Supreme Court Rules Citizenship Cannot be Rescinded Due to False Statements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

Obtaining Waiver for Nonimmigrants

Nonimmigrants who are found ineligible for admission (inadmissible) for entry into the U.S. are permanently barred from entering or remaining in the U.S. Generally, an inadmissible individual can seek entrance on a temporary basis with an Immigration and Nationality Act (INA) §212(d)(3) nonimmigrant visa waiver. This waiver is available to foreign nationals who have been found inadmissible due to various reasons, including criminal convictions, medical grounds, and immigration violations. Eligible applicants can find the waiver useful if they can overcome the grounds of inadmissibility as listed in the INA (exceptions are related to foreign policy and association with Nazi persecutions).

Normally, the waiver is accompanied by a nonimmigrant visa (e.g. H-1B, L1, tourist visa, or student visa). An individual needing a nonimmigrant waiver will file the waiver request at the time of applying for a nonimmigrant visa at an U.S. embassy or consulate. If the consular officer supports the approval of the waiver, s/he would submit his/her recommendation along with the waiver request to the U.S. Customs and Border Protection (CBP) Admissibility Review Office (ARO). The ARO reviews the waiver recommendation and submits a response to the consular post.

If the consular officer does not recommend an applicant for a waiver, the applicant can still proceed with the submission and request the consular officer to forward the waiver application. The consular officer will submit the waiver along with his/her case summary to U.S. Department of State (DOS) Visa Office (VO). If the VO determines that the waiver should be granted, it will forward the waiver request to ARO for final adjudication.  It is noteworthy to remember that the consular officer may submit a recommendation to DOS against the waiver with a summary of reasons for the objection to a favorable grant of waiver.

If a nonimmigrant visa has been obtained or is not required, then the waiver can be applied at a U.S. port of entry. For waivers submitted directly to CBP, instead of submission through a consulate, Form I-192 Application for Advance Permission to Enter as a Nonimmigrant has to be completed. For cases involving U visas or T visas, the waiver can be applied through U.S. Citizenship and Immigration Services (USCIS).

It is at the immigration officers’ discretion to grant or deny the waiver application. However, there are three main factors that the officers will consider: (1) the risk of harm to society in admitting the applicant; (2) the seriousness of the acts that caused the inadmissibility; and (3) the importance of the applicant’s reason for seeking entry.  

Current processing times for waivers filed with a U.S. consulate is up to 90 to 180 days. For waivers submitted directly to the CBP, processing times can be up to 150 to 180 days. Please note that the processing times are estimates and actual processing times may vary depending on an individual’s case and/or ARO’s caseload.

Waivers are useful and an important solution for many individuals who are found inadmissible. However, filing the waiver application does not mean the waiver request will be granted; it is a complex, lengthy, and discretionary process. Feel free to contact our office to learn more about eligibility and submitting a §212(d)(3) nonimmigrant visa waiver.

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.

Multiple H-1B Petitions Filed for Same Beneficiary

Now that the H-1B cap season for fiscal year 2018 (FY18) is over, we are receiving inquiries from the employers and beneficiaries asking us if a foreign national may be a beneficiary of two or more cap-subject petitions.

United States Citizenship and Immigration Services (USCIS) has become increasingly strict on multiple H-1B petitions that are “identical” filed on behalf of the same beneficiary. In recent years, it has come to the attention of USCIS that in order to increase the foreign worker’s chance in lottery selection, different employers filed more than one H-1B cap-subject petitions for the same foreign worker with identical job title, job duties, and end-client. The law permits multiple H-1B filings for the same beneficiary, but the petitions cannot be filed by the same petitioner in the same cap year. In addition, the employers filing H-1B petitions for the same beneficiary cannot be related. If the petitioners are found to be related, such as a parent, subsidiary, or affiliated company, it is the petitioner’s burden to demonstrate that there is a “legitimate business need” for the multiple petitions and that the job positions, for which H-1Bs have been filed for, are distinct from one another. Such cases, however, receive higher scrutiny from USCIS.

We have read reports of USCIS issuing Notices of Intent to Deny (NOID) and Notices of Intent to Revoke (NOIR) for H-1B petitions that are “identical” filed for the same beneficiary. These notices list the similarities among the multiple petitions and essentially request for supporting documents, including proof that the employers are not related. If the employers are related, they must demonstrate that there is a distinct need for the position to fulfill’s the company’s business need. Please note that although federal employer identification number (FEIN) is a significant way to show that the employers are not related, USCIS can still conclude that the empoyers are working together to increase the beneficiary’s chance in the lottery. Should USCIS find that the evidence is insufficient or that the employers are not working in good faith, USCIS could deny all petitions filed on behalf of that beneficiary and/or revoke all prior H-1B approval the employers filed for the beneficiary.

It is important to note that there are situations that makes sense for the foreign worker to be the beneficiary of multiple H-1B petitions. The law permits this, but with the increasing demand for workers as the U.S. economy grows and the cap remaining the same, employers are finding ways to increase their petitions’ selection in the lottery, often through unlawful methods. Thus, USCIS has become more wary and places those petitions under greater scrutiny.

Under certain situations filing more than one cap-subject H-1B petition on behalf of the beneficiary is permissible. Feel free to contact us if you have questions about filing multiple cap-subject H-1B petitions on behalf of a beneficiary. 

Warrantless Searches by CBP at the Border and Port of Entry

U.S. Customs and Border Patrol (CBP) agents have the broad legal authority to conduct searches at the border and Port of Entry (POE). Unlike police officers who need search warrants, CBP can conduct searches “without individualized suspicion” as stated in CBP’s policy. U.S. citizens, lawful permanent residents, and visitors alike are subjected to CBP searches, including searches of electronic devices and social media accounts.

In light of heightened national security interests and border protection, the Supreme Court has upheld CBP’s right to conduct warrantless searches without any suspicion as “reasonable” and an exception to the 4th Amendment. In this digital age where cell phones, laptops, and other electronic devices, contain private information, including photos, contacts, and messages, the warrantless search is rather intrusive, particuarly when it is done without much justification by the CBP agent.

A secondary issue to the warrantless searches is CBP’s access to the individual’s social media accounts. CBP started collecting identifiers (search words) to view one’s public information in 2016. However, American Immigration Lawyers Association (AILA) reported that it has seen instances where CBP agents requested login information so they can view private messages. Homeland Security Secretary John F. Kelly said officials were considering a policy that would allow CBP agents to ask refugees and immigrants for their social media login information. 

Speaking to The New York Times, a CBP spokesman reported that CBP agents inspected 4,444 cellphones and 320 other electronic devices in 2015. The number rose to 23,000 in 2016. America Civil Liberties Union (ACLU) reported that it has seen an increase in the number of people who said their electronic devices have been searched.

One can refuse to consent to a search, but that does not stop CBP from forcing him/her to unlock the device, detain him/her until s/he consents, arrest the him/her, seize the device and release the person, or for nonimmigrants, refuse their admission into the U.S. There are ways to prepare before traveling. Suggestions from ACLU include:

  • traveling with as little data and as few devices as possible. The less you’re carrying, the less there is to search. Consider using a travel-only smartphone or laptop that doesn’t contain private or sensitive information. You could also ship your devices to yourself in advance. (Be aware that CBP claims the authority to search international packages so it is best to encrypt any devices that you ship.) Keep in mind that a forensic search of your device will unearth deleted items, metadata, and other files.  
  • encrypting devices with strong and unique passwordsand shut them down when crossing the border.  
  • storing sensitive data in a secure cloud-storage account. Don’t keep a copy of the data in your physical possession, and disable any apps that connect to cloud-based accounts where you store sensitive communications or files. (There’s no articulated CBP policy on whether agents may click on apps and search data stored in the cloud. While this kind of warrantless search should be well outside the government’s authority at the border, we don’t know how they view this issue.)  
  • uploading sensitive photos on your camera to your password-protected laptop or a cloud-storage account. Digital cameras don’t offer encrypted storage, so you should consider backing up your photos and deleting them from your camera and reformatting the camera’s memory card.

Rights available to Green Card Holders upon returning to the United States

As a Lawful Permanent Resident (LPR), also known as a Green Card holder, you are free to travel outside the United States without affecting your permanent resident status. U.S. Customs and Border Patrol (CBP) screens all travelers returning to the U.S. To determine abandonment, CBP would consider the length of time you were abroad, the frequency with which you travel, and whether abandonment is found based on the belief that you did not intend to make the U.S. your permanent residence. Considering the increase in border security, knowing your rights as a LPR is more vital than ever.

Like all other travelers, LPRs too are subject to inspection by CBP upon return to the U.S. CBP’s screening determines whether you are a “returning resident” or whether you are an “arriving alien” seeking admission to the U.S. CBP shall not regard you as an arriving alien unless you:

  • Have abandoned or renounced your LPR status;
  • Have been absent from the U.S. for more than 180 days in one period;
  • Have engaged in unlawful activity after leaving the U.S.;
  • Have departed the U.S. while under legal proceeding which seeks your removal as an alien from the U.S. (including removal proceedings under the INA and extradition proceedings);
  • Have committed a criminal offense under INA §212(a)(2), unless you were granted relief under INA §212(h) or §240A(a); or
  • Are attempting to enter at a time or place other than the one designated by immigration officers or have not been admitted to the U.S. after inspection and authorization by immigration officers.

If you are a LPR who is deemed to be seeking admission in the U.S., you can be charged as an arriving alien removable from the U.S. As such, your due process rights as a LPR entitles you to a hearing before an immigration judge. It is important to know that the only way you can be stripped of your LPR status is when an order of removal is issued by the immigration judge in which the government proves abandonment of LPR status by clear and convincing evidence. In other words, you cannot lose your LPR status simply because of extensive time spent outside the U.S.

If the CBP officer, at the Port of Entry, determines abandonment, s/he may try to urge you to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. However, your refusal to sign the form does not negatively impact your status. Upon your refusal to sign the Form I-407, the only action CBP can take is to issue you a Notice to Appear (NTA) for a hearing in front an immigration judge where the CBP will have to prove that you abandoned your residence due to a long stay outside the U.S.  In the worst-case scenario, even if you have signed the Form I-407, you still retain your right to request a hearing before the immigration judge to prove your intent to maintain permanent residence in the U.S.

In the new age of increased border security, it is important to know your rights as a LPR when traveling abroad. If you have any questions, we invite you to contact our office to receive consultation on traveling abroad.

Delays for H-4/EAD Applications Filed with Premium Processing H-1Bs

In light of the recent temporary suspension of premium processing for all H-1B petitions on April 3, 2017, U.S. Citizenship & Immigration Services (USCIS) has experienced an influx of H-1B petitions filed under premium processing service. As per the current estimates, USCIS received 50,000 premium processing applications in the last three days of March 2017. As our readers may know, H-4 & H-4 employment authorization document (EAD) applications can be submitted along with the H-1B petitions.  Due to the increase of premium processing applications filed in the limited time along with the concurrently filed H-4 & H-4 EAD applications, USCIS service centers received a large influx of applications in a relatively short period of time.

The Nebraska Service Center (NSC), which adjudicates all H-1B extensions containing no changes to the beneficiary’s terms of employment, has announced that in order to meet the premium processing timelines it will prioritize the H-1B petitions. The H-4 & H-4 EAD applications that were concurrently filed with the H-1B petitions will not be adjudicated along with the H-1B petitions at this time. Instead, the H-4 & H-4 EAD applications will be sent to a different team for review and the adjudication of H-4 & H-4 EAD applications is expected to take another a week or two after a decision has been made on the H-1B petitions.

NSC expects the delay to continue until the surge is over and anticipates to eventually resume adjudicating H-4 & H-4 EAD applications submitted concurrently with H-1B petitions. If no notice has been received by the end of April, applicants are adviced to contact the National Customer Service Center to place a Service Request.

If you have any questions on H-4 or H-4 EAD applications, feel free to contact our office.

Change in Authorized PERM Signatory at Audit

The Board of Alien Labor Certification Appeals (BALCA) recently reversed a Permanent Employment Certification (PERM) denial involving a change in the PERM application’s signatory at the time of an audit. The facts and legal issues of the case are summarized below based on public records. Please note that Sharma Law Offices, LLC did not represent the employer during any stage of the case. The purpose of this article is to inform our existing and potential clients and should not be taken in any way as legal advice.

An employer filed a Form ETA 9089, otherwise known as PERM application, listing the president of the company as the signatory. During an audit, the U.S. Department of Labor (DOL) requested an original signed copy of the Form ETA 9089. In response to the audit, the employer modified the Employer’s Declaration section to reflect a new signatory and submitted it with the audit response.

Upon reviewing the audit response, the DOL denied the PERM application concluding that the employer substantially failed to respond to the audit as the person signing the Form ETA 9089 had changed from the initial PERM application.

The employer filed a request for reconsideration of the denial with the DOL, specifying the authorized signatory had changed and that the new signatory had the case-specific knowledge to make the attestations on the PERM application. The DOL certifying officer (CO), however, interpreted the relevant regulation to require that such explanations can only be made at the time of responding to the audit and that the employer’s request for reconsideration and explanations could not be taken into consideration at the time of reconsideration. The employer refused to accept this DOL’s decision and appealed the denial to BALCA.

Upon reviewing the facts of the case, BALCA disagreed with the CO on the exclusion of the employer’s evidence and explanation at the time of request for reconsideration. BALCA held that if the circumstances of an audit do not alert the employer to the potential deficiency, and the evidence is not standard, the CO cannot block admission of evidence at reconsideration. BALCA found that the circumstances of the audit did not alert the employer to the fact that the change in signatory could be viewed as a deficiency and that it is not standard to provide an explanation for such changes. BALCA concluded that there was no reason for the employer to provide a copy of the Form ETA 9089 signed by the signatory listed in the initial PERM application. Accordingly, BALCA reversed the denial of the PERM and remanded it for certification.

Although the PERM application was certified eventually, it was delayed by a simple change of the authorized signatory. There is no “harmless” error in PERM filing. The smallest detail can be crucial in obtaining certification. It is important to have an experienced and dedicated attorney handle your PERM applications.

STEM OPT Rule Found Invalid

On August 12, 2015, the U.S. District Court for the District of Columbia issued a decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security vacating the Department of Homeland Security’s (DHS) 2008 rule which extends the duration of optional practical training (OPT) for eligible STEM students. However, the court stayed the effect of its ruling until February 12, 2016 – allowing DHS a 6-month window to remedy the defect the court found fatal to the 2008 rule as enacted.

By way of background, in 2008, DHS promulgated the regulation at issue which extended the period of OPT by 17 months for F-1 foreign nationals with a qualifying STEM degree. Prior to the 2008 regulation, a foreign national F-1 student could only be authorized for 12 months of OPT, which had to be completed within 14 months following the student’s completion of h/her course of study. Accordingly, the 2008 rule allowed F-1 STEM students to engage in a maximum 29 months of OPT.

Broadly stated, the Washington Alliance of Technology Workers (an association representing U.S. STEM workers) challenged the validity of the 2008 rule alleging it impermissibly circumvented H-1B caps by authorizing foreign nationals to work in STEM fields without complying with the labor certification and prevailing wage requirements of the H-1B program.

In addressing this claim, the court found DHS was within its discretionary authority delegated by Congress under the Immigration and Nationality Act (INA) to allow foreign students to engage in employment for practical training purposes. Therefore, the DHS reasonably interpreted the operative provisions of the INA in forming the 2008 OPT STEM rule.

However, in vacating the 2008 rule, the court determined DHS erred in issuing the rule without the requisite notice or public comment period(s) normally required of a federal executive branch agency (unless impracticable, unnecessary, or contrary to the public interest) before enacting such a regulation.

In so finding, the court found unpersuasive DHS’ argument that it was necessary to issue the rule without the inherent delay of notice and comment in order to forestall a national fiscal emergency occasioned by F-1 students (in expiring OPT status) being forced to leave the U.S. but for the 17 month extension.

Fortunately, the court recognized immediate annulment of the 2008 rule would cause a substantial hardship for foreign students and a major labor disruption for the tech sector. Therefore, the court stayed the effect of its order until February 12, 2016, so that DHS can submit the 2008 rule for proper notice and comment.   

Do not hesitate to contact Sharma Law Offices if you have any questions regarding your status as it relates to STEM OPT and this important decision. We will continue to monitor DHS’ response to the decision in the coming months.