Seguritan US Immigration Articles

Automatic Acquisition of Citizenship After Birth

Children born outside the US are automatically US citizens provided they meet all the requirements under the Child Citizenship Act of 2000 (CCA).

The statutory requirements are: (1) at least one parent is a U.S. citizen either by birth or by naturalization; (2) the child is under 18 years old; (3) the child is a lawful permanent resident (green card holder); and (4) the child is residing in the US in the legal and physical custody of the U.S. citizen parent.

The lawful permanent resident requirement is not satisfied if the child was not issued his green card before he turned 18 even though he had applied for it and was assured that he would get it before he turned 18 but it was delayed due to bureaucratic errors committed by the USCIS.

In a recent case, a lawful permanent resident (LPR) was ordered removed by an Immigration Judge due to a previous conviction. He appealed to the Board of Immigration Appeals but his appeal was dismissed. He then filed a petition for review with the US Court of Appeals.

He claimed that he was not subject to removal because he became a permanent resident before he turned 18 and therefore automatically became a US citizen under the CCA.

He was born abroad on March 29, 1983. He came to the US with his father who later naturalized and became a US citizen in 1997. He then applied for his lawful permanent resident status. However, although he submitted his application for adjustment of status before he turned 18, it was not until a few years later that his green card was issued.

So, the issue was when he became a lawful permanent resident. If he became a lawful permanent resident before he turned 18 years old, he then automatically became a US citizen under the CCA. If, however, he became a lawful permanent resident after turning 18, he was ineligible for automatic citizenship under the CCA.

The child submitted his application for lawful permanent resident status in 1997, before he turned 18. When he was 17 years old, he was interviewed by a USCIS officer and was given a signed I-89 Form. He was also informed during the said interview that he would receive his green card in three months. Unfortunately, USCIS delayed the issuance of his card for four years and issued it in 2004.

The question raised in the case was: did he really become a US citizen prior to his 18th birthday? The law states that an alien becomes a lawful permanent resident on the date the order of the Attorney General approving the application for adjustment of status is made. In other words, it is as of the date of the order approving the adjustment of status. In this case, it was when they formally gave him his green card in 2004.

He argued that the government should be estopped from placing him in removal proceedings because the USCIS caused the unreasonable delay in the issuance of his green card which cost him the opportunity to obtain US citizenship. Placing one in estoppel means that said party is not allowed to deny or allege certain facts because of said party’s previous conduct, allegation or denial. In this case, because the US government caused the delay in the issuance of the green card, it could not claim that the petitioner did not meet all the requirements for him to be considered as a lawful permanent resident and ultimately, cannot deny him of his automatic US citizenship.

The US Fifth Circuit Court of Appeals however said that they cannot estop the government on the facts of the case. It sought guidance from a similar case and said “to state a cause of action for estoppel against the government, a private party must allege more than mere negligence, delay, inaction, or failure to follow an internal agency guideline. Instead, the petitioner must establish, among other things, affirmative misconduct of the government.” In this case, he failed to provide evidence of affirmative misconduct on the part of the government, thus his petition was denied.

Preparing for a Marriage-Based Immigration Interview

In a marriage- based adjustment interview, the couple must prove that the marriage was valid and in good faith from its inception and that it was not entered into for immigration purposes.

For couples who live together, have a common social life, do not have a huge age gap, have common interests and same cultural/ racial backgrounds, it is easier to get a petition approved. In other words, “conventional” marital situations usually get approved faster.

However, certain factors or situations or “red flags” could make USCIS want to take a close scrutiny at the marriage. Examples of these are multiple applications/ petitions filed by an applicant/ petitioner, short time between entry and marriage, unusual marriage history, children born during marriage to other parent, unusual or large age discrepancy between spouses, unusual cultural differences, low employment/ financial status of petitioner, and previous marriage to foreign nationals.

In one case, a foreign national who entered with a visitor’s visa remained for a period beyond the six-months given to him. After 5 years, he married a US citizen who filed an I-130 petition for her. During the interview, the officer noted that “there were no discrepancies in their answers” but that they had “no joint information”, neither of them worked and they lived with the US citizen’s mother. There were missing information about how they met that gave “red flags” to the officer.

It is best to go to the interview well prepared. The USCIS officer may ask questions about the data entries made on the I-130 petition. He may also inquire about how you go about your day-to-day life together. The officer may also inquire about the documents submitted with the petition so it is good if you will run through them a few times just to refresh your memory of the information you provided in the petition. Oftentimes, marriage-based interviews can make one falter or uncomfortable even if you have nothing to hide.

Practicing possible scenarios or interview questions is recommended. It can seem intimidating to be asked probing questions so it is advisable to prepare well.

It is not uncommon for USCIS officers to ask about personal details such as information about your relatives, your work and your friends. As long as you have nothing to hide and have a good faith marriage, do not be afraid when the immigration officer does that.

Lawyers’ role in the interview is limited to being observers and they will not be able to help you answer the questions. They, however, may ask the USCIS officer to clarify the question asked.

Be careful not to sign any document withdrawing the visa petition without consulting your lawyer. Do not sign any form stating that the marriage is fraudulent. At any point during the interview, you can ask to stop it and consult with your lawyer.

Paying attention to the question and answering that question is crucial. If the question demands a ‘yes’ or ‘no’ answer, answer it as such, then give an explanation if necessary.

It is of course unavoidable to make mistakes. While it is best to remember important dates like birthdays and anniversaries, oftentimes we find ourselves forgetting a few details. At any point during the interview, you can always go back and change or clarify your answer.

It is also okay to ask for clarification if you do not understand a question. Fully explain what you want to say. Say “I don’t know” or “I don’t remember” if such is the truth instead of making guesses, and don’t say a document exists when it doesn’t. Bear in mind that the officer may ask you to produce the said document later on.

Using A False Identity To Enter the U.S.

Obtaining a U.S. visa can be a challenging experience. Due to stringent requirements, not every visa applicant is approved. In fact, the percentage of denial is high. 

Some previously denied applicants have resorted to desperate measures in order to enter the U.S. They apply again using a false name, or assuming the name of another person. Some use fake visas and passports. 

Examples of these desperate measures are using a B-2 visa stamped on a photo substituted passport and using the green card of another such as a brother or sister who looks like them.

 If these persons succeed in getting admitted to the U.S. and they later apply for a green card on the basis of a family-based petition or an employment-based petition, they will be considered as inadmissible because of their fraudulent entry. 

The Immigration and Nationality Act states that any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation or admission into the U.S. or other immigration benefit, is inadmissible. 

This means that they cannot obtain their green card and may be subject to removal. Is there a remedy? 

A discretionary waiver is available to them but this requires a qualifying relative and proof that the removal of the alien will cause extreme hardship to the relative if the waiver is denied. A qualifying relative may be a U.S. citizen or lawful permanent resident spouse or parent. A child of said alien is not a qualifying relative. 

There is no exact definition of extreme hardship. Immigration judges and the Board of Immigration Appeals determine the presence of extreme hardship on a case by case basis after a consideration of many factors. 

These factors include ties of the qualifying family member to the U.S. and outside the U.S.; conditions in the country to which the qualifying family member will be relocated; financial impact of his/her departure from this country; and health conditions of the family member and the alien applicant and the availability of suitable medical care in the country of relocation. 

In a leading case, extreme hardship was not established because the alien and his wife did not have strong financial ties to the U.S.; the U.S. citizen knew that her husband was in deportation proceedings when she married him, and she had many relatives in the country where they would be forced to relocate and would not have difficulty making the adjustment there. 

But in another case, waiver was granted upon a finding of extreme hardship. In that case, the alien’s wife suffered from severe depression and could not stay alone in their house. She was also concerned about the health of her son who suffered from asthma and required frequent medical attention. Moreover, the country where they would be forced to relocate was in dire economic condition. 

An applicant for waiver of inadmissibility due to fraud or misrepresentation should submit Form I-601 and supporting documents. The documents should include an affidavit from the qualifying relative describing in detail the hardship that he/she would face in the U.S. in the event the applicant is removed from the U.S. and also the hardship that he/she will encounter if he/she were to relocate to the country where his/her spouse will return.

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