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Articles Posted in General Immigration

If my N-400 Application for Naturalization (U.S. Citizenship) has been denied by USCIS, what should I do now, what can I do now? What chances do I have to still become a U.S. citizen?  What will happen next? Will I be deported? Do I lose my status and my green card?

These are all very common questions that lawful permanent residents ask themselves after they receive a denial letter after an N-400 citizenship interview. Receiving a denial letter from USCIS telling you that you will not become a citizen may be heartbreaking to people who have held a life-long dream to become a U.S. citizen. But an N-400 denial letter is often not the end of the road and there are many options available to people who receive an N-400 denial letter.

The first thing to remember is that you do not only get one opportunity to apply for U.S. citizenship. That’s right, even if you are denied, most of the time, you can reapply; you do not get just one bite at the apple. So depending on why you were denied, you may be able to wait a few days, months or years and apply again.

It has finally happened, President Biden is set to announce that as of Monday, March 8, 2021, Venezuelans in the United States may qualify for Temporary Protected Status, also known as TPS.

WHO WILL QUALIFY FOR VENEZUELAN TPS?

The exact requirements for Venezuelan TPS have not yet been published (they should be soon), but based upon the TPS law and past TPS announcements, here is what I anticipate will be the TPS requirement for Venezuelans:

On his last full day as President, Donald Trump issued a “Memorandum on Deferred Enforced Departure for Certain Venezuelans.” There is much confusion about what this means for Venezuelan citizens in the United States. USCIS, the agency that handles applications for immigration benefits like Deferred Enforced Departure (DED), has not yet issued guidance or instructions for how to apply for Deferred Enforced Departure. However, other countries and regions have benefited from Deferred Enforced Departure in the past and that can provide guidance for how Venezuelan Deferred Enforced Departure will be rolled out by the Department of Homeland Security.

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Here is what we do know about Venezuelan Deferred Enforced Departure:

  • It will last for at least 18 months and can be renewed;

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Few things have a more dramatic effect on a person’s immigration case than an allegation of False Claim to U.S. citizenship.  A recent Board of Immigration Appeals (BIA) decision and resulting policy change by USCIS further ensnare people into this ground of inadmissibility.  Let’s take a look:


What is a False Claim to U.S. Citizenship?


Under §212(a)(6)(C)(ii) of the Immigration and Nationality Act, any person who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any other Federal or State law is inadmissible. Under §237(a)(3)(D)(i) of the Immigration and Nationality Act, a person who falsely claims to be a United States citizen is deportable.   This often comes up in the context of a non-citizen who registers to vote or checks a box on the I-9 form stating that they are a U.S. citizen in order to get a job or in some other non-immigration related situation where the person is asked for evidence that they are in the United States lawfully.  Then when the person applies for a greencard or naturalization, the the issue comes up.

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Many immigration cases can take up to a year or more during what is called the normal processing time.  For example, the local Jacksonville USCIS office has a published processing time of 8 months to 15.5 months for a spouse of a United States Citizen to obtain a greencard.  If your case is within the normal processing time, then the only thing you can do is wait for the government to process your case.  You can check the normal processing times for each type of application or petition for each office or center here: https://egov.uscis.gov/processing-times/: But what if it has been much longer than the normal processing time?  We’re going to discuss some options that may be available to you.


What is the first thing I should do if my case is outside the normal processing time?


You can always enter your Receipt Number into the USCIS online case status system.

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Unfortunately, immigration lawyers around the country often get calls from petrified non-U.S. citizens who are in an abusive relationship and living in fear of deportation.  A United States citizen who marries a non-citizen can file an I-130 petition on the spouses behalf to pave the way for the immigrant spouse to obtain a greencard.  If the United States citizen withdraws the petition, the immigrant spouse can no longer adjust based on the marriage to the U.S. citizen.  So, in some situations, U.S. citizens take advantage of this leverage to abuse and control the non-citizen spouse.  They say things like, “If you don’t do what I say, I’ll have you deported.”  They threaten to call immigration and withdraw the petition.  They threaten deportation if the abused non-citizen spouse contacts law enforcement.  For these reasons, the government passed a specific act to protect these victims.  It is called the Violence Against Women Act (VAWA) and it allows an abused spouse to obtain a greencard, even if the U.S. citizen spouse withdraws the I-130 petition and even if they divorce their U.S. citizen spouse.


What is VAWA?


The Violence Against Women Act, or VAWA is a  federal law that was passed in 1994 designed to address domestic violence against women.  The law is broad and encompassing, but one of the goals of VAWA was to protect immigrant victims of domestic violence and to help them escape their abusers.  VAWA allows immigrant spouses or intended spouses of United States citizens and Lawful Permanent Residents to obtain a greencard (lawful permanent resident status) without the need to have the U.S. citizen or LPR spouse petition on his or her behalf.

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The term “adjustment of status” is an immigration legal term that refers to anyone who has been “admitted or paroled” into the United States who “adjusts” status to that of a lawful permanent resident.  In other words, if you are inside the United States, you would adjust your status to obtain a greencard.  If you were outside the United States, you would apply at a consult for an immigrant visa and then enter as a lawful permanent resident.   Adjustment of status is different than a “change of status,” where you would change status from one temporary visa, for example an F visa (student visa) to another temporary visa, for example, and H1B visa (employment visa).  Adjustment of status is the fist step towards becoming  a United States Citizen.


Who can adjust status and obtain a green card?


There are several ways to adjust status in the United States.  The most common ways are through marriage to a United States citizen or through asylum.  However, victims of crime and those with certain employment opportunities or investment opportunities may also be able to adjust status.

adobe-spark-post-2You’re not a United States citizen.  You came into the United States with no documentation.  You have been the victim of a crime.  You’re scared.  You don’t feel like you can go to the police because you might get deported.  What can you do?


What should I do if I was the victim of a crime? 


If you were the victim of a crime, there are options for you, even if you are here without documents.  You just need to talk to an immigration lawyer to discuss those options.  The government has provided protection for those non-citizens who are here without documents and have been the victim of a crime.  It is called a U visa.  The government has created a safe harbor for people who have been the victim of a crime.  If you were the victim of a particular crime and you cooperate with law enforcement, you may be eligible for a U visa and ultimately, a green card.

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President Trump’s administration has recently changed a longstanding rule that has placed immigration lawyers on notice relating to a common occurrence in immigration law.  Many non-U.S. citizens enter the United States on Visitor Visas for many different reasons.  To visit family, to take a vacation, to see what the United States is like.  It is not uncommon for non-citizens find love and decide to get married to a U.S. citizen while in the U.S. on vacation.  While many may call this impetuous, it is not a situation that is confined to citizens and non-citizens.  The difficulty arises when you apply for a green card based on your marriage to a United States citizen when your marriage was within a short period of time after you entered the United States.  You could be denied a green card based on what is called “preconceived intent.”  So, how do you establish that you did not have preconceived intent to get married and stay in the United States when you entered on a temporary visa?  Well, the government has just made it a little harder with the implementation of the 90 day rule.  This rule replaces the old 30/60 day rule.


WHAT IS PRECONCEIVED INTENT?


Temporary visas are just that.  Temporary.  In order to obtain a temporary visa, you must establish that you intend to depart the United States by the time your temporary visa expires.  For example, if you have a visitor visa that is good for six (6) months, when you enter the United States, you must have the intent to depart the United States within six (6) months.  If the government believes that you intended to stay in the United States longer than your temporary visa at the time you entered, this is called preconceived intent.  Prior to entering the United States, you conceived the intent to stay longer than authorized.  If you have preconceived intent, this is a violation of your status.  The key issue for a determination of preconceived intent lies in what your intent was at the time you were admitted into the United States.  It is not preconceived intent if you change your intent after you were admitted.  For example, if you truly entered the United States simply to visit and intended to leave within the six months allotted under your visitor visa, but you fell in love and only decided to stay after you were already admitted, then this would not be preconceived intent.  Regardless of your true intent, however, the problem arises when you apply to adjust your status and obtain a green card based on the marriage to a United States citizen that occurred within a short period of time after your admission to the United States.  Immigration officials will not simply take your word for it.  They will look to outside evidence to establish whether they make a finding that you had preconceived intent.  Let’s take a look at the old rule that USCIS (United States Customs and Immigration Services) used to follow.

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If you are just a witness in an immigration case, you may think that you are safe from deportation and criminal prosecution, but under the Trump Administration, that is not the case. Increasingly, Department of Justice and Homeland Security officials have been calling for more criminal prosecutions and deportations in immigration-related matters. Even if you are not the person facing deportation in immigration court and you are only a witness, you could be in jeopardy.

When you testify in immigration court for a friend, family member or employee, you have to swear under oath to your testimony. If you lie during a hearing, you can be prosecuted for perjury or giving false statements to a federal official. If you admit to committing crimes or engaging in acts that can get you deported as a non-citizen, you can be criminally prosecuted, put in prison and even deported.

Under the Trump administration Immigration and Customs Enforcement (ICE) Attorneys and even Immigration Judges are becoming much more enforcement oriented and looking for cases where people admit to immigration-related crimes and grounds of removability during other non-citizen’s immigration cases.

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