Seguritan US Immigration Articles

Criminal Record that Bars Citizenship

Permanent residents applying to become U.S. citizens often ask whether a criminal record would make them ineligible for citizenship.

Good moral character is a requirement for naturalization. A person who has been convicted of murder, at any time, or of any other aggravated felony, if convicted on or after November 29, 1990, cannot establish that he is a person of good moral character. He is therefore automatically barred from naturalizing.

Aggravated felonies under U.S. immigration law include murder, rape, sexual abuse of a minor, and illicit trafficking in controlled substances or in firearms, among others.

Crimes of violence with an imprisonment of at least one year are considered aggravated felonies. Crimes of violence involve the use or threat of physical force against the person or property of another, or by its nature involve substantial risk that physical force may be used in the course of committing the offense. Kidnapping, stalking, sexual assault and third degree assault, are examples of crimes that have been held by courts to be crimes of violence.

Offenses involving theft and burglary may constitute an aggravated felony if the term of imprisonment is at least one year.

The term of imprisonment is the prison sentence ordered by the court regardless of whether the sentence was suspended.

In a fraud and deceit offense the length of imprisonment is not what makes it an aggravated felony but rather the elements of the offense and the dollar amount of the victim’s loss, which must exceed $10,000.

A person convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalizing. However, it may still trigger removal proceedings and result in deportation.

Admission that one has committed certain crimes either in the U.S. or abroad, although not formally charged, arrested or convicted for it, makes the person ineligible for naturalization.

Other crimes or offenses may temporarily bar a person for naturalization. A person who committed certain crimes will have to wait 5 years (or 3 years if married to a citizen) after the offense before applying for citizenship. This is the statutory period for determining good moral character as a requirement for U.S. citizenship.

Crimes that temporarily bar a person from naturalizing include crimes involving moral turpitude, two or more offenses for which the applicant was convicted and the sentence actually imposed was 5 years or more, and any crime for which a person was confined to prison for more than 180 days, among others. Crimes involving moral turpitude are those that are “inherently base, vile or depraved, and contrary to the accepted rules of morality.”

Upon application, it is important to disclose all information and report all offenses committed including expunged convictions or those removed from the applicant’s records and committed before his 18th birthday.

The USCIS will consider the seriousness of the offense committed before the statutory period and whether the applicant has reformed his character to determine if he meets the good moral character requirement.

New Policy to Reunite Filipino War Veterans with Family

The Obama administration recently announced that Filipino World War II veterans will soon be able to bring their families to the United States. After years of waiting, the new policy, which is part of the President’s executive actions, will allow family members of the veterans to enter the country under a parole status and finally reunite them in the U.S.

Immigrant advocates believe that the new policy does justice to Filipino World War II veterans who served and fought under the American flag. After the war, it took 50 years before the veterans were able to receive the citizenship and benefits they were promised.

Immigrant rights activists staunchly advocated for Filipino World War II veterans who have been unjustly denied benefits for many years. Since the midseventies, we have also written position papers and articles, including a law journal article, arguing and advocating for the rights of Filipino World War II veterans and their children.

Finally, in the 1990s, around 26,000 Filipinos World War II veterans received citizenship. According to the White House, about 6,000 of them are still alive and living in the U.S. The veterans are now elderly and need their families to care of them.

Unfortunately, the benefits the veterans received did not include their children. They had to petition their children under the general family immigration process for them to come to the U.S.

Because of the problem on visa backlog, the wait period for a visa number to become available under the family-based preferences can take years. The backlog means decades of waiting for applicants under the Philippine F1 category (unmarried sons and daughters of U.S. citizens) and F3 category (married sons and daughters of U.S. citizens). Many are concerned that with the old age of the veterans, they might not live to see the day their families can legally join them in the U.S.

Mee Moua, president and executive director of Asian Americans Advancing Justice, pointed out, “Until now, the inhumanely long visa backlog has separated them from their children and denied them the opportunity to live together in the United States. We’re grateful the Obama Administration is taking action so our veterans can be reunited with their children and receive the love and care they need during their golden years.”

According to the White House, the program will allow certain family members of the veterans to seek parole so they can come to the U.S. Parole status will be granted on a case-to-case basis. They will be able to live and work in the U.S. and will be allowed to adjust to permanent residence.

Lawmakers, such as Sen. Mazie Hirono, who proposed a number of bills on the issue, said that the move was long overdue. “Many Filipino veterans have waited decades to be reunited with their children – today’s action is the right thing to do for these brave people who served our country.” She went on to say, “We made a promise to these individuals, and expediting reunification with their children through parole brings us one significant step closer to that promise.”

The new policy is part of the President’s executive actions aimed at modernizing and streamlining the legal immigration system.

Charging Another Country’s Quota if Visa Number is Unavailable

Every month, the Department of State (DOS) releases a visa bulletin which shows the availability of visa numbers for each preference category. When a particular category is oversubscribed, meaning, the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, a cut-off date is set by the DOS.

The cut-off date for an oversubscribed category is the priority date of the first applicant whose application for immigrant visa or adjustment of status cannot be processed due to the unavailability of a visa number. The visa applicant will have to wait for his priority date to become current before he can apply for a green card.

The waiting period for a visa number to become available differs depending on the category and the country of chargeability. It can be decades for some countries such as Mexico and the Philippines.

Because of the long wait period, visa applicants should find out if they can benefit from the rule on cross-chargeability.

Green card applicants under the family based preference categories and employment based categories can include their spouse and unmarried children under 21 as derivative beneficiaries. Family members of the green card applicant are counted towards the number of available visas for the principal’s preference category and country of chargeability.

As a general rule, the country of chargeability is the principal visa applicant’s country of birth. If the visa is unavailable for the principal’s country of birth, the rule on cross-chargeability allows the principal visa applicant to get his visa number from the quota of his spouse’s country of birth.

The Department of State Foreign Affairs Manual clarified that if, for example, the principal applicant was born in India and the accompanying spouse in France, the principal applicant born in India may be charged to his spouse’s country of chargeability (France) if the priority date is not current for India.

It further explained that when one immigrant visa applicant can confer a more favorable preference status upon another at the same time the other immigrant visa applicant confer a more favorable foreign state chargeability, both applicant may be considered principal aliens. In this case, the consular officer may charge the principal applicant’s visa to his spouse’s quota, only if the principal applicant and the spouse simultaneously apply for immigrant visa and admission.

When applying for adjustment of status, the principal applicant and the spouse must both file their separate I-485 applications with the spouse filing as a derivative beneficiary. The principal applicant must show that he is qualified to benefit from the rule on cross-chargeability.

As to the accompanying or following to join child, the rule on cross-chargeability also allows the child to be charged to the foreign state of either parent. The rule on cross-chargeability, however, does not allow parents to be charged to the foreign state of their child.

Also, if a green card applicant was born in a country where neither parent resided or was born, he may be charged to the foreign state of either parent.

Adjustment of Status for Accompanying Derivative Beneficiaries

Every fiscal year a limited number of immigrant visas are made available for each preference category. If the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, the category is oversubscribed.

The current visa system places an annual cap of 140,000 visas for employment based categories, and 226,000 for family-based categories. No more than 7% of that number is allowed to be allocated to any one country. Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories.

The cut-off date indicated in the visa bulletin released by the Department of State each month is the priority date of the first visa applicant who could not be reached within the limit. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The cut-off date for a particular category may advance, remain unchanged or even retrogress depending on the visa demand.

Under immigration law, green card applicant under the family based preference categories and employment based categories can include their spouse and unmarried children under 21 as derivative beneficiaries. Family members of the green card applicant are counted towards the number of available visas for the principal’s preference category.

Family based preference petitions fall under four categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).

Derivative beneficiaries can enter the U.S. as accompanying and following-to-join spouses and children. The accompanying derivative enters the U.S. with the principal beneficiary or within 6 months from the principal beneficiary’s entry into the U.S.

May a derivative beneficiary who is already in the U.S. adjust status if he entered the country before the principal beneficiary?

It has been a long standing decision of the Board of Immigration Appeals (BIA) that an accompanying and following-to-join derivative may not obtain permanent residence before the principal beneficiary. However, once the principal immigrant obtains permanent residence, the derivative beneficiary may adjust status even if he entered the U.S. before the principal immigrant as a nonimmigrant.

In one case, the wife of the principal applicant entered the U.S. on a nonimmigrant visa. After her husband was admitted for permanent residence years later, she applied for adjustment of status. The former INS denied her application on the ground that “an ‘accompanying’ relative may not precede the principal alien to the United States.”

The BIA clarified on appeal that the physical presence of the derivative in the U.S. as a nonimmigrant does not preclude her from adjusting status as an accompanying/following-to-join derivative.

Getting a Green Card Despite Petitioner’s Death

Is it possible for surviving family members to get a green card despite the death of the petitioner?

As a rule, the death of the petitioner automatically revokes the approved family based petition. For beneficiaries residing abroad, this could mean the end of their dream of ever living in the United States. However, the good news is the law gives the USCIS the discretion not to revoke the approval for “humanitarian reasons.”

The I-130 beneficiary may ask for the reinstatement of the revoked petition by submitting a written request for humanitarian reinstatement to the USCIS office where the I-130 petition was filed. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval.

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; the beneficiary is elderly or in poor health; the beneficiary has had lengthy residence in the United States; the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and the beneficiary has strong family ties in the United States.

The beneficiary must have a substitute sponsor who will execute the affidavit of support (I-864) in the place of the deceased petitioner. A law enacted in 2002 allowed the following relatives to become substitute sponsors of the beneficiary: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild or legal guardian of the beneficiary.

The substitute sponsor must meet the minimum income requirements and be a U.S. citizen or legal permanent resident, at least 18 years old, and domiciled in the U.S.

In 2009, Congress passed a law known as Section 204(l) that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.

The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant 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 who was granted asylum.

Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful U.S. residence.

Beneficiaries who were outside the United States when the petitioner died have humanitarian reinstatement as their only recourse. A claim of humanitarian factors must be supported by documentary evidence in order to increase the chances of the petition’s reinstatement.

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