Seguritan US Immigration Articles

Continuous Residence Requirement for U.S. Citizenship

An applicant for U.S. citizenship must meet basic residence and physical presence requirements. A noncitizen must be a lawful permanent resident (LPR) in order to qualify for naturalization. Certain non-residents who served in the U.S. military, however, are an exception and may qualify for U.S. citizenship.

The noncitizen must have continuously resided in the U.S. as an LPR for five years immediately prior to applying for naturalization. Only three years of continuous residence is required for spouses of U.S. citizens. The U.S. citizen spouse through whom the noncitizen obtained his/her LPR status must have been a U.S. citizen during that period. Also, they must have been living in marital union for three years. If the marriage terminates in less than three years, the noncitizen will have to complete the period of five years. Applicants may file their N400 application for naturalization 90 days early or 3 months before the end of the required continuous residence period.

Spouses and children granted LPR status because of battering and extreme cruelty under VAWA are also required only three years of continuous residence. Three years of living in marital union is not required.

The continuous residence requirement does not mean that the noncitizen has to be physically present in the U.S. throughout the whole period. Short visits outside the U.S. for less than six months are acceptable and will not affect continuous residence.

Absence from the U.S. for six months but less than one year raises a rebuttable presumption that U.S. residence has been abandoned. This will be considered as a disruption of continuous residence and may result in a denial unless the applicant demonstrates lack of intent to abandon residence. Evidence which may establish continuity of residence include not terminating employment in the U.S., presence of immediate family in U.S., retention of full access to U.S. home and not obtaining employment abroad.

Absence from the U.S. for one year or more will interrupt the continuity of residence. The five/three year period will have to run anew when the noncitizen returns to the U.S. However, the applicant does not have to wait for the full period to file the N400 application for naturalization. Spouses of U.S. citizens can file after two years and one day while other LPRs can file after four years and one day.

Absence from the U.S. for one year or more may be excused in the case of employees abroad working for certain U.S. government agencies and U.S. companies. The noncitizens must seek permission to preserve their residency for naturalization purposes by filing Form N-470.

Aside from the continuous residence requirement, the noncitizen must also have been physically present in the U.S. for one half of the required residence period. Applicant must be in the U.S. for an aggregate period of not less than 30 months for the five-year period, and 18 months for the three-year period. Employees abroad working for the U.S. government and firms must also satisfy this requirement.

The applicant must reside within the state or within the USCIS district where the application is filed for three months immediately prior to the filing of the application. Continuous residence in the U.S. is required after application is filed.

Immigration through Adoption

Intercountry adoption is the process by which a child born in one country is adopted by an individual living in another country. There are several ways by which intercountry adoption may be done under U.S. immigration law.

The first is called the Hague process because it proceeds under Hague Adoption Convention, an international agreement that aims to prevent child abduction and trafficking and ensures that intercountry adoptions are made in the best interests of children and with respect to their fundamental rights.

Beginning April 1, 2008, the date the Convention entered into force in the U.S., adoptions between the U.S. and another Convention country must follow the Hague process for intercountry adoptions. There are currently 89 countries including the Philippines that are parties to the Convention.

The Hague process must be used if both the prospective adopting parent and the child are habitual residents of Convention countries. The adopting parent is a habitual resident of the U.S. if he has a domicile in the U.S., even if he is temporarily living abroad. A child’s habitual residence is generally his country of citizenship.

Only U.S. citizens may adopt under the Hague process. If the adopting parent is married, the spouse must adopt the child jointly. An unmarried U.S. citizen may adopt as long as he is at least 25 years old.

A Hague adoption begins with a home study by an accredited agency whereby the prospective adoptive parents, their family and home environment are studied to determine their suitability to adopt a child.

The adopting parents must then file a Form I-800A application with the USCIS to establish their eligibility and suitability to adopt. If approved, the I-800A approval notice, home study and other supporting documents are forwarded to the Central Authority (CA) of the country from which the parents are planning to adopt.

The CA then refers a child to the adopting parents. They are provided with the child’s medical background along with the necessary consents and the CA’s determination that the child is eligible for adoption, that the intercountry adoption is in the child’s best interests, that the child has freely consented to the adoption in writing, and that no payment has been given to obtain the necessary consents. Note that under the Hague process, adopting parents are “matched” to a child and they generally may not identify a child for adoption.

The adopting parents are then given some time to decide whether to accept the referral. If they accept it, they must file Form I-800 with the USCIS to qualify the child as a Convention adoptee eligible to immigrate to the U.S. on the basis of the proposed adoption. The I-800A must be filed before the child’s 16th birthday.

After provisional approval by the USCIS, the petition will be forwarded to the proper consular post where the adopting parents will file a visa application for the child. If the consular post finds that the child is not ineligible for an immigrant visa and that no inadmissibility grounds apply, it will notify the CA that the prospective adopting parents may proceed with the adoption.

It is only at this point that the prospective adopting parents can adopt the child or obtain legal custody of the child. After the adoption, the adoptive parents will then bring the adoption decree, the child’s new birth certificate and passport, and medical examination results to the consular post which will certify the case as “Hague compliant” and finally issue an immigrant visa for the child.

Adoptions from countries that are not on the list of Convention countries must use a non-Hague process. This means that the child being adopted must meet the definition of a “child” or “orphan” under the Immigration and Nationality Act.

Adoptions to which the Hague Convention does not apply must follow the orphan process. An “orphan” is a child who does not have any parents because of the death or disappearance of or abandonment or desertion by, or separation or loss from, both of the child’s parents, or if the child has a sole parent who is unable to care for the child and who has irrevocably released in writing the child for emigration and adoption. The orphan process has many similarities with the Hague process.

The third process is the family-based petition route. An adopted child would be considered a “child” for immigration purposes if the adoption took place before the child turned 16 and the adopting parent had legal and physical custody of the child for at least two years. In such a case, the adopting parent may file an immigrant visa petition for the child to bring him or her to the U.S. The adopting parent could either be a U.S. citizen or a lawful permanent resident (LPR) if the adoption was finalized before the parent became an LPR.

Heavy Demand for EB-5 Investor Visa

Due to heavy demand, for the first time since the program began twenty years ago a cut-off date might have to be created for the employment-based fifth preference (EB-5) category. The backlog, if it does occur, will affect applicants from China and likely take effect next year. Currently, the EB-5 category is current and visa numbers are available to applicants from any country.

The Department of State made this announcement in the December 2012 visa bulletin and said that based on the current demand for EB-5 visa numbers, a cut-off date might be necessary sometime during the second half of fiscal year 2013.

The EB-5 visa category allows foreign nationals who can make substantial investments to become permanent residents. There are two ways by which one can become an EB-5 investor. The first is through the regular program which requires the investor to make a $1 million investment ($500,000 in a rural or high unemployment area) in a new commercial enterprise which will create at least ten full-time jobs.

The second way is through the pilot program which permits investments in designated regional centers that will create at least ten jobs, directly or indirectly. There are more than 70 regional centers today and most of them require a $500,000 investment. The regional center program was recently extended until September 30, 2015.

The alien investor must file an I-526 petition along with supporting documents showing the investment in the enterprise or regional center and demonstrating that the funds came from a lawful source. Once that is approved, he can file for a conditional green card. The condition will be removed two years after the investor’s admission as a conditional resident upon showing that the required number of jobs was created.

Congress allotted 10,000 visa numbers to EB-5 investors and 3,000 of those to investors in regional centers. Spouses and unmarried children under 21 are included in the count. But the program has drastically grown in popularity in recent years that a waiting line might be created next year. For example, in 2006 the USCIS received less than five hundred I-526 petitions. In 2012, it received over 6,000 petitions.

Most of the demand comes from Chinese nationals. Since the worldwide demand under EB-5 is not enough to reach the quota, unused visa numbers fall across to China, which would have been an oversubscribed country if not for that method of visa allocation. If the worldwide demand for EB-5 visa numbers goes up and the quota is reached, then China would become oversubscribed and a waiting line would be created.

A waiting line means that investors whose priority dates are prior to the cut-off date would not be able to immigrate until an immigrant visa is immediately available. An investor who is in the U.S. must be careful not to lose lawful status in order to be eligible for adjustment of status once a visa is available. Even if the investor has an approved I-526 petition, the investor cannot file for adjustment of status if a visa number is not yet available to him/her.

Right now, nationals of countries other than China can still look to the EB-5 visa as a viable option for permanent residence. In contrast with the family-based and other employment-based preferences where the delays range from several years to more than two decades, the EB-5 category with a total processing time of approximately one year is still one of the fastest routes to a green card.

USCIS Urged to Facilitate Grant of Benefits to Surviving Relatives

In October 2009, a law known as Section 204(l) was enacted to allow surviving relatives of a petitioner to continue their application for a green card provided they resided in the United States when the qualifying relative died and they continue to reside in the U.S.

The qualifying relative could be the petitioner in a family-based immigrant visa petition; the principal beneficiary in a family-based visa petition; the principal beneficiary in an employment-based visa petition; the petitioner in a refugee/asylee relative petition; the principal alien admitted as a T or U nonimmigrant; or the principal asylee granted asylum.

The surviving relatives that benefit from the law are the beneficiary of a pending or approved immediate relative 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.

Previously, when the qualifying relative died, the petition was automatically revoked. The surviving relatives could only seek the humanitarian reinstatement of the revoked petition which was a quite difficult relief to obtain.

A recent review by the USCIS Ombudsman revealed that after three years the surviving beneficiaries have not been fully experiencing the protections of Section 204(l).

The Ombudsman found that the USCIS has implemented the law in a way that was inconsistent with the letter and the spirit of the law. It was referring in particular to the Policy Memorandum released by the agency in January 2011 which deemed previously approved petitions automatically revoked and subject to discretionary reinstatement. This implied, according to the Ombudsman, that all action on the case is terminated and the beneficiary must request the reinstatement of the petition.

This discretionary reinstatement claimed by the USCIS deviates from what is clearly stated in the law.

The USCIS maintains that Section 204(l) did not give rise to any “right” or “guarantee” for a survivor to immigrate. The Ombudsman disagreed, saying that while the law correctly does not guarantee approval of a survivor’s case, the discretion of USCIS in the context of Section 204(l) was limited to cases the approval of which “would not be in the public interest.”

The Ombudsman added that processing by the USCIS should not depend on how or when it discovers the petitioning family member’s death and that it has no authority to automatically revoke petitions that Section 204(l) preserved. It reminded the agency of the law’s purpose which was “to keep survivors in the same place they would have been but for the qualifying relative’s death.”

The Ombudsman also found that USCIS had no clear process for survivors to request benefits under Section 204(l). Requests were made in various ways and the surviving beneficiaries did not know what would happen to their requests or how long processing would take.

Among the recommendations made by the Ombudsman was for USCIS to conduct rulemaking in a manner that gives the public an opportunity to comment on a proposed rule or procedure. It also recommended that the agency create a standard form to facilitate the processing which includes acknowledgement of receipt of the request and assignment of a number that can be used to track the case.

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