Understanding Your Status: Lawful Status, Period of Authorized Stay, & Lawful Presence

A foreign national’s legal status at the time of a change, extension, or adjustment of status can influence the outcome of an immigration matter. An error in maintaining legal status may prevent the foreign national from receiving the desired immigration benefits. It is important to understand your current legal status and how it may determine your chances for change, extension, or adjustment of status.

 Lawful Nonimmigrant Status

Foreign nationals in lawful nonimmigrant status possess an unexpired arrival/ departure form (I-94) issued by the U.S. Citizenship and Immigration Service (USCIS) or U.S. Customs and Border Protection (CBP). A valid I-94 by itself does not grant a valid status. Foreign nationals must also maintain lawful status by adhering to guidelines set by their visa classification. For example, H-1B visa holders must maintain employment with their petitioning employer during the period of I-94 validity. Failure to satisfy visa regulations will result in a loss of lawful nonimmigrant status.

Period of Authorized Stay

If an application to request change or extend status is filed on behalf of an foreign national before his/her status expires, the foreign national may be in a “period of stay authorized by the Attorney General.” A good example of this would be where a petition to extend the H-1B is filed on behalf of the foreign national before his/her I-94 expires and the petition remains pending with the USCIS awaiting adjudication, after the expiration of the I-94. 

A nonimmigrant maintains a period of authorized stay as long as the application is still pending a decision even though, under certain circumstances, they may fall out of status. If the USCIS eventually approves the pending application or petition for extension or change of status, the foreign national retroactively transitions into status.

Similarly, those with a pending application for adjustment of status without the underling non-immigrant status are generally in period of authorized stay while the application for adjustment of status is pending with the USCIS.

Out of Status & Unlawful Presence

Foreign nationals not in period of authorized stay or not maintaining lawful nonimmigrant status are considered unlawfully present in the U.S and maybe out of status. A good example of unlawful presence would be a scenario where a foreign national with an expired I-94 card continues to be present in the U.S. Such a foreign national would accrue unlawful presence from the date their I-94 expired, and would be subject to re-entry bar after departing the U.S. Unlawful presence for a period longer than 180 day will result in three-year ban from the U.S. If the person was unlawfully present for a period of one year or more, then the person is banned from the U.S. for a period of ten years. It is important to understand the subtle distinction between out of status and unlawful presence. A person with a valid I-94 who fails to maintain his/her status is out of status through not unlawfully present in the U.S. (hence not accruing the unlawful presence inadmissibility bar). However, it would be hard for them to obtain future immigration or visa benefits.

For foreign nationals with a timely filed application or petition for extension, change, or adjustment of status, the unlawful presence begins on the denial date. Foreign nationals who are out of status or unlawfully present, are subject to removal from the U.S.

Conclusion

 It is imperative to understand your status before applying for extended stay or adjustment of status. The complexities between lawful status, out of status, period of authorized stay, and unlawful presence greatly impact the immigration process. If you have any question regarding your legal status, feel free to contact our office to schedule a consultation.

FOIA Request to Resolve Immigration Issues

The Freedom of Information Act (FOIA) gives any person the right to request access to records and documents from government agencies. Individuals with pending immigration cases can make a request under the FOIA for important records held by U.S. Department of State (DOS), Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS), and others. Obtaining records through FOIA may assist in providing the necessary documentation to resolve a pending immigration case.

Helpful for Your Case

Over the years, copies of important records and documents are lost or damaged. A FOIA request can help restore lost copies and provide evidence of immigration history, which is necessary for status renewal or adjustment of status. Those seeking records may also benefit from obtaining access to materials of adjudication from previous cases (like notes from USCIS officers). Accessing these materials may aid in expediting pending or future immigration cases.

How to Make a FOIA Request

There are a variety of ways to request documents under FOIA, however the process may be difficult to navigate. Each request for an immigration document is filed through the agency designated to that particular record. For example, one must request an A-file (alien file) through USCIS by submitting a Form G-639, while CBP processes requests for I-94 records. It may take a long time before a request is processed. A high-volume request may take longer to process than a more directed request that require only a few documents, so the timeline of each request varies drastically.

Records NOT Covered Under FOIA

The Freedom of Information/ Privacy Act does not allow for complete access to all documents held by government agencies. FOIA contains 9 exceptions that include protections of individual privacy, national security, and trade secrets. If an immigration case is currently under investigation by a federal agency, like the FBI, the documents and records will not be public under FOIA.

Conclusion

It is crucial to possess required records and documents for your immigration case. FOIA facilitates freedoms of information, but in a complex and convoluted manner. It can be difficult to know which documents you need, and from what federal agencies. Sharma Law Offices can assist you with navigating your FOIA request for records.

 

Citizenship for Foreign Born Children of U.S. Citizen(s)

Children born abroad to U.S. citizens are not automatically entitled to citizenship. If a child is born abroad, the legal citizenship status of one or both of their genetic parents determines the child’s entitlement for U.S. citizenship. Additionally, whether or not the child’s parents were married at the time of the child’s birth impacts the level of documentation required to acquire citizenship for the child.

Under the guidelines of section 301(c) of the INA, a child born outside of the United States to married U.S. citizen parents qualifies for citizenship if the parents were legally married prior to the child’s birth. If both citizens are deemed the legal parents of the child during or before the time of birth, the child qualifies for citizenship.

For children born abroad to married parents (of which only one parent is a citizen) the child’s parent must have lived in the United States for a period longer than five years, two of which occurred after the age of fourteen. If the child was born between December 24, 1952 and November 14, 1986, stricter guidelines apply regarding the acceptable citizenship of the single citizen parent.

Children who are born out of wedlock, or born to parents who are not married at the time of the child’s birth, are classified under separate guidelines. A child born out of wedlock to a U.S. citizen mother is considered a citizen if the mother resided in the U.S. for over a year before the child’s birth.

If a child is born abroad to a U.S. citizen father and non-citizen mother, who are not legally married at the time of birth, the father is required to provide “clear evidence” of his relationship to the child. Section 309 (a) lists requirements for both proof of a blood relationship to the child and a written agreement of financial support for the child. To acquire citizenship for the child born out of wedlock, the U.S. citizen father must also provide proof of a relationship before the child turns 18.

Rules governing citizenship is complex and needs careful research and understanding. Those with questions about Citizenship for their Foreign Born Children should discuss it with qualified immigration attorney. 

Supreme Court Rules Citizenship Cannot be Rescinded Due to False Statements

Can a naturalized citizen have her citizenship revoked for making an immaterial false statement in her naturalization application? On June 22, 2017 the Supreme Court in Maslenjak v. United States decided that to rescind one’s citizenship due to false statement made during the immigration process, the statement has to be material. In other words, “the false statement so altered the naturalization process as to have influenced an award of citizenship.”

Divna Maslenjak sought refugee status in 1998 after a civil war broke out in Bosnia. In her immigration interview, Maslenjak testified that she feared of persecution from the Muslims due to her ethnicity and from the Serbs because her husband evaded service in the Bosnian Serb Army. Years later when Maslenjak applied for citizenship, she swore that she never made a false statement to gain immigration benefit or gain entry into the U.S. After she acquired citizenship in 2007, it was discovered that she did indeed provide false statement to a government official about her husband who had served as an officer in the Bosnian Serb Army during the war years.

In the lawsuit, the parties agreed that it is a crime to commit illegal act in connection with naturalization under 18 U.S.C. 1425(a). §1425(a) states that to secure a conviction, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. The dispute lies in the nature of that connection. Maslenjak argues that the relationship must be causal. It is only a crime if the act contributed to her acquiring citizenship. The government argues a chronological relationship in which a crime is found when the act occurred during the naturalization process.

In district court, the jury was instructed to determine conviction based on whether Maslenjak made a false statement even if the statement did not affect the decision to approve her citizenship. The jury found her guilty and Maslenjak was stripped of her citizenship. The U.S. Court of Appeals for the Sixth Circuit upheld the jury instructions and affirmed the district court’s decision.

The Supreme Court in a unanimous ruling vacated the Sixth Circuit’s judgment. The Court determined that statute §1425(a) strips a person of his/her citizenship when that illegal act contributed to his/her naturalization, not when s/he committed a crime during the naturalization process. In such cases, as the Court concluded, the jury should be instructed to decide on whether the false statement influenced the award of citizenship in a single, significant way. The jury must assess how a reasonable government official is influenced in his application of the naturalization law by the set of facts.

The Supreme Court by its decision made it harder to strip naturalized Americans of their citizenship.  The decision in Maslenjak does not give a blank check to applicants to lie on their naturalization applications, but does provide some relief to those who undergo denaturalization by placing the burden on the Government to prove materiality.

Expedited Naturalization for Spouses of U.S. Citizens Working Abroad

A spouse of a U.S. citizen must meet certain requirements in order to be eligible for naturalization, including residing in the U.S. for at least three years, be physically present for half of that time, and not be abroad for more than six months at a time. The exception to these requirements is Section 319(b) of the Immigration and Nationality Act (INA).

Section 319(b) allows the spouse of a U.S. citizen to apply for citizenship expeditiously if the citizen spouse is “regularly stationed abroad” in a qualifying overseas employment. “Regularly stationed abroad” does not necessarily mean permanent assignment on the part of the citizen spouse. However, the assignment cannot be short and/or casual. In addition, the citizen spouse is allowed to be in the U.S. during his/her spouse’s expedited naturalization as long as the citizen spouse is departing abroad not less than a year from then.

The provision of expedited naturalization accelerates the process for the non-citizen spouses because it waives the residence and physical presence requirements. This means that the non-citizen spouse does not need to reside in the U.S. continuously for three years. However, the non-citizen spouse must be a lawful permanent resident (LPR) during the time of filing the Form N-400, Application for Naturalization. Form N-400 can also be filed overseas with the Service Center and the Service Center will schedule the biometrics at the appropriate U.S. consulate overseas. However, the non-citizen spouse must travel back to the U.S. for the interview and provide supporting evidence of his/her relationship with the citizen spouse.

In addition to these requirements, the non-citizen spouse at the time of filing:

  • Must be a spouse of the U.S. citizen up until the time he/she takes the Oath of Allegiance;
  • Show intent to reside abroad with his/her U.S. citizen spouse within 30 to 45 days after naturalization;
  • Show intent to reside in the U.S. after the U.S. citizen spouse’s employment abroad ends;
  • Meet other basis requirements for naturalization like understand basic English (e.g. read, write, and speak); and
  • Be of good moral character, among other criteria;

Applying for expedited naturalization is complicated and at times can be a time-consuming process, especially for those whose naturalization interview will occur any time after the 90-day window opens to file a petition to remove the conditions of residence. Such applicants are encouraged to file the petition for removal of conditions of residence as soon as possible to avoid delays in naturalization since USCIS will adjudicate the naturalization application in conjunction with the petition for removal of conditions.  Failing to file petition for removal of conditions will lead to the applicant losing his/her LPR status without which an applicant is not eligible for naturalization.

Feel free to contact our team to learn more about obtaining citizenship through this provision, including learning more about what the qualifying employment is and the complete criteria for eligibility to apply for expedited naturalization.

Children of Naturalized U.S. Citizens (Derivative Citizenship)

In order to be eligible to apply for citizenship, an individual must be at least 18 years. What, then, happens to children under 18 years? Since their age (being under 18) disqualifies them to apply for citizenship, in many cases minor children who are lawful permanent residents automatically become citizens when either one of their parents are naturalized. The law establishing this derivative citizenship are protected in the Child Citizenship Act of 2000 (CCA). CCA laid out three requirements children under 18 years old must meet in order to obtain U.S. citizenship and applies to both biological children and adopted children.

In order for a minor child to derive citizenship, the child must:

  • Hold lawful permanent resident status (“green card” holder);
  • Have at least one parent who is a U.S. citizen, either by birth or naturalization; and
  • Reside in the U.S. in the legal cutody of at least one U.S. citizen parent.

A minor child automatically derives his U.S. citizenship upon meeting the requirements listed above and is eligible to apply for a U.S. passport.  However, based on the feedback that we receive from our clients, we advice them to obtain official documentation of U.S. citizenship to avoid complications down the road. Generally this is done by obtaining a certification of citizenship from the USCIS. 

Derivate citizenship at times can be very complicated and it is best to let a qualifiied immigration attorney handle it.  For further clarifications and/or to get answers on obtaining citizenship for a child or other situations, feel free to contact us.

DOJ and DOE push for enforcement of educational equality

Often, immigrants with school-aged children and questionable legal status may be fearful of enrolling their children in public school, as they lack awareness of the mandated law concerning the basic right of all children residing in the US the opportunity to attend elementary and secondary level public schools, regardless of their immigration status.

Federal, state, and local law mandate that educational agencies provide all children with equal access to public education, regardless of race, color, national origin, perceived citizenship or immigration status. The specific laws which prohibit discrimination based on these specific factors were enacted through numerous statutes, including Titles IV and VI of the Civil Rights Act of 1964, as well as the landmark case Plyler v. Doe, 457 U.S. 202 (1982), which was upheld by the US Supreme Court, and says that a State may not deny access to basic public education to any child residing in the State, whether present in the US legally or otherwise. In other words, the undocumented or non-citizen status of a student (or his or her parent) holds no relevance to that student’s entitlement to an elementary or secondary public education.

A recent press release by the Department of Justice (DOJ) not only serves as a reminder that it is in fact unlawful to discriminate against any student enrolled in an elementary or secondary level public school, but also provides assistance to public schools to ensure that the administration both understands the law and dutifully enforces it correctly.

Some of the permissible enrollment practices are as follows:

  • Although a district may require proof residency for the student (i.e. gas bill, lease), the district may not inquire into the student/parent/guardian citizenship or immigration status;
  • While it is acceptable for the district to ask for a birth certificate, the school cannot bar a student from enrollment because he or she lacks a birth certificate or has birth records indicating a foreign place of birth;
  • Federal law may obligate a school district to report certain data such as race and ethnicity, however this data may not be used as a reason for denial of a student’s enrollment;
  • Many districts also require Social Security numbers for enrollment, however, again, districts cannot deny a student enrollment based on the lack of a Social Security number;

Law is mandated for a reason, to protect the civil rights of people, barring discrimination. We at Sharma Law feel that it is important that those migrating to the US feel a sense of security that their children will not be affected in terms of their education, as they too are protected under the laws of the US.

USCIS to Accept Only New Version of Form N-400 Beginning May 5

U.S. Citizenship and Immigration Services (USCIS) has announced that beginning May 5th, 2014 only the updated edition of current Form N-400, Application for Naturalization, dated September 13th, 2013, will be accepted. Naturalization applications submitted after May 5th using the previous versions of the form would be rejected and returned.

As reported in our previous article, USCIS Releases Revised Naturalization (Citizenship) Form, the form required to apply for naturalization has changed though naturalization eligibility requirements have not. The new Form N-400 has clearer instructions, enhanced 2D barcode technology, a better user-friendly look and feel.

The updated form is available online at www.uscis.gov/n-400.

USCIS Releases Revised Naturalization (Citizenship) Form

The United States Citizenship & Immigration Service (USCIS) has revised the Form N-400, Application for Naturalization.  The new version of the Form N-400 is now available on the USCIS website.  USCIS will accept certain editions of the old naturalization form until Friday, May 2, 2014 but starting May 5, 2014, USCIS will only accept the current edition.

The new version of the form incorporates 2D Barcode Technology.  Applicants completing the new version of the form on a computer will automatically have their entered data captured using this technology.  Upon receipt of the form, USCIS will decode the information from the barcode and will extract the data from the form.  This new technology will improve data quality and will reduce errors.  To avail benefit of this new technology USCIS encourages applicants to fill the form electronically.  USCIS also requests to avoid damaging the 2D barcode by actions like writing on it, puncturing it, stapling it, etc. 

The revision to the form is expected to benefit both the adjudicators and the applicants.  The revised form makes it easier for the adjudicators to determine applicant’s eligibility while at the same time presenting applicants with clearer instructions on how to complete the form to determine their eligibility.  This new version of the form also includes additional questions regarding applicant’s eligibility related to national security and good moral character.

The USCIS has also released a short video that highlights changes to the form and provides helpful hints for completing it.  One of the highlights of the new form is the fact that it no longer requires applicants to list all trips outside the U.S. since they became Lawful Permanent Resident – the new form only requests for all trips that the applicant has taken outside the United States during the last five years.   While the applicants will have to spend more time to complete the new longer N-400, we feel the new form will, at the same time, make it easier to complete it as it now contains a clearer and more comprehensive instruction that highlights general eligibility requirements. 

Instructions for Rescheduling ASC Appointment

Upon receiving an application for an immigration benefit, the USCIS notifies the applicant to appear at the nearest Application Support Center (ASC) to provide it with the biometrics information. Though there is no specific timeframe for scheduling of the biometrics appointment, most biometrics appointments are scheduled within 30-90 days of filing of application.

It is important that the applicant makes every effort to keep the appointment else the case may be delayed. Additionally, non-appearance may also impact the applicant’s qualification for benefits thereby leading to denial of the application or petition. In the event the applicant is unable to attend the scheduled appointment, it is the applicant’s responsibility to reschedule it.

USCIS recently clarified that in order to reschedule a fingerprint appointment, the request must be submitted to the following address: BPU, Alexandria ASC, Suite 100, 8850 Richmond Hwy, Alexandria, VA 22309-1586. 

Along with the request for rescheduling, the applicant must submit the original fingerprint appointment notice to the address listed above.  We advise our readers to submit the request via traceable delivery method and to save a copy of the mailed request and original notice.

Alternatively, the applicant can call the USCIS National Customer Service Center’s (NCSC) 1-800 Number (appearing at the bottom of the appointment notice) to reschedule the appointment, which then will get routed to the appropriate service center.