Published January 24, 2019
Applying for U.S. citizenship after accumulating the requisite number of years of permanent residence should not be an automatic decision. In recent years, U.S. Department of Homeland Security/Citizenship and Immigration Services (CIS) seems to be taking a more aggressive approach in deciding applications for naturalization, with increased scrutiny applied to an applicant’s history both before AND after obtaining permanent residence. That is, to a certain degree immigration officers are looking back at how the applicant obtained their green card status in the first place and engaging in a reassessment of whether that decision was indeed proper.
Lawful permanent residents, commonly referred to as green card holders, are generally eligible to apply for U.S. citizenship 5 years after being initially approved for resident status. For those who have been married to and continue to live with a U.S. citizen spouse, eligibility for filing starts after 3 years in resident status. But certain circumstances may be at play that should give a prospective applicant second thoughts immediately upon being eligible.
Green card holders who obtained residence by way of marriage to a U.S. citizen who divorce within the first 5 years of their resident period should be prepared to have that marriage, along with all previous immigration filings, intensely scrutinized during their naturalization process interview. Exactly when did you decide to marry? How long did you live together? When did you first separate? What facts are included in the divorce paperwork? These are all questions an applicant in such a situation should be prepared to answer, along with being able to confirm that all information provided on previous immigration filings is accurate and true. It seems immigration officers are inclined to assume that unless you can prove otherwise, an underlying marriage ending in divorce so quickly, surely must have been entered into solely for immigration purposes. Such a conclusion can lead not only to a denied application but also, in some cases, the commencement of removal proceedings.
Of course, just because that might be an officer’s assumption, that does not make it true, and applicants have rights in contesting such a stance and appealing decisions made in error. However, this class of applicant must be prepared to be greeted cynically in today’s immigration environment, and to respond to accusations of providing false information in previous immigration filings.
Applicants with a criminal record or removal proceedings in their background, whether before or after green card approval, should also be aware of the types of red flags on a reviewing officer’s radar these days. Was the grant of permanent residence appropriate in the first place in light of the pre-residence criminal record? Did the applicant engage in an activity that not only establishes a basis to deny the application for naturalization (i.e. for lack of good moral character) but also could be classified as “removable” conduct, and even if the criminal arrest did not lead to a conviction? Further, the applicant must have a legal strategy in place in case they are placed in removal proceedings, including consideration of whether they have accumulated enough time in the U.S. to qualify for certain defenses to or relief from removal.
The lesson here is that prospective applicants for naturalization in today’s environment must be sure not to blindly submit to a process that potentially can lead to a denied application, or worse.
PUBLISHED January 24, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois