Laws control the lesser man. Right conduct controls the greater one. ~Chinese Proverb
Many people cannot wait to apply for U.S. citizenship. They think back to their green card interview and remember (in most instances), how easy the interview was. Some of them probably regretted hiring an attorney to come with them to the interview.
In our experience, most of our naturalization clients come to us after they have filed the N-400 (usually on their own without the help of an attorney). At their consultation, they show us either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). We are tasked with the difficult burden of “fixing” the record of proceeding (the client’s file with USCIS).
The reason that most applicants encounter issues at the naturalization stage is because the highest immigration benefit is being awarded. With every increased immigration benefit, the application will be increasingly scrutinized.
Least Scrutiny Most Scrutiny
DACA, TPS < Nonimmigrant Visa < Conditional PR < Permanent LPR < Naturalization
There are a number of ways to obtain citizenship in the U.S.:
- If you were born in the U.S. or Certain U.S. Territories Abroad
- If one of your parents is a U.S. Citizen.
- From a Parent through the Parent’s Naturalization
- By Naturalization
For purposes of this section, we will only focus on those who Apply for Naturalization.
What Are the Basic Requirements to Qualify to file Form N-400?
- Must be an LPR
- Must be 18 Years or Older (unless age requirement is waived due to military involvement)
- Must Meet Continuous Residency Requirement (or overcome the presumption that it has been broken)
- Must Meet Physical Presence Requirements [be physically present in the U.S. for at least 2.5 years out of the last 5 years (or 1.5 years in the last 3 years if applying based on marriage to a U.S. citizen)]
- Must Have Resided in the State Where the Application is Filed for at Least 3 Months
- Must Reside Continuously in the U.S. from the Date of Filing the Application to Admission to Citizenship
- Must Meet Good Moral Character Requirements (good moral character for 5 years; or 3 years for a spouse of a U.S. citizen; or 1 year for a person in the military) prior to filing and up to the time of admission
- Overcome Discretionary Basis (even if you meet all of the above, the officer can still deny your case)
- Must Be Attached to the Principles of the Constitution
- Must be Willing to Bear Arms, Perform Noncombatant Service or Work of National Importance
- Must Not Otherwise be Barred
- Must Demonstrate Knowledge of the English Language, U.S. History, and Government
Is It True that It Will Hurt My Case to Have an Attorney File My Case and/or Appear at My Naturalization Interview?
No. In fact, a through, well-prepared application will actually help you get to the Oath Ceremony quicker. An officer can immediately notice a neat, organized, itemized filing, which greatly streamlines the process. Second, the officer sees the G-28, Entry of Appearance of Attorney at or near the very top, which immediately lets him or her know that an attorney has been retained. An ethical attorney would not represent a client who intends to commit fraud. The officer will assume that the attorney properly vetted the candidate (for fraud/misrepresentation, prior arrests or convictions, etc.) and will expect the attorney to raise any issues so the officer does not need to go looking for them.
Our approach is to explain that the negatives factors in our client’s case (e.g. conviction) was a “one-time occurrence” and our client is a “changed person”. Our applications persuade the interviewer to approve the case (in his or her mind) before our client steps into USCIS’ door. That way, as long as our client presents credible testimony at the interview, the adjudicator is bound to approve the case.
Our firm’s special strategies and techniques have results in approvals for clients with prior arrests or convictions, fraud, break in continuous physical presence/continuous residency, and/or issues involving lack of good moral character (GMC). For any complex naturalization matter, we prepare legal memoranda based on recent case law to set the stage for the filing, assist in preparing our client’s affidavit so it is thorough and persuasive, assist in revising compelling affidavits, and gather other supporting documentation. This approach allows us to establish a strong case even before our client steps into the adjudicator’s office for the interview.
A valued service is our representation at the interview. We do not browse our emails or carry on text conversations. We actually take notes on everything that happens at the interview and write down all questions and answers (in case we need to file an appeal). If a client does not answer the question thoroughly, we intervene and request that the client clarify (so the record is complete before the client leaves the room). We also read along with the officer as he or she goes through the naturalization application and make the same changes to the N-400 that the officer makes so our record is almost identical to USCIS’ record.
I Am Applying for U.S. Citizenship. Will the Officer Look at How I Got My Green Card?
Yes! What many clients do not know is that the officer will go back through your entire immigration history and will conduct a thorough review that will focus on how you obtained your lawful permanent resident (LPR) status. For example, if you obtained your LPR status through the Special Agricultural Workers (SAW) program. The SAW program was fraught with fraud and U.S. immigration is aware of this. The officer will question you on your SAW application.
The most common example we come across for clients who encounter problems are those who received their LPR status through marriage. The naturalization applicant is often unaware that the officer will examine this relationship regardless of whether you are applying based on 3-years marriage to a U.S. citizen or 5 years of lawful residence in the U.S. If you obtained your green card through marriage, and are divorced at the time you apply to naturalize, be prepared to be questioned intensely on your marriage and why it ended. If you jointly filed an I-751 and told the officer during the I-751 interview that you and your spouse were living together, this is known as “false testimony” and the officer will discover this during your naturalization interview.
I Am a Conditional Permanent Resident. Can I Apply to Naturalize?
A conditional permanent resident may be eligible to apply for citizenship if he or she has accrued the requisite residence period even if he or she has not had her conditional residency lifted. Although the applicant can apply, his or her application may not actually by approved until the conditional residency is lifted (remember, a requirement for naturalization is to be a lawful permanent resident).
I Took One (or More) Trip(s) That Lasted Longer Than 6 months but less than 12 months. This Affects the Conditional Residency Requirement. Can I Still Qualify?
Absolutely. An absence between 6 months and one 1 year raises a “rebuttable presumption” that the continuity of residence has been broken. We successfully represented a client who remained outside of the U.S. for 11 months. By preparing her declaration and submitting the relevant supporting documentation and attorney memorandum that tied all of it together, our client received an approval without issuance of a Request for Evidence.
My Employer Requires me to Work Abroad. Can You Help Me So the Time Spent Abroad Preserves my Continuous Residency?
Yes. Employees who work for the U.S. government, an American research institute, a U.S. firm engaged in the development of reign trade and commerce, or a public international organization of which the U.S. is a member, can obtain approval to preserve their residency. A U.S. firm includes a subsidiary where more than 50% of stock is owned by a U.S. firm or corporation and also includes a publicly held corporation that is incorporated in the U.S. and trades stock exclusively on U.S. exchanges
My Spouse is Working Abroad for a U.S Company. Can You Help Me So the Time Spent Abroad Preserves my Physical Presence and Continuous Residency?
Yes. The physical presence and residence requirements are waived in limited circumstances for applicants whose U.S. citizen spouse is employed abroad by: 1) the U.S. government, a public international organization in which the U.S. participates by treaty or statue, an American institution of research recognized by the Department of Homeland Security, a religious organization ministering or doing missionary work, or an American firm (or a subsidiary) engaged in whole or in part in the development of foreign trade and U.S. commerce.
One of our clients retained us to keep filing his re-entry permit renewals. He was employed with a private company which had a contract with U.S. Agency for International Development (USAID).
Do I Need to Disclose Traffic Citations on my Naturalization Application Even Though It Says to List Only Non-Traffic Offenses?
It is our firm’s position to always disclose any citations, whether traffic or non-traffic. At a naturalization interview, the client recalled that he had a citation for riding a bike in New York city in a non-bike lane. The officer delayed issuing a decision for weeks, until she was able to verify this citation. Although the case was ultimately approved, it caused a delay of a few weeks. The worst that can happen is USCIS gets a few additional documents in its record. Even failing to disclose a speeding ticket can complicate the case, especially if the speeding offense may be deemed as “reckless endangerment”.
I Omitted (Knowingly Did Not Disclose) Information Regarding My Children (or Spouse) on My Green Card Application. Should I Now Disclose That Information on My Naturalization Application?
“False testimony” is a statutory bar to good moral character. It must be given with the subjective intent of obtaining an immigration benefit. If false testimony is detected during the naturalization process, the application can be denied and you can be placed into removal proceedings.
Many clients do not include certain information in their N-400 for many reasons and this creates a problem at the naturalization stage. One instance is where someone did not list all of their children (or their spouse) on their green card application. The N-400 requires you to list all of your children. Clients often do not know what to do in this case. If they list the relatives on the N-400 and USCIS realizes that these relatives were not listed on the green card application, their application could be denied and they could he placed into removal proceedings. However, if they do not list these relatives on the N-400, they are misrepresenting information to a government official in order to secure an immigration benefit (commonly referred to as immigration fraud).
Our most valued service regarding the naturalization application is our attorney memorandum. Each client’s case is unique but we usually examine whether the client actually made “false statements” and if so, whether they were to obtain “an immigration benefit.” One of our clients committed fraud during the green card application. A USCIS supervisor reprimanded our client during the majority of the interview for committing fraud. However, convinced by our attorney memorandum, the supervisor admitted that an “immigration judge would throw it out of court” and he ultimately approved the case.
I Was Arrested but Not Convicted so I Did Not List this on My Naturalization Application. How Will This Affect My Application for Naturalization?
The application asks for “arrests” or “convictions.” So you should list the arrest even if you were not convicted. Like false testimony, convictions can preclude an applicant from proving good moral character. Another problematic area for clients are those who were convicted for crimes committed after becoming an LPR. A person can be denied for not having good moral character even if you only admit to having committed a theft during the statutory period.
We have experience dealing with individuals with multiple drug convictions, DUI convictions, fraud committed during the LPR process, failure to register with Selective Service, continuous residency/ physical presence, and good moral character issues.
I Have Been Convicted of Murder (or Aggravated Felony After November 29, 1990). Do I Qualify for Naturalization?
Not unless this conviction can be reopened and the charges reduced, especially if the individual took a plea without being advised of the immigration consequences of the plea (e.g. Padilla). In determining the date of conviction, the court looks to the date of sentencing, not the date of the guilty plea. So if you pled guilty before November29, 1990, but were sentenced after this date, then you are still barred from having good moral character.
Can USCIS Look Beyond 5 Years for Good Moral Character?
Absolutely, and it almost always does. Technically, there is no limitation on how far back an officer can look to determine good moral character. The inquiry into a person’s moral character is not limited to the 5- or 3- year period. So the government may (in accordance with statute and regulation) choose to look beyond the 5- or 3- year statutory period.
The only limitation that USCIS has is that it cannot rely only on acts outside of the statutory period unless it is tied to conduct during the statutory period. This means that acts committed 10 years prior to the naturalization application filing date can only be considered if those acts “appear” relevant to the applicant’s current moral character or if the if the applicant’s conduct during the statutory period does not prove that he or she is “reformed.”
My Record Has Been Expunged. USCIS Will Not Know About My Conviction(s), Right?
Wrong! When USCIS is looking at good moral character, the government can use expunged convictions. The N-400 requires a biometrics appointment. When you have your biometrics taken, they are run through the Criminal Justice Information Systems (CJIS) database of the Federal Bureau of Investigation (FBI). CJIS is the world’s largest repository of criminal fingerprints and history records. One of INTERPOL’s core functions is to facilitate the exchange of criminal investigative information and data securely and rapidly. The organization’s I-24/7 global police communications system connects law enforcement officials in all 190 member countries and provides them with the means to share crucial information on criminals and criminal activities in real time.
If you have been fingerprinted in connection with a crime, anywhere in the world, USCIS will know about it. The Integrated Automated Fingerprint Identification System (IAFIS) is a national repository of fingerprints and criminal histories maintained by the FBI and its Criminal Justice Information Services (CJIS) Division. INTERPOL Washington collaborated with the FBI and INTERPOL Headquarters in Lyon, France, to develop a gateway to query and store international and domestic fingerprints within their respective systems. INTERPOL Washington’s INTERPOL Operations and Command Center has the capability to convert and run queries against repositories maintained by INTERPOL and INTERPOL Washington in real time.
I Received a Probation for Judgement (PBJ). Does it Count as a Conviction Under Immigration Law? Can I Apply for Naturalization While on Probation?
Yes and yes. A person on probation, parole, or suspended sentence during the statutory period is not precluded from establishing good moral character. Although you can file while on probation, an application (that is approvable) will not be approved until after the probation, parole, or suspended sentence has been completed.
I Failed to Register for Selective Service. Can My Application Be Denied for This Reason?
Yes. The N-400 specifically asks for the date of registration and the Selective Service number. Knowingly and willfully failing to register with the Selective Service between 18 and 26 years of age during the statutory good moral character period may cause USCIS to believe that you do not possess good moral character. There are certain excuses where a person may still be eligible even though he failed to register. If you are in this situation, we can help.
What Other Reasons Can My Application for Naturalization Be Denied?
There are many non-statutory grounds that USCIS has used to determine that an applicant does not have good moral character which include:
- Nonsupport of dependents
- Adultery that tends to destroy a marriage
- Commission of unlawful acts that adversely reflect upon an applicant’s good moral character
- Failure to Register for Selective Service
- Driving Violations (disregard for parking laws or driving under the influence)
- Theft, credit card fraud, or other crime involving moral turpitude
- If you believe that you fall into any of these categories, please contact us.
If My Application for Naturalization Has Been Approved, I Have Taken the Oath, and Have Received My Naturalization Certificate, Can USCIS Take It Away?
Yes. A naturalized U.S. citizen may lose his or her citizenship by revocation of naturalization (referred to as denaturalization). Citizenship is taken away only where there is clear, unequivocal and convincing evidence of the following and it cannot be done except through a final determination brought in a denaturalization proceeding under 8 USC Section 1451 or administratively.
- Membership in certain organizations
- Concealment of material evidence or willful misrepresentation
- Illegal procurement of the green card (for example, misrepresentations made on the original application for admission)
- Subversive activities
- Military Service denaturalization (where a person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods totaling 5 years (applies only for citizenship granted after November 24, 2003)
How Can We Help
- Prepare legal arguments and submit supporting documents to negate the assertion that continuous residency requirement was broken (e.g. employees working abroad, traveled abroad to tend to estate issues, death in the family, etc.)
- When addressing Notices of Intent to Deny or Requests for Evidence where fraud or misrepresentation is alleged, we prepare a response that takes a “fully disclose and explains” approach. The documents that we prepare or obtain is our key to winning these types of cases.
- Make legal arguments supported by documentation to negate USCIS’ assertions that our client made “false statements” or provided “false testimony”
- Make legal arguments that describe “extenuating circumstances” to prove our client’s good moral character
- For clients with convictions, if USCIS requests all criminal records beyond the statutory period, we will argue that the arrest and/or conviction: 1) is outside the statutory period; 2) will not result in issuance of an NTA; or 3) will not “reflect on” any issues that occurred during the statutory period. We also argue the “petty offense” exception to maintain client’s eligibility (if applicable)
- Assist clients facing good moral character issues, especially failure to pay child support, voting unlawfully, claiming to be a U.S. citizen, theft arrests/convictions, driving violations and DUI convictions.
Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm. Please call our office at 301.529.1912 or complete the form below. Please be sure to provide a timeline of events along with details of your entire immigration history./strong>