New York Lawyer's Legal Updates

N400: Timeline And New Pitfalls

Author: U.S. Citizenship and Naturalization Attorney Alena Shautsova

Being granted US Citizenship is a dream come true for many lawful permanent residents who went through significant hurdles to adjust their status. With all the recent changes in immigration, especially the new public charge rules many who would like to apply for US Citizenship are left wondering if they still qualify. The good news is that receiving public benefits will not affect your eligibility for US Citizenship. The bad news is USCIS’s practice regarding US Citizenship and naturalization process, how they process the cases and the timeline for the process is changing. While the guidelines are getting stricter, the questions at the interview are getting tougher and the anxiety associated with waiting for a decision is getting worse, good preparation can help to quell all the above.

1. First, the new guidelines: The expansion of acts that reflect the bad moral character and new adjudication standards

Good Moral Character is something that is required of all applicants for US Citizenship. Having good moral character is less of a to-do list, like brushing your teeth, taking the garbage out and replacing the bag. It is more of a NOT to-do list: don’t commit a murder, don’t persecute anyone, and the infamous don’t commit an “aggravated felony.” Also, recently USCIS expanded the list of so-called unlawful acts. Read my blog about it here. With the "unlawful act" charge, a person who has not been convicted of a crime, will nevertheless not become a citizen. Recent cases of denials involve those who used marijuana for personal purposes, or worked at the facilities processing it, or even received a First Offence Federal adjudication for certain controlled substances offenses which under the Federal Criminal law is not a conviction at all.

Bars To US Citizenship

All bars to US citizenship can be divided into permanent and conditional. Conditional bars are those that occurred within the statutory period. An example of a permanent bar: conviction of an aggravated felony. An example of a conditional bar: conviction of a crime involving moral turpitude. Importantly, according to the USCIS manual: “An offense that does not fall within a permanent or conditional bar to GMC may nonetheless affect an applicant’s ability to establish GMC.”

Here is a table of conditional bars:

Conditional Bars to GMC for Acts Committed in Statutory Period
One or More Crimes Involving Moral Turpitude (CIMTs) Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense
Aggregate Sentence of 5 Years or More Conviction of two or more offenses with a combined sentence of 5 years or more (other than political offense)
Controlled Substance Violation Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana
Incarceration for 180 Days Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad
False Testimony under Oath False testimony for the purpose of obtaining any immigration benefit
Prostitution Offenses Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution
Smuggling of a Person Involved in smuggling of a person to enter or try to enter the United States in violation of law
Polygamy Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)
Gambling Offenses Two or more gambling offenses or derives income principally from illegal gambling activities
Habitual Drunkard Is or was a habitual drunkard
Two or More Convictions for Driving Under the Influence (DUI) Two or more convictions for driving under the influence during the statutory period
Failure to Support Dependents Willful failure or refusal to support dependents, unless extenuating circumstances are established
Adultery Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established
Unlawful Acts Unlawful acts that adversely reflect upon GMC, unless extenuating circumstances are established

Two grounds from the list are catching my eye: driving under influence and failure to support dependents. These two have been used for denials a lot recently.

Note that The term “driving under the influence” (DUI) means all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and other offenses that make it unlawful for a person to operate a motor vehicle while impaired. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment.

Two or more DUI convictions during the relevant period establish a rebuttal presumption of lack of GMC.

For failure to support dependents: USCIS will examine if an applicant pays child support, supports his/her children, supporting children at the obviously insufficient level. No court order is necessary here to find that a person fails to support his/her children.

Travel Outside The United States

Another big update is the solidified policy regarding travel outside the U.S. while a person is a permanent resident. If a person was absent from 6 months to a year, there is a presumption that the continuous residence in the U.S. was interrupted. This test is applied up until the time the person’s oath for naturalization. To overcome the presumption, a person will have to demonstrate that he/she did not terminate the employment in the United States or obtained employed or established a business abroad; that his/her family members remained in the U.S.; that a person kept bills, rent, utility services, etc. in the U.S.

Eligibility After 6-12 Months Travel

In general, such an applicant may become eligible and may apply for naturalization at least 6 months before reaching the end of the pertinent statutory period. Note, “USCIS will consider the entire period from the LPR admission until the present when determining an applicant’s compliance with the continuous residence requirement” according to the USCIS policy manual.

Those who were absent for more than a year, lose a chance to fight for rebuttal of the presumption and automatically is deemed to be interrupting the continuous presence requirement. USCIS must deny a naturalization application for failure to meet the continuous residence requirement if the applicant has been continuously absent for a period of 1 year or more during the statutory period Unless an applicant has an approved Application to Preserve Residence for Naturalization Purposes (Form N-470). Form N-470 preserves residence for LPRs engaged in qualifying employment abroad with the U.S. government, private sector, or a religious organization. See more.

Eligibility After Travel for More than 12 Months

An applicant for naturalization who needs 5 years of continuous presence, will have to wait for 4 years and 1 day from her return to the U.S. to submit her application for citizenship. But, since the period of absence is still more than 6 months, an applicant for naturalization in these circumstances must also overcome the presumption of a break in the continuity of residence… So, it is best to wait until 1 year 6 months and 1 day past from the day of the return.

Finally, all previous filings will be carefully scrutinized. If a person was not entitled to the green card; is alleged to have committed fraud at the time of the initial benefit (like asylum), he/she will be denied naturalization and may be placed in removal proceedings.

2. Odd, and New Questions at the Interview

Recently, many USCIS officers have been asking questions related to whether a person knows another person or not. The question is simple at first, “Do you know so-and-so?” Most of the time the answer is “No, I do not know so-and-so.” Afterward, however, the officer will say that so-and-so has used your name as a reference for an Immigration-related benefit. It is a perplexing and strange situation. After answering again, “No I do not know this person,” the officer now questions the applicant’s entire application and whether they were lying about knowing this person who put their name down on a visa application or not. The correct way to answer the question is, to tell the truth, either you know this person, or you do not. Having someone put your name as a reference is irrelevant in most cases, especially when USCIS never called you to verify the reference. Good preparation and having an attorney with you at the interview can make a big difference in a situation like the one mentioned above. Many times, a person will try to appease the officer and say what they think the officer wants to hear, “Yes I know this person.” However, that is the exact opposite of what you are supposed to do; you are supposed, to tell the truth, whether you think the officer will like what you say or not.

3. The Timeline:

USCIS currently states that N400 average processing times are between 12-24 months in New York City, the timeline fluctuates and is just an average. Sometimes, cases will be scheduled for an interview after 6 months, others, it may take more than 2 years. Please remember that your qualifications for the naturalization are tested until the time of the OATH ceremony. It is extremely important to remember that.

If you need a consultation regarding the U.S. naturalization and citizenship, please call us to reserve it at 917-885-2261 or do it on our website.

20 March 2020
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