June 2017
Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235
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- Certificate of Citizenship v. Certificate of Naturalization
Author: U.S. Citizenship Attorney Alena Shautsova
Certificate of Naturalization is a goal of many who is seeking to immigrate to the United States. It is a document that proves that one was granted a US citizenship, took an oath of allegiance, and now is a citizen of the United States. Unlike, however, in the case of US born citizens, a person who received his/her citizenship through naturalization, may lose it. For this, the government would have to institute special denaturalization proceedings. See section 340 of the Act, 8 U.S.C. § 1451 (2012). Unlike other immigration proceedings that the United States Citizenship and Immigration Services handles in an administrative setting, revocation of naturalization can only occur in Federal court. See Gorbach v. Reno, 219 F.3d 1087, 1093-1094, 1099 (9th Cir. 2000) (en banc). A person’s naturalization can be revoked either by a civil proceeding filed in Federal court pursuant to section 340(a) of the Act or by a criminal conviction under 18 U.S.C. § 1425 (2012), which results in the automatic revocation of naturalization under section 340(e) of the Act. Whatever the route is, there will be proceedings during which a person whose citizenship the government is trying to take away, will have an opportunity to defend him/herself.
A Certificate of Citizenship, on the other hand, is a different story. Many do not have it all, even though persons may know they became citizens when their parents became citizens. It is not required for one to apply for a certificate of citizenship, and many choose to apply for a US passport instead. “A certificate of citizenship only provides documentation of United States citizenship for persons who claim to have obtained that status derivatively. See 8 C.F.R. §§ 341.1, 341.2(c) (2016). It does not confer United States citizenship but only furnishes recognition and evidence that the applicant has previously obtained such status derivatively, that is, upon the naturalization of a parent or parents. See Section 341(a) of the Act. Thus, the issuance of a certificate of citizenship, like a United States passport, only serves as indicia of citizenship. It is not a grant of United States citizenship.” See BIA Decision, 27 I&N Dec. 52 (BIA 2017). What happens next, is that when the government suspects that the certificate of citizenship was issued in error, they can simply revoke it, without the need of a Federal court to be involved. In some instances, such “errors” are based on fraud committed by the holder of the certificate; in some cases, the holder of the certificate is innocent it was USCIS’s error or parents’ fraud that led to the revocation. The point is because it is easy (or easier) to receive a certificate of citizenship, it is easier (or easy) to lose it. The District Director (the head of the CIS of the local office) has statutory authority to cancel a certificate of citizenship that was illegally or fraudulently obtained under section 342 of the INA.
In most cases, a person has no need to worry about a possible cancellation of a certificate of citizenship. However, it would be wise to at least consult with an Immigration attorney if there might be some questions regarding the derivative status between the parent and child who is planning on obtaining the certificate of naturalization; or there might be issues with a parent’s qualifications of citizenship in the first place. Itseems that a person should choose naturalization proceedings if possible because naturalization provides greater protections for one who is seeking to build a stable and worry free life in the United States.
- Green Card: More Than Proof of Status
Author: Green Card Attorney Alena Shautsova
Many consider a green card to be just a document that proves one’s status. People treat it as a passport, keep it away from those who can put a wrong spell on it… But little do they know that they must have that green card with them at all times.
The law states the following:
“Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant tosubsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $ 100 or be imprisoned not more than thirty days, or both.” 8 USC § 1304(e).
I, personally, have never heard of anybody being punished for not having their green card on them. However, taking into consideration the fact that times are changing, it would be wise to remember this point and keep that card with you.
Some lawful permanent residents would not have a card: it could have been confiscated at the airport, at an interview (expired card during the I 751 process), or maybe, it never reached the owner because it was lostin the mail. Then, such a person should carry a substitute proof of status: a passport with I551 stamp in it; a notice of action showing that the individual has filed I 751 petition to remove the condition plus another form of identification; a passport with an immigrant visa…
- Choosing the Right Path in Immigration is Like Choosing the Right Treatment in the Medical Field
Author: New York Immigration Lawyer Alena Shautsova
Imagine, one’s immigration application was denied. What should he/she do: file a motion to reopen, an appeal or simply re-file the case?
What if one came into the country illegally, but now has adult U.S. citizen children: shall she file for a visa overseas with a waiver, or can she still file for a green card (adjustment of status) in the United States, without leaving the country?
One was put into removal proceedings: should he file for cancellation, adjustment of status or asylum?
Just like a doctor has to first correctly diagnose a patient and then prescribe them the right treatment, an Immigration attorney has to look at one’s situation from all angles and determine which application has to be filedand when it should be filed. Primum non nocere (First, do no harm) is one of the principles that is being taught to medical students. In law, lawyers should adopt the same approach. Too many times I meet people who “filed” unnecessary applications, submitted affidavits that are so poorly drafted that they harm a person, rather than add anything to their case; or clients who simply received a very wrong “help.” But most of the times, I meet people who were not explained what they would be filing for and had no idea what they signed…
Let’s look at the situation when one gets a denial, and the denial notice states there is no appeal from the decision (like denial notices for I 485 form, or I 601A). When there is no an appeal opportunity, there is always a re-file opportunity. Or, at least, most of the times, it is possible to re-file one’s application. Sometimes, it is feasible to file a motion to reopen: a denial could have been in error, and even USCIS’ error (in such cases, where USCIS made an apparent error, one does not even have to pay the motion to reopen fees). What is better: to refile or file a motion to reopen depends in each case. For example, I-485 was denied due to USCIS mistake (let’s say they sent you notices to the wrong address). Now, your I 765 is invalid as well, and you cannot work. What do you do? Spend time and potentially money on the motion to reopen, or you will you refile? In this situation, I would probably refile to stay on a safer side. The filing fees will be higher to refile than to file a motion to reopen, but it may take several months just to hear back from USCIS after the motion is filed. In this situation, I would choose time over money.
Filing I 130 for one. This one has to be approached carefully. The I 130 form contains a question: where your relative will be filing for an immigrant visa: in the US or overseas. The filer has to have an idea of what will be happening, potentially several years from the filing date at the time of filing. It is possible to correct a mistake, of course, but it costs money, and it is always better to avoid the mistake from the beginning. So, if one chooses an “adjustment” option, but the relative cannot adjust, one will have also to file another form (after the I 130 is approved) to move the case to the consulate processing. (This will be the case in many I 601A situations). If one incorrectly chooses consulate processing, he/she may lose the I 130 approval all together: if a person is not acting on I 130 that was transferred to the consulate processing, the entire process may be wasted).
The immigration process, if one knows what to do, is simple, but is far from being easy.
- Visit our resources on Asylum, Recent Changes in Immigration laws and Processing times:
- Processing Times THE USCIS PROCESSING TIMES:
https://egov.uscis.gov/cris/processTimesDisplay.do
- The Administrative Appeals Office http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=dfe316685e1e6210VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD
- Labor Department Processing Times
The following link provides approximate times for PERM processing periods:
http://icert.doleta.gov/#fragment-2
- Nonimmigrant Visa Wait Times
Depending on your location, the US Department of State provides the following approximate visa wait times:
http://travel.state.gov/visa/temp/wait/wait_4788.html?post=Kyiv&x=86&y=13
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