In a recent podcast, we touched briefly on the English Waiver criteria that USCIS requires before exempting an applicant from the English portion of the Naturalization test. Unfortunately, this special exemption only benefits a relatively small population of permanent residents who have lived here for a considerable period of time, which means a minimum of fifteen years. What about the sizeable group of green card holders who earnestly want to become citizens but due to their personal circumstances and background lack the test-taking proficiency and requisite aptitude for civics that ordinary applicants are expected to have? This special set of applicants have studied very diligently but may not be able to learn, recognize and answer the questions as adroitly as a reasonably healthy and well-educated candidate with more opportunities in life. For example, it is not necessarily fair to expect an elderly person with no formal schooling to comprehend and answer questions as competently as a 25 year old college graduate with no issues. In all fairness, should they be held to the same standard? Fortunately, USCIS does carve out a little-known provision that allows USCIS officers discretion when administering the test for applicants whose circumstances deserve special consideration.
The regulations provide that "In choosing the subject matters, in phrasing questions and in evaluating responses, due consideration shall be given to the applicant's education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an appraisal of the adequacy of the applicant's knowledge and understanding." See 8 CFR 312.2(c )(2).
What sort of cases might qualify for Due Consideration?
The wonderful utility of this provision is that there is no set criteria. We have successfully requested officers to apply this provision to many deserving applicants including those who grew up in their native countries without any schooling; those who were very elderly and lived in the US for many years (but less than what would qualify them for the English Exemption); those whose circumstances didn't afford them the same study time as the ordinary applicant; and some who suffered from a combination of the above.
Due Consideration Is Not For Everyone Nor Is It Automatic
It is important to emphasize that the due consideration clause is not a free pass. Applicants are not automatically entitled to it, nor is it something that an ordinary officer conventionally applies during the normal course of the day. It is intended for, and officers are instructed to apply it for those who warrant it. Moreover, due consideration does not mean that an officer is obligated to pass the applicant. It only means that the officer should be mindful of the applicant's personal circumstances and limitations when administering the test so that the appropriate level of fairness is ensured.
If you or someone you care about has special circumstances or limitations that you think would warrant due consideration, contact our office for a legal consultation. We may be able to help you to request this grant of discretion.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.