(Part 2)
FOR many people, attaining US citizenship is the final step in achieving their “American Dream.” After getting a green card, they eagerly count off the years until they are finally eligible to apply for naturalization. However, for some people, applying for citizenship could cause problems, issues, and even being stripped of their green card and deported/removed. Applying for citizenship is not always a simple, straightforward task that a person should handle on their own. Instead, they may want to seek the advice or guidance of an attorney.
Here are more issues or problems a person should consider before filing for naturalization:
• Does the person meet the residency requirements, or were they outside the US for too long on too many occasions? For a person to be eligible for citizenship, the person should have lived in the US for a certain amount of time. For example, they could not have been outside the US on any single trip for one year or more, and the total time outside US, for all trips, should not have been more than 2-1/2 years. Many people treat their green card like a visitor’s visas, and stay outside the US for more than the allowable time. Some may even lie on the naturalization application, and put down they never left the US, or they do not disclose the full length of the trips, or back-date their arrivals/departures. However, USCIS checks with Customs and Border Protection (CBP), which has the actual records of persons’ entries and exits. If the person lied about their absences from the US, they could be denied naturalization, and possibly be stripped of their green card for having “abandoned” lawful permanent resident status.
• If a person obtained a green card through marriage, did they truly live under the same roof with the citizen spouse? When a person obtains a green card through a spousal petition, the law requires that the marriage should be “bona fide” (meaning it’s not fixed), and it is expected that the couple lived together. If the person obtained a green card through the marriage, and later applies for citizenship, they may be questioned (again) about the marriage, and whether they actually lived under the same roof with the US citizen. This is especially true when a person is trying to get the three-year citizenship, which is based on being married to a US citizen and still living under the same roof with the citizen at the time of applying for naturalization. Some people never lived with the American, but put down the same address. They were able to get their green card and later apply for naturalization. DHS now has sophisticated computer programs and records, where they can search a person’s residences going back almost 30 years. The DHS may not have had such records when the person obtained a green card, but now DHS’s database has much more information in it, and it could raise issues or problems about the marriage, which would be uncovered when they apply for citizenship.
• Does a person have a child who is eligible under the CSPA? There are cases that state a parent’s naturalizing after the child’s 21st birthday destroys the child’s age-out eligibility under the Child Status Protection Act (CSPA). It could be possible for a child to be eligible for a green card, despite aging out (or turning 21 years of age), based on a mathematical formula. Once that child qualifies under the CSPA, their age is “locked in” forever, and they will be eligible for green card even if they are far above 21 years of age – except if the parent naturalizes after the child’s 21st birthday, thereby destroying the child’s CSPA eligibility. There are published cases where a child qualified under the CSPA, but their immigrant parent naturalized after the child’s 21st birthday.
As you can see, there are so many issues that could come up in connection with a person’s eligibility for naturalization.
If you have any questions about your past, or eligibility for naturalization, you should definitely seek the advice of an attorney before filing for naturalization. This is because once you file, and USCIS digs into your past, you may have dug a hole for yourself.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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