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.

Renewing Green Card While Naturalization is Pending

A lawful permanent resident (LPR) who wishes to apply for naturalization should submit his N-400 application while his green card still has at least six (6) months of validity. This is to avoid having to pay the filing fee and biometric fee amounting to $450 for his green card renewal.

While LPRs or green card holders who have resided here in the US for at least 5 years (3 years if married to US citizen) and have met all other requirements for US naturalization can already apply for US citizenship, for some reasons, some wait longer before they apply. A few wait until their ten-year green card is about to expire to apply for naturalization.

It is worth noting that the I-551 or the permanent resident card expires every ten years. To those who want to continue to become green card holders and stay that way, they need to file an I-90 six months before its expiration date.

The USCIS Field Operations Directorate recently clarified in a teleconference that a naturalization applicant with a pending N-400 application must apply for a renewal of his green card if it will expire within six (6) months. This means that the naturalization applicant needs to submit an I-90 with the corresponding filing fees. USCIS will issue an Alien Documentary Identification and Telecommunication (ADIT) stamp as temporary proof of permanent residence upon showing of an I-90 receipt notice.

Take note that if your green card has already expired, you may encounter problems when you travel, seek or keep employment or apply for public benefits.

In addition, not carrying a valid green card is considered a misdemeanor. Section 264 of the Immigration and Nationality Act (INA) states, “Every alien in the United States . . . shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations . . Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him . . .. Any alien who fails to comply with these provisions shall be guilty of a misdemeanor  …” The punishment for this misdemeanor is a fine of $100 and/or imprisonment for not more than 30 days.

If an LPR has a criminal record he may be putting himself at risk when he renews his green card. He should consult an immigration attorney before submitting his I-90 application. If his crime is a ground for deportation, he may be placed under removal proceedings and will appear before an immigration judge.

Crimes that may subject a person to deportation include aggravated felony, crimes involving drugs, domestic violence, crimes involving moral turpitude and sex crimes.

This procedure for renewing an expired green card does not apply to those who obtained conditional residence on account of their marriage to US citizens or lawful permanent residents or on account of their EB-5 commercial enterprise and financial investment. Conditional residents are issued a green card that is valid for two years. In this case, they need to file a different form, which is I-751 to Remove the Conditions of their green card if they obtained it through marriage or I-829 if they obtained it through EB-5 investment.

Parole for U Visa Holders and Family Members Residing Abroad

Good news to U visa petitioners and their relatives who are residing abroad.  The United States Citizenship and Immigration Services (USCIS) has agreed to allow them to apply for a parole to facilitate their entry to the United States while waiting for their visa to become available.

This new policy of the USCIS was in response to the recommendations by the Citizenship and Immigration Services Ombudsman, Maria Odom, regarding U visa petitioners on the waiting list, specifically those who are abroad. The Ombudsman said that such a parole policy would ensure timely family reunification for victims of certain crimes committed in the United States.

The Ombudsman also recommended that the said parole policy should allow the concurrent filing of the U visa petition and the request for parole. Finally, the Ombudsman recommended that U visa parole cases be adjudicated by the USCIS Vermont Service Center.

The Ombudsman had stressed that certain crime victims who are eligible for U visa and their qualifying family members, especially those residing abroad or who went back to their home countries had not received the full protection of the law. The U visa is capped at 10,000 annually and every fiscal year since 2009, it has been reached so certain U visa eligible individuals had to be placed on the waiting list.

U visa petitioners and their qualifying family members who are here in the US can receive deferred action and get work permits, but their counterparts abroad are not given the same due consideration. Those abroad have to go through the Humanitarian Affairs branch of the USCIS, and this bureaucratic process has not been effective in some cases.

The Ombudsman is hopeful that the new policy would translate to better cooperation from U visa holders in the investigation and prosecution of the criminal activities for which they suffered substantial mental or physical abuse.

The U visa is a temporary visa that is valid for up to four years subject to extension based on certain conditions. Once given a U visa, the holder is allowed to work legally here in the US so that he/she will be able to support himself/herself while the case is ongoing. The U visa can also benefit certain qualifying family members like their spouses, parents, children and unmarried siblings below 18 years of age who may apply to come to the US and be reunited with them.

It is granted to victims of certain criminal activities which occurred in the United States, US territory or US military installation. Among the requisites to be granted said visa is the possession of vital information necessary to prosecute the crime and the victim’s cooperation with law enforcement agencies in the investigation and prosecution of the perpetrators of these crimes.

Congress listed the following qualifying crimes for one to be eligible to obtain a U visa: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, fraud in foreign labor contracting, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostution, rape, sexual assault, sexual exploitation, slave trade, stalking, torture, trafficking, witness tampering, unlawful criminal restraint, and other related crimes which includes any similar activity where the elements of the crimes are substantially similar. It also includes the attempt, conspiracy or solicitation to commit any of the aforesaid crimes.

Petitioning Physical Therapists for Green Card

Physical therapists continue to be very much in demand in the United States. According to the Bureau of Labor Statistics, the demand is projected to grow by 34% from 2014 to 2024. This demand stems from aging baby boomers who are now in their 60s and 70s.

According to a research published in the American Academy of Physical Medicine and Rehabilitation, “the demand for PTs will outspace the supply within. Shortages are expected to increase for all 50 states through 2030. States in the Northeast are projected to have the smallest shortages, whereas states in the south and west are projected to have the largest shortages.”

This seems like good news to foreign physical therapists who may also be looking at working here in the US either for the experience or due to lack of better opportunities in their home countries. Like nurses, PTs can live and work in the US permanently.

Physical therapists may enter the US under an immigrant visa or green card. They belong to the Schedule A occupations which means they do not have to go through the lengthy process of obtaining a labor certification before an employer can file their I-140 immigrant visa petition.

The green card process starts with the filing of an I-140 petition on behalf of the foreign physical therapist with the USCIS Service Center having jurisdiction over the intended place of employment. The petition must be supported by the following documents: application for Permanent Employment Certification (Form 9089) in duplicate; prevailing wage determination; a copy of the notice sent to applicable collective bargaining unit or a copy of the posted notice of filing (notice must be posted at the place of employment between 30 and 180 days prior to the filing of the Form I-140 petition); and a copy of all in-house media used for recruitment of similar position.

Also required are permanent license in the state of intended employment or statement signed by an authorized state of intended employment stating that the beneficiary is qualified to take the state’s licensing exam; physical therapy diploma or degree; and proof of prospective employer’s ability to pay wage (for an employer with 100 or more employees, a letter from a financial officer; if employees total less than 100, a copy of annual reports, federal tax returns or financial statements).

Foreign educated physical therapists must demonstrate that their education is “substantially equivalent” to a U.S. education. Previously, a foreign PT may only need to have a bachelor’s degree in physical therapy but since 2001, the Commission on Accreditation in Physical Therapy Education (CAPTE) discontinued accrediting bachelors’ degree programs in the US and required all US programs to offer courses that would result in a master’s degree in Physical Therapy. Then recently, in 2015, it pushed the standard again. Now, all accredited physical therapy education programs in the US only offer the Doctor of Physical Therapy Degree (DPT). Before one is admitted to the DPT program, one needs to have completed a four-year bachelor’s course.

Physical therapists must also obtain a visa screen certificate either from the Foreign Credentialing Commission on Physical Therapy (FCCPT) or the Commission on Graduates of Foreign Nursing Schools (CGFNS). The certificate ensures that their credentials and English proficiency qualify them in performing their professional work in the US.

It is important to note that the FCCPT’s issuance of a visa screen certificate is a confirmation that the physical therapist’s education is equivalent to at least a master’s degree in Physical Therapy. This qualifies the applicant for the employment-based second preference (EB-2) classification

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