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POSTING DATE: November 5, 2018
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Questions & Answers
This Week's Immigration News
Question: My aunt filed to sponsor my parents for a green card some 30 years ago and since I was a kid at the time, I got my immigration papers and moved to the US together with my family. But after a few years my parents separated and my mom moved back to Jamaica and I decided to go with her. I ended up getting a good job and staying. I met my wife, got married here and had my two kids. I gave up my green card a few years ago to get a tourist visa so I could take my kids to Disney world. I visited there twice since then and I haven’t been back since. Now me and my wife are thinking about moving to America so we can get a new start and so our kids can go to school there. We want to know how I can get my old green card back. Can I exchange my tourist visa for my green card. Does it matter that my dad is a US citizen and still lives in the US? Can I get a green card for my family at the same time?
Answer: That’s a great question. Once a U.S. Resident formally “relinquishes” (gives back) a Green Card at a U.S. Embassy or Consulate, the officer usually requires that State Department form I-407 be signed, abandoning all rights to Residency. When this is done, all U.S. Residency status is lost and any desire to obtain Residency again requires a whole new application process. However, in order to qualify for U.S. Residency again, the immigrant must still have a legal basis for eligibility, for instance, being married to a U.S. Citizen, or being sponsored by a U.S. Citizen child, parent or sibling, since there is no way to apply solely on the basis of requesting the old Green Card status again. Your U.S. Citizen father could sponsor you to immigrate, but unfortunately, the waiting line for a married child of a U.S. Citizen is 12+ years, so it will take many years for you and your family to be able to obtain residency in the U.S.. I hope this is helpful to you.
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Form G-325A Is No Longer Required For Residency Cases
In the old days, immigrants filing a form I-485 Adjustment of Status Application in the U.S. were also required to file form G-325A, which provides biographical data about an applicant, including parental, marriage and divorce information and data relating to past addresses and employment.
However recently, the USCIS consolidated the form G-325A with the Form I-485 (the Application to Register Permanent Residence or Adjust Status. Going forward, immigrants applying for residency no longer need to include a Form G-325A with the adjustment of status packet. Good to know!
Understanding How Children Qualify For Automatic Citizenship
Under the Child Citizenship Act, U.S. Resident children who are under age 18 automatically obtain U.S. Citizenship when a biological parent Naturalizes.
Similarly, children of U.S. Citizens who immigrate to the U.S. from abroad and enter the U.S. before turning age 18, become automatic U.S. Citizens as well. Qualifying children must be under age 18 at the time their parent actually naturalizes (takes the Oath), not the date the parent files for Naturalization.
Trump Vows To End Birthright Citizenship By Executive Order
In his ongoing efforts to demonize immigrants and find new ways to punish them, Trump has now concocted a theory that he can end the constitutional right to Birthright Citizenship with the stroke of his executive pen. It’s a ridiculous notion, since even school children are taught that changing in the Constitution takes two-thirds majorities in Congress, which then must be ratified by three-quarters of the states.
But don’t let that stop Trump from using such rhetoric, pretending that he knows much more about Constitutional law than scholars, since he alone has found a loophole which allows him to unilaterally terminate the right - all by himself.
Policy Manual Update Clarifies Spousal Eligibility For Early Naturalization
Under immigration regulations, spouses of U.S. Citizens are eligible to apply for Naturalization early, as long as they meet certain requirements. For background, generally, Residents are eligible to apply for Naturalization after holding that status for four years and nine months, whereas eligible spouses of U.S. Citizens can apply in only two years and nine months. Early Naturalization is governed by the so called 3/3/3 rule, to qualify:
1) The U.S. Citizen spouse must have been a citizen for at least three years, 2) the foreign spouse must have been married to (and living together with) the U.S. Citizen spouse for at least three years and
3) the foreign spouse must have been a Resident (conditional or otherwise) for at least three years.
Trump’s announcement came shortly after his recent interview with Axios, where he brilliantly laid out his intellectual reasoning for his extra-constitutional executive superpowers: "It was always told to me that you needed a constitutional amendment. Guess what? You don't," "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order," the president added, before stating, incorrectly: "We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits."
Well, that sure is convincing, if you don’t know anything about… anything! Trump contends that only the U.S. has “stupid” laws which allow Birthright Citizenship, which is of course a lie, since many other countries provide such rights.
For background, U.S. citizenship is governed by the 14th Amendment to the constitution, which says "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This means that any child born in the U.S. or its territories automatically becomes a U.S. Citizen at birth…that’s it, no other qualifications necessary. The 14th Amendment was added to the Constitution after the Civil War to grant U.S. Citizenship to anyone born on American soil, including former slaves.
Conservative Republicans have been targeting Birthright Citizenship for years, threatening to pass legislation to restrict its application. The flawed reasoning behind their efforts is that the 14th Amendment only applies to children of legal immigrants, not to children of those here in the U.S. illegally. Many Republicans, including Trump, say it creates an incentive for people to enter the country illegally to have children. The likelihood of any such legislation becoming law is slim, however, that may not stop Trump from signing an Executive Order to circumvent the law, which would inevitably be appealed through the Federal Courts up to the Supreme Court. And now that with the addition of Trump’s Justice Kavanagh, the conservative majority on the highest court in the land may well find some legal justification for legal restrictions on Birthright Citizenship. Stay tuned….
USCIS Announces Phase Out of INFOPASS Services
The USCIS has been quietly making it more and more difficult for customers to obtain Infopass appointments through the online InfoPass system, under a new “pilot program”, called Information Services Modernization Program. Those wishing to make an appointment to talk to an officer at a local USCIS field office often find themselves spending hours on the computer repeatedly attempting to find an available date, trying late at night and early in the morning, without success.
This new USCIS policy seeks to phase out the online customer Infopass appointment system, and instead allow only those individuals who are authorized by a USCIS National Customer Service Center (NCSC) officer to make an appointment.
This new policy aims to totally eliminate the ability of customers to self-schedule InfoPass appointments online, instead encouraging individuals to rely solely upon information and resources provided by the USCIS website and those obtained by phone contact with the USCIS Contact Center. The result of this Infopass phase out will likely result in more confusion about eligibility, immigration case processing and perhaps even a significant increase in the number of immigration case denials.
The pilot program has been instituted at various USCIS field offices nationwide, including those in Hartford, Connecticut, Detroit, El Paso, Texas; Jacksonville, Florida, Great Lakes, Los Angeles, Newark, Raleigh-Durham, Sacramento, San Francisco and other offices in California. On October 30, the USCIS released an announcement that it anticipates expanding the program to all remaining field offices by the end of FY 2019, meaning by September 2019.
In such cases, the foreign spouse is eligible to apply for Naturalization in three years (really 90 days before, so that means in two years and nine months).
There has often been a lot of confusion among immigrants about the marriage requirement, specifically about whether a Resident remaining married with a U.S. Citizen is enough to qualify, even though the couple no longer lives together. Early Naturalization applicants often believe that simply remaining married (as opposed to being divorced) allows them to qualify, even though they do not live with their U.S. Citizen spouse. Thousands of dollars in USCIS filing fees are lost each year as Residents separated from their U.S. spouses apply for Early Naturalization, only to find out later at their Naturalization interview that in addition to meeting the regular citizenship requirements and passing the test, they must also prove through documentary evidence that they were living with their U.S. spouse at the time they filed their case. Those unable to prove that they were living with their U.S. spouse are not only denied Naturalization, but may also put themselves at risk for further inquiry into the validity of their claim to Residency through marriage to a U.S. Citizen.
To clear the issue up, the USCIS recently updated its Policy Manuel to provide guidance to clarify the “married” and “living in marital union” requirements for applicants filing for spousal naturalization. The updated guidance makes it clear that an Early Naturalization applicant must have been “living in marital union” (living together) with their U.S. Citizen spouse for at least three years before filing. The recent Policy Alert: Marriage and Living in Marital Union Requirements for Naturalization Purpose, relating to the "married and living in marital union” requirements, clarifies that Early Naturalization applicants 1) must have been living in marital union with their U.S. Citizen spouse for at least 3 years immediately preceding the date of filing for naturalization and 2) that termination of the marriage at any time before the applicant takes the Oath of Allegiance for Naturalization makes the applicant ineligible for such Naturalization.
Question: I have this problem and I hope you can help us figure out what to do. I was a resident and sponsored by wife and her 10 year old son for their green card on the same application. After I filed the 130 application a few years ago, I applied for my citizenship and I got it this past February. My wife and stepson went to their interview at the embassy last month and my wife got through, but they said my stepson couldn’t get through because now that I am a U.S. Citizen I have to sponsor him separately. I explained to the national visa center people that when I applied for him I was still a resident, but they said no, it doesn’t matter. If I have to file for him again and it takes 2 more years me and my wife don’t know what we will do. I think they made a mistake and I need to see if you can fix it. Thank you for helping us.
Answer: Sorry to hear about your disappointing experience. I understand how frustrating it can be. First, let me give some background about sponsoring stepchildren and the differences between immigrant visa processing for family members of U.S. Citizens, versus those of Residents. U.S. Citizens and Residents are eligible to sponsor step-children, when the children are under age 18 at the time of the marriage to the child’s biological parent. If qualifying, the U.S. Citizen/Resident step-parent can file for the minor children until they reach age 21. Generally, as part of the Residency process, there are very important technical difference between U.S. Citizens sponsoring a spouse and children, compared with that of a U.S. Resident. When a U.S. Citizen sponsors a spouse, minor child or parent, the immigrant family members are in a special category called “immediate relatives”. There are no immigrant visa waiting lines and such family members can immigrate immediately, governed only by USCIS and consular processing times. The catch is that the sponsoring U.S. Citizen must file a separate petition for each family member. For instance, a U.S. Citizen sponsoring a spouse and minor children (or step children) must file a separate I-130 petition for each person. Contrast this with the process for a Resident sponsoring a spouse and minor children (or step children), where only one I-130 petition need be filed for the entire family, meaning the spouse and qualifying minor children are all included in the one application. The down side is that the waiting line for immigrant visas for spouses and minor children of Residents, called F2A, is currently about two years.
The tragedy is that when a Resident naturalizes and becomes a U.S. Citizen, even after filing the I-130 for the family together, only the spouse is able to immigrate through the application. It’s a technical matter that by automatic operation of law, as soon as the Resident naturalizes, the minor children are no longer eligible to immigrate as “dependents” of their spouse. Unfortunately, as many, you were unaware of this technicality when you naturalized.
So going forward, we would immediately file a new I-130 petition for your stepson as an “immediate relative” of a U.S. Citizen. The current processing time is about 12 months. Since your wife was issued the Immigrant Visa last month, she now has five months before she must enter the U.S.. Once she enters the U.S. and gets set up to receive her Green Card, she can then return to Bahamas for up to five months, then return to the U.S. without penalty. This will give time for your stepson’s immigrant process to near completion and for him to be issued his immigrant visa at the U.S. Consulate.
It’s not a perfect solution, but it is the best approach given your circumstances. I will email you a list of documents we need to get started.
As a result, parents should carefully plan the date of filing for Naturalization to ensure that they will complete the process before their child(ren) reach age 18.
Figuring about 12 months to take into account any USCIS processing delays is reasonable, under current lengthy Naturalization processing times. Importantly, even when children become U.S. Citizens through this process, the USCIS does not automatically issue a Naturalization Certificate.
However, in reality, none is required, since applying for a U.S. Passport is all that is necessary to prove the child’s new U.S. Citizenship status. To obtain the child’s U.S. Passport, in addition to other information, the U.S. Passport office requires a copy of the parents’ Naturalization Certificate and proof that the child actually resides with his or her U.S. Citizen parent in order to qualify