Supreme Court Rules Citizenship Cannot be Rescinded Due to False Statements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. 

Social Networking Sites are viewed by USCIS

We want to remind our readers about an undated memorandum by U.S. Citizenship and Immigration Services (USCIS) regarding the importance of social networking sites (Facebook, MySpace, Google+, etc.) in fraud detection.  The memo talks about narcissistic tendencies amongst user of social network sites to have a large group of “friends” which may result in a user accepting cyber-friends that they don’t even know.  The memo encourages FDNS (Fraud Detection and National Security) officers to monitor social networking websites to observe the daily life of petitioners and beneficiaries who are suspected of fraudulent activities.

We wish to make our readers aware of the significance of posting personal details on social networking sites and would like to remind them to be extremely careful of their online postings – any online posting creates a public record and timeline of user activity.  It is extremely important to avoid making false claims or presenting information in a way that can be misunderstood/misrepresented by a FDNS officer. 

Though the purpose of the memo was to make FDNS officers aware of the significance of social networking sites for family based petitions, we would like to take the opportunity to remind our readers that they must also be mindful of their post (avoid making false claims or misrepresenting their professional achievements) on professional networking sites like LinkedIn.  Just like personal networking, it is important to be extremely important to be truthful about one’s professional life as the information posted in LinkedIn and other such sites can be used by the FDNS officer to cross check information appearing on the employment based petition like H-1B, L-1, etc.   

 

Recent USCIS Telephone Scams

U.S. Citizenship and Immigration Service (USCIS) in recent weeks have learned of a new telephone scam targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.

If you receive a call like that, USCIS urges you to say “No, thank you” and hang up immediately.

USCIS never asks for any form of payment or personal information over the phone. Do not give payment or personal information over the phone to anyone who claims to be a USCIS official. In general, we encourage you to protect your personal information and not to provide details about your immigration application in any public area.

 If you have been a victim of this telephone scam, please report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/, or report it to an appropriate state authority. (Visit www.uscis.gov/avoidscams for information on where to report scams in your state.)

DOMA Ruling and Immigration Benefits for Same-Sex Partners

With the overturn of Defense of Marriage Act (DOMA), same-sex partners of U.S. Citizens and permanent residents are now entitled to same immigration benefits that were earlier available only to opposite-sex couples.  Some of the notable immigration benefits that the same-sex partners are now eligible to includes: Fiancé Visa, Marriage Visa, Adjustment of Status, Immigrant Visa at a US Consulate, Dependent Visa like H-4, L-2, F-2, etc.

At a recent American Immigration Lawyers Association (AILA) conference, the USCIS Director Alejandro Mayorkas revealed that USCIS is working on guidance to address issues arising from applications requesting same-sex immigration benefits.  

We, at Sharma Law Offices, are honored to be helping same-sex couples and businesses that wish to avail of the same-sex immigration benefits.  Over the years, we have handled thousands of marriage-based and employment-based petitions and are excited to put our expertise to work on behalf of individuals and businesses seeking same-sex immigration benefits.