During his administration, President Trump has repeatedly proclaimed his intentions on ending birthright or automatic citizenship for those born within the United States. To be clear, birthright citizenship is still intact, but the latest USCIS policy memo pertaining to residency for citizenship arguably represents an encroachment. Policy Memo PA-2019-05, issued on August 28 of this year, received much attention in the media regarding changes to the way USCIS will now adjudicate citizenship petitions for children of US government employees and armed forces members. Under the new policy, as elaborated in the memo, children of US government employees and armed forces members residing outside the United States will no longer be considers "residing in the United States" for purposes of citizenship applications filed under section 320 of the Immigration and Nationality Act. Section 320 is a part of the law that grants citizenship to certain children under the age of 18 who did not acquire citizenship at birth but who are residing in the legal and physical custody of a citizen parent pursuant to a lawful admission for permanent residence. (In these cases, the child applies for a Certificate of Citizenship, as opposed to filing to become a citizen through the naturalization process.) The upshot of the new rules, effective October 29, 2019, is that these children born abroad must now pursue applications for citizenship under a different section, notably section 322, which is more cumbersome and requires the child to complete the naturalization process before the age of 18. Because this is an extremely complex area, some news outlets may have exaggerated and oversimplified its impact, though there is no dispute amongst most immigration attorneys that the new guidance discriminates against armed forces families and threatens to damage morale.
Green Card holders interested in becoming United States Citizens should be aware that USCIS is planning on revising the civics test as part of a new decennial review and revision process. Under this plan, the citizenship test will be reviewed every ten years and if necessary, revised to ensure accuracy, timeliness, as well integrity. The test was last revised in 2009.
The vast majority of lawful permanent residents aspiring to become United States Citizens will need to undergo the naturalization process. But in some cases, an individual may already be a citizen through application of the law pertaining to either automatic acquisition or derivation. In those instances, a person will need to apply for proof of citizenship by either applying for a US Passport or a Certificate of Citizenship via Form N-600. Unfortunately, the law regarding acquisition of citizenship can be incredibly complex. Depending on when certain conditions are/were fulfilled will determine which set of rules apply. A recent Third Circuit case, Dessouki v. Attorney General, illustrates just how fact-sensitive some of these determinations can be.
In recent years, many of the most commonly filed immigration forms underwent substantial revisions. These include the I-130 Petition for Alien Relative; I-129F Petition for Fiance; I-485 Application to Adjust Status; and N-400, Application for Naturalization. Rather than simplifying what is often an arcane process, the forms arguably obfuscate and complicate things even more. Soon, it is very likely that the N-400 will be changing again. Unfortunately, some of the proposed revisions and requirements will make the process more onerous and confusing, especially to a layperson who might be attempting to file pro-se.
In yet another ominous sign of the erosion of judicial independence, Acting Attorney General Matthew Whitaker recently certified a case to himself that may have a significant impact on foreign nationals charged with Drunk Driving or Driving Under The Influence. The case is Matter of Castillo-Perez, and this case is particularly important given the issues that the Attorney General will be deciding-possibly overruling previous BIA precedent. According to the certification, the Attorney General is directing the parties to address the following questions:
USCIS recently clarified that lawful permanent residents applying to naturalize on the basis of marriage to a US Citizen must not only demonstrate "living in marital union" with their spouse three years immediately prior to filing, but also that termination of the marriage at any time prior to the Oath of Allegiance renders an applicant ineligible under section INA 319(a). We have seen this second provision being strictly applied to deny naturalizations applications where the applicant divorces after passing the examination but prior to the oath ceremony. Practically speaking, this may not affect residents in states that administer the oath the same day as the interview, such as New Jersey. In general, however, most states regularly schedule the oath ceremony many months after the applicant has passed the examination. This gap can, in some cases, be quite long, especially if background checks are being conducted, an officer needs to look into something, or on occasion, neglects to finish reviewing the file. In the interim, an applicant's marital situation may rapidly deteriorate and the couple may seek a quick dissolution. Unfortunately, if this occurs prior to the oath, the applicant has technically fallen outside the boundaries of INA 319, the section of the law that allows green card holders to apply after only three years marriage to a US Citizen (versus the normal requirement of five years permanent residence prior to becoming eligible). This is one reason why applicants are expected to review and complete a questionnaire on the day of the oath verifying that certain information has not changed, ie., address; arrests; trips outside the US; and in this case, marital status.
On October 3, 2018, USCIS issued a public bulletin regarding the incorporation of digital tablets into the naturalization reading and writing process. Our office began seeing implementation of tablets a few months back, and this announcement not only confirms that this practice is here to stay but that technology will assume an even greater role in the process than ever before. Previously, citizen applicants were asked to review and digitally sign their applications on iPad or ipad-like devices. Now under this expansion, the use of pen and paper is essentially being phased out and discontinued. Pen and paper may be used "on a case-by-case basis," but by and large, both the reading and writing components of the N-400 examination will now be conducted on digital tablets:
Following up on the heels of our last post, the Third Circuit of Appeals issued two precedential decisions affirming a denial of US citizenship to two different parties who had acquired their permanent residency through false statements or fraud. The two cases were decided by two different panels but interestingly, arrived at the same conclusion. The two cases are Saliba v. Attorney General and Koszelnik v. Secretary of Homeland Security. Although the facts are different, the gist of both cases is that the immigrants in question secured their green cards by affirmatively providing false information on their permanent resident applications. One party represented that he was a citizen of Lebanon when he wasn't, and the other omitted the fact that he had an A number and had actually been in court proceedings when applying for their green cards. Both gentlemen's lies were not caught at the green card stage and they subsequently applied for naturalization more than five years later. In both cases, the Court denied their petitions, predicating their decisions largely on the notion that even though the applicants were permanent residents, they were nevertheless not "lawfully admitted" as permanent residents, as required by 8 U.S.C. 1429.
Every year there is a Presidential election, USCIS generally experiences a surge in N-400 applications for naturalization. 2016 will likely prove no different. If anything, there may be unprecedented numbers of lawful permanent residents applying to become US Citizens, especially given what is at stake for our country. For some, the prospect of Republican candidate Donald Trump in office has stirred up fears of anti-immigrant sentiment, increased enforcement and a moratorium on immigration. Others are motivated by the perennial, unfounded rumor that is easier to become a citizen during an election year. Whatever a person's reasons, there are certain deadlines that one needs to be mindful of if he/she wishes to vote this year. In New Jersey specifically:
Here's the transcript to our latest video on Youtube about what it means when an immigration officer tells you that your citizenship case is "pending review" even though you may have already passed the test.