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.

Five Benefits of Having a Copy of Your "A File" from USCIS or the Immigration Court through a FOIA Request

Obtaining a copy of your "Administrative" or "A" file from the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review (EOIR) has many benefits.  As most of our readers know, USCIS is part of the U.S. Department of Homeland Security and it is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities.  The Immigration Courts are a component of EOIR under the U.S. Department of Justice.

The request for a copy of the A-file is done through a Freedom of Information Act (FOIA) request. The "A file" is basically a person's record maintained by USCIS (and legacy INS) since at least 1955. Generally speaking each individual should have only one A-file.  The A-file is created when action is required for a particular individual. This "action" can include for example petitioning for an immigrant visa, requesting an immigration benefit, the initiation of removal proceedings, or submitting an adjustment of status petition.  The A-file can also be created at "any other time a case file is needed". Once created, it contains all immigration records  for that particular non-citizen applicant.

I'm not very fond of the word "alien" so I use "non-citizen applicant" instead.  In all fairness to our friends at USCIS, the term "alien" is actually a statutory term defined in the Immigration and Nationality Act (INA).  INA section 101(a)(3) defines an "alien" as any person not a citizen or national of the United States.

Although there are many reasons why an applicant should have a copy of his or her A file, here are some:   

• It helps you determine whether or how to proceed with an application. In some cases the A file will reveal facts that may have not been disclosed previously or were simply forgotten.  Some of the information contained in the A file may affect eligibility for the benefit desired, or may affect where and how the application has to be submitted.
• It will help you see what the immigration officer is seeing.  The A file will have the documents you submitted and those that others have submitted on your behalf.  The interviewing officer will be making his or her decision in part by what's in the record. It's important that the applicant also know what's in the file.
• It helps you prepare.  By knowing what you have in the file, you can prepare adequately for an interview and anticipate issues that may be addressed.  In some cases many years have passed since the original A file was created and it's important to review the file. 
• It helps you determine eligibility. In some cases obtaining a copy of the A file will help determine eligibility for the relief sought such as a Motion to Reopen or assist in documenting an application for relief.
• It's free (for the most part). Most requests have no fees associated with them (unless the records are voluminous or take several hours to research).

Keep in mind that each agency has different procedures on how they handle FOIA requests.  Because every agency has different FOIA procedures, Customs and Border Protection and Immigration and Customs Enforcement should be contacted separately.  Below is some information on how to submit a FOIA request with USCIS and EOIR. 

• USCIS.  Utilize Form G-639.  USCIS' website has a lot of useful information that will assist you in preparing and submitting the application. 
• EOIR (Immigration Court).   The request should be made in writing to EOIR. The request should have some information such as a description of the records sought, the applicant's name, "A number", and the date and court location of the proceedings.  A Certification of Identity (Form DOJ-361) may also be required.   For more information please review EOIR's Fact Sheet on FOIA requests. 

Done with time, the results of a FOIA request can be a very useful tool.  Keep in mind that FOIA requests take several months to process. Submitting the request as early as possible is the way to go.

How a Government Shutdown Might Affect Your Immigration Case

Because the U.S. federal government may shut down, it's important to know how your immigration case may be affected.  

If you have a case pending before the U.S. Citizenship and Immigration Services (USCIS) your adjustment or naturalization interview will most likely take place as scheduled.  The same would apply for naturalization ceremonies.  Because USCIS is funded primarily through application fees, it is expected that most of its services and centers will operate normally.  However, because USCIS works with other agencies to adjudicate pending cases, temporary delays should be expected. 

If you have a removal or deportation case pending before the Executive Office for Immigration Review, most likely only detained cases will go on as scheduled.  The immigration courts in Arlington, Virginia and Baltimore, Maryland have stated that, in case of a government shutdown, only detained cases would be heard and that non-detained master or individual hearings would be rescheduled. Also, the front window of the immigration court would be closed and the immigration court phones would not be answered. 

If you have a case pending before the U.S. Department of State, DOS is expected to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews would be rescheduled. Also, no passport applications will be accepted during a government shutdown.  

If you have a case pending before the U.S. Department of Labor, their offices will be closed.  This will delay the processing of PERM cases, as well as the processing of Labor Condition Applications for nonimmigrant visas such as H-1Bs, E-3s, etc.  Also affected would be requests for Prevailing Wage Determinations with the U.S. Department of Labor.

Hopefully the government will not shut down as expected and the processing of all immigration-related cases will not be affected. Should you have any questions please feel free to contact our office.

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. 

What You and Your Interpreter Need to Know - 6 Suggestions for a Smoother Immigration Interview

Interpreters play an important role in our immigration system.  Unlike the Immigration Court where a professional interpreter is supplied by the Court, the U.S. Citizenship and Immigration Services (USCIS) does not provide an interpreter for immigration interviews such as for an adjustment of status or naturalization interview.  An applicant before USCIS, who needs interpretation, needs to supply his or her own. 

As I came to find out some time ago when talking with a professional interpreter, there's actually a difference between a "translator" and an "interpreter".  Here's the difference: an interpreter is a person who interprets orally from one language to another, whereas a translator translates written material from one language to another. 

Although a professional interpreter is always recommended, financial considerations many times trump this recommendation.  Most clients who need an interpreter for an interview before USCIS bring a friend or neighbor.  This is not always a good thing.  When considering which friend or neighbor to ask, look for:

• A person who is not a family member. Family members have a vested interested in your success (at least one would hope). They're not really the most impartial people we can find. Officers know that, and it may affect your credibility. 
• A person you can trust.  You want someone that can keep your personal information in confidence. Interviews can expose very personal and potentially embarrassing information that are best kept "in-house". 
• A person that will be on time and has all day to spare.  Just like interviews can start right on time, interviews can take much longer than anticipated.  You want to bring a person that can be at the USCIS district office on time and can afford to stay all day.  If you're called in for your interview at 2 p.m. and your interpreter needs to pick up her children by 2:30 p.m., I guarantee you she will prefer to pick up her children.  I don't blame her.
• A person that can speak better English than you. An applicant wants to make sure that the person they bring has a good command of both English and their native language. 
• A person who is in the United States lawfully and has no criminal record.   This should go without saying, but, bringing an interpreter to your interview who is not in the country lawfully or has pending matters before the same office, is not really a good idea. You want to bring an interpreter who is a U.S. citizen who has no outstanding criminal matters because it might affect not only his credibility, but yours. If not a U.S. citizen, bring a Lawful Permanent Resident (LPR).  Every state has a case information system.  For example, Virginia has a Case Status and Information page where one can look up a person's record.  Give it a shot and see what you find. 
• A person who is not a "notario" or immigration consultant.  Use one at your own risk.  The American Immigration Lawyers Association (AILA) created a new consumer website providing information and resources to immigrants to avoid being defrauded by a notario, and where to get help if they are harmed. 

Below are some suggestions for the interpreters helping out a friend or neighbor.  I understand that interpreters might have a handful of suggestions for us attorneys.  If you have suggestions, please contact me and we might have you as a guest on our blog.

• Plan ahead.  Traffic jams, getting lost, and delays at the security counter are common. Give yourself plenty of time to get to the USCIS office and plan to stay there for at least 2-3 hours. You might end up being there for 30 minutes but things could get delayed.  Also, bring your driver's license or ID with you. The interviewing officer will make a copy of the ID and keep it in the file
• Legal advice is best left to the attorney.  Your experiences or the experiences of others may or may not apply to the case at hand.   Avoid suggesting an answer to a particular question or coaching the person in matters that you may not be qualified in.
• Ask for a copy of the forms submitted (or at least blank ones) to review them before the interview.  Some of the questions can be long, complicated, and right out confusing.  Reviewing the questions beforehand will give you a pretty good idea what the officer will be asking. 
• Begin interpreting as soon as the officer begins speaking.  Don't wait for the adjudicating officer to give you a green light. Begin interpreting as soon as the officer speaks. If there's something you don't understand, kindly ask the officer to repeat himself.     
• At the interview, avoid having side conversations. The officer might think you're coaching him or her or giving them "the answer".   
• Remember you're under oath.  Interpret faithfully what is being said.

Most interviews don't take more than 30 minutes - so relax.  If you're helping out a friend or a neighbor, you're doing a good thing.  Yours is an important responsibility that you have to take seriously if the interview will go smoothly.  Keep these suggestions in mind and you'll do fine. 

USCIS and Immigration Court Closings Due to Inclement Weather

From time to time inclement weather forces the closing of government offices, including offices of the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR).  When that happens, it's important to know where to go or who to call to ensure an applicant is not missing an important scheduled hearing or interview. 

Here are some suggestions applicants can follow if they have an appointment scheduled with USCIS and they want to verify that the office is open for business and to obtain further instructions on rescheduling the appointment if the office is closed.

• Review the "Field Office Closings" or the "News Alerts" page at USCIS' website.
• Call the National Customer Service Center at 1-800-375-5283.
• Contact the local district office through USCIS' Office Locator feature.
• Check the operating status of government offices through the U.S. Office of Personnel Management or the Federal Executive Boards.
• Got Twitter? Follow @USCIS to get the latest updates.
• Sign up to get e-mail updates from USCIS.

If an individual has an immigration hearing scheduled before an immigration court of the Executive Office for Immigration Review (EOIR), here are some recommendations to verify that the office is open for business. Not attending a scheduled hearing can have grave consequences.  Check ahead with more than one source to make sure.

• Call 1-800-898-7180 and press 3 for Court Closings.
• Check the website for EOIR.
• Call the immigration court where the hearing is scheduled.
• Check the operating status of government offices through the U.S. Office of Personnel Management or the Federal Executive Boards

Needless to say applicants should be contacting their attorney if they have one.  If the attorney doesn't know whether the office is open for business, let the attorney know where to obtain the information and bill them for your time.  

Requesting Return of Original Documents from USCIS

Applicants should not submit original documents to the U.S. Citizenship and Immigration Services (USCIS) in support of an application or petition. If original documents such as passports or birth and marriage records were submitted however, USCIS provides a way to get those documents back.  To request that an original document be returned, Form G-884 should be submitted.

A few things to keep in mind when submitting the application:  

• The application requires a notarized signature;
• A copy of two identity documents must also be submitted;
• No filing fee is required; and
• The application should be filed with the USCIS office or service center that is currently processing the case, or, if a final decision has been issued, Form G-884 should be submitted to the USCIS office or service center that took the last action on the case.  The name and address of the USCIS office that adjudicated or is adjudicating the case will normally be on the bottom left-hand corner of the latest Notice of Action or receipt notice.

Additionally, be sure to specify what documents are specifically being requested along with any additional information that might assist USCIS in locating the file and the specific document requested. If requesting documents from a file not relating directly to the applicant, additional documents such as proof of the relationship or a power of attorney may be required.  

On a different post we will cover the benefits and the how to's of obtaining a copy of an applicant's "A-File" from USCIS through the use of a Freedom of Information Act (FOIA) request on Form G-639.  

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.    

The United States as a Country of Refuge: A Short Introduction

From the early settlers, to modern-day immigrants, the United States continues to be a country of refuge. Although I heartily acknowledge, as an immigration attorney, that our system has many flaws that need to be addressed through advocacy, legislation, and litigation - the strengths and benefits of our immigration system are many times ignored in the heated debate over immigration.  In the next series of posts we'll touch upon several of the positive factors of our immigration law and policy.  

On the eve of the vote on the Development, Relief and Education for Alien Minors Act ("DREAM Act"), it is important to keep things in perspective.  I for one, am a very strong supporter of this measure for many reasons that are outside the scope of this entry. A good place to start would be to acknowledge that the United States admits more legal immigrants as permanent residents than all other countries in the world combined.  In 2008 for example, a total of 1.1 million individuals became LPRs in the United States as noted in a 2010 Report by the Congressional Research Service on U.S. Immigration Policy on Permanent Admissions. According to a recent report by the U.S. Department of Homeland Security, estimates of the Legal Permanent Resident Population in 2009 are in the 12.5 million range. 

Stay tuned for future posts discussing what specific elements of our immigration law and policy make the United States a country of refuge.

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.