The Importance of Maintaining Your Lawful Permanent Residence (LPR) Status

Lawful immigrants work hard and wait for years to obtain a lawful permanent residence (LPR) status or a green-card.  Many, however, forget the important requirement of maintaining their lawful permanent residence status on obtaining the long-awaited green-card.  This article discusses the factors that can be viewed by U.S. Customs and Border Protection officers (CBP) as abandonment of LPR status and provides pointers on how to preserve your green-card.

In today’s globalized economy many immigrants, after receiving a green card, decide to take up career opportunities abroad on a short-term basis or decide to return to their home country for a few years to take care of their ailing parents.  Whether you have obtained a green card through employment or a family, it is essential to understand the factors that may lead to a determination of abandonment of LPR status.

Some green card holders incorrectly believe that as long as they enter the United States within a 12-month period they will not be at risk of losing their green-card. Although it is generally true that a green-card can be presented at the port-entry after a temporary absence abroad, not exceeding 12 months, it is not an absolute rule. So, the fact that a green-card holder enters the United States each year, within the 12 month-period from the last departure, may not be sufficient and s/he could still be found to have abandoned his or her LPR status. On the other hand, a green-card holder who lives outside the United States for over a year is not regarded as automatically abandoning his or her green-card either.

This may sound very confusing but in essence whether one has abandoned his or her LPR status or green-card turns on “intent” of the green-card holder rather than solely on length of time outside the United States. To determine abandonment, officials consider factors such as reasons for extended or frequent absences from the United States; family or property ties abroad; business ties abroad; conduct while outside of the United States, such as voting in foreign elections; and failure to file U.S. Income tax returns. Intent of the LPR is a key factor and the courts will look at whether the LPR had intent to return to the United States as a home or place of employment.

Based on case law, green-card holders that have taken up permanent residency or citizenship in another country or green-card holders that have taken up employment or been long-term students outside the United States have not had positive results. On the other hand the courts have been more understanding to green-card holders who needed to remain overseas with family members who were under political threat and to those that needed to care for their terminally ill family members.

If you, as a green-card holder, plan to take a lengthy trip remain outside the United States it is prudent to seek advice from an experienced immigration attorney and to plan preservation of your green-card. Filing for a re-entry permit before your departure from the United States, is one such option. Although, a re-entry permit does not guarantee your return in to the United States, it is always a good idea to get it, whether or not you intend to remain outside the United States for longer than a year as it minimizes the risk of aggressive questioning at the port of entry and indicates to CBP that your trip abroad was of temporary nature and you had an intent to return to the United States at the end of your stay abroad.

In addition, it is fitting to mention here that if you as a LPR or green-card holder intend to live or work outside the United States for an extended period and your ultimate goal is to naturalize and become a U.S. Citizen, you should also seek legal advice on the impact it can have on your eligibility for naturalization.  LPRs who stay away from the United States for extended periods also run the risk of being disqualified from naturalization.

Is a Green-card Holder Spouse’s Right to Obtain Citizenship after a Divorce Jeopardized?

This article provides basic information about how a divorce can affect a spouse’s citizenship or naturalization application where a green-card holder spouse (an immigrant spouse),  marries a US citizen (USC) and has received his/her green card/permanent residency through marriage. So where an immigrant spouse is contemplating divorce or has obtained a divorce decree it is important to understand the consequences of  a divorce on a naturalization/citizenship application.

Assuming, that the marriage was not a sham or for fraudulent purposes, divorce does not adversely affect a spouse’s immigration status after the immigrant spouse has obtained an unconditional green card or permanent residence and in such instances a divorce will not invalidate the green card or cause the U.S. Citizenship and Immigration Services (USCIS) to deny a citizenship application automatically. More importantly, the sponsoring USC spouse cannot take the right away or attempt to revoke the green card from the immigrant spouse.

A divorce, however, may pose doubts and require the divorced immigrant spouse seeking to obtain U.S. Citizenship to reassure the USCIS interviewing officer that the marriage was not a sham. A good way to prove that your marriage was genuine is to take copies and originals of documents that show that you and your ex-spouse lived together, had joint bank accounts, and shared important and memorable moments during your time together. Examples of documents include, home title or rent receipts or home lease in both names, joint bank account statements, credit card statements, photographs of both spouses on vacation, birth certificates of children born during the marriage, etc.

Also, a divorce can delay an immigrant spouse’s right to obtain citizenship. For instance, a divorced immigrant spouse who was married to a U.S. citizen will not be able to take advantage of the short three year residency requirement, if the spouse is not married to the U.S. citizen for at least three years before the naturalization exam date. In essence, if the immigrant spouse divorces the U.S. citizen spouse before three years of marriage have passed, then s/he will have to wait until the normal five year residency requirement has elapsed before s/he is eligible to apply to become a naturalized U.S. Citizen and cannot take advantage of the three year residency requirement.

Depending on each individual’s personal circumstances, the immigration consequences can be varied and it is therefore recommended that you consult with a qualified immigration attorney to discuss your options and strategize before making a hasty decision.

Next month, I will address the implications of a divorce where a spouse has not yet obtained a green card or is in process of obtaining a green card, as a result of the marriage, and instances where a spouse has a conditional green card.

Reproduced from Lokvani where the article written by our attorney, Hanishi T. Ali, was originally published http://www.lokvani.com/lokvani/article.php?article_id=6239

New Filing Address for Naturalization Applicants (N-400)

The United States Citizenship and Immigration Services (USCIS) announced on December 17, 2009 that all applications for Naturalization (Form N-400) are to be filed at new USCIS Lockbox facilities in Phoenix and Dallas and that the change in filing address takes effect immediately.

N-400 naturalization applicants who live in Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennesee, Texas, Vermont, Virginia, West Virginia, Puerto Rico, or the U.S. Virgin Islands are to file their N-400 applications by regular mail with the USCIS Dallas Lockbox at:

USCIS
P.O. Box 660060
Dallas, TX 75266

Express Mail and Courier deliveries (which I highly recommend) must send their N-400 application to:
USCIS
ATTN: N-400
2501 S. State Hwy. 121 Business
Suite 400
Lewisville, TX 75067

N-400 naturalization applicants who live in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, or the Commonwealth of Northern Mariana Islands are to file their N-400 applications by regular mail with the USCIS Phoenix Lockbox at:

USCIS
PO Box 21251
Phoenix, AZ 85036

For Express Mail and Courier deliveries the N-400 must be sent to:
USCIS
ATTN: N-400
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034

New Naturalization Test Now Fully Implemented

Up until Oct. 1, 2009, applicants who had filed for naturalization before Oct. 1, 2008, had a choice of taking the old test or the new test.  Beginning Oct. 1, 2009, however, all citizenship applicants must take the new naturalization test, regardless of when they filed their Application for Naturalization (Form N-400).

Once an applicant has completed and submitted the Form N-400, Application for Naturalization, and an applicant has had  his or her fingerprints taken at a U.S. Citizenship and Immigration Services (USCIS) facility, s/he will receive an appointment for an interview. At the naturalization interview, the applicant will be required to answer questions about his/her application and background. The applicant will also take an English and civics test unless s/he qualify for an exemption or waiver.

Applicants are given two opportunities to take the English and civics tests and to answer all questions relating to their naturalization application in English.  If an applicant fails any portion of the test (English or civics) s/he will be given another opportunity to attempt the failed portion between 60 and 90 days from the date of his/her initial interview.

At present the overall pass rate for the new test is 91 percent. For a naturalization self test study tool click here.

To Naturalize or Not to Naturalize? Part II

This is the Part- 2 of last month’s article on Naturalization (http://iswonline.org/eSandesh/CommunityOrgs.htm).  This article discusses the requirements for naturalization in more depth, in particular, the two primary residence requirements which can be very complicated depending on your individual situation, and involve analysis of whether you have abandoned your residence, and whether you are eligible for citizenship, and what, if any, steps can be taken to reduce any negative impact of time spent abroad.

Residence requirements:

Residence requirements can be confusing and applicants must give careful attention to satisfying these requirements when applying for naturalization.  In general, in order to apply for naturalization, an applicant will have be a Legal Permanent Resident (LPR) for at least 5 years. The period is reduced to 3 years, if your spouse has been a U.S. Citizen for the last three years and you have lived with your spouse during that time. An applicant can speed up the whole process by filing their application for naturalization 90 days prior to the five-year or three-year mark.

Below, is a summary of the residence requirements, but it cannot replace the value of an individual consult with an experienced attorney who is able conduct a complete analysis based on an applicant’s individual circumstances.

1. Continuous Residence:

The applicant must reside in the United States as a LPR for five years and must have been under the jurisdiction of the USCIS district or state where he or she files the petition for at least 3 months. A continuity of residence must be maintained and an evaluation of continuity revolves around the amount of time an applicant has spent on each trip outside the United States.  Typically tips of less than six months outside the United States will not lead to a break in continuity of residence, but any departures lasting more than a year will automatically result in a break of continuity of residence, for naturalization purposes. Equally, important to note is that a failure to file federal income taxes because an applicant believed him/herself to be a non-resident of the United States leads to the presumption that continuous residence has not been established.  Extended absences from the United States caused by unforeseen circumstances such as an illness or natural disaster, are exceptions to the rule and will not lead to finding of abandonment of residence.  Some of the other exceptions to rule in establishing continuous residence are: U.S. armed forces personnel sent abroad on military orders, employees of the U.S. Government, and employees of certain public international organizations.

2. Physical Presence: This is a confusing area of law and the physical presence requirement is distinct and in addition to the continuous residence requirement discussed above. The physical presence residence requirement mandates an applicant to have been physically present in the United States for at least half of the requisite period of lawful permanent residence necessary to qualify for naturalization. Therefore, spouses of a U.S. Citizen must demonstrate that they have been physically present in the United States for at least 18 months (i.e. half of the three year period). All other applicants must demonstrate at least 30 months physical presence in the United States (i.e. half of the five year period). Thus, an applicant will have to calculate the exact time spent outside the United States by reviewing his/her passport and determining exit and entry dates stamped on the passport. If the total number of days required for physical presence has not yet accrued, it is suggested that an applicant wait long enough to meet the eligibility requirement before applying.

Reproduced from the Indian Society of Worcester’s newsletter where the article written by our attorney , Hanishi T. Ali, was orignally published: http://iswonline.org/eSandesh/CommunityOrgs.htm

National Name Check Backlog Eliminated

The U.S. Citizenship and Immigration Services (USCIS) has announced elimination of FBI National Name Check Program backlog. USCIS Acting Deputy Director Michael Aytes said, “Our close partnership with the FBI has resulted in the accomplishment of this significant achievement with national security as its foundation.”

This means that there will be no backlog for most name check requests and that 98 percent of name check requests submitted by the USCIS to the FBI will be completed within 30 days and the remaining 2 percent within 90 days.

Next steps in the adjudication of cases that were previously delayed as a result a pending FBI name check request may now include updating fingerprint results, scheduling interviews, requesting additional evidence and other reviews to determine whether the applicant is eligible for the requested immigration benefit.

To Naturalize or Not to Naturalize?

This article provides basic information about the Naturalization process. Whether to naturalize or not is an intensely personal one with many important considerations. For many naturalization is an emotional decision — for some the summit of a successful immigration process and for some the end of the last formal bond with their country of origin.  There are also many practical considerations.  Naturalization may limit ability to own property in their home land and yet others may risk deportation from the United States as result of a naturalization application. The decision, therefore, to acquire naturalization by choice requires careful analysis and consideration and you may want to discuss naturalization with an experienced attorney who can help you decide if naturalization is right for you, and, if necessary, successfully help you through the process.

What is Naturalization?

Naturalization is a process which a lawful permanent resident (a “green card holder”) in the United States is granted US Citizenship and this process culminates into adopting a new homeland and renunciation of your original citizenship.

Who can naturalize?

A person who has become a lawful permanent resident (a “green card” holder) in the United States, and is over 18 years of age, seeking to become a United States citizen can naturalize.  The process is started by filing form N-400.

Whether to Naturalize?

First, assess your own circumstances, and consider whether becoming a US Citizen makes sense and whether it will provide you advantages.  Common privileges include visa-free travel to many countries, including Canada, minor children deriving US Citizenship through you if you naturalize, being able to vote for government officials, right to sit on the jury, rights to sponsor relatives for permanent residence, the ability to apply for federal jobs, and the entitlement to full protection of the US laws. The potential disadvantages are loss of other citizenship(s), and restrictions regarding ownership of property in one’s home country,

Second, research your home country’s citizenship laws to find out whether dual citizenship is allowed or whether it will cause you to lose your current nationality. For instance, India does not allow dual citizenship and you will have to have your Indian passport cancelled after you acquire US citizenship.  You may, however, choose to acquire the  Overseas Citizenship of India (OCI) card or the Persons of Indian Origin (PIO) card that allows certain privileges, including visa-free travel to India, and exemption from registration with local police authority, to name a few.

Basic Requirements for Naturalization:

a. Residence requirement:

In order to apply for naturalization, you normally must have resided in the United States as a legal permanent resident for five year s and have been under the jurisdiction of the USCIS director or state where you file the petition for at least 3 months.  You can apply within 3 years for naturalization if your spouse has been a United States citizen for the last three years, and you lived with your spouse during that time.   Naturalization applications can be sent in up to 90 days before the three or five year mark is reached.  The two primary residence requirements can be very complicated depending on evaluation of your residence in the naturalization context.

b. Good moral character:

To qualify for naturalization, all applicants must demonstrate their good moral character during the three or five year period of residence required for your application. Some of the bars to good moral character, include, criminal convictions, trafficking in controlled substances, false testimony to USCIS, failure to pay child support, failure to pay income tax, fraudulent use of public benefits, etc.

c. Speaking, Reading and Writing English:

Applicants must speak, read, and write English.  Typically during naturalization interviews, an applicant is required to understand the questions asked by USCIS examiner and converse with the examiner, as well as, be able to write out a sentence and read a paragraph.  There are certain exceptions for applicants over fifty years of age or for those who cannot comply due to a physical, developmental, or mental disability.

d. US History and Government Test:

All applicants must demonstrate knowledge of the fundamentals of United States  history and government. The recently revised test places an emphasis on the fundamental concepts of American democracy and the rights and responsibilities of citizenship. For a list of 100 test questions see: http://tinyurl.com/57sarh. If an applicant does not pass at the initial interview, the officer will schedule a second interview within 90 days.

Reproduced from the Indian Society of Worcester’s newsletter where the article written by our attorney , Hanishi T. Ali, was oringally published: http://www.iswonline.org/eSandesh/CommunityOrgs.htm

Can a Divorce after Issuance of a Green-card affect a Divorced Spouse’s Right to Obtain U.S. Citizenship?

In bad economic times, divorce rates increase dramatically as money issues drive couples apart and many spouses who receive their green-card/permanent residency through marriage to a U.S. Citizen or permanent resident worry that a later divorce may affect their citizenship or naturalization application.

Assuming, that the marriage was not a sham or for fraudulent purposes, divorce does not adversely affect a spouse’s immigration status after the spouse obtains a green card or permanent residence unconditionally and a divorce will not invalidate the green card or cause the U.S. Citizenship and Immigration Services (USCIS) to deny a citizenship application automatically.

Divorce may however pose doubts and require the divorced spouse seeking to obtain U.S. Citizenship to reassure the USCIS interviewing officer that the marriage was not a sham. A good way to prove that your marriage was genuine is to take copies and originals of documents that show that you and your ex-spouse lived together, had joint bank accounts, and shared important and memorable moments together. Examples of documents include, home title or rent receipts or home lease in both names, joint bank account statements, credit card statements, photographs of both spouses on vacation, birth certificates of children born during the marriage, etc.

Also, divorce may delay a spouse’s right in obtaining citizenship in certain cases. For instance, a divorced spouse having a green-card who was married to a U.S. citizen will not be able to avail the short three year residency requirement, if the spouse is not married to the U.S. citizen for at least three years before the naturalization exam date. In essence, if the green-card holder spouse divorces the U.S. citizen spouse before three years of marriage have passed, then s/he will have to wait until the normal five year residency requirement has elapsed before s/he is eligible to apply to become a naturalized U.S. Citizen and cannot take advantage of the three year residency requirement.

New Addition of N-400 for US Citizenship and Updated Naturalization Study Materials

If you are eligible for US Citizenship and decided to apply to become a U.S. Citizen, you should now use the 1/22/09 edition for Form N-400, Application for Naturalization, which is posted to the USCIS website.

The 1/22/09 edition requires that applicants must submit Form N-40o to U.S. Citizenship and Immigration Services (USCIS) Lockbox for processing:

If you currently reside in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Guam or the Commonwealth of the Northern Mariana Islands, you must send your application to the USCIS Lockbox Facility at:

USCIS
P.O. Box 21251
Phoenix, AZ 85036

For express/courier deliveries, use:

USCIS
Attn: N-400
1820 E Skyharbor Cicle S, Floor 1
Phoenix, AZ 85034

If you reside in Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, Puerto Rico or the U.S. Virgin Islands, you must send your application to the USCIS Lockbox Facility at:

USCIS
P.O. Box 299026
Lewisville, TX 75029

For express/courier deliveries, use:

USCIS
Attn: N-400
2501 S State Hwy 121, Bldg. #4
Lewisville, TX 75067

All naturalization applicants filing under the military provisions, section 328 or 329, should file their application at the Nebraska Service Center regardless of geographic location or jurisdiction. Please send your application to:

Nebraska Service Center
P.O. Box 87426
Lincoln, NE 68501-7426

USCIS has also updated its Naturalization Publications and Study Materials:

1. Guide to Naturalization, M-476 — English available online at www.uscis.gov/natzguide

2. The Citizen’s Almanac, M-76 — English available online at www.uscis.gov/files/nativedocuments/M-76.pdf

3. Information and study materials for the new naturalization test can be found at  www.uscis.gov/newtest

USCIS Naturalization Processing Times at end of FY 2008

The U.S. Citizenship and Immigration Services (USCIS) days ago released a fact sheet listing the Naturalization processing times at the end of FY 2008 by city and in months.

Charleston, S.C. has the longest processing time of 14.8 months and Boston ranks in between at an average of 8 months. 

Naturalization Processing Times At End Of Fiscal Year 2008

Office                                   Months 

Agana, Guam …………………………… 5.0  

Albany, N.Y. ……………………………. 5.3 

Albuquerque, N.M. …………………… 5.3 

Anchorage, Alaska …………………….6.5 

Atlanta, Ga. ………………………………6.8 

Baltimore, Md. …………………………..7.8

Boise, Idaho ………………………………8.2 

Boston, Mass……………………………..8.0 

Buffalo, N.Y……………………………….7.7 

Charleston, S.C. ………………………..14.8 

Charlotte Amalie, Virgin Islands ….5.0 

Charlotte, N.C. ………………………….14.7 

Chicago, Ill………………………………..6.1 

Cincinnati, Ohio…………………………5.0 

Cleveland, Ohio …………………………6.5 

Columbus, Ohio ………………………..5.0

Dallas, Texas……………………………..7.3

Denver, Colo. …………………………….5.0 

Des Moines, Iowa ……………………….7.3 

Detroit, Mich………………………………5.0 

El Paso, Texas…………………………….8.5 

Fort Smith, Ark. …………………………6.9

Fresno, Calif………………………………6.7 

Harlingen, Texas ……………………….8.6 

Hartford, Conn. …………………………14.4 

Helena, Mont……………………………..6.7 

Honolulu, Hawaii ……………………….5.4 

Houston, Texas …………………………8.4 

Indianapolis, Ind………………………..6.9 

Jacksonville, Fla…………………………7.8 

Kansas City, Mo…………………………7.1 

Las Vegas, Nev. ………………………..9.0 

Los Angeles, Calif……………………..14.2 

Louisville, Ky…………………………….5.9 

Manchester, N.H. ………………………5.4 

Memphis, Tenn. ………………………..13.5

Miami, Fla. ……………………………….9.8

Milwaukee, Wis………………………….7.3

Mount Laurel, N.J……………………….5.2

New Orleans, La. ……………………….14.0

New York, N.Y……………………………10.1

Newark, N.J. ……………………………..7.2

Norfolk, Va. ……………………………..7.4

Oklahoma City, Okla. …………………5.1

Omaha, Neb. …………………………….5.0

Orlando, Fla. …………………………….14.0

Philadelphia, Pa. ………………………..8.8

Phoenix, Ariz. ……………………………8.0

Pittsburgh, Pa…………………………….5.0

Portland, Maine………………………….5.4

Portland, Ore…………………………….5.6

Providence, R.I. ………………………..8.2

Reno, Nev. ………………………………5.5

Sacramento, Calif. ……………………5.8

Salt Lake City, Utah ………………….5.0

San Antonio, Texas…………………..5.0

San Diego, Calif……………………….8.3

San Francisco, Calif………………….5.9

San Jose, Calif. ……………………….8.6

Suan, Puerto Rico ……………………6.0

Seattle, Wash. ………………………..8.6

Spokane, Wash. ……………………..5.0

St Albans, Vt………………………….8.9

St Louis, Mo. …………………………11.3

St Paul, Minn. ………………………..6.7

Tampa, Fla. …………………………..10.1

Tucson, Ariz. ………………………..10.9

Washington, D.C. ……………………9.8

West Palm Beach, Fla………………..6.1

Yakima, Wash………………………….5.0