Seguritan US Immigration Articles

Number of Naturalized Citizens Keeps Growing

The USCIS has released the latest figures on naturalized citizens. The number of naturalized U.S. citizens grew by approximately 676,000 during fiscal year (FY) 2010. In the past decade, a total of 6.6 million became naturalized citizens.

Each year, there are approximately 680,000 new citizens naturalized in ceremonies in the U.S. and other parts of the world. In FY 2009, the Philippines was the third top country of origin for naturalization, with Mexico, India, China and Vietnam rounding the top five.

Seventy-four (74%) percent of all persons naturalizing in FY 2009 resided in the following ten states: California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington, and Maryland.

Naturalization is the process of becoming a United States citizen. It is often a milestone in an immigrant’s life. A naturalized U.S. citizen may vote in U.S. elections, get a position in federal government, participate in federal programs, obtain a U.S. passport, and bring family members to immigrate into the United States.

To be eligible for naturalization, one must fulfill the eligibility requirements under the Immigration and Nationality Act (INA). Generally, the applicant must be at least 18 years old, be a lawful permanent resident (green card holder), maintain continuous residence in the United States for 5 years, and be physically present in the U.S. for at least 30 months before filing the naturalization application (Form N-400).

Trips of one year or longer break the continuous residence period and the applicant must complete a new period of residence after coming back to the U.S. On the other hand, trips with a duration of more than 6 months to less than one year are presumed to break the continuity of residence, but this presumption can be rebutted with evidence that the applicant did not abandon permanent residence in the U.S. This evidence may include the filing of U.S. tax returns, presence of family ties in the U.S., and maintaining a home in the U.S.

The applicant must also present proof of residence for at least three months in the state where the application for naturalization is filed.

There is also a requirement that the applicant establish good moral character. This is “measured by the standard of the community” and evaluations are made on a case-by-case basis. Certain activities may disqualify a person under this requirement, such as crimes of moral turpitude (i.e., gambling, habitual drunkenness, prostitution), violations of drug laws, willful failure to support dependents, and crimes involving fraud, harm to persons or damage to property. Crimes involving murder or other “aggravated felonies” present a bar to naturalization.

After the application is filed, the applicant will be scheduled for an interview by a USCIS officer and take a citizenship test, which will test his or her knowledge of the English language and U.S. government and history. If the application is approved, the applicant will be asked to attend a ceremony and take the Oath of Allegiance.

The INA has special provisions for spouses of U.S. citizens and members of the military, as well as children under the age of 18.

For instance, qualified spouses of U.S. citizens may apply for citizenship 3 years after becoming lawful permanent residents and need to be physically present in the U.S. for only 18 months prior to filing the application. Spouses of U.S. citizens stationed abroad may not be required to meet any particular residence or physical requirement.

Children residing abroad who are temporarily present in the U.S. after a lawful admission may apply for naturalization while under 18 years of age if they have at least one U.S. citizen parent who meets certain physical presence requirements in the U.S. On the other hand, children below 18 years old who are in lawful permanent resident status, residing in the U.S., and in the custody of a U.S. citizen parent, may automatically acquire U.S. citizenship.

Processing Adjustment Cases Affected by Retrogression

USCIS has recently instructed its field offices on how to handle adjustment of status applications that are affected by the retrogression. It affects both employment-based and family-based visa applicants who are in the United States and have applied or are applying for adjustment of status.

The instruction which was stated in an interim memo is intended to standardize the handling of visa-regressed cases throughout USCIS field offices nationwide. It eliminates the need for the field offices to request allocation of a visa number for an otherwise eligible applicant for whom a visa number is unavailable at the time of the interview. It also centralizes the storage of each case type at designated locations.

The change in processing will facilitate the collection of performance data to enable generation of statistical reports and to improve case tracking and inventory control of visa regressed cases. It is also meant to offer better visibility to the Department of State (DOS) Visa Office of USCIS inventory levels so that they can better plan and manage the movement of priority dates displayed in their monthly visa bulletin.

Visa number retrogression continues based on the newest visa bulletin released by the DOS. The February 2011 visa bulletin states that continued heavy demand for numbers required the continued regression of worldwide cut-off dates.

Cut-off dates for Philippine family-based preference categories are as follows: 1st (unmarried sons and daughters of US citizens) – August 1, 1994; 2A (spouses and children, and unmarried sons and daughters below 21 years of permanent residents) – January 1, 2008; 2B (unmarried sons and daughters 21 years and older of permanent residents) – June 1, 1999; 3rd (married sons and daughters of U.S. citizens) – October 22, 1991; and 4th (brothers and sisters of adult U.S. citizens) – January 15, 1988.

There will also be some retrogression in Philippine employment-based third preference (EB3) categories. For skilled workers and professionals, the cut-off date is April 1, 2005. For other workers under the EB3 category, the cut-off date is May 1, 2003.

This visa number regression in the family preferences has ensued after very rapid advances in cut-off date movement in the past two years, which resulted in a dramatic increase in applicant demand and in some categories being oversubscribed.

Under the new procedure, the USCIS field offices must complete the interview, make the necessary security and background-related checks and ensure that eligibility and documentary requirements are met. The offices must resolve all issues of the case, either at the interview or through a request for evidence, and deny the case if warranted.

If the case is approvable, the field offices must then determine visa number availability. They must request the allocation of a visa number if a number is immediately available. If a visa number is not immediately available, the offices have to transfer the case to the appropriate location: employment-based cases are routed to the Texas Service Center, while family-based cases are shipped to the National Benefits Center. Either the TSC or NBC will directly initiate the request for the allocation of the visa number

The policy memo took effect on January 1, 2011 and will be implemented until further notice. For visa-regressed employment- and family-based I-485 cases that were pending before January 1, 2011, the memo directs that they need to have been received at the proper storage location by December 31, 2010.

USCIS Issues Guidelines on Surviving Relatives

The USCIS has recently issued its policy memorandum on the implementation of the law (Section 204(l)) enacted on October 28, 2009 that allows approval of a visa petition or refugee/asylum petition and also adjustment application despite the death of the qualifying relative.

Under the law, the surviving relative seeking the immigration benefit must have resided in the U.S. when the qualifying relative died, and continues to reside in the U.S. on the date of the decision on the pending petition or application.

The surviving relative must be one of the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

The qualifying relative refers to an individual who before his/her death was the petitioner in a family-based immigrant visa petition; the principal beneficiary in a family-based visa petition case; the principal beneficiary in an employment-based visa petition case; the petitioner in a refugee/asylee relative petition; the principal alien admitted as a T or U nonimmigrant; or the principal asylee who was granted asylum.

USCIS released the final Policy Memorandum (dated December 16, 2010) only on January 7, 2011, although it issued the draft memo almost eight months ago. The Policy Memorandum states that it ensures that USCIS “uniformly and consistently adjudicate(s) petitions and applications” in light of the change in the law.

Previously, when the petitioner in a family-based petition died, the petition would be denied or automatically revoked. In other words, the petition died with the petitioner. The only way for the beneficiary to receive an immigrant visa was through a reinstatement of an approved I-130 petition on humanitarian grounds.

Note that Section 204(l) also allows “any related applications” to be adjudicated despite the death of the qualifying relative. This means that the USCIS may grant a waiver or relief from inadmissibility to an alien covered by Section 204(l) even if the qualifying relationship that would have supported the waiver has ended through death.

The guidance allows aliens who were not physically present in the U.S. at the time of the qualifying relative’s death to prove that they were residents in the U.S. It also states that Section 204(l) does not require the alien that he/she was, or is, residing in the U.S. lawfully. Residence, as opposed to mere physical presence, is one’s “principal, actual dwelling place in fact, without regard to intent”.

The alien availing of Section 204(l) must submit an affidavit of support from a substitute sponsor unless a legally binding affidavit of support was not required in his or her case.

The USCIS guidance memo states that the law covers any case adjudicated on or after October 28, 2009 even if the case was filed before that date.

If a case was denied before October 28, 2009, an alien may file a motion to reopen the petition, adjustment application or waiver application.

Notice Required Before Termination of Visa Registration

In an approved immigrant visa petition where no visa number is available yet, the National Visa Center sends the beneficiary a “Notice of Registration as Intending Immigrant” which confirms receipt of the petition at NVC and notifies the beneficiary of his/her priority date.

When the priority date has been reached, the NVC then sends the instruction packet for immigrant visa applicants. Upon receipt of this instruction packet, the alien must file Form DS-230 and submit supporting documents to start the application process.

Because of the long delay between the filing of an immigrant visa petition and the availability of a visa number – which, in the case of the Philippines, could take as long as two decades – many times the applicants do not receive the instruction packet and thus fail to respond to the follow-up instructions and apply for the visa.

The consequence of an applicant’s failure to respond is grave: the NVC will proceed to terminate the registration, thereby foreclosing the applicant’s chances at obtaining an immigrant visa.

What happens when a beneficiary of an approved immigrant visa petition does not receive notice of his or her eligibility for a visa? In the case of Singh v. Clinton, the U.S. Court of Appeals for the Ninth Circuit held that the State Department must send the notice of eligibility “to the alien”, and its failure to do so means that it could not terminate the beneficiary’s visa registration for his failure to apply.

In that case, Singh was the beneficiary of a relative petition filed by his brother in 1988. In 1991 the brother retained an attorney to assist with the petition, which was soon thereafter approved. In September 2000, the National Visa Center mailed an instructional packet to the attorney at the address listed on the petition filed nine years earlier. The NVC then sent Singh’s immigrant visa petition to the U.S. Embassy in New Delhi, India. The government also sent correspondence to the brother in connection with his immigrant visa petition.

The U.S. Embassy sent follow-up materials in 2001, 2002 and 2003 to the attorney’s address in the petition. Then on September 9, 2004, the State Department terminated Singh’s visa registration based on his failure to apply.

It turns out that Singh had actually left India for the U.S. in 1991, applied for asylum, and was eventually placed under removal proceedings. He applied for adjustment of status in 2005 to become a permanent resident, which the government denied on the ground that his visa registration had been terminated in 2004.

Singh and his brother filed a lawsuit asking for the reinstatement of the approved I-130 petition.

The Court found that the law unambiguously requires that the State Department send notice directly to the alien prior to the termination of a visa registration. The Immigration and Nationality Act provides that “(T)he Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa.” An implementing rule states that the registration period begins “upon the filing of the DS-230….or the transmission by the Department to the alien of a notification of the availability of an immigrant visa.”

According to the Court, the government had no discretion to terminate the visa registration after sending the application packet to the attorney and notice to the brother. The Court ruled that notice to the brother does not satisfy the requirement because “the alien” in an I-130 petition will always be beneficiary, and that the petitioner is a U.S. citizen and so could not be an alien. The court noted that it is the beneficiary, not the petitioner, who must file a DS-230 to start the application process.

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