Essential Changes in US Naturalization and Immigration Laws

SHAUTSOVA’S UPDATE

VOLUME 101, December 2019

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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Watch Our Videos:

Immigration Amnesty for Liberians and Parole in Place Law (PIP): NDAA 2020 (https://www.facebook.com/immigrationlawyerny/videos/1041879939489126/)

New Regulations Regarding Good Moral Character and Naturalization (https://www.facebook.com/immigrationlawyerny/videos/1517357448419630/)

5-year Permanent Bar For Those Who Missed Their Court Hearing Explained (https://www.facebook.com/immigrationlawyerny/videos/767165993749919/)

Proving Legal Entry: A Visa May Not Be Necessary! (https://www.facebook.com/immigrationlawyerny/videos/570329180465429/)

Four Common Mistakes When Answering Notice of Appear (NTA) in Immigration Court (https://www.youtube.com/watch?v=reKmRY47loA&t=4s)

I-589 Asylum Application Filing Tips (https://www.youtube.com/watch?v=XyNOVRX4gSc&t=23s)

I601A Provisional Waiver Timeline (https://www.youtube.com/watch?v=hBlYnvfF_ik)

Citizenship Through Naturalization Updates

Author: Citizenship New York Immigration Attorney Alena Shautsova

In the past year, Immigration field has seen many changes, and one specific are of the Immigration has been affected the most was naturalization: proceedings necessary for a green card holder or permanent resident to become a U.S. citizen.

The law of the United States establishes requirements one has to meet to become a U.S. citizen. Some of them are “hard” requirements, something that a person cannot change which are not subject to interpretation, and “soft” requirements, that are subject to interpretation by the government and the applicant, in some cases. While the “hard” requirements were not changed (and they cannot be changed without the act of Congress), the “soft” requirements underwent massive changes, and the “interpretation” portion of the citizenship qualifications expanded to the point it became more important than the “hard” requirements.

Qualifications for Naturalization, US Citizenship (hard requirements):

To qualify for citizenship in the United States, a person who is a green card holder a U.S. permanent resident has to demonstrate that he/she:

CONTINUOUS RESIDENCE

Has been a green card holder for 3 (if green card was based on a marriage to a US citizen) or 5 years in the United States ( this time is calculated from the date “resident since” printed on one’s green card. Please keep in mind that for certain green card holders the date will be “rolled back” and may be actually earlier than the date the person’s application for green card was approved. For example, a person who was granted asylum or a refugee status will be considered a permanent resident from the date of the admission for a refugee or one year earlier for an asylee).

Interestingly enough, a conditional permeant resident, who is otherwise met all the requirements for naturalization may file for it as well, but the naturalization will not be granted unless the condition was removed! See blog.

Also, certain members of the U.S. Armed forces are exempted from being a green card holders first! See blog.

In addition, a person can file for naturalization only if he/she establishes that he or she has resided in the state or service district having jurisdiction over the application for three months prior to filing the application. It means that if you moved to a different district within the past 3 months, you will need to wait until you reside in the new district for three months before filing your naturalization application.

What about travels outside the United States before filing for citizenship?

There are two types of travels outside the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.

Travels outside the US of more than 6 months but less than one year; and

Travels outside the US of one year or more.

In addition, an officer can check the entire travel history and determine if a person with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. The idea is that a person has to establish that the US is really his/her home, dwelling place! Now, a person who does not want to be found to have abandoned his/her green card status in the United States should file a Re-entry permit prior to leaving the United States. See blog. Even though this is a “hard” requirement, recently, there are cases of adverse findings of residence for those to travel abroad frequently for prolonged periods of time.

What about working abroad before filing for U.S. citizenship?

In certain situations, a person may preserve his/her continuous residence for naturalization purposes even if he/she has to work abroad for a long time. An application has to be filed for it on form N470. In order to qualify, the following criteria must be met according to the USCIS Practice Manual:

“The applicant must have been physically present in the United States as a green card holder for an uninterrupted period of at least 1 year prior to working abroad.

The application may be filed either before or after the applicant’s employment begins, but before the applicant has been abroad for a continuous period of one year.

In addition, the applicant must have been:

Employed with or under contract with the U.S. government or an American institution of researchrecognized as such by the Attorney General;

Employed by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof if more than 50 percent of its stock is owned by an American firm or corporation; or

Employed by a public international organization of which the United States is a member by a treaty or statute and by which the applicant was not employed until after becoming an LPR.”

The person’s dependents such as wife or husband, unmarried dependent sons or daughters will also be afforded the same benefits if they were accompanying and resided abroad with the principal. In fact, the approval notice will list the names of all dependents who were also afforded the benefits.

However, even if approved, N470, does not substitute requirement of physical presence, that still has to be met, unless the person also qualified for its exemption.

Strangely, according to the USCIS practice manual, N470 approval does not mean that the applicant and his family members will not be found to have abandoned their LPR status: if, for example, a person claimed special tax exemptions as a non-resident, the government may still find him/her to have abandoned the US green card status.

N470 is not a substitute for a necessary travel documents. A green card holder has to obtain a Re-entry permit if he/she is expecting to be outside the US for more than a year.

Please note that an applicant for naturalization has to present documents demonstrating that the United States is in fact his/her common dwelling place: such as copies of mortgage, lease, bank statements, utility bills, tax returns, and any other documents establishing that he/she actually resides in the US.

PHYSICAL PRESENCE

A lawful permanent resident has to physically present in the United States for at least half of the time he/she needs to qualify for naturalization. This physical presence requirements has to be met before a person is submitting his/her application, and not on the date of the decision or an interview! Applicants for naturalization under INA 316(a) for example  are required to demonstrate physical presence in the United States for at least 30 months (at least 913 days) before filing for naturalization. In certain situations, time spent outside the United States will count towards the time for physical presence. Only applicants who are employed by or under contract with the U.S. government may be exempt from the physical presence requirements. All other applicants who are eligible to preserve their residence remain subject to the physical presence requirement. Again, the qualifying dependents will have the same benefits as the main applicant.

Non-For-Profit Media Employees

The US law also provides exemptions from continuous and physical presence requirements for employees of certain media organizations abroad. To meet this exception, an applicant for naturalization has to be employed by a U.S. incorporated non-for-profit media organization that distributes information significantly promoting U.S. interests abroad, that is so recognized by the Secretary of Homeland Security and

File the application for naturalization while still employed, or within 6 months of termination of employment;

Has to have been continuously employed with the organization for at least five years after becoming an LPR;

Be within the United States at the time of naturalization; and

Declare a good faith intention to take up residence within the United States immediately upon termination of employment.

Interpreters, Translators, or Security-Related Position (Executives or Managers) Employed By Department of State or by US armed Forces

The law likewise provides exemptions for those who are employed by DOS or US military. In order to count time abroad as continuous residence and physical presence in the United States for purposes of naturalization under the “section 1059(e)” provision, the applicant must meet all of the following requirements during such time abroad:

The applicant must be:

Employed by the Chief of Mission or the U.S. armed forces;

Under contract with the Chief of Mission or the U.S. armed forces; or

Employed by a firm or corporation under contract with the Chief of Mission or the U.S. armed forces;

The applicant must be employed as:

An interpreter;

Translator; or

In a security-related position in an executive or managerial capacity; and

The applicant must have spent at least a portion of the time abroad working directly with the Chief of Mission or the U.S. armed forces.

Religious Employees

Those religious employees (nuns, brothers, ministers) who travel outside the US for temporary missions abroad on behalf of a bona fide organization within the United States, also may treat such time abroad as continuous residence and physical presence in the United States for naturalization purposes.

Green card holders must have been physically present and residing within the United States for an uninterrupted period of at least 1 year in order to use this benefit.

Military Members and Their Family Members

Depending on the type of military envelopment, military members may be exempted or may qualify for modifications of the physical and continuous presence requirements for naturalization (US citizenship):

One Year of Military Service – INA 328: If a person served for one year and was honorably discharged, and the person does not have meet the continuous residence and physical presense requirements, if a person is still serving, or was hobnarbly discharged less than 6 months ago. Unfortunately, citizenship granted pursuant to this section may be revoked in accordance with section 1451 of this title if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.

Service during Hostilities – INA 329: Any service during the time the US President by Executive order designated to be time during which US Armed forces were involved in a conflict with a foreign hostilities, and the person was honorable discharged. Please note that a person under this provision may be afforded citizenship if at the time of the enlistment or reenlistment, or extension of enlistment, he/she was in the US or its territories including vessels (without regard that such a person was a green card holder first); or if such a person became a green card holder at any time subsequently. If the person has used this provision to naturalize before, he/she cannot use any periods of service to naturalize under this section again.

Service in WWII Certain Natives of Philippines – Section 405 of IMMACT90; and

Members who Enlisted under Lodge Act – Act of June 30, 1950, 64 Stat. 316.

Importantly, family members (spouses, children and parents) of the military personnel may also file for citizenship faster than general requirements and be afforded modifications or exemptions to the continuous and physical presence recruitments. They are also eligible for various Immigration benefits. See blog. The following groups qualify for citizenship without meeting all the physical and continuous presence requirements:

Spouse of U.S. Citizen for 3 Years – INA 319(a);

Spouse of Military Member Serving Abroad – INA 319(e);

Surviving Spouse of U.S. Citizen (Widow or Widower) – INA 319(d); and

Surviving Spouse Person Conducting U.S. Intelligence.

Child of U.S. Government Employee (Abroad) – INA 320;

Surviving Child of U.S. Citizen – INA 319(d); and

Surviving Child of Person Conducting U.S. Intelligence.

Qualifications for Naturalization, US Citizenship (soft requirements):

Knowledge of English Language and US History and Government

One of the US citizenship through naturalization requirements is person’s ability write, read and understand English language, as well as know US history and civics (how to the US government works). A person’s language skills will be tested at the interview by the Immigration officer and the test is usually pretty simple. It means that there is no requirement that a person knowns English perfectly. Recently however, there have been talks about updating the test, and making it potentially, a little harder. See video blog. The good news, that as of time of writing this article, every applicant for the citizenship, receives a book that helps them to prepare for the test: it has a list of vocabulary that will be tested and questions for Civics.

But what to do, if a person cannot learn English due to a medical condition or trauma? Then, a person, with the medical waiver, may be exempt from both English test and Civic test requirement. See blog. Also, USCIS is making it harder to qualify for the medical test exemption. See blog. For those who has been living in the US as green card holders for 10 or 15 years: they may qualify for taking the test in their own language even if they do not have medical conditions. See blog.

So, this particular requirement may also be waived, depending on the applicant’s medical conditions and age.

Good Moral Character

And now, we finally reached the most flexible requirement that a person who is applying for US citizenship has to meet: Good Moral Character. The problem is that what is good moral character is not defied by law. It is subject to a broad interpretation, and recently, this is the requirement that has been changing a lot. It started with the prohibition on adjustment for all those who dealt with marijuana in any capacity (even if a person has not been selling it or using it!) See blog. And recently, USCIS expanded its interpretation of unlawful acts, bars for citizenship. See blog and unlawful acts video blog.

This is how the “good moral character” is explained by the USCIS in its Service Law Books:

“Good moral character,[…] has been interpreted as meaning character which measures up to the standards of average citizens of the community in which the applicant resides, and thus does not necessarily require the highest degree of moral excellence. Good moral character has not been a static term since the standards of a community often change with the passage of time.

Character is not synonymous with reputation, since the latter signifies what a person is believed to be, whereas the former refers to what a person actually is in fact. Both reputation and behavior constitute evidence which tend to establish good or bad moral character, but neither are necessarily decisive for the factual issue involved.”

Further, one needs to demonstrate a good moral character over a statutory period required by law. Usually, it is five years, but the statutory period depends on the applicant’s eligibility criteria for the citizenship application. However, it does not mean that the immigration authorities cannot consider conduct and subsequent reformation that occurred prior to the statutory period.

In short, the good moral character requirement should be considered by applicants very seriously, and when in doubt, the applicants should seek help of an experienced immigration attorney.

Finally, there are certain bars for citizenship, things that automatically disqualify one from it. See blog. For example, a conviction of an aggravated felony or failure to register for selective service (see blog).

As such, when filing for citizenship, it is recommended that you do so with a help of an attorney. US Immigration laws are constantly changing and unfortunately, your eligibility and chances for citizenship may change even after you submit your application, and it will be good to prepare for a backup plan of even an appeal! See blog.

If you need a consultation regarding US citizenship and naturalization, please call us at 917-885-2261 or book it here.

US Immigration – No Status to Green Card Made Simple

Author: USA Green Card Lawyer Alena Shautsova

Working in the field of US immigration for over 10 years has taught me a lot when it comes to what I can do to help people fix their status. I have read almost every legal decision and case law regarding US Immigration from the USCIS policy memos and BIA decisions to Federal courts orders and helped thousands of clients fix their status. Many consider me to be a top expert on the subject of US immigration, and I have appeared on different news channels to discuss what the recent changes to immigration policy mean for the people living in the US. Figuring out if a person is eligible to adjust their status is a complicated process. Most experienced immigration lawyers can analyze a person’s situation in 45-90 minutes, the average analysis taking about one (1) hour.

Over the years, I have come to realize that when my staff or I tell a person that there is a fee for the hour needed to consult them, the most common response people looking to adjust their status to a permanent resident (get a green card) have is “I have no problem paying your fee, but first, please can you tell me if I have a chance to get a green card.” Unfortunately, the answer to that question comes after about an hour of back and forth questions and answers. Most of the information people are looking for, though, is right here on this website! Second, to USCIS.gov, my website is probably the most comprehensive website on US Immigration. The difference between my website USCIS’ website is that I try to explain the meaning behind the legal documents and decisions without using as little of the legal jargon as possible, that takes years of training to understand. Using my experience over 10 years, I have developed this questionnaire that can point you to further resources on my site that can help you answer that scary question “Do I have a chance?”

There are approximately 15,000 lawyers in the United States who are members of the American Immigration Lawyers Association (AILA), an association with a reputation for lawyers that dedicate most of their practice to immigration law. On Avvo.com, there are slightly over 900 well-reviewed lawyers practicing immigration without any misconduct. Currently, in the US, there are an estimated 10 million (10,000,000) undocumented immigrants, most of which are estimated to live in New York and California. If only 1 million undocumented immigrants were to ask this question evenly to all the reputable lawyers in New York, it would take slightly over 1,000 hours, or 6 months of work from each lawyer to properly consult everyone, for free. Obviously, we cannot do this, but what we can do is make the information easily understandable and accessible to those that need it. This questionnaire is not meant to replace a full consultation or legal advice and understand that while I try to make everything very simple on this site, if you make a mistake answering a question here, it could result in a very different outcome. Here it is:

Do you have any criminal convictions from any country?

Mind that not all convictions present an issue. Petty offences, may be forgiven automatically, and at times “deportable” convictions can be disregarded for adjustment cases where admissibility and not deportability matters. The “worst” convictions to have are the ones related to controlled substances, as usually those convictions cannot be waived.

If your conviction an “aggravated felony” you may be having a very hard time adjusting, unless your conviction will also be a CMIT and you will qualify for a narrowly tailored waiver. Check here for waivers and options available for Non-immigrant visas before proceeding to the next section

If your conviction is not an aggravated felony – Check out our 212 Hardship Waiver Page before proceeding to the next section

Do not give up if you have a conviction that may present an issue. U visa, VAWA and Non-immigrant visas may help you to overcome difficult situations. Perhaps, a pardon or even a private bill may help as well. You will need to work with a lawyer, however, to resolve this issue and find the definite answer as a good answer will rely on record of conviction: certificate of disposition and minutes of guilty plea.

No – Great, proceed to the next section.

When you entered the United States, did you enter legally?

Yes, I entered with a Visa – Great, proceed to the next section

Yes, I entered with a Parole Document – Please review the recent policy memo and article on Parole as a legal entry before proceeding to the next section

Yes, I entered through a legal port of entry – Please review the definition of a legal port of entry and which one’s USCIS is considering a legal port of entry, and which one’s the BIA is considering a legal port of entry. Please note, the BIA makes the final decisions; however, to get to the BIA, USCIS must wrongfully deny the case.

No, I entered without inspection (crossing the border) – Check out our I-601A Waiver page

No, I entered using someone else’s documents – Check our I-601A Waiver page and our Visa Fraud: Harmful effect page to see if the documents you used will disqualify you.

When did you last enter the United States?

Less than one year ago entered <1 Year

3.a. Are you afraid to go back to your country? Check out our Asylum Page with the most recent updates as well as our “How to apply for Asylum” pages

3.a. Do you have a job willing to sponsor you? Check out our Job Sponsorship Page

3.a. Do you want to go to school here? Check out our Non-Immigrant Visa Page

3.a. Are you an investor with more than $1 million available to invest in the US? Check

out our Investment Visa page

3.a. Do you have a US citizen spouse or child over 21? Check out our family immigration page

More than one year ago but less than 10 years ago 1 Year < entered < 10 Years

Most common available options during this time gap are:

Asylum – if your country conditions have recently changed. OR maybe you will qualify for some other exception to one year deadline!

Marriage to a US Citizen – if you have an illegal entry, please be sure to review the waiver options in question 2.d and 2.e.

Parent to a US Citizen child over the age of 21 if you have an illegal entry, please be sure to review the waiver options in question 2.d and 2.e.

Victim of a Crime

Victims of Trafficking

S-Visa for individuals cooperating with the government in anti-terrorist activities

More than 10 years ago 10 years + < entered

Please check out our Cancellation of Removal Page

Have you ever been a victim of a crime? Even if you are not sure if something is considered a crime, if someone did something bad to you in the past and you are willing to help the police investigate the matter, check out our Victim of a Crime page. Filing for a green card based on a victim of a crime has many benefits, which can be found in the link above; the most beneficial is that it waves illegal entry.

Have you been a victim of trafficking? Trafficking victims are very often hesitant to come forward; some do not even realize that they have been trafficked. If you have been working for someone because they brought you to the country for less than you deserve; forced to live and pay rent in the home of a person because they brought you to the country; or have had to send money to someone in the US or back home to pay to bring you to this country and threatened in any way because of this: check out our page on Victims of Trafficking.

Were you married to a US Citizen who was abusive to you? Please check out our VAWA page. Please note, though it is called the “Violence Against Women Act,” VAWA is available to anyone who has been a victim of abuse from a US Citizen with immediate relative ties, regardless of gender. It is available for spouses, children and parents!

Now, there are more ways to adjust reserved for specific groups of individuals:

Check out Adjustment under 245(i)

Check out Liberian Adjustment

Check out NACARA Relief that may help even those with Permanent Bar! Check out our page on possible solutions for Permanent Bars

Now, you also need to keep in mind that your options will vary depending on (1) if you have ever been in removal proceedings or you are in removal/deportation proceedings now. You can check our Deportation/Removal defense page to see if you find anything that may be relevant for your situation; (2) if you have other bars of inadmissibility (multiple entries into the US; unlawful voting; claiming US citizenship; marital support of a terrorist organization, etc. (3) and of course, if a public charge rule may present an issue for your case. You can read more about recent situation with pubic charge and affidavit of support here.

Only after an attorney, collects all this and more information from a potential client, an attorney can have an opinion about a person’s chances to receive status in the United States. Do not forget that also, the answer may depend on if a person has ever had TPS status, Deferred action, or some other type of humanitarian relief, and believe it or not, the place of residence for the potential applicant! The way Immigration laws are applied varies from state to state! Please call us at 917-885-2261 if you need a consultation still, or book it here.