One of the most common questions that our citizenship clients ask is whether there are any travel prohibitions after they have filed for naturalization. At the risk of oversimplifying matters, the short answer is that applicants are allowed to travel outside the US even after their N-400 applications are lodged. That being said, individuals need to remain cognizant of the eligibility requirements for naturalization, some of which extend up and through to the time of the interview. In some cases, conduct after an application is filed can seriously impact the application and ultimately form the basis of a denial. When it comes to international travel, remember that an applicant must not only satisfy the physical presence requirement, but also the continuous residence requirement.
Children's Names Disappearing From List of Traveling Applicants | CSPA
Individuals petitioning for their married relatives abroad might notice that derivative children who qualify to immigrate have suddenly disappeared from the list of traveling applicants on the CEAC system. We are experiencing this troubling snafu just recently when children who were under 21 were not listed on the system even though the petitioner had already paid their visa fees. After some futile attempts through asknvc, we were finally able to get in touch with somebody over the phone (after a couple of hours) who advised that the children were removed because their cases were being considered under the CSPA-something which made no sense because the children in question were minors and not even close to "aging out" where the Child Status Protection Act would have to come into play. After more hours on the phone, we were finally able to speak to a supervisor, who confirmed that there was a computer glitch that resulted in the children being removed. This is just another illustration of how things that can potentially go wrong even when things are done right from an applicant's side. In this case, had NVC's own error not been brought to its attention, the children's ability to immigrate would have been jeopardized. And to make matters worse, these are not the only types of issues that applicants may experience while processing their cases through the electronic CEAC system. In some cases, NVC may incorrectly determine that a petitioner does not meet the financial guidelines under the Affidavit of Support; in others, NVC has been known to halt processing when documents are allegedly not dark enough or not scanned the right way. After the documents are rescanned to conform to the specifications, it might take NVC another sixty days before confirmation is given that the deficiency has now been cured-even though, many times, there was never a deficiency in the first place.
Conditional Permanent Residents May Apply For New Green Card Through New Spouse
For the most of 2019, we have seen the administration tighten its policies on immigration through a series of policy changes and Attorney General rulings. Interestingly, though, USCIS issued a Policy Alert late last week that may be beneficial to conditional permanent residents who have now married someone else, particularly those whose residence has been "terminated" by USCIS and who are now awaiting court proceedings. Up until recently, the government has maintained that USCIS could not adjust the status of such a person, even if married to someone else and prima facie eligible to adjust, because an Immigration Judge needs to formally terminate that person's status (and hence, officially revoke that person's permanent residence.) This position has always created a tension with the seminal case regarding these circumstances, Matter of Stockwell, but in any case, this has been the reality for a few years now. Fortunately, USCIS appears to be relaxing this strict policy and allowing itself to adjudicate these types of cases under certain circumstances. According to the policy amendments, USCIS may now adjust the status of a conditional permanent resident whose status has been terminated by USCIS if
Immigration Filing Fees Going Up
Last week, the government announced a series of proposed fee increases that are staggeringly steep. At the moment, the proposal is undergoing a public comment period, but unless there is some sort of litigation to block the changes, applicants may have to dig deeper to defray these costs when they go into effect later this year/early next year. Here are some of the applications that will be going up:
Criminal PCR Application Does Not Always Save From Deportation
Being convicted of a crime is often one of the surest ways for a foreign national to get caught up in the deportation system and possibly removed from the United States. Unless the conviction is not a Crime Involving Moral Turpitude, Aggravated Felony, or other type of deportable offense, there may be little relief for the non-US citizen unless he/she qualifies for some sort of waiver. In these types of situations, immigrants may need to explore whether it is possible to vacate or modify the criminal conviction itself through some sort of post-conviction relief application. Under certain circumstances, overturning or amending the original conviction may significantly change whether someone is deportable or not. For example, many theft aggravated felonies are triggered upon conviction of a theft crime where a sentence of a year or more is imposed. If the sentence is later altered to 364 days, that conviction may no longer be considered an aggravated felony, an important legal determination which can make all the difference.
Multiple DWIs Will Disqualify for Cancellation ("10 Year Law")
On October 25, 2019, Attorney General William Barr issued a very significant decision regarding eligibility for cancellation of removal, one of the most coveted forms of immigration relief for those charged with being in the country illegally. (Under cancellation of removal, individuals granted relief in immigration court not only get their court cases canceled but also receive green cards.) In order to qualify for cancellation, an individual must establish, among other things, that he/she possesses good moral character for the ten-year period preceding the application. Under this case, which Acting Attorney General Matthew Whitaker had previously certified to himself for review (prior to being succeeded by AG Barr), evidence of two or more DWI convictions during the ten-year period now creates a presumption that the individual does not possess good moral character. According to the Attorney General, "multiple DUI convictions represent a repeated failure to meet the community's high moral standards" and "criminal activity is probative of non-adherence" to generally accepted community conventions.
Even More New Questions for Visa Applicants
Immigrant visa applicants should be aware that that the DS-260 was quietly revised to incorporate some new questions in addition to the social media question which we previously discussed in July of this year. The DS-260 is the electronic application that all individuals applying for immigrant visas must fill out. In addition to going over basic biographic information as well as a battery of security questions, the form now inquires into the following:
New Financial Rules For Visa Applicants Coming
Last week, USCIS's plan to implement its new public charge rule and forms, including the dreaded I-944 Declaration of Self Sufficiency, was stymied by a temporary injunction blocking the revised guidelines. However, the nationwide ban only applied to adjustment of status cases inside the US. It technically did not prevent the Department of State from going forward with its own set of public charge rules published in an interim final rule that closely tracked the changes made by the Department of Homeland Security, scheduled to take effect October 15, 2019. (The Department of State regulates and oversees consular cases, that is, those cases which are scheduled abroad at US embassies around the world.) Fortunately, the Department of State recently announced that procedures would remain as is, for the time being, until approval of a new form which it will be requiring, has been secured. However, lest there be too much excitement, the new form, which will apply to consular cases, will likely be very similar and just as onerous as the I-944, which promises to be a nightmare for intending immigrants here in the US. We will obviously explore the I-944 in a future article, but applicants should be aware that a credit report will be required as well as inordinate documentation relating to the applicant's financial status.
Consulate Will Deny Visas to Immigrants Without Health Insurance Plan
On October 4, 2019, President Trump issued an immigration related proclamation that will affect nearly all family-based cases being processed abroad once it goes into effect. Titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System," the order directs immigrant visas to be denied to individuals who cannot demonstrate that they will be covered by approved health insurance within 30 days of the alien's entry into the United States or unless the individual possesses the financial resources to pay for reasonably foreseeable medical costs. What this essentially means, in layman's terms, is that immigrants who cannot prove that they are covered by health insurance or have financial means to pay for their medical costs will be barred from entering the US.
TPS Holders with Deportation Orders Applying for Green Card After Advance Parole
TPS applicants who are applying for adjustment of status with outstanding removal orders should be aware that the New Jersey District Office has reversed its policy with respect to these cases. Of course, every case is fact and circumstance specific, but in general, it now appears that individuals who initially entered without inspection, have been ordered removed, subsequently left and re-entered the US with advance parole are being deemed ineligible to adjust status before USCIS. The issue hinges on whether USCIS or the Immigration Court has jurisdiction to adjudicate an adjustment of status application filed by someone who has already been ordered removed. In most cases, the removal order is considered executed once a person under that order leaves the United States. Once an individual has a removal order, he/she is generally barred from the US for ten years unless an I-212 is filed and approved. In some cases, individuals who have returned with advance parole have filed I-212s in conjunction with their adjustment of status applications before USCIS. Now, the government's posture is that USCIS does not have jurisdiction over such cases because the individual has not actually departed (in a legal sense) to trigger execution of the removal order. Moreover, if a person with TPS has left the US with advance parole, he/she technically returns to the US in the same immigration status he/she had prior to the departure. So, in other words, if an applicant had initially entered without inspection and left with advance parole, he/she shall be inspected and admitted "in the same immigration status the alien had at the time of departure"-namely, as an individual who has entered without inspection. And unfortunately, in general, unless the individual is eligible under section 245i, applicants who enter without inspection do not qualify to adjust status here in the US.
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