application itself or during the naturalization interview may lead to a denial of your application. Although rare, your citizenship can also be revoked through “denaturalization” if USCIS later discovers the misrepresentation.

When a denial is without prejudice, you may reapply for naturalization after a certain period has passed. But you might not get a second shot. Instead, you could face deportation. If you don’t qualify for any relief or if your request for relief is denied, you risk  losing your permanent resident status and being ordered removed from the United States.

Talk to an attorney before you file for naturalization.  A qualified attorney can help you determine whether you qualify for naturalization,  present negative facts in the best light possible, and pinpoint red flags that may lead to a denial and/or put you at risk of removal. The attorney can also help you evaluate a denial and determine whether to appeal it, file a new application later, or let things be.

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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