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To Naturalize or Not to Naturalize? Part II

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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

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Written by MithrasLaw

July 30, 2009 at 5:07 pm

National Name Check Backlog Eliminated

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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.

Written by MithrasLaw

June 23, 2009 at 3:29 pm

To Naturalize or Not to Naturalize?

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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

Written by MithrasLaw

June 2, 2009 at 3:49 pm

USCIS Releases Processing Time Information for its National Benefits Center

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USCIS has released on May 15, 2009, the projected times for the National Benefits Center to complete processing of applications.
USCIS in FY 2007 received 1.4 million applications for naturalization – which were double than those received the year before.
In July and August of FY 2007 USCIS received nearly 2.5 million applications and petitions of all types. USCIS claims that despite the surge of applications, most offices have continued to handle the workload and completed the processing of cases received during 2007 and that it initiated efforts to improve processes and focus increased resources, including the hiring of over 1,000 new Immigration Services Officers, to address this increased workload.
For the benefit of our readers, the procesing times below indicate the receipt date of petitions and applications currently being processed by the USCIS National Benefits Center.
Processing Dates for the National Benefits Center as of March 31, 2009
Form Application or Basis for Filing Processing Timeframe
I-102 Initial issuance or replacement of a I-94 3 months
I-131 Application for travel document/advance parole 3 months
I-539 Application to Extend/Change non-immigrant status 3 months
I-765 Application for Employment Authorization 3 months
I-817 Application for Family Unity Benefits 6 months
I-824 Application for Action on an Approved Application or 6 months
Petition

U.S. Citizenship and Immigration Services (USCIS) has released on May 15, 2009, the projected times for the National Benefits Center to complete processing of applications.

USCIS stated that in FY 2007 received 1.4 million applications for naturalization – which were double than those received the year before.

In July and August of FY 2007 USCIS received nearly 2.5 million applications and petitions of all types. USCIS claims that despite the surge of applications, most offices have continued to handle the workload and completed the processing of cases received during 2007 and that it initiated efforts to improve processes and focus increased resources, including the hiring of over 1,000 new Immigration Services Officers, to address this increased workload.

For the benefit of our readers, the processing times below indicate the receipt date of petitions and applications currently being processed by the USCIS National Benefits Center.

Processing Dates for the National Benefits Center as of March 31, 2009:

Form Application or Basis for Filing Processing Time frame
I-102 Initial issuance or replacement of a I-94 3 months
I-131 Application for travel document/advance parole 3 months
I-539 Application to Extend/Change non-immigrant status 3 months
I-765 Application for Employment Authorization 3 months
I-817 Application for Family Unity Benefits 6 months
I-824 Application for Action on an Approved Application or Petition 6 months

Written by MithrasLaw

May 19, 2009 at 12:59 am

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

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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.

Written by MithrasLaw

March 23, 2009 at 4:18 pm

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

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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

Written by MithrasLaw

March 12, 2009 at 2:27 pm

Naturalization Applicants – USCIS will begin administering the Redesigned Test on October 1, 2008.

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All applicants who file for naturalization on or after October 1, 2008 will be required to take the new naturalization test. For those applicants who file prior to October 1, 2008 but are not interviewed until after October 1, 2008 (but before October 1, 2009), there will be an option of taking the new test or the current one.

See here for the chart to determine whether you will be taking the old test or the new test.

With respect to the question whether the current rule “English Exemption for people 55 or older and resident in the US for 15 or more years” be still applicable?

The USCIS has responded, that the new naturalization test will not change the regulations that allow exemptions for testing based on age and time as a permanent resident.

The USCIS has stated that “the English language requirement may be waived for an applicant who on the date of filing the application, was over 50 years old and has been lawful permanent resident for at least 20 years, or was over 55 years old and has been a lawful permanent resident for at least 15 years. If either exception applies, the applicant may take the civics examination in the applicant’s language of choice. Further, an applicant qualifies to take a modified civics test if on the date of filing the application, the applicant was 65 years old and has been a lawful permanent resident for at least 20 years. If this exception applies, the applicant will be administered a simpler version of the civics examination in the applicant’s language of choice. This modified civics test is a sample of 20 civics questions from the list of 100. The sample civics questions have been identified for applicants qualifying under this exception. If applicants qualify for a waiver of the English proficiency requirement, they must bring an interpreter to their naturalization interview.”

Written by MithrasLaw

September 28, 2008 at 6:13 pm

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