Tag Archives: naturalization

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 always be filed first. A conditional resident may not become a naturalized U.S. citizen until the I-751 petition is first approved.

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
dw@dyanwilliamslaw.com

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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 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)

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 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.

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).

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 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 interfere with 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, 2013 to June 26, 2014. 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, 2013 presumably does not count toward her continuous residence.

She may, however, provide evidence showing she did not disrupt her residence during her stay abroad, such as keeping her job in the U.S. and not obtaining employment while abroad; maintaining a residence in the U.S. to which she retained full access; and  having strong family ties in the U.S.

2. Absence of one year or more (without an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, which only certain persons may file) 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.

Four Years and One Day Rule | Two Days and One Day Rule

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.

Instead, if you are subject to the 5-year continuous residence requirement, 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 the 3-year continuous residence requirement applies to you, the wait is 2 years and 1 day.

NOTE: Absences of less than 6 months may also break the continuity of 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.

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.

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 during your interview, 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 terroristic 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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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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