Commandment #6 of Applying for Naturalization: Thou Shall Go Back to Your Roots

Not remembering important information can complicate an applicant's naturalization application.  This is especially true when dealing with issues of eligibility.  That's why having a copy of one's  "A file" has become increasingly more important. The "A file" is basically a person's record maintained by the U.S. Citizenship and Immigration Services (USCIS). Once created, it contains all immigration records for that particular person.  Recently I wrote about the Five Benefits of Having a Copy of Your "A File" from USCIS or the Immigration Court through a FOIA Request.   I encourage readers to review that post for some practical information.

Take for example the case of an applicant who obtained Lawful Permanent Resident (LPR) status through an employment-based petition.  The answers to the questions that USCIS may have can get complicated when considering the passage of time, promotions, employers with subsidiaries, change of ownership, and other factors.  Some questions could be:

• What was the original title for the position?
• What were the duties?
• What were the minimum requirements for the position?
• Did the position require the supervision of any workers?
• Who signed the petition?

USCIS wants to ensure that all eligibility requirements were met at the time of adjudication.  However, since in all likelihood at least five (usually more) years have passed since the original petition was filed with the U.S. Department of Labor and USCIS, the applicant should have at least reviewed those old files to refresh his or her memory.

Applicants should come to the interview prepared to address potential concerns that the adjudicating officer may have.  If the applicant obtained LPR status through employment, then the applicant should bring documentation showing that the applicant continues to work for the same company. This evidence could include tax returns, W-2s, pay stubs, and a letter of employment.  If the applicant is no longer employed by the sponsoring company, then the applicant should come prepared to show the time he or she was actually employed by the company.     

The general rule of thumb is that if an applicant has changed to a different employer (or changed spouse's for that matter) within one year of obtaining their LPR status (based on that relationship), they should come prepared to show the legitimacy of the employment or marriage relationship. The closer the severing of the relationship is from the time of LPR grant, the more likely it is that questions will be asked.  It's important to keep in mind that an application for naturalization gives USCIS a fresh opportunity to review the applicant's file in its entirety - not just the naturalization or citizenship application.

Naturalization Through Military Service

The Immigration and Nationality Act (INA) provides for an expedited naturalization process for current or recently discharged members of the Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard.  

On July 3, 2002 President Bush signed Executive Order 13269 authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11, 2001 to immediately file for citizenship. This order also covers veterans of certain designated past wars and conflicts. This was done pursuant to Section 329 of the INA which covers periods of service during periods of hostilities. Section 328 of the INA covers periods of service during peacetime.   Under this section, members of the U.S. armed forces and those already discharged from service may qualify for naturalization if he or she has:

• Served honorably in the U.S. armed forces for at least one year;
• Obtained lawful permanent resident status; and
• Filed an application while still in the service or within six months of separation.

Every military installation has a designated point-of-contact, generally in the personnel division or the Judge Advocate General’s Office, to assist members of the military prepare and file their naturalization application packet. Here's where members of the military can go for additional help:

• By visiting http://www.uscis.gov/military;
• By calling the U.S. Citizenship and Immigration Services (USCIS) special hotline for members of the military and their families at 1-877-247-4645.
• By sending an e-mail to militaryinfo.nsc@dhs.gov.
• By reviewing USCIS' Naturalization Information for Military Personnel guide.
• By reviewing USCIS' Questions and Answers for Members of the Military. 

Members of the military seeking to naturalize must still meet some of the basic requirements.  For example, the applicant must be a person of good moral character, have a basic command of the English language, and must also have a basic knowledge of U.S. History and Government. An applicant for naturalization must also show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance. Members of the military however are exempt from other naturalization requirements, including residence and physical presence in the United States. 

The 112th Congress and what Naturalization Applicants Need to Re-Learn

As the members of the 112th Congress go about taking care of the business of the American people, there are a few things that naturalization applicants need to know as they prepare for their interview.  Due to the recent elections, some civics test answers will change.  More specifically, applicants should check the answers to questions 20, 23, 43, and 47 prior to their interview. The answers to the first three questions may vary depending on where the applicant lives. 

• Question #20: “Who is one of your state’s U.S. Senators now?”  The U.S. Constitution provides for two Senators from each state for a total of 100 Senators.  Article I, Section 3, provides that "The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote." To check the names of your U.S. Senators and much more information about them like where they stand on the issues that are important to you, visit the U.S. Senate's website (top right-hand corner under "Find Your U.S. Senators"). 
• Question #23: “Name your U.S. Representative.” With at least 63 seats changing hands in this last election cycle, there are lots of new faces as the 112th Congress convenes.  To find your congressman, visit the U.S. House of Representative's website (top left-hand corner under "Find Your Representative"). Article I, Section 2 of the U.S. Constitution provides that "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."
• Question #43: “Who is the Governor of your state now?".  The Governor is the chief executive of each state and is vested with considerable limited powers.  To find the governor for your state, visit the following link. 
• Lastly, Question #47 asks "What is the name of the Speaker of the House of Representatives now?”  The correct answer is John Boehner.  Mr. Boehner represents the 8th District of Ohio.  View Speaker Boehner's remarks to the opening session of the 112th Congress. 

As you prepare for your interview, carefully review the study guides and other materials provided by the U.S. Citizenship and Immigration Services. Be sure to also check out my previous post with interview preparation tips. 

Commandment #5 of Applying for Naturalization: Thou Shall Prepare Well for the Interview

There are some key points that applicants should consider as they prepare for their naturalization interview before the U.S. Citizenship and Immigration Services (USCIS). 

An applicant for naturalization must meet certain requirements.  Apart from ensuring qualification - preferably before application, the applicant must prepare well.  What is a nervous applicant to do? Here are some thoughts to help along the way. 

• Read the N-400 Naturalization Application carefully.  It's important that the applicant understand what exactly is it that they signed and submitted to USCIS. Obviously this is best done before submitting the application.  For non-native English speakers, some of the language used in the N-400 application can be a bit confusing and intimidating.  The interviewing officer will read most of those questions verbatim.  Add to that some of the legal language peppered throughout the questionnaire, and your head can be spinning in no time. Reviewing the questions in advance will help the applicant, and the interviewing officer, to move the interview along that much more quickly.

• Know and understand what the Oath of Allegiance really says.  An applicant for naturalization must show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance.  If the applicant doesn't know what the oath actually says, then a question might arise as to whether the applicant really understands what he or she is doing.

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

• Study, study some more, and then some.  The applicant must show that he or she has a basic command of the English language and basic knowledge of U.S. History and Government. USCIS recently launched their Citizenship Resource Center with many materials that make it that much easier for the naturalization applicant to pass with flying colors.  Some of the resources include the naturalization test and interview video, a Guide to Naturalization, and study materials for the English test and the Civics test.   

• Lastly, before heading out the door, the applicant should review carefully the list of documents needed to ensure that he or she is bringing the documents required. Any delay, even for a simple document, is many times measured in months - not weeks.  Below you will find a document checklist and a sample interview notice.  

This may very well be my last entry for this year.  If it is, I want to wish you a Merry Christmas and a prosperous and amazing New Year.  Cheers.    

U.S. Supreme Court Hears Two Immigration-Related Cases This 2010 Term ("Flores-Villar v. U.S." and "Chamber of Commerce of the U.S. v. Whiting")

The U.S. Supreme Court will hear two immigration-related cases this year.  The first case is Flores-Villar v. United States and it is scheduled to be heard on November 10, 2010.  The issue in that case is whether a gender and time differentiation of U.S. citizen parents before children born overseas can obtain U.S. citizenship violates the Equal Protection Clause.   The second case, scheduled to be heard on December 8, 2010, is Chamber of Commerce of the United States v. Whiting. The issue in that case is whether provisions of Arizona state law aimed at combating the hiring of undocumented workers are preempted by federal immigration laws.  You can review the Merit and Amicus briefs submitted for both of these cases, and all other cases for this 2010 Term, by visiting the American Bar Association's "Preview of U.S. Supreme Court Cases" page. 

Several months ago I posted an entry about my visit to the U.S. Supreme Court with my teenage son.  We had a good time and I encourage readers who have never visited the Court personally, to make it a goal to do so this year. You will find useful information about the U.S. Supreme Court and the cases it will hear this year on the U.S. Supreme Court's website, including their Visitor's Guide to Oral Argument and the U.S. Supreme Court Calendar.  You can also read the biographies of current Justices and a brief overview of the Supreme Court.  Plan your visit well and be there early - lines can get really long, really soon. 

COMMANDMENT #4 of Applying for Naturalization: Thou Shall Feed Your Children (wherever they are)

Last post we discussed the definition of good moral character and how being married to more than one spouse at a time will affect a good moral character determination. As noted earlier, having good moral character is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. What constitutes good moral character, which is not defined by statute, has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes not financially supporting the applicant’s children (or spouse) - especially those not living with the applicant.

If the applicant has children, that are under 18 years of age, during the qualifying time as a Lawful Permanent Resident (LPR) (whether 3 or 5 years), then the applicant must come prepared to the interview to show that he or she has provided financially for their welfare (whether court-ordered or not). This is especially true if the applicant has children living abroad. In these cases the applicant must bring to their interview proof of support which can include a notarized letter from the former spouse or guardian, or if the children are old enough, letters from the children discussing the support that they have received. Also, the applicant must obtain records of money transfers, or wires that went to provide for their children.

Failing to pay court-ordered child support or alimony payments may also affect a determination of good moral character. Applicants should come prepared to the interview by bringing documents such as: cancelled checks, receipts, a court or agency printout of child support payments, evidence of wage garnishments, or other documentation.

An excellent resource put out by the U.S. Citizenship and Immigration Services ("USCIS") is the “Guide to Naturalization”. Readers are encouraged to review this document before submitting their naturalization application.

That's it for now folks. Stay tunned for our next post: Commandment #5 - Thou Shall Not Forget Where You Came From.

Commandment #3 of Applying for Naturalization: Thou Shall Not Have More Than One Spouse at a Time

On our last post we discussed the definition of good moral character and how it is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. As noted earlier, what constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes adultery and polygamy.

I know it has been said that King Solomon had 700 wives, but let’s face it, you and I are no King Solomon. This commandment of “one-spouse-at-a-time” should be self explanatory, but in my years practicing immigration law, I have encountered several cases where the applicant had been married to more than one person at a time, and didn’t even realize it. On a couple of other cases, the person thought they were married, when in fact they were not.

Some months ago I had a client that applied for naturalization. On the application he had indicated that he was married. By the time of the interview the “marriage certificate” was finally produced, and to everyone’s surprise, he was not actually married. As with many other states, Virginia first issues a 60-day marriage license to applicants. During those 60 days, the applicant takes the marriage license and presents it to the celebrant who performs the marriage ceremony. The marriage ceremony by an authorized celebrant is a necessary step for the marriage to be legally binding. The minister or other person officiating the marriage completes and signs the Marriage Register and then forwards it to the clerk of the court who issued the license. This individual never had a marriage ceremony performed by an authorized minister, and therefore never had a legally binding marriage.  They went to the courthouse, obtained a license, and had a small house party to celebrate their "marriage" thinking that nothing else had to be done.

We’ve also encountered some people that were under the genuine, albeit incorrect, impression that because they were married in their home country – and not in the United States – that their marriage back home somehow didn’t count or was not valid, and therefore they were “single”. So they find someone else, and decide to remarry, without obtaining a divorce from their home country. In other cases, the person hires an attorney in their home country to file a divorce, the divorce finally goes through, or so they think, he or she remarries in the United States, just to find out later on that their divorce did not in fact go through as the attorney had told them because of a legal technicality (it wasn’t properly filed, the appropriate signatures or seals were missing, the appropriate fees were not paid to the government office, etc).

While it is true that there is a great deal of ambiguity surrounding the meaning of the term ‘Good Moral Character’ in the context of obtaining U.S. citizenship by naturalization, there are some crimes and bad acts that may prevent one from obtaining U.S. citizenship – polygamy is one of them for sure. The moral of the story is that if you have a spouse – keep your spouse (your children will thank you for it). If you don’t keep your spouse, make sure your divorce is final. If you decide to re-marry, keep your divorce certificate because you might need it for your interview.

Stayed tuned for Commandment #4: Thou Shall Feed Your Children (wherever they are).

Commandment #2 of Applying for Naturalization: Thou Shall Not Pretend Never Have Been in the Big House (Unless You Truly Haven’t)

There are several requirements an applicant must meet before becoming a naturalized U.S. citizen. One of these requirements is that the applicant must be a person of “good moral character”. What constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. Factors that affect this determination include: refusing to pay court-ordered child support; failing to file or to pay income taxes; neglecting to register for Selective Service (if you are required to do so); lying to obtain an immigration benefit; driving drunk or habitual drunkenness; adultery; and several other grounds, including being arrested or convicted for any criminal offense whether in or outside of the United States. Although not every arrest or conviction renders the applicant ineligible to apply for U.S. citizenship, an applicant who has ever been involved in any criminal proceeding should consult with an experienced immigration attorney before submitting an application with the U.S. Citizenship and Immigration Services.

All arrests and convictions should be analyzed by an experienced immigration lawyer to determine whether they render the applicant ineligible to apply or whether the applicant’s criminal history would not only result in the denial of the application, but possibly the initiation of deportation proceedings. If the applicant elects to move forward with the application, all arrests and convictions should be disclosed – even if the records have been expunged. 

It is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. To read the immigration definition of what constitutes a conviction INA § 101(a)(48) should be consulted. A person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. For example, a Lawful Permanent Resident (LPR) is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. Thus, an individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can be removed, depending on the nature of the conviction.

There are many important reasons why clients should not withhold important information from their attorneys. In my years working as an immigration attorney I have encountered people that, for one reason or another, have decided to hide important information that would have avoided problems in the future. Most people that fit this category are well-intentioned people that are extremely embarrassed by their past. Of course, there are some that think (or hope) that by not disclosing an arrest, that somehow no one will realize it. Hopefully the client feels comfortable enough with their attorney to confide in them very personal details about their past, especially when they have had any contact with the criminal justice system. The attorney also plays an important role in extracting some of this information and bringing the issue to the floor so an open and honest conversation can follow. It’s important that the applicant understand that the U.S. Citizenship and Immigration Services (USCIS) will require fingerprints to be taken as part of the application process.

When in doubt, we have clients complete an FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet. The FBI Rap Sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. Once submitted, the results normally arrive within 30-60 days.

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. We recently posted an entry about the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia and later placed in deportation proceedings. We encourage our readers to read that entry to see the interplay between state and federal law as it relates to the removability of criminal non-citizens.  There are ways that criminal and immigration counsel can work together to achieve the best possible results that could minimize or prevent immigration consequences.

In all, the client’s interests are better served by having an open and honest conversation about these topics. Although momentarily uncomfortable for the client, being straightforward about their past can not only save them thousands of dollars in legal fees, but a lot of heartache for them and their family in the future.

Commandment #1 of Applying for Naturalization: Thou Shall Ensure Qualification (preferably before application)

Applicants for naturalization must make sure that they meet the minimum requirements before submitting their application with the U.S. Citizenship and Immigration Services (USCIS). One must meet all of the requirements - not just some. The website for USCIS has a lot of helpful resources such as a Brief Guide with some basic requirements and a more comprehensive and detailed Naturalization Guide. 

An important note to highlight is that in the best of cases the only consequence of having applied when the applicant was not eligible to, is that the applicant has lost some time and money.  This happens for example when the applicant does not meet one or more of the basic requirements. There are several other denial reasons however, mainly those that involve grounds of removability or inadmissibility, that will lead to the applicant being placed in removal proceedings.

In general, to be eligible for naturalization, the applicant must be at least 18 years old, be lawfully admitted for permanent residence, be a person of good moral character, have a basic command of the English language, and must also have a basic knowledge of U.S. History and Government. An applicant for naturalization must also show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance. The applicant must also have resided continuously in the U.S. for a period of five years following their lawful admission to permanent residence (three years if the applicant is the spouse of a U.S. citizen) and must be actually physically present in the U.S. for at least two and a half years for most applicants, one and a half years for spouses of U.S. citizens.

Keep in mind also that an absence from the U.S. that is too long will break the continuity of the applicant’s residence in the U.S. for naturalization purposes. It’s important for those frequent travelers to make sure that they review their travel dates carefully to make sure that they meet the minimum requirements. 

Stay tunned for Commandment #2: Thou Shall Not Pretend Never Have Been In The Big House (Unless You Truly Haven’t).

Why You Shouldn't Withhold Important Information From Your Immigration Attorney

There are many important reasons why clients should not withhold important information from their attorneys. In my years working as an immigration attorney I have encountered people that, for one reason or another, have decided to hide important information that would have avoided problems in the future. Most people that fit this category are actually well-intentioned people that are extremely embarrassed by their past. Of course, there are some that think (or hope) that by not disclosing an arrest, that somehow no one will realize it. Hopefully the client feels comfortable enough with their attorney to confide in them very personal details about their past, especially when they have had any contact with the criminal justice system. The attorney also plays an important role in extracting some of this information and bringing the issue to the floor so an open and honest conversation can follow. It’s important that the applicant understand that the U.S. Citizenship and Immigration Services (USCIS) will require fingerprints to be taken as part of the application. At our office, not only do we ask every client whether they have ever been arrested or convicted whether in the United States or any part of the world, but we also have them complete a questionnaire that has several questions geared towards eliciting this type of information.

When in doubt, we have clients complete an FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet. The FBI Rap Sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. Once submitted, the results normally arrive within 30-60 days. We recently had a case where the client mentioned that he “might have had” an arrest for being drunk in public many years ago. When the FBI Rap Sheet came back, it turns out that the arrest was for defrauding a taxi driver of his fare (while he was drunk). He was convicted of this offense which had greater immigration implications than a simple drunk in public offense since it had elements of “fraud” and “theft”.

No one wants to hear for the first time, coming from an immigration officer, “tell me about this arrest in ….”. I’ve had that happen to me a couple of times and it is not a good experience. In the best of cases the newly discovered conviction does not present any major problems (apart from the credibility issue) because it is not a ground of inadmissibility or deportability. In the worst of cases, the client never should have applied for an immigration benefit to begin with and the person now finds himself in deportation proceedings.

In all, the client’s interests are better served by having an open and honest conversation about these topics. Although momentarily uncomfortable for the client, being straightforward about their past can not only save them thousands of dollars in legal fees, but a lot of heartache for them and their family in the future.

A Petit Larceny Conviction Can Result in Deportation. In Fact, It Can Render a Person an "Aggravated Felon"

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. Take for example the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia. He went to a local store and stole an item worth less than $50. Petit Larceny in Virginia is a Class 1 Misdemeanor punishable by a maximum of 365 days in jail and/or a fine. The individual hired a criminal law attorney that was not aware of the immigration consequences of pleading guilty to this offense. The individual plead guilty and was sentenced to 365 days in jail but with everything suspended. Everyone went home happy until later on that afternoon when Immigration and Customs Enforcement (ICE) stopped by his house to arrest him and placed him in deportation proceedings.

How could things go terribly wrong for this Lawful Permanent Resident? For starters, a suspended sentenced does not count for immigration purposes. As in this case, although the individual did not spend one full day in jail, immigration law only considers the actual sentence of 365 days. Additionally, this theft offense, coupled with a sentence of 365 days, made this individual an "aggravated felon" for immigration purposes. Because his offense is an aggravated felony, he remained in jail and was subsequently removed. A little bit of negotiating with the prosecutor may have avoided his deportation. For example, he would have been able to retain his LPR status had he actually spent 179 days physically in jail rather than having his entire sentence suspended. This is so because a sentence of 179 days (time served) wouldn't meet the definition of "aggravated felony" for a theft offense since it's less than 365 days. Given that the judge suspended all 365 days, he wouldn’t have had a problem with a 179 day sentence (or less) of actual time served.

There are many things that can be learned from this. One of those lessons should be that anyone facing a criminal charge, who is not a U.S. citizen, should consult with an experienced immigration attorney before pleading guilty to an offense or moves forward with their criminal case.