An N-400 naturalization application may appear to be a simple application. For most applicants that might be true but for some there are serious risks that go beyond mere denial of the N-400.
A lawful permanent resident (LPR), who is 18 years or older, may apply for naturalization by establishing that he meets the residence, physical presence and good moral character requirements and demonstrate knowledge of the English language and US history and government. An alien does not have good moral character if he has been convicted of certain types of criminal offenses, has admitted committing certain types of criminal offenses or has engaged in certain types of conduct. An alien must have resided continuously in the US as an LPR for 5 years prior to the filing of the naturalization application. This is known as the 5-year statutory period. For spouses of USCs applying for naturalization, the statutory period is 3 years.
For those who do not meet the preceding requirements, they can expect USCIS to deny their N-400. However, not many might be aware that USCIS may also deny an N-400 if it finds during the N-400 processing that the applicant’s green card was defective for one reason or another.
For example, an N-400 applicant meets the residence, physical presence and good moral character requirements but at the time of his adjustment of status years earlier he never disclosed that he first entered the US by using a false name in his passport. This applicant was inadmissible for misrepresentation and he should not have been granted a green card without securing a waiver of inadmissibility. However, because he never disclosed this misrepresentation during his green card application, USCIS failed to discover the misrepresentation at that time and granted applicant a green card. Unfortunately, during the N-400 application, USCIS finally discovered the misrepresentation. In this case, USCIS will deny the N-400 and may even place this applicant in removal proceedings by issuing a notice to appear (NTA).
A green card might also be defective due to an LPR’s failure to do certain acts after the issuance of his green card. For example, an N-400 applicant obtained his green card through an employment-based petition. This applicant had an approved labor certification for the position of mechanic in the sponsoring employer’s auto shop. However, this applicant never worked as a mechanic for the sponsoring employer since the issuance of the green card. Instead, he has been working as a truck driver. Years later, he filed his N-400. USCIS required this applicant to submit his income tax returns and W-2s. Based on these documents, USCIS found out that he never worked for the sponsoring employer and concluded that his green card was invalid.
Recently, a longtime LPR retained my services after USIS denied her N-400 because USCIS discovered that an Immigration Judge (IJ) had ordered my client’s removal in absentia three years before she got her green card. How she got her green card notwithstanding the removal order is a strange story but that’s what happened. It turned out that client applied for asylum when she first arrived in the US but she never received her interview notice. She then applied for a working visa, which was granted. She later benefited from an employment-based petition, which was also approved. She filed her adjustment application but it remained pending for years because her priority date was not current. While her adjustment was pending, INS placed her in removal proceedings due her failure to attend her asylum interview. Client did not receive her NTA and failed to attend her removal hearing. Hence, the IJ ordered client’s removal due to her failure to appear. Three years later, INS approved client’s adjustment application.
It’s clear in my client’s case that one part of the immigration service was unaware of client’s asylum application and another part was unaware of her adjustment application. This explains why she got her green card even though she was previously ordered removed. These parallel immigration paths finally converged during the N-400 process. USCIS was able to consolidate her entire immigration file during the N-400 application. This case shows the risks of the N-400 process for LPRs with complicated cases. By filing an N-400 you invite USCIS to make a thorough review of your immigration history. If there’s something in your past that would prompt USCIS to make an unfavorable action, you should think twice before filing an N-400 or at least get proper advice before filing.
In my client’s case, even though USCIS denied her N-400, we were able to reopen her removal proceedings where we have the chance to save her green card and build a path for her to successfully naturalize in the future.
