What are the Limits to Denaturalization?

Denaturalization can only occur by a judicial order either through civil proceedings or a criminal conviction for naturalization fraud. USCIS refers cases for civil and criminal denaturalization to the DOJ when there is “sufficient evidence” that an individual is subject to one of the grounds of denaturalization. The DOJ’s U.S. Attorney’s Office must then file revocation of naturalization actions (for civil denaturalization cases) or criminal charges (for criminal denaturalization cases) in federal district court. Moreover, the burden of proof that the government must meet is high.

 

For civil denaturalization, the government must show “clear, convincing, and unequivocal evidence which does not leave the issue in doubt” that the individual procured naturalization illegally and/or concealed or willfully misrepresented a material fact during the naturalization process. There is no statute of limitations for pursuing a civil denaturalization case.

 

For a criminal conviction, the federal government must show “proof beyond a reasonable doubt” that the individual knowingly obtained or attempted to obtain naturalization through fraud for him- or herself or for another individual. Denaturalization as a result of a criminal conviction is subject to a 10-year statute of limitation.

 

An individual whose U.S. citizenship is revoked returns to the immigration status he or she had before becoming a U.S. citizen. That individual may be deported if she does not have lawful immigration status after denaturalized and/or can serve jail time if U.S. citizenship was revoked because of a criminal conviction.

Nonimmigrant Visitor Overstays – Next Focus for Administration

The White House recently announced in a Presidential Memorandum that it is focusing on B-1 and B-2 visitor overstays and will begin engaging with relevant governments to identify conditions contributing to high overstay rates among their nationals, and make appropriate recommendations. Twenty countries have overstay rate of more than 10 percent, the basis on which the administration will be targeting them. Those recommendations could include suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; imposing limits to duration of admission; and/or adding additional documentary requirements. The memo also directs the Secretary of Homeland Security to provide the President with a summary of DHS’s ongoing efforts to reduce overstays from countries participating in the Visa Waiver Program. Moreover, the Secretaries of State and Homeland Security are directed “to take steps to develop measures required for imposing admission bonds as a means for improving compliance with the terms and conditions of nonimmigrant visas.”

Why Now? Why is the Federal Government Focusing on Denaturalization Cases?

Efforts to denaturalize individuals are not new even though the USCIS office is. In 2010, a DHS task force started to identify individuals who should have been barred from naturalization. Although USCIS checks applicants’ fingerprints against both the DHS and the FBI digital fingerprint repositories when processing naturalization applications, older fingerprint records had not been digitized (some 315,000 records), including about 148,000 fingerprint records of individuals ordered deported or who had criminal records. This created a possibility that those individuals could have naturalized under an alternate identity, and ICE has begun to digitize the older fingerprint records.

 

In 2016, the DHS Office of Inspector General found at least 858 cases of people who were ordered deported or removed but later obtained U.S. citizenship using an alternate identity because their fingerprint records had not been digitized.

E-2 Visas Available May 1, 2019 to Israeli Citizens

The U.S. embassy in Israel announced that an E-2 treaty investor agreement has been signed between the United States and Israel and will become effective May 1, 2019. Accordingly, Israeli citizens will be able to apply for E-2 visas at the U.S. Embassy Branch Office in Tel Aviv.

 

The embassy advises that the E-1/E-2 visa unit will review the submitted file and then schedule an in-person interview for the company and employee. Preliminary review of corporate files currently takes from two to three weeks and will be done on a first-come first-served basis. Following approval of an E visa application, the individual will receive his or her passport via courier service within 10 days.

H-1B Cap Reached in First Week of Filing:

USCIS has received enough H-1B cap-subject visa petitions to exceed the statutory limit of 65,000 visas (plus 20,000 Master’s cap visas). In fact, over 201,000 petitions were received this year, a modest increase from last year’s lottery submissions. USCIS announced it will begin adjudicating premium processed cases on 5/20/19 for those petitions requesting a change of status. For all other FY 2020 H-1B cap-subject petitions, it will begin adjudicating them in June 2019 (or later). USCIS also announced that petitioners who now want to request premium processing for their cap-subject H-1B petition (requesting a change of status) must wait until May 20 to interfile such a request.

When Can Denaturalization Occur?

The federal government may seek to revoke U.S. citizenship under two general grounds: (1) illegal procurement of naturalization, and (2) procurement of naturalization by concealing a material fact or by willful misrepresentation. Procuring naturalization illegally is when the individual was not eligible for naturalization in the first place because he or she does not meet or failed to comply with all the statutory requirements for naturalization. In such a case, the individual’s U.S. citizenship can be revoked even if the individual is innocent of any willful deception or misrepresentation. In addition, the federal government can denaturalize an individual if he or she is or becomes a member or affiliated with the Communist Party, another totalitarian party, or a terrorist organization within 10 years immediately preceding the filing of the naturalization application or the five years immediately following naturalization. In these cases, affiliation with certain political parties or organizations precludes naturalization because it shows that the individual is not attached to the principles of the U.S. Constitution.

 

The federal government also may seek to denaturalize an individual if there is “deliberate deceit on the part of the person” in failing to disclose or misrepresenting a material fact that influences the decision to award the individual U.S. citizenship. The concealment or misrepresentation of a material fact can be made orally during the naturalization interview or in writing on the naturalization application. For example, an individual who misstates his or her employment in order to prevent an USCIS adjudicator from finding out his or her real employment activity has engaged in concealment. That individual would be at risk of denaturalization if the concealment or misrepresentation was material to the individual obtaining citizenship.

Immigration Lawyers and Advocates Sue Immigration Court in El Paso

AILA and the American Immigration Council recently filed a lawsuit against the U.S. immigration court in El Paso, claiming that the court at the El Paso Service Processing Center (SPC) has arbitrary and unjust rules that decrease asylum-seekers’ chances of staying in the country.

 

The complaint draws from interviews of attorneys practicing in the El Paso SPC — many speaking only anonymously for fear of retaliation by the judges — in addition to court observations of hundreds of immigration hearings and an analysis of the judges’ courtroom protocols. The lawsuit details barriers to a fair day in court including:

 

·         the use of unreasonable and unjust courtroom procedures established by sitting judges, such as an arbitrary page limit on supporting evidence packets;

·         a culture of contempt and hostility toward respondents, including egregious and unprofessional comments from judges;

·         blanket denials of requests by remote attorneys to make telephonic hearing appearances; and

·         the failure to provide any or linguistically correct interpretation at hearings.

 

In 2017, the most recent year for which data was available, the El Paso court approved only four of the 88 asylum cases it considered, or about 4.5 percent. The previous year, it approved just three out of 130 applications, or 2.3 percent. Nationwide, about 40 percent of asylum seekers are approved, and their cases largely depend on which judge they go before. In New York, some judges grant asylum to 60 percent of applicants.

DOS Offers Guidance to Derivative Beneficiaries Completing Form DS-160

How a derivative beneficiary (of an immigrant petition) should answer the question on a DS-160 nonimmigrant visa application, “Has an immigrant petition ever been filed on your behalf” is not clear and often perplexing. On its face, it appears that if the derivative beneficiary (spouse or child) was listed on an immigrant visa petition (e.g., I-140), the answer is “yes.”  Recently, however, the State Department’s Visa Office confirmed that it is acceptable for a spouse or child of a principal foreign national to answer “no” to the question. Further, DOS confirmed that there would not be any negative implications if a derivative beneficiary does not disclose this information on the DS-160 application. Conversely, responding “yes” does correctly indicate that an applicant is a derivative beneficiary on an immigrant petition for a future immigration benefit. A derivative beneficiary named on an immigrant petition may respond “yes” or “no” to this question and either response does not result in misrepresentation. It should be noted that this clarification is from DOS and not from USCIS, which includes a similar question on its Form I-539.

Lawsuits Challenge Trump’s National Emergency Declaration:

The American Civil Liberties Union, environmental groups, Texas landowners, and 16 states have filed lawsuits challenging President Donald Trump’s declaration of a national emergency on the U.S.-Mexico border as an unconstitutional overreach of executive authority. More have vowed to join their ranks.

Cap-Subject H-1Bs Filed April 2018 Remain Pending; Premium Processing Now Available for H-1B Petitions Filed on or Before 12/21/2018:

Inexplicably, numerous FY 2019 H-1B cap-subject petitions (filed in April 2018 for visas that became available on October 1, 2018) remain pending with the California Service Center. USCIS has indicated that it is unable to provide a timeframe for the processing of these cases but that it is working diligently to process them as soon as possible. Presumably, in response to this processing delay, USCIS recently announced that it would permit premium processing for all H-1B petitions filed on or before December 21, 2018.

 

New I-539 Form Must Be Used Starting on 3/11/2019

USCIS announced that it has revised Form I-539, Application to Extend/Change Nonimmigrant Status, and that starting March 11, 2019, it will only accept the new version of the form. A new Form I-539A, also effective March 11, replaces the amendment pages normally used for children. (Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.)

 

The most significant change to the new form is the requirement that every co-applicant pay a biometrics fee and attend an ASC (Application Service Center) appointment, regardless of age. AILA has requested that USCIS delay implementation for 90 days, but as of late February, the new form and biometrics requirement remain in place.