Citizenship Now!

April 2013
Q.  My father is a U.S. citizen born here in the United States. My mother brought my brother and I here when we were age 18. We are now age 21. Are we U.S. citizens because our father is American or must we apply?:

-Name Withheld

A. Child sometimes get U.S. citizenship because a parent is a U.S. citizen in two possible ways. The child can acquire U.S. citizenship at birth or, sometimes the child can derive it later if the child gets permanent residence before turning 18. From what you write, you and your brother did not derive U.S. citizenship. So, lets look at whether you acquired citizenship at birth. I’ll describe derivation of citizenship later.

Under the acquisition rules for children born to married parents, for births after 11/14/1986 where one parent is a U.S. citizen parent and one parent is an “alien,” the citizen parent must have been physically present in the U.S. or its outlying possessions for five years before the child was born, at least two of which were after age 14. If you and your brother were born within wedlock to a U.S. citizen father and a foreign national mother, as long as your father can produce documentation proving his U.S. citizenship, his relationship to you and your brother, and that he met the physical presence requirements before your and your brother’s birth, then you and your brother will be able to apply for a certificate of citizenship or a U.S. passport regardless of your age and your own presence in the United States. Therefore, you and your brother would not need to wait an additional five years to apply for citizenship. If you qualify under these standards, then you should visit a Citizenship Now! center.

If your parents were not married, whether you acquired U.S. citizenship at birth depends on whether you were born “legitimate or you were “legitimated” or acknowledged in writing before turned 18. Even if you were born out-of-wedlock, you may have been born legitimate if the country of your birth considers you so. If you meet the legitimate or legitimated requirements, then you acquired U.S. citizenship at birth if your father had spent at least five years in the United States prior to your birth, at least two years of which were after he turned 18.

Because you and your brother entered the country after turning 18 you did not derive citizenship. In order to derive U.S. citizenship through a parent under the current law, both the parent and the child must first meet certain requirements. Either one or both parents must be a U.S. citizen. The child must be a lawful permanent resident (i.e., green card holder) as well as be unmarried and under age 18. The child must live in the United States in the legal and physical custody of the U.S. citizen parent(s). For children who were born out of wedlock, they can derive only through a U.S. citizen mother or, if the father is a U.S. citizen and the mother is not, then the father must have legitimated the child before the child turned 16. The process is called “derivation of citizenship” because the child is deriving her/his U.S. citizenship from the U.S. citizen parent or parents.

March 2013
Q.  I'm Honduran, 26 years old. I have been in the United States since 2005. When I was crossing the border in 2005, immigration arrested me and released me after a few months. I was scheduled to go to immigration court, but I was too scared to attend. I was afraid I would be deported. I have never had a criminal record. I work, but since my job always paid with cash, I never paid my income taxes. My father has had temporary protected status since 1999. In 2011, I applied for TPS but my request was denied. After that, immigration sent me a deportation letter based on my 2005 case.
My questions are:

1. I would like to bring my mother and brother to the United States legally. Can my dad sponsor them?

2. Do I have a case for TPS? I have been to three different lawyers and they all gave me different advice.

3. I just started my own business part-time, is truck delivery. Can I get my TPS based on having my own business? The assets are only $25,000.

I really want to be legal, but it seems is really hard. I have been trying for the last two years. Would you please give me a solution. Thank you for your time and I will be waiting for your reply soon.

-Name Withheld

A.  Your case is complicated, but I will try to answer your questions one by one. It is unlikely that your father can help family members come to the United States. TPS allows people to stay in the United States temporarily and grants employment authorization to people from countries where a natural disaster or other emergency makes it unsafe to return home. The TPS rules do not allow for the TPS holder to sponsor family members. Often, right after the event that caused the need for TPS, or right after the announcement for TPS, a U.S. consulate abroad gives special visitor visas to family members so that they can come to the United States. Another option is that family members are allowed to enter the United States under "humanitarian parole.” In your case, however, because it is so long after the initial announcement of TPS in 1998, it is unlikely that your family members would be able to come through special visitor visas or through humanitarian parole to join your father.

For your second question, from what you write, you do not qualify for TPS. For Honduran TPS, you must have been continuously residing in the United States since December 30, 1998, and physically present since January 5, 1999. Since you state that you entered the United States in 2005, you do not qualify for TPS.

If you did qualify for TPS, you might qualify to file a late initial registration (that is, applying for TPS after the filing deadline). Qualified TPS applicants may qualify late, if they meet the criteria for late initial registration. Examples are individuals with a pending asylum case or you were in valid nonimmigrant status, or if you are the child of someone eligible for TPS. The rules allow for people to apply for TPS even if there is a final order of removal (as long as the basis for the order of removal is not an offense that bars the person from being granted TPS). But since you didn’t come to the United States on December 30, 1998 or before, those rules don’t help you. Your last question is about your business. Congress created TPS to help individuals in the United States from countries where it is not safe to return after a natural disaster or other catastrophic event. Having a business in the United States doesn’t make you eligible for TPS. The law allows for certain visas for investors and business people, but given your immigration history, it is unlikely that you would qualify. To apply for this type of visa, the amount invested must be substantial; $25,000 will not be enough.

While I can’t suggest a path to permanent residence for you, if you have questions about whether there is a deportation order against you, you can learn for sure by calling the Immigration Court Information System hotline at (800) 898-7180 to find out the status of your case. This is an automated telephone system that provides information about the cases of people who are currently in or have previously been in deportation, exclusion, or removal proceedings. You will need your Alien Registration (A) number to get the information. The A-number is the case number the immigration authorities assign to your case and that follows you throughout your immigration history in the United States.

It is commendable that you wish to legalize your status in the United States. Hopefully Congress will provide a remedy for out-of-status immigrants. Perhaps then you can get legal status.

February 2013
Q.  I am a permanent resident. I was detained and placed in removal proceedings because of two old marijuana convictions. The immigration judge granted me cancellation of removal, giving me the chance to continue with my life here. I have been a permanent resident for 17 years and employed. I have no felony convictions. Can I become a U.S. citizen? Thank you.

-Name Withheld

A.  Yes. Provided that you have maintained good moral character for the past five years, you can naturalize. Three years if you have been married to and living with the same U.S. citizen spouse.

Let’s first explain “cancellation of removal.” INA section 240A(a) Cancellation of removal is available, generally, to legal permanent residents who have had legal residence for five years, who have lived in the United States for at least seven years. Note that the seven years must be prior to the beginning of removal proceedings by the issuance of an NTA, a Notice to Appear, or the commission of certain crimes. and have not been convicted of an aggravated felony. “Aggravated felony” has a special meaning under immigration law. An “aggravated felony” under immigration law includes many, but not all felonies, and some misdemeanors.

An Immigration Judge can grant cancellation of removal if he/she feels that the lawful permanent resident merits a favorable exercise of discretion because the positive factors about the immigrant outweigh the negative factors. Cancellation of removal does not change the date legal permanent residence status was granted.

A person granted cancellation of removal is eligible to apply for naturalization. The Board of Immigration Appeals (BIA) has said that a person who has been granted cancellation of removal, cannot again be charged with deportability based on the same crime, but that the prior crimes do not completely disappear from the record for immigration purposes. An applicant for naturalization must show good moral character during the statutory period, either the five-year period immediately before filing the naturalization application (or the three–year period if applying based on being married to and residing in marital union with the same U.S. citizen spouse for the past three years). Certain conduct during this period will bar or stop the applicant from naturalizing. USCIS can look beyond the statutory period to determine good moral character if the past conduct or acts appear relevant to the applicant’s present moral character. USCIS has the right to deny naturalization in their discretion.

If your two “old” marijuana offenses were resolved through the grant of cancellation of removal and you have no other offenses within the past five years (or three years of married to and living in marital union with the same U.S. citizen) and you are otherwise eligible to naturalize, then you should be able to proceed with a naturalization application. The fact that you were in removal proceedings during the five- (or three-) year period does not prevent you from demonstrating good moral character.

A person charged or convicted with a crime should always have their court records reviewed by an immigration attorney or Board of Immigration Appeals (BIA) accredited representative before filing for naturalization. You can visit one of our immigration centers and make an appointment to see if you are meet all the eligibility requirements to apply for citizenship.

January 2013
Q.  I was charged with possessing a knife, but the judge discharged the case. This happened when I was just 17. Will I have a problem becoming a U.S. citizen?

-Name Withheld

A.  If you have been a permanent resident five years from the time of your offense, the incident should not keep you from naturalizing unless you committed other offenses or were involved in other bad conduct during that time period. The period is three years if you have been married to and living with a U.S. citizen for those three years. Still, you should speak to an immigration law expert before applying for citizenship. Though you say that your case was discharged, USCIS may still consider you to have been convicted. U.S. immigration law defines conviction to include a situation where the person admitted guilt, or the facts warranting a finding of guilt, or pleaded nolo contendere (no contest) and a judge has ordered some form of punishment, penalty, or restraint. If those facts apply to you, then you were convicted of an offense. That’s true despite the discharge. Readers should note that if a judge dismisses a case, that dismissal means that under immigration law the person was never convicted. That’s different from the rules that apply for a conditional discharge.

You also state that you were 17 when your case was discharged. It is therefore possible that the authorities treated you as a “youthful offender” under criminal law instead of having a criminal conviction. Generally, under New York criminal law, you can be held responsible for crimes starting at age 16. You can be treated as an adult for certain serious crimes committed between ages 13 through 15. Certain youths, who are prosecuted in adult criminal court and are found guilty of committing a crime under the age of 19 may be treated as “youthful offenders.” If the criminal authorities determine that someone is a “youthful offender,” it means that the youth does not have a conviction for a crime or an offense. A person who is determined to be “youthful offender” therefore does not have a conviction for immigration purposes. Although the offense is not a conviction for immigration purposes, the immigration authorities may still consider the person’s conduct when they committed the offense (and which is the basis of the “youthful offender” determination) to determine whether the applicant demonstrated good moral character. I do not know from your question whether you had a “conviction” for immigration purposes or a determination that you were a “youthful offender.”

An applicant for naturalization must show good moral character (GMC) for the statutory period of five years (or three years if applying based on marriage to a U.S. citizen) through the time the applicant is sworn in as a U.S. citizen. Even if you were convicted or were determined to be a “youthful offender”, whether that conviction or “youthful offender” status shows a lack of good moral character depends on the nature of the offense. You say you were caught with a knife, but an immigration attorney or Board of Immigration Appeals (BIA) accredited representative would need to know the exact nature of the offense for which you were convicted or for which you were determined to be a “youthful offender.”

Any individual charged or convicted with a crime should have his court papers reviewed by an immigration attorney or BIA accredited representative. My guess is that you can naturalize, but to be sure, you need a careful review of your case by an expert.

December 2012
Q.  My friend is petitioning for her parents, but she could not file an affidavit of support due to low income. She asked me to help by filing the affidavit of support for her parents. The question is who will be liable for her parents’ financial support. If her parents apply for public assistance, will the SSI deduct any dues in my paychecks? Will there be any financial liabilities for filing the affidavit of support for her parents?

-Name Withheld

A.  This is a great question as many people are hesitant to sponsor an intending immigrant (the Beneficiary) for fear of future liability if the immigrant receives government benefits like public assistance or food stamps. In general, the petitioner in most family-based petitions and sometimes in employment-based petitions must file an Affidavit of Support to prove that the petitioner can financially support the intending immigrant(s) so that the intending immigrant(s) will not become primarily dependent on public cash assistance for income maintenance. Under certain circumstances, if the petitioner does not have the financial resources to meet the Affidavit of Support requirements, the petitioner can get one or more other Joint Sponsors to file one or more Affidavits of Support. The joint sponsors become jointly (i.e., collectively) and severally (i.e., individually) liable along with the petitioner for financially supporting the intending immigrant(s).While a Joint Sponsor is legally responsible for the immigrant’s financial support, currently the government rarely takes action to compel the Joint Sponsor to repay the cost of those benefits. Still, it’s always a possibility.

When an intending immigrant applies for permanent residency in the United States they must not be inadmissible, meaning that they must be eligible to receive a visa and be admitted to the United States, either by adjusting status in the United States or through consular processing at a U.S. embassy or consulate in the immigrant’s home country. There are several grounds of inadmissibility under the Immigration and Nationality Act. In particular, an immigrant may be found inadmissible if they are likely to become a “public charge” to the United States. This means that the immigrant will become primarily dependent on public cash assistance to maintain her/his income.

The Affidavit of Support is required to show that the Beneficiary has adequate means of financial support and is not likely to become a public charge. The Affidavit is a legally enforceable contract between the government and the Sponsor where the Sponsor demonstrates that they have sufficient income and/or assets to maintain the intending immigrant and the rest of his household at 125% of the Federal Poverty Guidelines unless on active duty in the armed forces. Then it is only 100% of the Federal Poverty Guidelines when sponsoring certain family members. By signing the Affidavit, the Sponsor also pledges to use his own resources to support the intending immigrant if it becomes necessary.

Generally, in a family-based petition the Petitioner must also be the Sponsor. However, if the Petitioner cannot meet the income requirements, the Beneficiary will need a Joint Sponsor. A Joint Sponsor also completes an Affidavit promising to support the Beneficiary, and that he or she can support the immigrant and the rest of his or her own household. This is evidenced by the Joint Sponsor’s Federal income tax returns, W-2s, and proof of current employment. The Immigration and Nationality Act requires the Joint Sponsor to (1) be at least 18 years old, (2) a U.S. citizen or legal permanent resident, and (3) have her/his principal residence (i.e., domicile) in the United States. Fortunately, the Joint Sponsor does not have to be related to the petitioning sponsor or the intending immigrant.

Keep in mind that under Federal Immigration law, a Joint Sponsor is legally accountable or liable for the financial support of the intending immigrant - along with the Petitioning Sponsor. If the sponsored immigrant receives means-tested public benefits from a Federal, State, or local New York City agency (i.e. public assistance or food stamps), the agency providing the benefit may request the Joint Sponsor to repay the cost of those benefits. That agency can sue the Joint Sponsor if the cost of the benefits provided is not repaid.

The Joint Sponsor’s obligation under the Affidavit of Support ends when the immigrant naturalizes, becoming a U.S. citizen, or when he/she has either worked or can be credited with working 40 qualifying quarters under the Social Security Act. The sponsor continues to be obligated under the contract until (1) the sponsored immigrant loses lawful permanent resident status and leaves the country or (2) re-adjusts to lawful permanent resident status in removal proceedings or (3) the sponsored immigrant dies, or (4) the sponsor dies. The sponsor is still responsible for costs that occurred before the sponsor’s obligation terminated. The only means-tested public benefit designated by New York State is the Safety Net Program, which is New York’s cash assistance program. This is open to people ineligible for federal public welfare. Recently the Human Resources Administration in New York City had announced it would pursue sponsors for reimbursement of the cost to New York City of providing means-tested public benefits. At the time of publication of this article however, it appears that they have not started going after sponsors. Although it is rare for the government to go after sponsors, I cannot advise you on the chances of the government asking you to reimburse them for the cost of providing public benefits to your friend. As long as your friend does not resort to means-tested public benefits, the government could not seek to enforce the Affidavit of Support and therefore there would be little chance that the Social Security Administration or the New York City Human Resources Administration would deduct any monies from your paycheck as a Joint Sponsor. Note that your friend’s parents can apply for citizenship after they have met the requisite time in the United States. CUNY provides a wide variety of services including English classes and Test Preparation Classes . Feel free to come to one of our immigration centers for more information.

November 2012
Q.  I was a permanent resident, living in  California, married to  an American citizen.  We had two kids.  In 2008 I came to Brazil and I stayed there for more than a year.  I tried to get permission to return , so I tried to get re-entry permission, it wasn’t approved and I was told to wait until March 2012.   What should I do now?   Should my husband apply again and start over the process? He is still in California and we are still married.

-Joelma Tinkler, Sao Paulo Brazil

A.  If a Lawful Permanent Residents (LPR) remains outside the United States for more than one year without first getting permission to do so (a Reentry Permit), then the United States Department of Homeland Security (DHS) assumes that the LPR has abandoned his or her residency regardless of whether they are married to U.S. citizens.  8 CFR §211.1(a)(2).  There is an exception for certain civilian or military employees of the U.S. government (and their spouses and children) , who are stationed abroad with the spouse/parent under  official orders, but that doesn’t seem to be your situation. 8 CFR §211.1(a)(6).  Also, a permanent resident card is not valid for reentry after one continuous year abroad.

If you tried traveling back to the United States and tried to reenter the United States using your green card (Form I-551) after being outside the United States for more than one year, an officer at a port-of-entry, like JFK airport, for example, a DHS immigration inspector might claim you  have abandoned LPR status and place you in removal (i.e., deportation) proceedings – charging you as not having proper immigration documents.   Sometimes, a port-of-entry officer will admit a person who has been outside the United States for more than one year if the person can prove that he or she did not abandon U.S. residence.   

If a person has a genuine claim to LPR status but the DHS believes that the person has abandoned their LPR status, then the DHS has the responsibility (i.e., burden) to prove that the person in fact abandoned their residency.

When determining whether an LPR has abandoned their lawful permanent residence, the DHS will look to see (1) that the person was lawfully granted permanent residence before departure from the United States, and (2) that the person is returning to their home in the United States after a temporary trip abroad.  Matter of Huang, 19 I&N Dec. 749 (BIA 1988).  A “temporary trip abroad” does not depend only on how long you have been outside the United States.  Instead, depends on your intention to return to the United States during your trip abroad.  If an LPR has an uninterrupted intent to return to the United States but circumstances beyond her/his control have prevented her/him from returning to the United States, then it is possible that the DHS might determine that s/he has not abandoned residence.  This becomes less and less likely, however, the longer the person is outside the United States. To determine whether the person had a temporary trip abroad, the DHS will look to the person’s intent to return within a relatively short period of time as well as whether there is a definite end of the absence from the United States.  Matter of Huang.  For example, a contract with a U.S. employer to work outside the United States and that was to end on a specified date. In determining whether the LPR intended to return to the United States within a relatively short period of time, the DHS will look at the purpose of the departure, the duration of the absence from the United States, and the person’s home, family, and employment ties to the United States.  Although it is possible to show that an extended absence from the United States was nevertheless temporary and therefore did not lead to the abandonment of LPR status, it can be very difficult to prove it.

A permanent resident who knows before leaving that he or she will be away for more than a year, it is best to apply for a reentry permit before leaving.  The permit is a way to tell immigration that you will be abroad for a long time, but that you are not abandoning your residence.  You apply for the permit using USCIS from I-131.

Getting back to your situation, I see no reason why anything would have changed in March 2012.  It seems that you applied for a Special Immigrant Returning Resident Visa (SB-1), which is a special category of  immigrant visa for LPRs who can demonstrate that  (1)  they had the intention to return at the time they departed the U.S.  and (2)  their stay abroad was “for reasons beyond  the LPR’s control and for which they are not  responsible.” 9 Foreign Affairs Manual (FAM) §42.22 Note 1.  The LPR outside the United States carries the burden of establishing eligibility for this type of visa.  The burden is very high, especially if you have been in Brazil since 2008 (i.e., almost 5 years). Types of evidence a U.S. consulate might accept would be proof of filing U.S. tax returns for the past year or years , property (leased or owned) in the United States, the presence of other close family members in the United States, and evidence of any other financial ties to the United States. They would also expect you to have a very good reason for being outside the country for such a long period of time, and if the reason is medical treatment there would need to be convincing evidence showing either that you were not well enough to travel back to the United States for treatment or that the treatment is not available in the United States.

Since it seems that the U.S. consul in Brazil denied your SB-1 immigrant visa  application, your husband could petition for you once again by filing Form I-130 with the United States Citizenship and Immigration Services (USCIS).  As well as paying all the fees to consular process for an immigrant visa again. You would have to demonstrate that the relationship still exists. 

October 2012
Q.  I have a question about my husband’s case. He was arrested in 2004 for possession of Khat. He didn't go to jail but he got probation. Will his conviction keep him from getting his green card? In the past he’s never been in trouble. He works hard. Can you please help him.

-Nagate Salah, New York

A. Thanks for your question. I will only be able to answer it very generally, since we are not able to advise you properly on a criminal issue without looking at the certificate of disposition.

The information I can give you is this: You write that your husband was arrested for possession and was on probation. Probation is a form of punishment that is an alternative to serving time in jail. If your husband was on probation that means that he has a conviction for immigration purposes. If your husband has applied for permanent residence (that is, his green card) and the application is still pending, a conviction for certain drug-related crimes can prevent him from getting the green card and can result in him being placed in removal (i.e., deportation) proceedings. The U.S. immigration law states that foreign nationals are “inadmissible” if they violate laws dealing with “controlled substances” (i.e., drugs).

The only waiver available is for people with a single offense of simple possession of 30 grams or less of marijuana. If the government determines that a person is inadmissible, then the person will be prevented from receiving a green card and might be removed from the United States. Although Khat is not specifically named as a “controlled substance” for purposes of the immigration law, one of its elements is “cathinone,” which is a controlled substance.

Therefore, if someone violates any law or regulation of a state, the United States, or a foreign country relating to cathinone, which is a controlled substance, that violation might make them inadmissible and in turn prevent them from obtaining a green card. Further, the person might be placed into removal proceedings. Courts have different decisions on whether possession of Khat will make the person inadmissible.

My best advice is for your husband to get the Certificate of Disposition from the clerk's office at the court where he saw the judge and bring that in to one of the CUNY Citizenship Now! Centers so that an immigration lawyer can review it with him. The lawyer will need to conduct further research to determine whether your husband’s criminal offense will prevent him from receiving his green card and result in the government placing him into removal proceedings.

September 2012
Q.  I am unsure of how to even ask the question. I don't know anything about the immigration laws, but I have heard of other marines being able to get their spouse U.S. citizenship. I am a former U.S. Marine. I got out around 2004 and met my wife in 2005. We have been married for seven years now and have two kids. I have been trying hard to get my wife to be legal so we can stop living in fear of her deportation. She was brought here when she was around eight by her parents, illegally. She attended elementary school and finished High School. Never been in trouble with the law or gotten any tickets. I have talked to a lawyer and it seems that they just want their money and won't give me any other information other than "she needs to go back and wait." My family cannot be broken up, it would tear us apart. We just don't know what else to do. All she wants to do is to be able to work, legally, and help provide for our kids. Is there anything that we aren't seeing? Any information can help us out.

Name withheld

A. While the law does not provide special benefits to your wife because you were in the Marines, she nevertheless has a path to legal status. Before she can become a U.S. citizen, she must first become a lawful permanent resident (green card holder). The problem you write about, that you wife would have to go home to wait to get residence should be solved by a new procedure that should go into effect before the end of the year.

Under the new procedures, your wife can apply for a waiver of the "unlawful presence" bar to permanent residence while here in the United States. She needs the waiver because she has been here unlawfully for more than a year. Without the waiver, she would need to stay abroad for ten years. Current procedures require that she apply for the waiver only after leaving the United States. When the new procedure takes effect, your wife will be able to apply for an unlawful presence waiver and wait here for the U.S. Citizenship and Immigration Services to approve it. If USCIS approves it, she would need to return to her country for a week or so only. Just long enough for her to attend an interview and receive her visa.

August 2012
Q.  I am a 23-year-old US citizen. I was born in New York and now I am petitioning for my father. The problem, however, is that my father never married my mother and was previously and still is married to another person. My question is, how can I petition for him since the I-130 form requires the certificate of marriage of my parents? By the way, the nationality of my father is Peruvian. Thank you in advance for your help and consideration.

Name Withheld

A. Don’t worry, you should be able to petition your father even though he was never married to your mother.  As a general rule, U.S. citizens over the age of 21 are eligible to petition their parents.  The documentary requirements differ somewhat when the child is born of out of wedlock (i.e. he wasn’t married to your mother).   When a U.S. citizen petitions his father and that U.S. citizen was born out of wedlock, USCIS requests more information about that relationship than if the parents had been married. 

To petition for your father, you must have been born legitimate, have been legitimated before age 18 or you must have had a relationship with your father before you turned 21.   Legitimation is defined as the act of placing a child born out of wedlock in the same legal position as a child born in wedlock.  Legitimation is determined by the law of the country you resided or were domiciled in.  Under Peruvian law, there is no longer a distinction between children born in wedlock and children born out of wedlock.  As long as you can prove that you are the natural child of your father, you can petition for him.  The best proof would be if he put his name on your birth certificate at the time your birth was registered.

In cases where a child is not born legitimate or is not legitimated before the age of 18, the child must demonstrate that a bona-fide (i.e. good faith) parent-child relationship existed between the child and father before the child turned 21.  This may include evidence that your father lived with you, supported you or otherwise showed continuing parental interest in your welfare.  USCIS may also require a DNA test to establish he is your biological father.

July 2012
Q.  I am very much interested in becoming a citizen. I've been here legally since 1985 and have worked ever since paying taxes. Unfortunately, I got arrested on a grand larceny charge in 1991. Is there any chance of me becoming a citizen? Can I request a pardon from the governor?

Name Withheld

A. I'm presuming that you are a Lawful Permanent Resident (green card holder). There is a potential problem with your filing a citizenship application.

Criminal convictions, even if they occurred many years ago, can have various immigration consequences for green card holders. Immigration law has several categories of crimes that can make a green holder ineligible for citizenship, or even deportable: there are “aggravated felonies”, “crimes involving moral turpitude”, “controlled substance offenses”, “firearms offenses”, among others. The meaning of these categories in immigration law is different to their meaning in criminal law. That is why it is important for someone with a criminal record to obtain a certificate of disposition and have an immigration attorney review it before filing any immigration applications.

Under certain circumstances, the U.S. president or a state governor can pardon a convicted criminal – that is, absolve the individual of the punishment associated with their conviction. Such a pardon only protects you from deportation if your offense falls into two categories: “aggravated felonies” and “crimes involving moral turpitude.” If, for example, your grand larceny conviction involved the use or theft of firearms, you might be considered to have a committed a “firearms offense” and a pardon would not protect you from deportation on that basis.

Even if a pardon saves you from deportation, it may or may not maintain your eligibility for naturalization- this would depend on the nature of the conviction, and whether the pardon occurred within the continuous residence period for naturalization (5 years for most applicants). Again, I strongly recommend having an immigration attorney review your conviction records to ascertain the immigration consequences of your conviction, and whether a pardon may help. Please note that although Governor Paterson did pardon some immigrants with serious criminal records, this program expired and has not been continued under the leadership of Governor Cuomo.

A different approach to dealing with an existing conviction is by vacating it. A conviction that is vacated “on the merits” – that is, based on a violation of the defendant’s rights or some other defect in the criminal proceedings, ceases to be a conviction for immigration purposes. Immigration will look closely at the reasons why the court vacated the conviction. Convictions that are vacated solely to mitigate the immigration consequences of the conviction will continue to be treated as convictions by immigration.

In 2010, the Supreme Court ruled that a criminal defense attorney’s failure to advise a non-citizen about the immigration consequences of decisions made during a criminal proceeding is a constitutional violation. As a result, it may be possible to vacate a conviction when the criminal defense attorney did not advise a non-citizen that a guilty plea would make him deportable. The law relating to vacating judgments is evolving rapidly, so if your criminal defense attorney gave you poor advice (or none at all) about how immigration will treat your conviction, then I suggest you contact a criminal appeals attorney who can investigate potential ways for vacating your convictions. If you are successful in vacating your conviction, then you should retain an immigration attorney to proceed with any immigration applications.

June 2012
Q.  I am a U.S. Citizen while my wife is a Lawful Permanent Resident (LPR).  We have been married for over five years now but my wife has only been a Lawful Permanent Resident (LPR) since August 14, 2009.  I am looking into an expedited naturalization for my wife based on work.  I am about to begin with Harvard University as a Master of Liberal Arts Student.  I have to complete a Master’s thesis proposal and eventually a thesis for which I will need to be in the United Arab Emirates for about 12 to 20 months.  I don’t get paid by the Harvard Extension School as this is a self-paced research which one has to complete in order to obtain the Masters of Liberal Arts program.  Does my wife qualify for an expedited naturalization based on 319(b)?

Name Withheld

A. Your question refers to section 319(b) of the Immigration and Nationality Act (INA), a provision that allows certain permanent residents to have their naturalization “expedited” if their U.S. citizen spouse is working overseas.  The naturalization is expedited, for an eligible applicant, in the sense that she does not have to meet the requirements of presence in the United States that normally need to be met for naturalization.  The provision covers employees of the U.S. government, certain American research institutions and corporations, and certain religious organizations.  U.S. citizens conducting research abroad may qualify for this provision, but only if their study and research abroad relates to a doctoral dissertation, pursuant to certain fellowship grants.  The research you described would unfortunately not qualify.

However, under INA 319(a), a permanent resident who is married to a U.S. citizen for three years is eligible to file after only three years of permanent residence (rather than the five years that most folks must wait).  Also, applications can be sent 90 days before meeting the respective period of continuous residence (whether it is three years or five years).  In this case, you and your wife have been married for five years, and she has been a permanent resident for two years and 10 months.  The first date on which your wife was eligible to apply is May 16, 2012 (two years and nine months from the date she became a permanent resident).  So, assuming that your wife meets all other naturalization requirements – including physical presence in the United States – your wife should be able to file for naturalization.

It is taking about six months from filing to swearing-in for a permanent resident to become a U.S. citizen.  Hopefully your wife can naturalize before you must spend a lengthy time abroad. If she does not become a U.S. citizen before you leave, she should get a re-entry permit, if she will be with you abroad.   Also, note that if she is abroad for one continuous year or more, when she returns she would need to wait two years and one day before qualifying to naturalize.

Please check out the section of our website that lists our immigration centers for assistance with the application.  Good luck with the Masters!

May 2012
Q.  I filed a Form N-600, Application for Certificate of Citizenship, for my son, along with a fee waiver request in New York City in March 2011. I have not received any receipt or confirmation from USCIS. How long does an N-600 take to be processed when it is submitted with a fee waiver application? My son is 15 years old. He became a U.S. citizen automatically when I naturalized. He received an American passport, but we need a Certificate of Citizenship to prove that he is a U.S. citizen.

Name Withheld

A. A U.S. passport is evidence of U.S. citizenship and, legally, its weight is equal to that of a Certificate of Citizenship.

There are some limited circumstances where it would be beneficial to apply for a Certificate of Citizenship. For instance, if your son ever loses his U.S. passport, he will need to provide evidence of U.S. citizenship to get a new one. A Certificate of Citizenship is primary evidence of U.S. Citizenship, that is, it alone would be sufficient to prove that your son is eligible to receive a new passport. If your son does not have a Certificate of Citizenship, he may need to provide the passport office with his foreign birth certificate, his green card, and your naturalization certificate, to prove – again – that he is a U.S. citizen. Gathering this documentation may be challenging.

The delay in processing your son’s N-600 application is not unusual. The New York District Office is currently adjudicating N-600 applications that were received on July 29, 2011. But N-600 applications filed with fee waiver requests have longer processing times, unfortunately.

Because you filed an N-600 application with a fee waiver request to the New York District Office (before the Phoenix Lockbox became the centralized filing location for these applications on October 30, 2011), no receipt notice was issued to you, and thus it is harder to get a case status update from USCIS on your case.

To check on the status of your N-600 application that you filed with a fee waiver in New York City, you need to contact the New York District Office directly. You can schedule an InfoPass appointment online at http://infopass.uscis.gov to speak with an officer about your pending case. If possible, bring with you a copy of the N-600 application and proof of your having mailed it. There is a chance that the officer you see that day will not be able to provide with you with case information because these cases are not tracked by USCIS, and a supervisor or section chief may need to look into the matter. This may not happen that same day, however.

If the District Office is not helpful at your Infopass appointment, you can contact your local congressional representative for assistance and ask their staff to initiate a case inquiry on your behalf. Call 311 or go to www.congress.org to locate your representative.

Please note that if the N-600 applicant is at risk of losing benefits, such as SSI, due to the unexpectedly long processing time, you should bring proof of this to the District Office or the congressional representative’s office. USCIS will often agree to expedite the processing in such cases.

April 2012
Q.  I have Temporary Protected Status (TPS) right now since I am from El Salvador, but I just got married to a U.S. citizen. I would like to know what is the next step in order to obtain my green card?

Maria Tobar

A. If you entered legally, you qualify to adjust status, that is, interview here. Your husband can petition for you and in the same envelope, you can submit your application for permanent residence.

If you entered the United States without speaking to an immigration officer, you have two possibilities. You can travel home with what immigration calls “advanced parole,” and then apply to adjust status. Again, that means interviewing here. However, if you were here for more than 180 days unlawfully before filing for TPS, and you travel abroad, even with advanced parole, you may need an “unlawful presence” waiver as a condition of getting LPR status. A recent case may affect this.  I think that a recent Board of Immigration Appeals decision may end the need for the waiver in cases where TPS holders travel with advance parole.  I will address this in the future.  The other possibility if you entered without inspection is to apply for your waiver here (the U.S. Citizenship and Immigration Services will soon allow that) and then travel home for your green card. 

No matter how you proceed, you must prove that you and your spouse are in a real or bona fide marriage, and not simply a marriage of convenience to obtain LPR status. If USCIS is satisfied with your evidence of a bona fide family relationship, you can get permanent residence.

I think that applying for adjustment of status is the best course. That’s true even if that means first traveling abroad with advanced parole.

Once you can show a lawful entry, either prior to your getting TPS or after traveling with advanced parole, you then file USCIS Forms I-130, Petition for Alien Relative, signed by your husband; I-485, Application to Register Permanent Residence or Adjust Status; I-325A, Biographic Information, one each for you and your husband; I-864, Affidavit of Support; I-693, Report of Medical Examination and Vaccination Record; and if you want employment authorization, Form I-765, Application for Work Authorization. If you need the waiver, you will file form I-601, Application for Waiver of Grounds of Inadmissibility at your interview.

Consult an immigration attorney if you need further guidance in completing the forms and gathering documentary evidence to support your application. Good luck!

March 2012
Q.  Can a child who came in with a humanitarian visa and is being petitioned by his/her resident mother apply for adjustment of status, or will this child have to go back to his/her country to get a green card?

Name withheld

A. Adjustment of status is a process that allows an individual who is already present in the United States to apply for permanent residence and receive it without leaving the country. Though there are many exceptions, in order to qualify for adjustment of status, an individual generally must meet three criteria:

• He/she must have a basis for applying for permanent residence;

• He/she must have entered the United States lawfully, and continuously maintained lawful status; and

• He/she must have not engaged in any “bad acts” that would make him/her ineligible for permanent residence.

Basis for applying for permanent residence: Family sponsorship is the most common vehicle for obtaining permanent residence. Depending on whether the sponsor is a U.S. citizen or permanent resident, the family relationship involved and other factors, family sponsorship can be a short path or a very long trail to permanent residency. Certain family members of U.S. citizens can apply for permanent residence at the same time that they are petitioned for by the sponsoring family member. All others have to be petitioned for, await approval of the petition, and then line up in their respective queues ordered by date of application, before their approved petitions can be a basis for applying for permanent residence.

Lawful entry and lawful presence: Usually, an applicant for adjustment of status must have lawfully entered the United States and maintained lawful status since that entry. There are significant exceptions to this requirement, for certain family members of U.S. citizens, for certain individuals who had applications pending before April 30, 2001, and for various other groups.

Bad acts: Committing criminal acts, having previously filed fraudulent immigration applications, and other conduct can make an individual ineligible for adjustment of status and permanent residence.

From what you write, it seems that the child entered the United States lawfully. If that is the case, and the child is still here and maintains lawful status, he/she can adjust status once he/she gets to the front of the line under the quota system. If the child falls out of status, but the mother naturalizes while the child is under 21 and unmarried, again, the child can adjust status. Note that the law allows an unmarried child of a U.S. citizen under 21 to adjust status even if the child has fallen out of status after a lawful entry.

As noted above, family members of U.S. citizens receive relatively favored treatment by immigration laws. If the mother is interested in acquiring U.S. citizenship, I advise her to contact one of our centers to receive a consultation about her eligibility for naturalization.

February 2012
Q.  My uncle has filed an I-130 petition for his daughter who is over 21, married, and has children. I know the law says the process can take up to 10 years. Can he apply for a visitor's visa and adjust her status while the I-130 petition is processing? In addition, can this process speed up as a result of my uncle's disability and his age?

A. It is unlikely the daughter will get a visitor’s visa while she is waiting to process for an immigrant visa. Even if she got the visa, U.S. Citizenship and Immigration Services might not let her stay here legally until she gets to the front of the line for her immigrant visa. If she stays here illegally, she would have to return home for her immigrant visa interview, with all the risks and problems that entails. A U.S. consular officer might consider your uncle’s age and disability, but my bet is that the daughter won’t get the visa. She can try, and so long as she tells the truth to the consular officer who interviews her, she risks only the visa application fee.

I am assuming your uncle is a U.S. citizen since a permanent resident cannot petition for a married son or daughter. The way the U.S. consuls look at cases like this, is to view the filing of a family petition as a negative factor. That’s because the petition is evidence that the daughter wants to live permanently in the United States. The consul will likely be concerned that she won’t return when her visitor’s stay expires.

January 2012
Q.  I filed for my mother to come to the United States and on April 2009 she was granted a green card. My question is, when will she be able to file for citizenship

A. Your mother is eligible for naturalization after being a lawful permanent resident for five years. The date she became a permanent resident is on her green card. She can file her Application for Naturalization, USCIS form N-400, 90 days before completing the five years.

Your mother can naturalize after just three years if she has been married to, and living with the same U.S. citizen husband for three years. Under the three-year rule, before filing her application, she must have been married for three years. If that’s the case, she can apply to naturalize 90 days before the third anniversary of her becoming a permanent resident.

December 2011
Q. I was born in New York, but I left when I was 3 years old.  My parents are originally from Africa.  I came back to New York fourteen years later.  Now I am 21.  USCIS refuses to give me a green card, even though I have a birth certificate.  I would like to know what's the procedure to get a green card?

A. Thanks for your question. Almost everyone who is born in the United States is a United States citizen. There is an exception for the children of diplomats who are born in the United States. Those children are granted permanent resident status at their birth. So unless your parents were diplomats, you are a citizen, and you do not lose that status upon leaving the United States.
 
So, while you do not qualify for a green card, you do qualify for a U.S. passport. If you need help applying, visit one of the the CUNY Citizenship Now! free centers for help.

November 2011
Q. I have a couple of questions about my daughter who came to the United States on November 2009 with a Visa B1/B2 and never returned to her country. She now needs to return to her country. Can I in the future fill the Form I-130 for her? Will she have the appointment for a Green Card? Will she need to fill out the Form I-601? My daughter is 12 years old. Thank you for your time.

A . If you are a U.S. citizen you may want to consider filing an application for permanent residence now. She can get travel permission as part of the application process.  Of course, if the USCIS approves her green card application before she leaves, she can return as a Lawful Permanent Resident (LPR) or '"green card holder," giving her the right to live here indefinitely.   It will also make travel in and out of the United States much easier, assuming that the United States remains her principal country of residence.

If you are an LPR yourself, then it can take up to two years for your daughter to get permanent residence based on your petition.  She does not need to be in the United States during this time. Because she is under 18, the three and ten year bars to permanent residence (which can be triggered by someone who overstayed a visa or entered without one and lived here unlawfully when they leave the United States) do not apply to her. Since the bars do not apply, a waiver for "unlawful presence" (Form I-601) would not be required.

October 2011
Q.  I have been a permanent resident for over five years, and I'm legally married to a United States citizen. However, we've been separated for almost three years, and since then I've been filing taxes as single. Will that be an issue when I apply to become a citizen?

A. The issue of taxes and naturalization pertains to the naturalization requirement that an applicant demonstrate that he or she is a person of good moral character for the statutory period. Because you have been a permanent resident for over five years, you can apply on your own. As long as you have paid taxes for the past five years, your having filed taxes as single since your separation should not be a problem.

If you were applying under the three year rule (green card holder for three years and married to a U.S. citizen for three years) then your tax filing status WOULD be an issue for USCIS. However, once you apply on your own under the five year rule (green card holder for five years), all that matters is that you have properly filed taxes in each of those five years.

September 2011
Q.  I would like to know if a person who is a United States citizen and married to someone with Temporary Protected Status (TPS) can petition for a green card for the TPS holder.  The person on TPS entered the U.S.A. without inspection.

Lilian

A.  Hi Lilian,

 A U.S. citizen can petition for his/her noncitizen spouse and other Immediate Relatives.  One common concern is whether the spouse/immediate relative can interview in the United States, a process called “adjustment of status.”  For a spouse of a U.S. citizen or other immediate relative of a U.S. citizen to adjust status, the person must have been “inspected and admitted” at the time of entry. 

The person you asked about entered without inspection.  That person may be able to interview here, if he or she qualifies under the “245(i)” law.  For a person to qualify under the “245(i)” law, he or she must have had a family or employment case started for them prior to April 30, 2001.   If the case was started between January 15, 1998, and April 30, 2001, the person must have been in the United States on December 21, 2000.  Note that derivative family members of the person (spouse and unmarried children under 21) would also be covered under the 245(i) law. 

If the person you asked about doesn’t qualify under the “245(i)” law, the person would need to leave and come back and be inspected upon their return.  Note, however, that there are risks associated with traveling and that one should always consult an immigration attorney before departing the United States.

The most common risk of traveling is triggering the “unlawful presence” bar.  It applies to individuals who travel abroad after having been here unlawfully for a certain period of time.  Unlawful presence bars are penalties that won’t allow a person to return to the Unites States for a number of years.  For those who have been here unlawfully for more than 180 days but less than one year, the bar is three years.  For those who have been here unlawfully for more than one year, the bar is ten years.  Remember, the bar is only triggered after one actually leaves the United States.

A person with TPS who wants to travel must request “advanced parole” before departing the United States.  This is permission from USCIS to travel abroad.  Receiving an advanced parole document does not guarantee one’s re-entry into the United States.  But note that for travelers who triggered the unlawful presence bar when they left the United States, it is Customs and Border Protection’s general practice to admit these individuals with advance parole back into the country. 

TPS holders applying for adjustment of status who triggered the unlawful presence bar would need a USCIS waiver to get permanent residence.  To get the waiver, the applicant must prove extreme hardship to a U.S. citizen or permanent resident spouse or parent.  Note that emotional hardship caused by severing family and community ties is a common result of deportation and does not necessarily constitute extreme hardship.

Many readers will be asking:  Should TPS holders who entered illegally and are not eligible for “245(i)” take a chance by traveling and then applying for adjustment of status?  TPS holders should check with an immigration attorney before applying.  But for some, it may be possible. 

Immediate relatives

The immediate relative category includes these relatives of a U.S. citizen:  spouse, unmarried child (under age 21), and parent of a U.S. Citizen child age 21 or older.

August 2011
Q.  Can my friend naturalize despite having lost her green card? I'm a volunteer for CUNY Citizenship Now! One of my friends lost her wallet containing her permanent resident card. She came to the United States as a little girl. She's now in her forties. She knows her alien number. Can she become a U.S. citizen without replacing her lost card?

A.  Your friend can naturalize without getting a new permanent resident card. Applying for U.S. citizenship will save her time and money.

Some people are confused about this issue. That’s because if you ask USCIS if you must get a new green card when you lose one, the agency representatives say "yes." The reason for their answer is that the law requires a permanent resident to always have a valid, unexpired card as evidence of their immigration status. However, if you ask USCIS if you can naturalize without replacing a lost or expired card, the answer is again "yes." USCIS will not penalize your friend for not getting a new card. The agency is clear that having a valid, unexpired card is not a condition for getting U.S. citizenship.

When submitting her application, your friend can just provide her alien number and USCIS should be able to retrieve her case history. Remember that in order for your friend to apply for naturalization, she must have resided continuously in the United States as a Legal Permanent Resident for the last five years, immediately prior to applying for naturalization, unless she has been married to and living with a U.S. citizen for the last three years and the spouse has been a citizen for the past three years).

At her naturalization interview, the U.S. Citizenship and Immigration Services examiner will want to see proof of how, and when your friend became a permanent resident.  This may include a copy of her green card approval.  Also, I would advise your friend to report the loss of her green card to the police so that she can document the loss.

June-July 2011
Q. " I would like to apply for my green card. What is the process to obtain it? I am a student at CUNY and I came from the Caribbean. What can I do?"

Please note that this answer only seeks to provide general information and is not a substitute for legal advice.

A.  The law provides many different paths to permanent residence (a green card).  Most people get permanent residence when a relative who is a U.S. citizen or permanent resident petitions for them.  Others qualify because they have a desirable skill or ability, or because they make an investment in the United States.  A smaller group qualifies for immigrant visas in special ways, such as winning the Diversity Visa Lottery or through asylum.

Here’s a brief overview of the two most common ways to qualify for permanent residence.

Family-Based Visas
The largest number of family-based green cards goes to immediate relatives of U.S. citizens.  As a practical matter, there is no limit to the number of immigrant visas issued each year for this category. Immediate relatives of U.S. citizens include their spouses, unmarried children (under age 21), and parents (if the citizen is 21 or older).   Family-based visas are granted also to “preference” immigrants, who are divided into four categories.  In these preference categories, the law limits the number of visas issued each year to 226,000.  Family-based preference categories include children of U.S. citizens who are 21 or older, children of permanent residents (any age), spouses of permanent residents, or siblings of U.S. citizens (if the U.S. citizen is at least 21).  Because visas are limited, qualified applicants in this category may need to wait many years to be able to immigrate to the United States.

Employment-Based Visas
A person can get employment-based permanent residence if he or she has a unique education or set of skills, outstanding talent, is willing to work a particularly unappealing job, or if he or she invests in a business.  There is a separate quota of 140,000 visas per year for employment-based applicants, divided into five preference categories.  In most employment-based categories, the immigrant must be sponsored by his or her employer.  Usually, the employer must prove that no qualified U.S. workers (U.S. citizens, permanent residents, or asylees and refugees) are immediately available for the job.  The employer also must advertise the position and must offer the job at the prevailing (usual) wage.  If no qualified U.S. workers apply, the U.S. Department of Labor will certify the immigrant worker as eligible for permanent residence.  This process is called “labor certification.” Some workers with outstanding or extraordinary skills can apply for permanent residence without employer sponsorship.  Others may qualify for residence because they have worked for an international company abroad, or because they have experience as a religious worker.  Finally, some people may qualify because they have made an investment of one million dollars in the United States ($500,000 if the investment is in an area of high unemployment).  Please note: in the family and employment-based preference categories, the spouse and unmarried children of the primary applicant can also get residence.  However, this rule does not apply to immediate relatives of U.S. citizens.