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are not meant to be legal advice but for informational purposes only! Since the law is very fluid, the law might have changed since the articles presented on this website were first written. Use these information at your own risk!
are not meant to be legal advice but for informational purposes only! Since the law is very fluid, the law might have changed since the articles presented on this website were first written. Use these information at your own risk!
Do You Need a Lawyer in Immigration Cases?
The answer is most definitely yes. Immigration Law goes beyond a mere filling out of forms. Each immigration benefit has an underlying provision under the Immigration and Nationality Act or some other federal laws. Improperly filling out an immigration benefit can cause unnecessary delays or even trigger removal of the alien.
Government Agencies Commonly Encountered in Immigration Law
Department of Homeland Security (DHS) overseas 3 distinct Bureaus – United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP). USCIS deals with the conferment of immigration benefits such as the granting or permanent residence status or “green card,” naturalization (citizenship), adoption, refugee status, and family and employment based immigration. ICE is the bureau that is responsible for investigation of immigration violation, enforcement of immigration laws, and they also handle detention and removal. CBP officials are usually found at borders or port of entries into the United States. The role of CBP is to prevent terror and terrorist weapons from entering into the United States.
Department of Justice (DOJ) is the department that overseas Immigration courts.
Department of State (DOS) is the department that is responsible for visa processing at US consular posts abroad.
Department of Labor has to do with employment based visa and employment based lawful permanent residents.
Department of Justice (DOJ) is the department that overseas Immigration courts.
Department of State (DOS) is the department that is responsible for visa processing at US consular posts abroad.
Department of Labor has to do with employment based visa and employment based lawful permanent residents.
Non Immigrants vs. Immigrants
We have two groups of aliens. An alien is someone who is not a United States Citizen or simply put, someone from another country. The difference between an Immigrant and a Non Immigrant has to do with the temporary nature of a non immigrant’s stay.
Obtaining a Visa
An alien coming into the United States from outside the United States must have a visa or come from a country subject to visa waiver. A visa is a document issued by the Department of State to an alien seeking to come into the United States. The fact that a person holds a visa is not an automatic guarantee of admission into the United States. He or she must go before an Immigration officer at the port of entry. Once that individual is before the officer, the Officer inspects him or her to determine if he/she is eligible to be admitted into the United States. Once the alien is inspected, he/she is issued an I-94 Arrival Departure record. The I-94 is evidence that the alien has been inspected and admitted.
Admission is the lawful entry of an alien into the United States after inspection and authorization from an Immigration Officer. The I-94, not the visa, dictates the time within which the alien is authorized to remain in the United States. An alien who stays in the United States beyond the date stamped on the I-94 will be considered out of status.
Admission is the lawful entry of an alien into the United States after inspection and authorization from an Immigration Officer. The I-94, not the visa, dictates the time within which the alien is authorized to remain in the United States. An alien who stays in the United States beyond the date stamped on the I-94 will be considered out of status.
Inadmissibility
Even with a valid visa, an alien who is found to be inadmissible by the Immigration Officer at the port of entry will be denied admission into the United States. There are six basic grounds of inadmissibility into the United States:
1. Economic Grounds
2. Political Grounds
3. Health Related Grounds
4. Criminal Grounds
5. Quasi Criminal Grounds
6. Miscellaneous “Catch All” Category
1. Economic Grounds
2. Political Grounds
3. Health Related Grounds
4. Criminal Grounds
5. Quasi Criminal Grounds
6. Miscellaneous “Catch All” Category
Economic Grounds of Inadmissibility
An alien will be denied admission into the United States if he would become a “public charge” once he is admitted. Public charge basically means being a burden on the government and the taxpayers to take care of you. An alien who intends to depend on the government or means tested income benefits will not be admitted into the United States.
Political Grounds of Inadmissibility
Certain groups of people are not admissible into the United States. For example, Communists, Nazis, torturers, terrorists, etc, are not admissible into the United States. Any body or group that advocates for the overthrow of the US government is not admissible into the United States.
Health Grounds of Inadmissibility
Aliens with communicable disease and drug addicts are not admissible into the United States. HIV is no longer a ground for inadmissibility.
Criminal Grounds of Inadmissibility
The Immigration and Nationality Act does not allow criminals into the United States. Examples include drug trafficking, crimes of moral turpitude, violation of controlled substance laws, multiple criminal convictions, and trafficking in persons. The alien has to keep in mind that the way immigration defines conviction is not the way that conviction is defined under state laws. What is considered a misdemeanor under state law may actually be a removable offense for the purpose of immigration. As a result of that, an alien it is advisable for an alien to stay away from trouble at all costs. If an alien has the misfortune of being charged with a crime, it is advisable that the alien discusses with a lawyer that understands the immigration consequences of a criminal conviction before he pleads a deal. Contacting such a lawyer will save the alien a lot of heart ache later
Quasi Criminal Grounds of Inadmissibility
Examples are prostitution, polygamy, and international abduction
Miscelleneous Grounds of Inadmissibility
Examples include situations where the alien does not have entry documents; illegal presence in the United States; failure to attend a removal hearing; document fraud, etc
Unlawful Presence
Once an alien stays beyond their authorized stay the“clock” starts to tick and this is known as unlawful presence. With the exception of immediate relatives of United States citizens, unlawful presence precludes an alien from being able to adjust their status in the United States.
3 Year Bar: An alien that has been present in the United States for more than 179 days and up to one year, is subject to a 3 year bar.
10 Year Bar: An alien that has been present in the United States for more than 1
year is subject to a 10 year bar when he leaves the United States
3 Year Bar: An alien that has been present in the United States for more than 179 days and up to one year, is subject to a 3 year bar.
10 Year Bar: An alien that has been present in the United States for more than 1
year is subject to a 10 year bar when he leaves the United States
Bars to Entry
The following classes of aliens are barred from being admitted into the United States:
1. An alien is not entitled to enter the United States generally if he or she does not present the proper documentation that corresponds with category that the individual seeks to enter.
2. If the individual has a communicable disease. HIV is no longer a bar to entry.
3. If the individual has been convicted of certain crimes.
4. If the individual is a control substance transferor.
5. If the individual has engaged in prostitution or in commercialized vice.
6. If the individual has been involved in serious criminal activity.
7. Any foreign government officials who have been engaged in particularly severe violation of religious freedom.
8. If the individual has been engaged in significant trafficking in persons, money laundering.
9. Any one engaged in violating United States Security.
10. Any one who may become a public charge.
11. Any one who seeks to come into the United States as immigrant and seek employment but does not have labor certification.
12. Any one who has illegally entered.
13. Anyone who is a prior immigration violator is not entitled to enter the United States.
14. Any one who has a previous order of deportation cannot come back until the terms of that order has been fulfilled or the individual presents a waiver.
15. International Child abductors.
16. Anyone who has voted unlawfully in the United States.
17. Any former citizens who left the United States and renounced their citizenship in order to avoid taxation
1. An alien is not entitled to enter the United States generally if he or she does not present the proper documentation that corresponds with category that the individual seeks to enter.
2. If the individual has a communicable disease. HIV is no longer a bar to entry.
3. If the individual has been convicted of certain crimes.
4. If the individual is a control substance transferor.
5. If the individual has engaged in prostitution or in commercialized vice.
6. If the individual has been involved in serious criminal activity.
7. Any foreign government officials who have been engaged in particularly severe violation of religious freedom.
8. If the individual has been engaged in significant trafficking in persons, money laundering.
9. Any one engaged in violating United States Security.
10. Any one who may become a public charge.
11. Any one who seeks to come into the United States as immigrant and seek employment but does not have labor certification.
12. Any one who has illegally entered.
13. Anyone who is a prior immigration violator is not entitled to enter the United States.
14. Any one who has a previous order of deportation cannot come back until the terms of that order has been fulfilled or the individual presents a waiver.
15. International Child abductors.
16. Anyone who has voted unlawfully in the United States.
17. Any former citizens who left the United States and renounced their citizenship in order to avoid taxation
Adjustment of Status
Adjustment of Status is a process by which an alien that is already in the United States Changes his status from that of a non immigrant status to an Immigrant status. Not every non immigrant that are present in the United States can adjust their status. Certain requirements must be met in order to be able to adjust status. A non immigrant alien who is out of status or who has worked without authorization may not adjust his status within the United States. Except in the case of immediate relatives of United States Citizens.
Sex Offenders and Immigration
Can you petition for a family member if you have been convicted of a sex offense?
Under the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) which was signed into law by President George W. Bush, a United States Citizen or Permanent Resident who has been convicted of a specified offense against a minor is prohibitted from bringing any petition for a family based immigration petition on behalf of any beneficiary unless the Secretary of the Department of Homeland Security (DHS) at its own discretion makes a determination that then petitioner does not pose any risk to the beneficiary. The discretion whether to grant the waiver is entirely up to DHS. If DHS makes a determination that the petitioner is a risk to the benficiary, that determination is not reviewable.
What are specified offenses against a minor?
A specified offense against a minor includes the following:
1. Kidnapping
2. False Imprisonment
3. Solicitation to engaage in sexual conduct
4. Video voyeurism
5. Using a minor in a sexual performance
6. Soliciation to practice prostitution.
7. Possession, production, or distribution of child pornography
8. Criminal Sexual Conduct involving a minor or the use of the internet to facilitate such
conduct.
9. Any conduct that is by its nature a sex offense against a minor
Under the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) which was signed into law by President George W. Bush, a United States Citizen or Permanent Resident who has been convicted of a specified offense against a minor is prohibitted from bringing any petition for a family based immigration petition on behalf of any beneficiary unless the Secretary of the Department of Homeland Security (DHS) at its own discretion makes a determination that then petitioner does not pose any risk to the beneficiary. The discretion whether to grant the waiver is entirely up to DHS. If DHS makes a determination that the petitioner is a risk to the benficiary, that determination is not reviewable.
What are specified offenses against a minor?
A specified offense against a minor includes the following:
1. Kidnapping
2. False Imprisonment
3. Solicitation to engaage in sexual conduct
4. Video voyeurism
5. Using a minor in a sexual performance
6. Soliciation to practice prostitution.
7. Possession, production, or distribution of child pornography
8. Criminal Sexual Conduct involving a minor or the use of the internet to facilitate such
conduct.
9. Any conduct that is by its nature a sex offense against a minor
Change of Address by an Alien
Most non-U.S. citizens must report a change of address within 10 days of moving within the United States or its territories. Exceptions include:
1) Diplomats (visa status A),
2) Official governemnt representatives to an international organization (visa status G), and
3) Certain nonimmigrants who do not possess a visa or who are in the U.S. for fewer than 30 days.
1) Diplomats (visa status A),
2) Official governemnt representatives to an international organization (visa status G), and
3) Certain nonimmigrants who do not possess a visa or who are in the U.S. for fewer than 30 days.
Penalties for Failure to Change Address by an Alien
A willful failure to give written notice to the USCIS of a change of address within 10 days of moving to the new address is a misdemeanor crime. If convicted, you (or parent or legal guardian of an alien under age 14 who is required to give notice) can be fined up to $200 or imprisoned up to 30 days, or both. The alien may also be subject to removal from the United States. (INA § 266(b)). Compliance with the requirement to notify the USCIS of any address changes is also a condition of your stay in the United States. Failure to comply could also jeopardize your ability to obtain a future visa or other immigration benefit.
Asylum and Related Relief
Asylum is an immigration benefit granted in the United States. A similar relief can also be granted outside of the United States. If that happens, it is known as getting a refugee status. Asylum is not only a request for a benefit it can also be a ground for relief from removal. In essence what asylum is – It is protection from persecution by others outside the United States.
Five Grounds for Asylum
1. Race.
2. Religion.
3. Nationality.
4. Membership in a particular social group or
5. Political opinion.
2. Religion.
3. Nationality.
4. Membership in a particular social group or
5. Political opinion.
Burden of Proof for Asylum
An applicant for asylum must meet the burden of showing a well founded fear of persecution based on the five grounds above.
Affirmative Filing of Asylum
Any asylum application must be filed within 1 year of the date of entry into the United States except otherwise subject to a couple of exceptions, an application for asylum that is filed more than one year after the date of entry is time barred and cannot be presented. In an affirmative filing, an applicant completes form I-589. That application in
and of itself contains two forms of relief from persecution –i.e. asylum and withholding of removal. With both asylum and withholding from removal, the applicant must be able to prove a well-founded fear of persecution based on one
of the 5 enumerated grounds that is the essential reason for the persecution.
and of itself contains two forms of relief from persecution –i.e. asylum and withholding of removal. With both asylum and withholding from removal, the applicant must be able to prove a well-founded fear of persecution based on one
of the 5 enumerated grounds that is the essential reason for the persecution.
Witholding of Removal
Withholdings of removal has a higher standard of proof. This component of relief from persecution is important because an aggravated felon who otherwise would not have any other form of relief from removal is entitled to make an application for withholding of removal. Withholding of removal is also important because a claim for withholding does not have to be filed within one year. It can be filed at a later date. That is the up side of it. The down side is higher burden of proof that has to be met.
Filing the Application for Asylum
After the form I-589 is filed with the service center that services the jurisdiction where that applicant lives. The service center in turn sends that application to the asylum office that maintains jurisdiction over the applicant’s place of
residence.
residence.
The Asylum Interview
Once the asylum has been transferred to the asylum office, applicant is then invited into the asylum office for an interview and the applicant is then interviewed by an asylum officer who determines whether the applicant does in fact meet the
requirement of possessing a well-founded fear of persecution
based on the 5 enumerated grounds.
requirement of possessing a well-founded fear of persecution
based on the 5 enumerated grounds.
Notice to Appear following an Asylum Interview
The asylum office may not be in the applicant’s neighborhood, or in the applicant’s city or even the applicant’s state. There is a chance that the applicant may not even appear for that interview. If that is the case, the asylum office will
issue an NTA – Notice to Appear and that applicant will then be placed in proceedings with the immigration court and will have his or her asylum application heard by the immigration judge.
issue an NTA – Notice to Appear and that applicant will then be placed in proceedings with the immigration court and will have his or her asylum application heard by the immigration judge.
Use of Interpreters at the Asylum Office
If the applicant needs an interpreter, the applicant must take their own interpreter with them. Most typically, a decision is not made on the spot in which case the applicant comes back to the asylum office for a decision.
The Asylum Application Decision
If asylum has been granted, the applicant is given an approval notice and then may proceed to file for an adjustment of status based on the approved application for asylum. If the applicant at that time holds any other status for instance if he is a student or he is in a TPS status, the application may be denied. However, for everyone else, a denial is rarely given. What happens is that instead of an outright denial, the asylum officer refers the applicant to the immigration court and then the applicant must appear in front of the immigration judge and make his re-presentation for his claim of asylum.
Defensive FIling of Asylum Application
This occurs when an individual has already been placed in removal. As a form of relief from removal, the individual can ask for asylum as a form of relief along with any other forms of removal that the judge considers. Asking for asylum as a form of relief only happens if the alien has been to the court within one year of entry. Often times the alien does not go before the court within one year of entry. The alien is usually in court on an NTA more than one year of the date of entry which poses a problem. If the individual is in proceeding more than 12 months after the date of entry, the only thing that they can ask for is withholding from removal which has a higher burden of proof.
Importance of Credibility in Asylum Applications
Credibility is vital in an asylum application because once the immigration judge finds that an asylum applicant is not credible, no further analysis of the claim need be made. So the first and foremost finding in an asylum hearing is credibility of the applicant. Now under the new real ID act, they are imposing on the asylum applicant the requirement that the applicant produce corroborating witnesses and or evidence unless the applicant does not have the evidence and cannot reasonably contain it and in this case you would have to give an explanation of why corroborating evidence or corroborating witnesses were not produced.
Court Proceedings in Asylum Cases
1. Master Calendar Hearing
2. Individual Hearing
2. Individual Hearing
What is the Master Calendar Hearing?
Once the alien has been either referred to immigration proceedings or find themselves in immigration proceedings by issuance of an NTA, the first step is that the court will conduct a master calendar hearing. The master calendar hearing is equivalent to a pretrial. The alien and/or the alien’s attorney go in front of the judge and tell the judge what form of a relief from removal that they would be seeking. It may be just a continuance of the asylum application.
Individual Hearing
After the master calendar hearing has been conducted, the matter will be set up for an individual hearing. The individual hearing is the adversary component of the proceeding. It is a formal hearing presided over by the immigration judge. The government has an attorney present. The applicant is entitled to have counsel represent him or her at no cost to the government. This proceeding is tape recorded and the applicant is subject to the proceeding of direct examination. He is subject to cross examination, he is subject to examination by the immigration judge, and he can present exhibits and witnesses. The alien must be sworn under oath and take the stand.
What Kinds of Documentation are Needed in Asylum Cases?
People don’t necessarily have persecutors draft documents that show persecution. What you want to show is that if for example a claim is based on political opinion, membership papers in a political party that was opposed to the government in the country that you came from.
Birth Certificates.
You want to show the birth certificates of the applicants to show that they are in fact natives and citizens of the persecuting country. They may also need to show the birth certificates of family members if the claim is that their whole family has been persecuted.
School Records
You might also want to show school records for example if an individual was participating in school group demonstration, to show that the individual was a student at said school. Arrest records, jail records, work
records, etc.
Country Condition Reports and Reports from Reputable Organizations
You can also go to a number of organizations to get country reports to sustain your position. The Department of State puts out country reports. Typically, it won’t help the asylum seeker. It will help the government and help the judge. But there are other organizations like Amnesty International and you can search around for reliable reports given out by reliable nongovernmental organizations that report on conditions in country to prove that at the particular time this was going on and it is more likely than not that the applicant was at least in the country during the time of the persecution. You really have to tie most of it in by testimony.
Inconsistency is the applicant’s major down fall. You have to realize that the consistency starts with the first asylum application through the testimony given to the asylum office right through the testimony given at the hearing. Often times, people come into the country illegally and they go to the social worker or someone in their community that speaks their language and makes them comfortable and this person drafts an asylum application not necessarily beholding to the fact of the case. If the applicant does not know or speak English, they do not know what the community worker is putting down in their application and this community worker promises the applicant that the application is going to get them asylum. The applicant may later find out, after having learned the English language, or after the application is properly explained to them by an attorney, that the things in the application are totally different from what the applicant related to the community worker. The judges don’t really forgive you.
Birth Certificates.
You want to show the birth certificates of the applicants to show that they are in fact natives and citizens of the persecuting country. They may also need to show the birth certificates of family members if the claim is that their whole family has been persecuted.
School Records
You might also want to show school records for example if an individual was participating in school group demonstration, to show that the individual was a student at said school. Arrest records, jail records, work
records, etc.
Country Condition Reports and Reports from Reputable Organizations
You can also go to a number of organizations to get country reports to sustain your position. The Department of State puts out country reports. Typically, it won’t help the asylum seeker. It will help the government and help the judge. But there are other organizations like Amnesty International and you can search around for reliable reports given out by reliable nongovernmental organizations that report on conditions in country to prove that at the particular time this was going on and it is more likely than not that the applicant was at least in the country during the time of the persecution. You really have to tie most of it in by testimony.
Inconsistency is the applicant’s major down fall. You have to realize that the consistency starts with the first asylum application through the testimony given to the asylum office right through the testimony given at the hearing. Often times, people come into the country illegally and they go to the social worker or someone in their community that speaks their language and makes them comfortable and this person drafts an asylum application not necessarily beholding to the fact of the case. If the applicant does not know or speak English, they do not know what the community worker is putting down in their application and this community worker promises the applicant that the application is going to get them asylum. The applicant may later find out, after having learned the English language, or after the application is properly explained to them by an attorney, that the things in the application are totally different from what the applicant related to the community worker. The judges don’t really forgive you.
Prosecution vs. Persecution
Prosecution. If someone fears the government because they were arrested for burglary and they are charged and sentenced in a prison for burglary that is prosecution. It is not necessarily persecution.
Persecution must be particularized to the particular individual
A lot of people think that just because they are from a bad place, that is enough. It has to be particularized against them. They cannot come in and say that their Uncle was hung because of his political activity. Persecution must be
particularized to the particular individual. You cannot just say that your country is not free. There has to be something that happens to you. You have to have an act to report on.
For asylum and withholding, you have to show that the persecution being visited on the applicant is by or at the hands of the government or a group of persons that the government is either unable or unwilling to control. An aggravated felon who has committed murder would still not be entitled to withholding.
Persecution must be particularized to the particular individual
A lot of people think that just because they are from a bad place, that is enough. It has to be particularized against them. They cannot come in and say that their Uncle was hung because of his political activity. Persecution must be
particularized to the particular individual. You cannot just say that your country is not free. There has to be something that happens to you. You have to have an act to report on.
For asylum and withholding, you have to show that the persecution being visited on the applicant is by or at the hands of the government or a group of persons that the government is either unable or unwilling to control. An aggravated felon who has committed murder would still not be entitled to withholding.
Covention Against Toture
Really, what you are doing when you are filing for the form I-589 is that you are asking
for three forms of relief from persecution. You are asking for asylum, withholding and Convention against torture.
The convention against torture provision was enacted into law in 1988 and it provides that no state, or state
party shall expel, return, or extradite a person to another state where there are substantial grounds for believing that he will be in danger of torture.
The convention against torture does not rely on any of the five enumerated grounds. You have to show that any torture suffered was by or with the acquiescence of a public official. A torture means a physical torture. It cannot
be torture when it is mental torture or psychological torture. It has to be by a public official.
for three forms of relief from persecution. You are asking for asylum, withholding and Convention against torture.
The convention against torture provision was enacted into law in 1988 and it provides that no state, or state
party shall expel, return, or extradite a person to another state where there are substantial grounds for believing that he will be in danger of torture.
The convention against torture does not rely on any of the five enumerated grounds. You have to show that any torture suffered was by or with the acquiescence of a public official. A torture means a physical torture. It cannot
be torture when it is mental torture or psychological torture. It has to be by a public official.
Is grant of asylum and similar relief permanent?
Note that by statute, a grant of asylum, withholding, or convention against torture is not necessarily permanent. So
if conditions have changed in the country from which the applicant seeks asylum, the government can come back and rescind the grant of asylum and then the individuals will be left to their own devices to find another way to stay in the United States or to return to their country.
Likewise, if you file an asylum claim and the asylum claim is denied and the alien happens to just hang around in the country even after the denial, a changed of country conditions will allow an alien to come back and re-file even if it is outside of the 1 year time period.
if conditions have changed in the country from which the applicant seeks asylum, the government can come back and rescind the grant of asylum and then the individuals will be left to their own devices to find another way to stay in the United States or to return to their country.
Likewise, if you file an asylum claim and the asylum claim is denied and the alien happens to just hang around in the country even after the denial, a changed of country conditions will allow an alien to come back and re-file even if it is outside of the 1 year time period.
Judicial Discretion in Asylum Cases
While the judges’ decision in the most part are discretionary, in the realm of terrorism in most part are not discretionary. The Patriots Act for the most part removed that discretion. With the exception of those charged with terrorism, in these applications for relief from persecution, the judge is entitled to exercise discretion with regard to the grant of relief. The exercise of discretion is the weighing of positive and negative factors in an asylum claim
to determine whether an applicant merits a favorable decision.
to determine whether an applicant merits a favorable decision.
Factors Judges Consider in Exercising Discretion in Asylum Cases
In determining discretion, the immigration judge looks at a number of factors.These factors include:
1. The age and the health of the applicant.
2. Whether the person has passed through any other country before coming into the United States.
3. Whether the individual arrived in the United States directly from the country where they are fleeing persecution.
4. Whether a refugee visa or a refugee procedure was available to the applicant in any other country where they stopped before they entered the United States.
5. Family ties in the United States.
6. Family ties in the country where there would be no persecution.
7. Ties to other countries where there will be no persecution.
8. How long an individual was in a third country if they were in a third country.
9 The person’s living conditions in a third country, and
10. Whether or not the applicant used fraudulent documents to enter the United States
Fraudulent Documents. When looking at the use of fraudulent documents, the determination is how serious was
the fraud because this factor is not in and of itself significant adverse factor.
1. The age and the health of the applicant.
2. Whether the person has passed through any other country before coming into the United States.
3. Whether the individual arrived in the United States directly from the country where they are fleeing persecution.
4. Whether a refugee visa or a refugee procedure was available to the applicant in any other country where they stopped before they entered the United States.
5. Family ties in the United States.
6. Family ties in the country where there would be no persecution.
7. Ties to other countries where there will be no persecution.
8. How long an individual was in a third country if they were in a third country.
9 The person’s living conditions in a third country, and
10. Whether or not the applicant used fraudulent documents to enter the United States
Fraudulent Documents. When looking at the use of fraudulent documents, the determination is how serious was
the fraud because this factor is not in and of itself significant adverse factor.
Exceptions to the One year Filing Rule
We mentioned that the I-589 has to be filed within 1 year from the date of entry. That one year rule can be overcome by a showing of extra ordinary circumstances. Those extra ordinary circumstances include:
1 Serious illness.
2 Mental or physical disability.
3 Legal disability
4 Ineffective assistance of counsel
5 Being in lawful status as a TPS or a non immigrant status.
6 The filing of an asylum application prior to the expiration of the `1 year but where the service center rejects the application as not properly filed.
7 Death or serious illness of the applicant’s legal representative or a member of the applicant’s immediate family.
8 Changed country conditions.
1 Serious illness.
2 Mental or physical disability.
3 Legal disability
4 Ineffective assistance of counsel
5 Being in lawful status as a TPS or a non immigrant status.
6 The filing of an asylum application prior to the expiration of the `1 year but where the service center rejects the application as not properly filed.
7 Death or serious illness of the applicant’s legal representative or a member of the applicant’s immediate family.
8 Changed country conditions.
Absolute Bar to Asylum
There is also an absolute bar to making the application for asylum. The bar is imposed upon anybody who ordered, incited assisted, or otherwise participated in the persecution of any person based upon race, religion, nationality, membership in a particular social group or political opinion.
Diversity Visa Lottery Program
The diversity lottery program. It is a lottery that is open to individuals of designated countries where the department of homeland security indicate and found that the visa issuance has been under subscribed. It is a lottery. You make the application, you submit the application and then the department of homeland security then selects at random a number of visa lottery application that are then allowed to apply for the immigrant visa at a consulate or adjustment of status if the alien is already present in the United States. Countries that have a lot of visas issued to them are not allowed to participate in the visa lottery program. For example – Great Britain. The visa lottery is done on annual basis and if you don’t win you can always file, file, file again.
Becoming a Permanent Resident
There are four basic ways that an alien can become a permanent resident.
1. Familiar relationships.
2. Employment
3. Asylum
4. Diversity visa lottery.
1. Familiar relationships.
2. Employment
3. Asylum
4. Diversity visa lottery.
What does it mean to be lawfully admitted for permanent residence?
To be lawfully admitted for permanent residence means that a person has the status of being accorded the privilege of residing permanently in the United States in accordance with the immigration laws.
Green Card
Evidence that an immigrant has been accorded lawful permanent residence is manifested by
the issuance of a document officially known as I-551 document and unofficially known as a green card.
the issuance of a document officially known as I-551 document and unofficially known as a green card.
Presumption against admissibility
An immigrant, as with a non immigrant, has a presumption against admissibility and must prove admissibility in order to successfully immigrate into the United States. In order to become a lawful permanent resident, the immigrant must
intend to make the United States his permanent home
intend to make the United States his permanent home
Loss of Lawful Permanent Residence Status
Multiple residences are allowed outside the United States but the intent coupled with the
length of time spent annually within the United States determines a lawful permanent resident’s right to retain the status as a lawful permanent residence.
The status of lawful permanent residency does not provide citizenship or the right to vote. Being a lawful permanent resident is a path to citizenship.
Lawful permanent residency, despite the term, is not permanent in the sense that a lawful permanent resident can be deported if they are subject to the grounds of deportation or a lawful permanent residence status can be lost if it is determined that the lawful permanent resident has abandoned that status.
length of time spent annually within the United States determines a lawful permanent resident’s right to retain the status as a lawful permanent residence.
The status of lawful permanent residency does not provide citizenship or the right to vote. Being a lawful permanent resident is a path to citizenship.
Lawful permanent residency, despite the term, is not permanent in the sense that a lawful permanent resident can be deported if they are subject to the grounds of deportation or a lawful permanent residence status can be lost if it is determined that the lawful permanent resident has abandoned that status.
Requirement of a Petitioner
In order for a person to immigrate to the United States under the family based immigration category, the person must have a petitioner. That petitioner must be a close family member. It does not mean any relative. There are specific categories of individuals who are entitled to take on the position of the petitioner. The petitioner is always a person who holds substantive status in the United States.
Who is a close family member for sponsorship purpose?
Examples are mother and father of a United States citizen, spouse of a United States citizen or permanent ersident, siblings of a United States citizen, Sons and daughters of United States citizen, and Child of either a United States Citizen or lawful permanent resident. Not all members of these categories have equal processing times. The petitioner has to be a United States Citizen or a lawful permanent
resident
resident
2 Step Process for becoming a permanent resident
The first step is to prove that there is a qualifying relationship between the petitioner and the beneficiary by filing the neccessary petitions and supporting documentation. Thereafter, the intending immigrant, if already present in the United States must apply for adjustment of status., If the individual is not already present in the United States, he or she must apply for an immigrant visa at a US consulate abroad.
Adjustment of Status
Adjustment of Status is a process by which an alien that is already in the United States Changes his status from that of a non immigrant status to an Immigrant status. Not every non immigrant that are present in the United States
can adjust their status. Certain requirements must be met in order to be able to adjust status. A non immigrant alien who is out of status or who has worked without authorization may not adjust his status within the United States. Except in the case of immediate relatives of United States Citizens.
can adjust their status. Certain requirements must be met in order to be able to adjust status. A non immigrant alien who is out of status or who has worked without authorization may not adjust his status within the United States. Except in the case of immediate relatives of United States Citizens.
The Adjustment of Status Interview
In the family based immigration area, the application is followed up by interview in the local district office of the petitioner and the beneficiary. The purpose of that interview is twofold: the examining officer wants to determine that a valid familiar relationship exists and to determine that the alien is not inadmissible
How is admissibility determined in the adjustment of status process?
In the form used for applying for adjustment of status, there are a series of admissibilityquestions that are asked. Another way that is used to determine admissibility is the finger printing process. Before any benefit is given through the Department of Homeland Security, an individual has to be finger printed. They also take biometric information – finger prints, pictures. The finger prints are sent to the FBI for clearance. The FBI in turns sends a rap sheet that contains any criminal convictions or the records of the alien including those things that have been expunged, taken under advisement, deferred sentencing, etc
After the Adjusment of Status Interview
If after the interview, the DHS officer is satisfied that there is a qualifying relationship and if the alien is admissible, they would approve the application and the individual will be processed for the issuance of a green card which will
be delivered to them in the mail in the address on file. It is always very important to make sure that the address on file is correct because the post office does not forward DHS mails.
be delivered to them in the mail in the address on file. It is always very important to make sure that the address on file is correct because the post office does not forward DHS mails.
The Stokes Interview and Investigations
If the interviewing officer has any suspicions that the relationship is not a bona fide relationship they can withhold a determination on the application to a later date. They will usually schedule the parties for a secondary interview. During the secondary interview, they would usually separate the husband and wife and ask them personal, gruelling, and intrusive questions. This secondary interview is known as Stokes interview.
DHS could also embark on an investigation to make sure that there is in fact a qualifying relationship. This typically happens in spousal petitions and if there is a doubt, the adjudicating officer will send the matter to investigations who will send out field officers to the individual’s house and pay an unexpected visit to the individual and enter the house to make sure that the individuals are living together and that they are spouses.
They will look at things such as “his and her”clothing in the closet and items that are of personal nature in the house. If the individuals are not living together, they will deny the petition and place the immigrant in removal proceeding and
the U.S. citizen or LPR is subject to certain civil fines, sanctions and punishment for entering into a fraudulent marriage.
If an individual is placed on removal proceeding based on marriage fraud and is ordered removed under a claim of marriage fraud, that individual is ineligible to ever come into the United States under an immigrant visa.
DHS could also embark on an investigation to make sure that there is in fact a qualifying relationship. This typically happens in spousal petitions and if there is a doubt, the adjudicating officer will send the matter to investigations who will send out field officers to the individual’s house and pay an unexpected visit to the individual and enter the house to make sure that the individuals are living together and that they are spouses.
They will look at things such as “his and her”clothing in the closet and items that are of personal nature in the house. If the individuals are not living together, they will deny the petition and place the immigrant in removal proceeding and
the U.S. citizen or LPR is subject to certain civil fines, sanctions and punishment for entering into a fraudulent marriage.
If an individual is placed on removal proceeding based on marriage fraud and is ordered removed under a claim of marriage fraud, that individual is ineligible to ever come into the United States under an immigrant visa.
Categories of Relatives
In the overall scheme of relatives, the relatives and the beneficiary immigrant are broken down and placed into categories. Some of the categories have numeric limits and some don’t.
Categories without numeric limits
One of the categories that does not have a numeric limit are immediate relatives of United States citizens only. Another category without numeric limits are special immigrants.
Immediate Relatives
Immediate relatives are spouses of U.S Citizens, parents of U.S. citizens, certain widows and widowers, children of U.S. Citizens (when we say children, children are under the age of 21. Sons and Daughters are over the age of 21 and are not considered immediate relatives).
Special Immigrants
Also included in the category without numeric limitations are special immigrants. This includes religious workers, returning permanent residents, certain foreign citizens and certain dependents of juvenile court.
Categories with Numeric Limits
This categories have numerical limits and they also typically have waiting periods. In the category with numerical limits and waiting periods, all that an individual can do is file the I-130 petition for alien relative. When that is filed, a
receipt notice is issued with a receipt date. That receipt date is known as the priority date. That date is
critical to know at what time that the beneficiary can apply for adjustment of status.
There are four preferences in this category:
1. Unmarried sons and daughters of United States citizens.
2. Spouses and unmarried sons and daughters of lawful permanent residents.
3. Married sons and daughters of United States citizens.
4. Brothers and sisters of United States Citizens
No one outside of this scheme is considered a close family relative. No one else outside this scheme is entitled to petition for an immigrant. That means that your cousin cannot do it, your uncle cannot do it, your cousin’s uncle cannot do it.
receipt notice is issued with a receipt date. That receipt date is known as the priority date. That date is
critical to know at what time that the beneficiary can apply for adjustment of status.
There are four preferences in this category:
1. Unmarried sons and daughters of United States citizens.
2. Spouses and unmarried sons and daughters of lawful permanent residents.
3. Married sons and daughters of United States citizens.
4. Brothers and sisters of United States Citizens
No one outside of this scheme is considered a close family relative. No one else outside this scheme is entitled to petition for an immigrant. That means that your cousin cannot do it, your uncle cannot do it, your cousin’s uncle cannot do it.
Consular Processing
The second form of processing – The petitioner is in the United States and the beneficiary is abroad. The
beneficiary who is abroad will not adjust status because they are not in the United States. An adjustment of status only happens if the beneficiary is in the United States. That individual is said to“consular Process.”
Consular process means that they go for their green card at a US consulate abroad.The I-130 form asks: Where would the person apply for a green card? Either in the United States or name a specific consulate abroad where they would go. If it is designated to be sent to a consulate abroad, the I-130 is processed here in the United States and then sent to the department of state’s national visa center. The visa center sorts all the papers away till the priority date is current. When the priority date is current, the visa center then sends the application to the designated consulate abroad. The consulate then sends notification to the individual to come for an interview. The interview is done in a United States Consulate abroad.
beneficiary who is abroad will not adjust status because they are not in the United States. An adjustment of status only happens if the beneficiary is in the United States. That individual is said to“consular Process.”
Consular process means that they go for their green card at a US consulate abroad.The I-130 form asks: Where would the person apply for a green card? Either in the United States or name a specific consulate abroad where they would go. If it is designated to be sent to a consulate abroad, the I-130 is processed here in the United States and then sent to the department of state’s national visa center. The visa center sorts all the papers away till the priority date is current. When the priority date is current, the visa center then sends the application to the designated consulate abroad. The consulate then sends notification to the individual to come for an interview. The interview is done in a United States Consulate abroad.
Medical Examination and Physical Examination
Every one who is applying for immigrant status – either by adjustment of status or consular processing must undergo physical examination. Medical examinations are neccessary in order to overcome grounds of inadmissibility. If they are filing for adjustment of status, the physical examination is performed by a physician designated by the Department of Homeland Security.
If the immigrant visa is being consular processed abroad they use the physicians that are designated by the consular office.
If the immigrant visa is being consular processed abroad they use the physicians that are designated by the consular office.
Affidavit of Support
The affidavit of support is neccessary inorder to overcome the financial grounds of inadmissibility. Every
petitioner must file an affidavit of support along with the application for adjustment of status or consular processing. In
that affidavit of support, the sponsor always has to be the petitioner and in some cases the petitioner may need a joint sponsor.
The affidavit of support requires that the petitioner has income of at least 125% of the Untied States poverty guideline. If the petitioner does not meet the income requirement, the petitioner is entitled to get a joint sponsor whose income does meet 125% of the poverty guideline to join in the sponsorship. The sponsor can be a United States Citizen or a lawful permanent resident living in the United States.
In signing the affidavit of support, the sponsor is making certain representations. It is a binding contract between the sponsor and the government. In signing the affidavit of support, the sponsor is saying that they will support the immigrant at at least that guideline level. It does not mean that they have to give them money. It is a mechanism for preventing the individual from being a public charge.
Two other representations are made by signing the affidavit of support and that is that if the immigrant is given means tested income benefit, the sponsor will repay the amount of benefit paid to the individual. The sponsor also agrees that in the event that the individual makes an application for means tested income benefit, the government is entitled to take the sponsor’s income along with the immigrant’s income to determine eligibility for payment of those benefits.
petitioner must file an affidavit of support along with the application for adjustment of status or consular processing. In
that affidavit of support, the sponsor always has to be the petitioner and in some cases the petitioner may need a joint sponsor.
The affidavit of support requires that the petitioner has income of at least 125% of the Untied States poverty guideline. If the petitioner does not meet the income requirement, the petitioner is entitled to get a joint sponsor whose income does meet 125% of the poverty guideline to join in the sponsorship. The sponsor can be a United States Citizen or a lawful permanent resident living in the United States.
In signing the affidavit of support, the sponsor is making certain representations. It is a binding contract between the sponsor and the government. In signing the affidavit of support, the sponsor is saying that they will support the immigrant at at least that guideline level. It does not mean that they have to give them money. It is a mechanism for preventing the individual from being a public charge.
Two other representations are made by signing the affidavit of support and that is that if the immigrant is given means tested income benefit, the sponsor will repay the amount of benefit paid to the individual. The sponsor also agrees that in the event that the individual makes an application for means tested income benefit, the government is entitled to take the sponsor’s income along with the immigrant’s income to determine eligibility for payment of those benefits.
How Long is the Affidavit of Support in Effect?
This contract remains in effect between the sponsor and the government for either:
1. a period of five years,
2. Till the lawful permanent resident becomes a United States Citizen,
3. The lawful permanent resident abandons lawful permanent residence status, or
4. Death of either the immigrant or the sponsor.
It does survive divorce if there is a divorce between the petitioner and the beneficiary.
1. a period of five years,
2. Till the lawful permanent resident becomes a United States Citizen,
3. The lawful permanent resident abandons lawful permanent residence status, or
4. Death of either the immigrant or the sponsor.
It does survive divorce if there is a divorce between the petitioner and the beneficiary.
Conditions on Permanent Resident Status and the Marriage Fraud Act
Persons who gain permanent residency as a result of marriage are subject to further control by the department of homeland security. That control came into existence in 1986 with the immigration and marriage fraud
act. The marriage fraud act establishes a 2 year rule.The rule says that if at the time that the immigrant spouse is given a green card, the parties have been married for less than 2 years, the immigrant spouse is going to be issued a conditional green card.
The conditional green card has an expiration date on it of two years from the date of issuance. That places the responsibility on the spouse. The spouses are required before the expiration of the two year period to file additional paper work with the department of homeland security to show that they have maintained fide marital relationship for that two year period. If it is successfully shown that the individuals have maintained a bona fide marital relationship during that two-year period, the spouse will be issued a non-conditional permanent green card.
The petition to remove the condition on the green card is filed at the service center with supporting documents such as joint income tax returns, joint bank statements, warranty deeds, joint leases, the typical
paper work that are generated.
Not everyone after years of marriage can buy a house, set up a retirement portfolio, have a savings accounts. In cases where traditional documentations is minimal, the Department of Homeland Security will accept affidavit by family and friends attesting to the facts that the individuals are married. When it is filed with the service center, if the reviewing officer is satisfied that this is a bona fide marriage based on the documentations that is presented then
they will issue a new green card with no conditions. If there is any thing that raises suspicion, the case will be sent
from the service center back to the district office and the couple will be called in for another interview. It is only about 4 percent of the cases that are sent in for interview.
act. The marriage fraud act establishes a 2 year rule.The rule says that if at the time that the immigrant spouse is given a green card, the parties have been married for less than 2 years, the immigrant spouse is going to be issued a conditional green card.
The conditional green card has an expiration date on it of two years from the date of issuance. That places the responsibility on the spouse. The spouses are required before the expiration of the two year period to file additional paper work with the department of homeland security to show that they have maintained fide marital relationship for that two year period. If it is successfully shown that the individuals have maintained a bona fide marital relationship during that two-year period, the spouse will be issued a non-conditional permanent green card.
The petition to remove the condition on the green card is filed at the service center with supporting documents such as joint income tax returns, joint bank statements, warranty deeds, joint leases, the typical
paper work that are generated.
Not everyone after years of marriage can buy a house, set up a retirement portfolio, have a savings accounts. In cases where traditional documentations is minimal, the Department of Homeland Security will accept affidavit by family and friends attesting to the facts that the individuals are married. When it is filed with the service center, if the reviewing officer is satisfied that this is a bona fide marriage based on the documentations that is presented then
they will issue a new green card with no conditions. If there is any thing that raises suspicion, the case will be sent
from the service center back to the district office and the couple will be called in for another interview. It is only about 4 percent of the cases that are sent in for interview.
Marriages that Don't Meet the Two Year Mark
Sometimes there are situations where marriages just don’t meet the two-year mark. In that case the immigration law does provide for a safety valve for the immigrant.
Separation
A couple is still entitled to file the petition to remove condition even if they are separated, as long as they are still married. But they have to show that the marriage was valid at the time that the marriage was entered into and due to extraneous circumstances, the marriage did not work out.
Divorce
Once a divorce has been finalized, the immigrant can file for the petition to remove condition on their own without the other spouse’s signature and ask for a waiver. In asking for a waiver, the immigrant must show that the marriage was valid at the time that it was entered into and not for the purpose of immigration.
Separation
A couple is still entitled to file the petition to remove condition even if they are separated, as long as they are still married. But they have to show that the marriage was valid at the time that the marriage was entered into and due to extraneous circumstances, the marriage did not work out.
Divorce
Once a divorce has been finalized, the immigrant can file for the petition to remove condition on their own without the other spouse’s signature and ask for a waiver. In asking for a waiver, the immigrant must show that the marriage was valid at the time that it was entered into and not for the purpose of immigration.
CITIZENSHIP
Becoming a United States Citizen
With regards to citizenship overall, there are two major basis of becoming a United
States citizen. The constitutional basis and the statutory basis.
States citizen. The constitutional basis and the statutory basis.
Constitutional Basis of Becoming a United States Citizen
2 Ways:
1. Birth in the United States
2. Naturalization
Under the 14th Amendment of the United States Constitution, all persons born or naturalized in the United States are citizens of the United States. A birth in the US includes individuals born in territories under the control and possession of the United States. Children born to diplomats in the United States do not acquire citizenship by birth.
1. Birth in the United States
2. Naturalization
Under the 14th Amendment of the United States Constitution, all persons born or naturalized in the United States are citizens of the United States. A birth in the US includes individuals born in territories under the control and possession of the United States. Children born to diplomats in the United States do not acquire citizenship by birth.
Requirements for Naturalization
Congress has a constitutional duty to establish uniform rules of naturalization and it has done so by establishing the following requirements.
Permanent Residency Requirement
An individual must be a legal permanent resident for 5 years or 3 years if that legal permanent resident status was gained through marriage to a United States Citizen spouse. If an individual obtains legal permanent residency through marriage and they divorce the USC spouse before the three years, they lose the right to apply for a naturalization through marriage. If a person is applying for naturalization based on the three years as a legal permanent resident due to a marriage to a United States Citizen, the application can only be done through a marriage that is intact.
Someone who is married to a USC but did not get a green card through marriage to a USC still has to wait 5 years.
The exception to being a Legal permanent residency for three years is an applicant who has served honorably in the time of war. Legal permanent residency as a prerequisite is unneccessary.
Age Requirement
Applicant must be 18 years old.
Physical Presence requirement
Must be a resident continuously in the US for either 3 or 5 years after acquisition of LPR status. The individual must have resided for at least 3 months prior to filing the petition, in the state where the petition is filed. The alien must have been physically present in the U.S for at least one half of the required residency.
Continuous Residency Requirement
Notice the difference between continuous residency and physical presence. An individual green card holder may be working for a company that sends the individual outside of the country. Must reside continuously in the U.S from the date of the application up to the date of admission.
The alien must not have been absent in the U.S for a continuous period of one year.
Good Moral Character Requirement
The alien must have been a person of good moral character for 5 years or 3 years if their LPR status was based on marriage to a USC.
The standard of good moral character is the standard of the average American.Examples of bad moral character are adultery, theft, fraud, etc.
An individual convicted of aggravated felony and murder is never admissible to be a U.S. legal permanent resident.
Registration with Selective Service
If an alien is required to register for selective service (males between 18 and 26), failure to register with the selective service can preclude an alien from being naturalized. An alien who has applied for exemption from selective service based on alienage is not entitled to make an application for naturalization.
Attachment to the Principles of the Constitution
An applicant for naturalization must be attached to the principles of the constitution. The applicant must take the oath of allegiance to the US or a modified oath based upon deeply held religious concept.
Willingness to Bear Arms
The alien must be willing to bear harm for the US or provide non-combative services when required by law or to perform work of national importance under civil direction.
Must not be a member of a communist party
An applicant for naturalization must not be barred as a subversive or member of a communist party where that membership was not meaningful and not voluntary. A number of countries require inclusion into the party as part of their citizenship. If you were forced into being a communist that would not preclude you from making a petition for naturalization.
A Deserter from the US army cannot be naturalized
An individual can be barred from naturalization as a deserter of the US army and if he has been court marshalled.
An alien in removal proceedings is not entitled to naturalization.
Knowledge of English Language and Civics Requirement
An applicant for naturalization must demonstrate an elementary level of reading, writing of the English language. You must demonstrate your ability to speak, write and understand English. The applicant must also have knowledge of basic US history and civics. There are two exception to the English language requirement.
1) Age Exemption: Persons over 50 and have been living in the US for 20 years or over age 55 and have lived in the U.S for at least 15 years.
2) Physical or Mental Disabillity Exemption: Persons who are physically or developmentally disabled may be granted waiver from the English language requirement. That requirement involves medical documentation and there i immigration form for that
Permanent Residency Requirement
An individual must be a legal permanent resident for 5 years or 3 years if that legal permanent resident status was gained through marriage to a United States Citizen spouse. If an individual obtains legal permanent residency through marriage and they divorce the USC spouse before the three years, they lose the right to apply for a naturalization through marriage. If a person is applying for naturalization based on the three years as a legal permanent resident due to a marriage to a United States Citizen, the application can only be done through a marriage that is intact.
Someone who is married to a USC but did not get a green card through marriage to a USC still has to wait 5 years.
The exception to being a Legal permanent residency for three years is an applicant who has served honorably in the time of war. Legal permanent residency as a prerequisite is unneccessary.
Age Requirement
Applicant must be 18 years old.
Physical Presence requirement
Must be a resident continuously in the US for either 3 or 5 years after acquisition of LPR status. The individual must have resided for at least 3 months prior to filing the petition, in the state where the petition is filed. The alien must have been physically present in the U.S for at least one half of the required residency.
Continuous Residency Requirement
Notice the difference between continuous residency and physical presence. An individual green card holder may be working for a company that sends the individual outside of the country. Must reside continuously in the U.S from the date of the application up to the date of admission.
The alien must not have been absent in the U.S for a continuous period of one year.
Good Moral Character Requirement
The alien must have been a person of good moral character for 5 years or 3 years if their LPR status was based on marriage to a USC.
The standard of good moral character is the standard of the average American.Examples of bad moral character are adultery, theft, fraud, etc.
An individual convicted of aggravated felony and murder is never admissible to be a U.S. legal permanent resident.
Registration with Selective Service
If an alien is required to register for selective service (males between 18 and 26), failure to register with the selective service can preclude an alien from being naturalized. An alien who has applied for exemption from selective service based on alienage is not entitled to make an application for naturalization.
Attachment to the Principles of the Constitution
An applicant for naturalization must be attached to the principles of the constitution. The applicant must take the oath of allegiance to the US or a modified oath based upon deeply held religious concept.
Willingness to Bear Arms
The alien must be willing to bear harm for the US or provide non-combative services when required by law or to perform work of national importance under civil direction.
Must not be a member of a communist party
An applicant for naturalization must not be barred as a subversive or member of a communist party where that membership was not meaningful and not voluntary. A number of countries require inclusion into the party as part of their citizenship. If you were forced into being a communist that would not preclude you from making a petition for naturalization.
A Deserter from the US army cannot be naturalized
An individual can be barred from naturalization as a deserter of the US army and if he has been court marshalled.
An alien in removal proceedings is not entitled to naturalization.
Knowledge of English Language and Civics Requirement
An applicant for naturalization must demonstrate an elementary level of reading, writing of the English language. You must demonstrate your ability to speak, write and understand English. The applicant must also have knowledge of basic US history and civics. There are two exception to the English language requirement.
1) Age Exemption: Persons over 50 and have been living in the US for 20 years or over age 55 and have lived in the U.S for at least 15 years.
2) Physical or Mental Disabillity Exemption: Persons who are physically or developmentally disabled may be granted waiver from the English language requirement. That requirement involves medical documentation and there i immigration form for that
Application for Naturalization
1. The alien must file the application for naturalization with the Department of Home Land Security.
2. The alien must be fingerprinted. The finger print will be reviewed.
3. An interview is conducted at the district officer after process with the service center.
4. The alien must have Knowledge of English language, and U.S government and history.
5. A decision on that application must be made within 120 days of the interview.
6. An individual may ask for a name change which will have the effect of a legal name change.
7. The individual must take part in an oath ceremony. Citizenship by naturalization is not conferred until the oath ceremony. The certificate of naturalization is given at the oath ceremony.
8. US Citizenship status confers the right to vote in the United States.
2. The alien must be fingerprinted. The finger print will be reviewed.
3. An interview is conducted at the district officer after process with the service center.
4. The alien must have Knowledge of English language, and U.S government and history.
5. A decision on that application must be made within 120 days of the interview.
6. An individual may ask for a name change which will have the effect of a legal name change.
7. The individual must take part in an oath ceremony. Citizenship by naturalization is not conferred until the oath ceremony. The certificate of naturalization is given at the oath ceremony.
8. US Citizenship status confers the right to vote in the United States.
Statutory Basis of Becoming a United States Citizen
Transmission
Transmission can occur where a child is born outside of the U.S and one or both parent is a United States citizen. A person may acquire citizenship by transmission even when they are born outside of the United States. Transmission of US citizenship is provided by congressional act.
Transmission can occur where a child is born outside of the U.S and one or both parent is a United States citizen. A person may acquire citizenship by transmission even when they are born outside of the United States. Transmission of US citizenship is provided by congressional act.
Requirements for Citizenship by transmission
The U.S citizen has resided in the U.S for a certain time before that child is born abroad.
If those requirements are met, that parent is entitled to transmit citizenship to that child.
Understand that transmission is not automatic. The ideal situation is the parent to go to the U.S. consulate abroad.
Failure of the parent to comply results in the child not being eligible.
There is a chart for transmission. It gives years of birth and for those years of birth what the transmission requirement are. A typical example is that the U.S. citizen parent must have resided in the U.S for about 14 years. There used to be a requirement that a child who wants citizenship reside in the U.S. for a certain amount of time. That is no longer
applicable.
If those requirements are met, that parent is entitled to transmit citizenship to that child.
Understand that transmission is not automatic. The ideal situation is the parent to go to the U.S. consulate abroad.
Failure of the parent to comply results in the child not being eligible.
There is a chart for transmission. It gives years of birth and for those years of birth what the transmission requirement are. A typical example is that the U.S. citizen parent must have resided in the U.S for about 14 years. There used to be a requirement that a child who wants citizenship reside in the U.S. for a certain amount of time. That is no longer
applicable.
Dual Citizenship
Dual citiznship is having two citizenship at the same time. The practical implication is holding two passports. The
US has looked with dual citizenship with disfavor. The reason is that the individual with dual citizenship can be subject to the claims of both countries. It is disfavored but it is allowed.
A United States citizen is not precluded from dual citizenship where dual citizenship was obtained through:
1. Naturalization in the US where the foreign country does not divest its citizen of citizenship in a foreign country. Look to what the requirement of the foreign country is.
2. Birth
3. Naturalization in a foreign state that does not require the united states citizen to renounce his US citizenship.
4. Where the USC has not been found to have expatriated himself.
US has looked with dual citizenship with disfavor. The reason is that the individual with dual citizenship can be subject to the claims of both countries. It is disfavored but it is allowed.
A United States citizen is not precluded from dual citizenship where dual citizenship was obtained through:
1. Naturalization in the US where the foreign country does not divest its citizen of citizenship in a foreign country. Look to what the requirement of the foreign country is.
2. Birth
3. Naturalization in a foreign state that does not require the united states citizen to renounce his US citizenship.
4. Where the USC has not been found to have expatriated himself.
Forfeiture/Loss of U.S Citizenship
Contrary to popular belief, US citiznship status can be lost or forfieted. Forfeiture of a constitutional grant of citizenship can only be by extreme circumstances. A statutory grant of Citizenship is more easily forfeited and that is by failure to comply with applicable provisions.
2 Ways to lose US Citisenship
1. Expatriation
2. Denaturalization.
2 Ways to lose US Citisenship
1. Expatriation
2. Denaturalization.
Loss of US Citizenship by Expatriation
Expatriation can apply to both US citizens by birth and naturalization. Any citizen of the United States can expatriate themselves. A native born or naturalized citizen may lose citizenship if any of the following situations occur
1. Obtaining Naturalization in or taking an oath of allegiance in a foreign state after attaining the age of 18.
2. Entering in or serving in the armed forces of a foreign state involved in hostilities against the U.S.
3. Serving in any foreign army as a commissioned or non commissioned officer.
4. Formal Renunciation of citizenship before a consular of diplomatic officer on a Department of State form whenever there is an act of war.
5. Committing an act of treason against the United States
Relinquishment of citizenship must be voluntary and the there must be intent to relinquish citizenship preponderance of the evidence.
1. Obtaining Naturalization in or taking an oath of allegiance in a foreign state after attaining the age of 18.
2. Entering in or serving in the armed forces of a foreign state involved in hostilities against the U.S.
3. Serving in any foreign army as a commissioned or non commissioned officer.
4. Formal Renunciation of citizenship before a consular of diplomatic officer on a Department of State form whenever there is an act of war.
5. Committing an act of treason against the United States
Relinquishment of citizenship must be voluntary and the there must be intent to relinquish citizenship preponderance of the evidence.
Loss of Citizenship by Denaturalization
Denaturalization is a process whereby a citizens by naturalizastion lose their citizenship. You cannot apply it to a United States citizen by birth. The required burden of proof Clear and convincing evidence.
Examples of situations that will create a presumption of denaturalization
1. Conviction for knowingly procuring naturalization in violation of the law.
2. Membership or affiliation with a subversive or anarchist community within 5 years of naturalization.
3. Refusal to testify before a congressional committee of a naturalized citizens’ subversive activities but only where those activities are based on grounds of revocation for refusal to testify and those activities occur within 10
years.
Examples of situations that will create a presumption of denaturalization
1. Conviction for knowingly procuring naturalization in violation of the law.
2. Membership or affiliation with a subversive or anarchist community within 5 years of naturalization.
3. Refusal to testify before a congressional committee of a naturalized citizens’ subversive activities but only where those activities are based on grounds of revocation for refusal to testify and those activities occur within 10
years.
Deferred Action Program
On June 15, 2012, Secretary of Homeland Security Janet Napolitano announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.
Who may request consideration for deferred action?
You may request consideration of deferred action for childhood arrivals if you:
1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action withUSCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or
Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action withUSCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or
Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Avoiding Scams and Preventing Fraud
Be aware that there are people seeking to defraud innocent and unsuspecting individuals.
Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money.
Make sure you seek information about requests for consideration of deferred action for childhood arrivals from
official government sources such as USCIS or the Department of Homeland Security.
What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation, or knowingly fail to disclose facts,in an effort to have your case deferred
or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to
the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.
Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money.
Make sure you seek information about requests for consideration of deferred action for childhood arrivals from
official government sources such as USCIS or the Department of Homeland Security.
What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation, or knowingly fail to disclose facts,in an effort to have your case deferred
or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to
the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.