Tag Archive for: Naturalization

Cyrus D. Mehta & Damira Zhanatova

The Diplomatic Exception to Birthright Citizenship: Paths to Permanent Residence and Naturalization

/0 Comments/in /by

By Cyrus D Mehta and Damira Zhanatova*

One of the most misunderstood areas of U.S. immigration law is the treatment of children born in the United States to foreign diplomats. Most people assume that anyone born on U.S. soil is automatically a U.S. citizen. In reality, the Fourteenth Amendment and federal regulations carve out a narrow exception for children born to certain accredited diplomats. These children are generally not U.S. citizens at birth, but they have a unique, voluntary path to lawful permanent residence (a green card) that is effective from birth and, from there, to U.S. citizenship. When that framework is ignored or mishandled, the consequences can be deeply disruptive.

Birthright citizenship comes from the Fourteenth Amendment, which grants citizenship to those “born or naturalized in the United States, and subject to the jurisdiction thereof.” The phrase “subject to the jurisdiction thereof” is crucial. The Supreme Court has long held that this clause excludes only a few narrow groups, including children of foreign diplomats and children born to enemy forces in hostile occupation. Accredited diplomats are treated under international law as remaining under the jurisdiction of their own governments rather than the United States. The State Department’s Foreign Affairs Manual explains that diplomatic agents are immune from U.S. criminal jurisdiction and, with limited exceptions, from civil and administrative jurisdiction as well. Because they are not fully subject to U.S. law, their U.S.-born children are not considered “subject to the jurisdiction” of the United States and therefore do not acquire citizenship at birth.

This legal framework is implemented through the regulations at 8 CFR 101.3 and 8 CFR 264.2, as well as the corresponding guidance in the USCIS Policy Manual. Under these authorities, a child born in the United States to a foreign diplomatic officer accredited by the Department of State may voluntarily register to be treated as a lawful permanent resident from birth. Because such a child was not born “subject to the jurisdiction of the United States,” they do not gain citizenship under the Fourteenth Amendment, but they can choose to be considered a permanent resident as of their date of birth. This registration is voluntary and requires an application. It is not automatic.

The diplomatic exception itself is narrow and depends on the parents’ exact legal status when the child was born. It covers foreign sovereigns on official visits and accredited diplomatic officials such as ambassadors, ministers, chargés d’affaires, counselors, agents and secretaries of embassies, and attachés and other staff attached to an embassy. It also reaches people with comparable diplomatic status and immunities who are assigned to the United Nations or the Organization of American States, or who otherwise hold comparable status under international agreements. In practice, the key question is whether the parent’s accredited title appeared on the State Department’s Diplomatic List, known as the Blue List, at the time of the child’s birth. Only Blue List officers, who enjoy full diplomatic immunity, fall within the regulatory definition of “foreign diplomatic officer” for this purpose. Not all A or G nonimmigrants are on the Blue List or have full immunity. Many consular officers and staff, for example, have more limited protections and are not on the Blue List. Their U.S.-born children are generally citizens at birth because those parents are treated as subject to U.S. jurisdiction.

For someone who does fall under the diplomatic exception, immigration law provides a clear path. A child born in the United States to a qualifying foreign diplomatic officer is not automatically a citizen, but under 8 CFR 101.3 the child may be “considered a lawful permanent resident at birth” if a record of permanent residence is properly created under 8 CFR 264.2. This status is not conferred automatically. The person must submit a Form I‑485 application to create that record. USCIS guidance explains that this process allows a U.S.-born child of an accredited foreign diplomatic officer to voluntarily register permanent resident status, retroactive to birth.

To do that, the child (or a parent, if the child is under 18) files Form I-485 with the fee, supported by a U.S. birth certificate, a list of all U.S. entries and exits, proof of continuous residence, two passport photos, and official confirmation that at least one parent was a Blue List diplomatic officer at the time of birth, including that parent’s classification and title. The applicant also submits Form I-566 (showing A or G status history) and Form I-508 to waive any diplomatic rights and immunities, since lawful permanent residents must be fully subject to U.S. law. USCIS then confirms the parent’s diplomatic status with the Department of State. If all requirements are met, the application is approved, the person is classified as DS1 (Born Under Diplomatic Status in the United States), and permanent residence is treated as having begun on the date of birth, not the approval date. The adjudication does not involve the usual admissibility analysis or discretionary balancing that apply in many other adjustment cases. Instead, the focus is on whether the specific eligibility criteria in the regulations are met.

From there, the path to citizenship is the same as for other permanent residents. Once USCIS approves the I‑485, the person is an LPR effective from their date of birth. When they satisfy the statutory naturalization requirements, they may file Form N‑400 to become a citizen. Because their LPR date is deemed to be their date of birth, most will already meet the residence‑duration requirement at the time they register, as long as they have maintained the residence and presence required by the naturalization laws.

Despite this clear regulatory framework, the diplomatic exception is often missed for years. Local vital records offices issue standard U.S. birth certificates to everyone born in their jurisdiction, including children of diplomats. Those certificates do not reflect the parents’ diplomatic status, and local staff generally do not investigate whether a parent is a foreign diplomatic representative. On the basis of that birth certificate, many children of diplomats obtain Social Security numbers, U.S. passports, and driver’s licenses, and may even register to vote and be called on for jury duty. To agencies and institutions, these individuals appear indistinguishable from U.S. citizens. Yet if their parents held full Blue List diplomatic status at the time of their birth, they may never have acquired citizenship under the Fourteenth Amendment. This discrepancy often comes to light only when they apply for, or attempt to renew, a U.S. passport, or when a more detailed status review prompts a closer examination of their parents’ diplomatic history and Blue List records.

One widely reported case shows how disruptive this can be. A U.S.-born physician in his early sixties, who had lived in the United States his entire life, practiced internal medicine in Northern Virginia for more than three decades, and paid taxes for years, applied in 2023 to renew his U.S. passport. Instead of a routine renewal, the State Department informed him that his citizenship had been a “mistake.” Officials determined that his father had been an accredited Iranian diplomat at the time of his birth. Because of his father’s diplomatic immunity, they concluded that he was not “subject to the jurisdiction” of the United States at birth and had never lawfully acquired citizenship. In a single letter, he went from being a long‑time U.S. citizen in the eyes of his community to being treated as a non‑citizen and essentially stateless. He could not travel, faced uncertainty about his medical license and ongoing employment, and had to retain legal counsel and begin the process of applying for lawful permanent residence under the diplomatic‑birth framework rather than simply renewing a passport. His case underscored that what the government characterizes as a correction under 8 CFR 101.3 can, in practical terms, overturn a person’s life.

USCIS and the State Department’s position in such cases is not that citizenship is being revoked in the denaturalization sense, but that citizenship never attached under the Constitution and 8 CFR 101.3 because the parents’ Blue List diplomatic status placed the child outside U.S. jurisdiction at birth. The proper remedy, in their view, is not a citizenship adjudication, but registration as a permanent resident through 8 CFR 264.2 and, if desired, later naturalization.

There is anecdotal evidence of this pattern.  In one scenario,  a person is born in the United States while both parents are serving here as foreign diplomats, often at a UN mission or embassy. They grow up entirely in the United States, hold a state birth certificate and a Social Security number, and have always assumed they are U.S. citizens. They never applied for a U.S. passport as a child or young adult. Only when they apply for a first passport in adulthood does the State Department review their parents’ records, discover that one or both were Blue List diplomats with full immunity at the time of birth, and deny the passport with an explanation that the applicant is not a U.S. citizen. In another scenario, a person in the same position receives a U.S. passport as a child and may have that passport renewed multiple times. Agencies never examine the parents’ diplomatic history. The person lives in the United States, works, pays taxes, votes, and even serves on juries, believing in complete good faith that they are a citizen. Then, at some later renewal, the State Department undertakes a more thorough review, confirms that a parent was on the Blue List as a fully immune diplomatic officer at the time of birth, and concludes that citizenship was never lawfully acquired. The renewal is denied, and the individual receives a written determination that they are not a U.S. citizen.

From the applicant’s perspective, it feels as if their citizenship is being annulled. But the government’s legal position is that, because the parents were qualifying foreign diplomats, the person was never a citizen at birth. Earlier passports and other documents were issued in error because agencies did not have or did not consider the parents’ diplomatic status. When the State Department now refuses renewal, it is, in effect, correcting that underlying mistake.

At that point, these individuals are no longer simply applying to obtain or renew a passport. They must rebuild their immigration status through the diplomatic‑birth lawful permanent resident framework. In practice, this usually requires filing Form I‑485 under 8 CFR 264.2, with a thorough evidentiary record documenting their U.S. birth, continuous residence, complete travel history, and their parents’ status on the State Department’s Blue List, together with Forms I‑566 and I‑508. Form I‑485 itself poses a series of detailed, high‑stakes questions, including whether the applicant has ever worked in the United States without authorization, whether they have ever falsely claimed to be a U.S. citizen in any context, and whether they have ever voted in violation of federal, state, or local law. For someone who has genuinely believed for decades that they were a U.S. citizen, and who has lived, worked, voted, and paid taxes on that understanding, answering these questions can be especially daunting. Their responses must be crafted with great care and supported by a clear legal and factual explanation so that USCIS understands this history as the product of a long‑standing, government‑reinforced misunderstanding of status, not as deliberate fraud or willful misrepresentation. Fortunately, in this diplomatic‑birth registration setting, USCIS does not apply the usual inadmissibility grounds the way it does in ordinary adjustment cases. When someone is being formally recognized as a permanent resident from birth, their prior good‑faith use of U.S. documents or belief that they were a citizen is not treated as a basis to find them inadmissible for misrepresentation or a false claim to U.S. citizenship.

Once a person in this situation becomes a permanent resident under the DS1 framework authorized by 8 CFR 101.3 and 8 CFR 264.2, they are deemed to have been permanent residents as of their date of birth. For many such individuals, that means they can apply for citizenship as soon as their permanent residence is registered and any separate naturalization‑specific requirements are satisfied.

Children born in the United States to accredited foreign diplomats occupy a unique and often precarious place in U.S. law. They are not citizens at birth because their parents were not “subject to the jurisdiction” of the United States. In practice, they are frequently treated as citizens for years because they receive standard birth certificates and, in some cases, passports and other documents. Under 8 CFR 101.3 and 8 CFR 264.2, however, they have a special, voluntary path to lawful permanent residence that is backdated to birth, and once registered as LPRs, they can pursue naturalization under the ordinary rules. When these issues are recognized and handled proactively, the legal framework allows children of diplomats to move from a misunderstood status to permanent residence from birth and ultimately to secure U.S. citizenship. When they are discovered late, as in some cases, the disruption can be significant. For anyone born in the United States to parents who served here as diplomats, it is essential to understand the parents’ exact Blue List and immunity status at the time of birth, to document residence and travel history, and to pursue the most appropriate and legally sound path.

Our blog has nothing to do with the Trump administration’s executive order denying birthright citizenship to children born to parents who are either not in the U.S. lawfully or who are in the U.S. temporarily. It has always been acknowledged that children born in the U.S. to diplomats who enjoy immunity are not subject to the jurisdiction of the United States and do not acquire citizenship at the time of their birth in the U.S. Such persons can still register as permanent residents and are able to become U.S. citizens through naturalization. They are in a much better position than what might happen to children born in the U.S. if Trump’s executive order was implemented. That kind of policy could have perverse and far-reaching consequences. Children born in the United States to undocumented parents could be left without any lawful status. Because some countries do not automatically confer citizenship to children born abroad based solely on their parents’ status, some children in this situation could even be born stateless. The U.S.-born children of parents who hold a valid nonimmigrant status, such as H-1B or H-4, would also be impacted. A person must either be admitted into the U.S. in H-4 status or change into H-4 from another nonimmigrant status, so it is unclear how a newborn child could acquire a nonimmigrant status from birth. Parents might be forced to scramble and file immigration applications immediately following a child’s birth to ensure that they are not out of status. Because birth in the United States would no longer be sufficient to confer citizenship, even U.S. citizen parents might be forced to provide exhaustive proof of legal status to ensure that citizenship was also extended to their children. These scenarios are analyzed in greater detail in a prior blog. If Trump’s executive order ever takes effect, although we fervently wish it will never happen, children born of parents in any status should be recognized as permanent residents just like children who are born to foreign diplomats.

The hope is that the Supreme Court, in Trump v. Barbara, will reaffirm the settled understanding of birthright citizenship under the Fourteenth Amendment: that, with the narrow and historically recognized exception for children born to accredited foreign diplomats, children born on U.S. soil are citizens at birth. For those born in the United States to foreign diplomats who later discover that they did not acquire citizenship at birth, existing law already provides a clear and workable remedy: they can register permanent residence as of their date of birth and then pursue naturalization under the ordinary rules. Any effort to narrow birthright citizenship beyond this limited diplomatic exception would raise serious constitutional concerns under the Fourteenth Amendment.

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Neighborhood Snooping: USCIS’s New Roadblock to Citizenship

/0 Comments/in /by

USCIS seems to be obsessed about heightening the good moral character standard for citizenship for the purpose of delay.

On August 19, 2025 USCIS announced that it would evaluate good moral character in the naturalization context to encompass a “holistic assessment of an alien’s behavior, adherence to societal norms, and positive contributions that affirmatively demonstrate good moral character”.

As if that was not enough to make naturalization more burdensome, on August 22, 2025 USCIS announced that it would resume neighborhood investigations to cover the vicinity of an applicant’s place of residence and employment for at least the 5-year period prior to filing the application for naturalization. The authority for conducting neighborhood investigations stems from INA 335(a)  to corroborate an applicant’s residency, good moral character, attachment to tthe US Constitution and disposition to the good order and happiness of the United States that is prescribed under INA 316.  However, the neighborhood requirement under INA 335(a) has long been dormant.

From 1802 to 1981, citizenship applicants were required to present two witnesses who could testify to their qualifications for citizenship. In 1981, Congress eliminated the requirement for witnesses in place of neighborhood investigations, if necessary. But by 1991, the former Immigration and Naturalization Service stopped conducting neighborhood investigations.

USCIS now under the Trump administration is reviving neighborhood investigations to thwart one’s path to citizenship. It will make the decision to conduct or waive neighborhood investigations on an individualized discretionary basis after reviewing relevant evidence in the record.  This suggests that an applicant would have to include letters from neighbors and others in the N-400 application in order to stave off a neighborhood investigation. The USCIS guidance on neighborhood investigations states:

USCIS may request information from the alien seeking naturalization to inform its decision on conducting the neighborhood investigation such as testimonial letters from neighbors, employers, co-workers, and business associates who know the alien and can provide substantiated information about the alien, including any of the requirements for naturalization. If such evidence is not contained in the alien’s application for naturalization, USCIS may request that the alien submit such evidence. Submitting such evidence proactively with the Application for Naturalization can assist USCIS in determining whether a waiver of a neighborhood investigation is appropriate in a particular case without a need to issue a Request for Evidence.

As explained in our prior blog, the heightened good moral character requirement in the August 19 announcement, and now further elevated in the August 22 announcement,   is a significant departure from the previous USCIS policy concerning good moral character. Although the INA does not specifically define good moral character, USCIS had previously held naturalization applicants to the standard of an average U.S. citizen, rather than requiring them to provide evidence of exemplary character or contributions. See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947); Petition of De Leo, 75 F. Supp. 896 (W.D. Pa. 1948); and Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019).

The USCIS’s basis for finding good moral character in the absence of disqualifying criminal convictions and other adverse factors was practical and made sense as it provided an objective standard for adjudicators to process the application in a streamlined and expeditious manners. Now the requirement to evaluate good moral character based on positive contributions, including corroboration from neighbors, will cause delays and bog down the system. At this time, even under the not too immigrant friendly Trump administration, Form N-400 naturalization applications are processed and approved for the oath ceremony in less than 6 months assuming the applicant meets all the criteria.

Moreover, the whole notion of interviewing the neighbor seems outdated and unworkable. People are mostly anonymized and do not mix with neighbors. In suburban towns, most people drive to and from their homes. There is no village square or green for neighbors to mingle, dine or dance after work or during the weekends. Even in large cities such as New York where people live in apartment buildings within dense neighborhoods, one hardly knows the neighbor who lives on the same floor.  Most people will barely know each other in a large Manhattan apartment condominium, and when they ride elevators, most barely greet each other keeping their eyes fixated on their mobile phone until the end of the elevator ride  relieved that they escaped  the need to make polite conversation about the weather.

One wonders too how a USCIS investigator conducting a neighborhood visit will breakthrough to a neighbor in a New York building. They will first have to get through security to be allowed to go to the neighbor’s apartment or randomly visit several neighbors. How  will they knock on all 20 doors on the floor assuming they have passed security downstairs?   Would the neighbor who may be accosted in a nightie early in the morning  even deign to allow a stranger to visit them to talk about someone they have barely heard of. There is also a danger that the neighbor may have biases, and such a visit would also undermine the applicant’s privacy as the neighbor may not have even realized that the applicant was not a US citizen. Consider the scenario where a neighbor, a staunch MAGA supporter, has heard rumors of the applicant’s liberal views—this could be seen as a perfect opportunity to undermine them. Additionally, personal grievances could come into play, such as annoyance over noisy children or disputes with a coop board member, if the applicant is one,  over increased maintenance fees or carpeting requirements to dampen noise.

The revival of the policy of neighborhood visits appears to be a calculated cynical maneuver by officials in the Trump administration to introduce unnecessary hurdles in the path to U.S. citizenship. This policy not only complicates the naturalization process but also serves as an affront to applicants who have already demonstrated their commitment to the United States through legal channels. By subjecting them to the scrutiny of neighbors—who may harbor biases or personal grievances—this policy risks undermining the fairness and integrity of the naturalization process.

Furthermore, the policy is anachronistic, harking back to a time when community ties were stronger and neighbors were more familiar with one another. In today’s urban and suburban environments, where anonymity often prevails, such visits are not only intrusive but also largely ineffective. They place an undue burden on both applicants and their neighbors, who may be unwilling or unable to provide meaningful insights into the applicant’s character.

Ultimately, this policy shift seems less about ensuring the integrity of the naturalization process and more about creating barriers that discourage and delay applicants. It is a disservice to those who aspire to become contributing members of American society and an intrusion into the private lives of individuals.

 

 

 

 

Cyrus Mehta

237(a)(1)(H) Waiver After Denial of Naturalization Application?

/0 Comments/in /by

By Cyrus D. Mehta

At the naturalization interview the noncitizen applicant could face a rude shock if the examiner reveals that they made a misrepresentation in a long forgotten application for an immigration benefit filed in the distant past.

For example, the applicant could have been misled by an unauthorized practitioner when she first came to the US three decades back in filing a fabricated asylum application who did not inform her about the asylum interview. This ultimately resulted in the issuance of a Notice to Appear resulting in the applicant being placed in a removal proceeding. At the Master Calendar Hearing the noncitizen withdrew the asylum application in exchange for receiving voluntary departure from the Immigration Judge and the asylum application was never adjudicated on its merits, leave alone reviewed by the judge or the government opposing counsel. The noncitizen timely left the US timely under voluntary departure, and a few years later, came to the US in H-1B status and ultimately obtained permanent residence through the employer who filed a labor certification, an I-140 petition and subsequently an I-485 adjustment of status application.

At the time of filing the I-485 application the noncitizen failed to mention  in the I-485 application that she had made a misrepresentation to obtain an immigration benefit through the asylum application. Although in the asylum application she had  claimed to be a member of a political party that resulted in her arrest for political reasons, the noncitizen failed to indicate in the I-485 application that she had ever been a member of a political party or that she had been arrested. On the other hand, the noncitizen disclosed in the I-485 application that she had been placed in removal proceedings and had left the US pursuant to voluntary departure.

This individual retains an immigration attorney who in good faith prepares and files the N-400 application. The attorney inquired about how his client obtained permanent residency and is satisfied with the explanation from the client that she was sponsored by her employer through a bona fide labor certification, I-140 petition and I-485 application. The client desires that the N-400 application be filed quickly so that she can become a US citizen in time to vote in the presidential election and indicates to her attorney that it would not be necessary to file a request for her records under the Freedom of Information Act. When preparing the N-400 application, the attorney disclosed that his client had been placed in removal proceedings, but relying in good faith on what his client told him, he did not acknowledge in the N-400 that his client gave any information that was false, fraudulent or misleading or had lied to a government official to obtain an immigration benefit.

At the naturalization interview, the examiner goes through the questions on the N-400 and then confronts the client for not admitting that she had been a member of a political party as she had stated in her asylum application. The examiner also questions the client for not admitting that she had been arrested. The attorney is caught by surprise and asks for a short break to speak to the client. The client confesses to the attorney that she vaguely remembers that she was mislead into filing a fabricated asylum application, but she did not think much about it, as she withdrew the asylum application before an IJ in exchange for voluntary departure.

The attorney explains all of this to the naturalization examiner after conversing with his client. The examiner believes that if the client had filed a false asylum application, she should have disclosed that she had sought an immigration benefit by lying in her I-485 application and should have  sought a waiver under INA § 212(i) prior to adjusting status and obtaining permanent residence. The attorney argues that his client withdrew the application under the supervision of the Immigration Judge who granted her voluntary departure. She was also misled into filing this asylum application.

Notwithstanding the attorney’s pleas on behalf of his client, the USCIS issued a denial of the N-400 application on the ground that she had not met all the requirements for naturalization including having been lawfully admitted for permanent residence under INA §316. The client appealed the denial by filing Form N-336,  and a more senior naturalization officer again affirmed the original denial.

Although the USCIS asserted that the client has not been lawfully admitted for permanent residence, she sill technically remains a permanent resident until she is subject to a final order of removal. She can continue to remain in the US as a permanent resident as well as use the I-551 card if she needs to verify her status with a new employer as well as travel in and out of the US. And herein lies the paradox. If the USCIS issues a Notice to Appear (NTA)  and places the client in removal proceedings, it will benefit her as she will be eligible for a waiver under INA § 237(a)(1)(H), which provides:

Waiver authorized for certain misrepresentations. The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in Section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

  1. (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
    (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation. OR
  2. is a VAWA self-petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

A noncitizen in removal proceedings may apply for this waiver under INA § 237(a)(1)(H) after being inadmissible for fraud or willful misrepresentation under INA  § 212(a)(6)(C)(i). The waiver would apply whether the noncitizen filed at application for an immigrant visa at a consular post or even during adjustment of status. See Matter of Agour, 26 I&N Dec. 566 (BIA 2015). The waiver also applies even if the misrepresentation was not willful such as if the noncitizen mistakenly received an immigrant visa after the petitioner died and is not even charged under INA 212(a)(6)(C)(i) and instead under the more general INA 212(a)(7)(A)(i)(I) for lack of a valid visa or entry document. See Matter of Fu, 23 I&N Dec. 985 (BIA 2006). This sort of innocent misrepresentation can occur if the USICS adjusts an applicant for permanent residence under an employment-based preference when the final action date was not current. At the naturalization interview, the applicant’s N-400 can be denied because he was not properly admitted as a lawful permanent resident. It may also occur if a diplomat who is subject to diplomatic immunity adjusts status to permanent residence without submitting a waiver of diplomatic privileges and immunities.

If the noncitizen is placed in removal proceeding, and has the requisite qualifying relative, which is she must be the spouse, parent, son, or daughter of a citizen of the United States or of a lawful permanent resident, she can request a waiver before an Immigrant Judge.  There is no form to file a § 237(a)(1)(H) waiver. The IJ has discretion to grant or deny the waiver after taking into consideration all the favorable an adverse factors. The initial fraud can also be considered as a factor in considering the waiver. See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998).  If the waiver is granted and removal proceedings are terminated, the applicant can get quickly naturalized provided she met all the other requirements for naturalization.

The problem is that the USCIS these days seldom places noncitizens who have been denied naturalization based on not being admitted as lawful permanent residents in removal proceedings. Even repeatedly requesting USCIS to issue an NTA falls upon deaf ears.  The reason could either be that the DHS does not have the resources to process NTAs, or it could be more cynical, which is that the DHS does not wish to place them in removal proceedings so that they may then seek a benefit. As a result, noncitizens whose applications have been denied will forever remain lawful permanent residents and never be able to become US citizens unless they can successfully challenge the denial of the N-400 application in federal court.

DHS may wish to consider promulgating a rule that would allow noncitizens to apply for §237(a)(1)(H) waivers administratively outside removal proceedings. Historically, 8 CFR 212.3(a) and (c) has allowed for the filing of waivers under INA § 212(c) with the USCIS. Under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA),  eligible individuals could apply for cancellation of removal administratively, which got implemented under 8 CFR §1240.66. Allowing administrative filings of § 237(a)(1)(h)  waivers would increase efficiency in the immigration system and provide a more humane approach for individuals who have demonstrated eligibility as well as compelling equities and humanitarian factors. It would also reduce the burdens on the already backlogged courts, allowing them to focus on more complex cases.

 

 

 

 

Cyrus Mehta

I-485 Supplement J Should Not Be the Only Vehicle to Express Portability

/0 Comments/in /by

By Cyrus D. Mehta

It is well settled that noncitizens must have the requisite intent to work for their employers at the time of entry or adjustment of status under the employment second (EB-2) or employment third preferences (EB-3) unless they are exercising job portability under specific statutory provision. A noncitizen who does not have such a bona fide intent is potentially inadmissible under Section 212(a)(5) of the Immigration and Nationality Act (INA) or may be deportable after entry.

Noncitizens who never reported to the certified job after entering the US as a permanent resident have been found deportable. For instance, in Spyropoulos v. INS, 590 F.2d 1 (1st Cir. 1978), a Greek national with Canadian citizenship, was offered a job as a cabinet maker in Washington DC. and the prospective employer obtained labor certification, but was unable to obtain confirmation of the job offer prior to entering the US. Upon arrival in the US, the respondent worked instead in Massachusetts as a woodworker and shortly thereafter with yet another employer as a machinist. The court upheld the lower Board of Immigration Appeals (BIA) reasoning that the respondent should have known that there were problems regarding the offer of employment before he entered the US and further held that he was excludable under Section 212(a)(5) as he never had an intent to take up the certified job.

On the other hand, there are also a long line of decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso, 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoe lace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux, 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry).

Yet, INA Section 204(j), enacted by Congress in 2000 through the American Competitiveness in the 21st Century Act (“AC21”), provides job portability by leaving intact a labor certification or an employment-based I-140 petition when the I-485 adjustment of status application has been pending for 180 days or longer even if the noncitizen changes jobs provided it is in the “same or similar occupational classification” as the job described in the I-140 petition. AC21 turned the prior law topsy turvey in a positive way by allowing  noncitizens under special circumstances to change their intent even prior to obtaining permanent residence.

Section 204(j), thus, overrides prior law that required a noncitizen to have a bona fide intent to work for the employer who sponsored him or her. Section 204(j) is known as “portability” as it allows an I-485 applicant whose application has been pending for 180 days or more to change jobs within the same employer or even change employers provided it is in the same or similar occupation. 8 CFR Section 240.25(a), which was promulgated on January 17, 2017,  states that the applicant may affirmatively demonstrate to USCIS on Form I-485 Supplement J that  either the job offer by the petitioning employer is continuing or that the applicant has a new offer of employment through the same employer or a different employer, or through self-employment, in the same or similar occupational classification as the employment offered under the I-140 petition. Although 8 CFR Section 240.25(a) does not make it mandatory to submit an I-485J, the instructions on the form make it mandatory to submit the I-485J thus incorporating it  into the regulation (although incorporation of form instructions into a regulation without notice and comment make them vulnerable to court challenge under the Administrative Procedures Act).

Thus, if an applicant legitimately ports under a pending I-485 application, his or her intent to work for the sponsoring employer is no longer relevant. If on the other hand, the noncitizen did not have an offer to work in a same or similar job under Section 204(j), and the I-485 application is is approved, it does not appear that the applicant can exercise portability upon the acquisition of permanent residence. At this point, upon the approval of the I-485 application, the noncitizen must demonstrate that he or she had the intent to work for the employer. Not working for the employer, or reporting to work for that employer, if there was no porting prior to the adjudication is not an option. Section 204(j) portability thus seems to put those in a favorable situation prior to the successful adjudication of the I-485 application. If such persons did not have an offer of same or similar employment prior to the approval of the adjustment application, they must demonstrate they had an intent to work for the sponsoring employer. Portability’s paradox, as explained in a prior 2009 blog,  thus favors the person who was able to demonstrate a job offer in a same or similar job before adjudication of the I-485 application and not after. Of course, this is unfair for an applicant who has waited several years and worked for the same employer only to be required to work for the same employer after lawful permanent residency is granted.  Furthermore, Section 204(j) only benefits an I-485 applicant. If the individual is overseas waiting for a visa appointment at the US consulate instead of adjusting status in the US, he or she cannot avail of this benefit.

There are thousands of beneficiaries of EB-2 and EB-3 petitions whose I-485 applications have been pending even though the priority date of the I-140 petition under the Final Action Date in the State Department Visa Bulletin has become current. These applicants may also desire to change jobs either with the same employer or with a different employer in a same or similar occupational classification. If they are in the process of preparing and submitting I-485Js, and the USCIS approves the I-485 application, this applicant’s green card should not get jeopardized only because the I-485J was not received before the USCIS approved the I-485 application but they otherwise had job offers in a same or similar occupational classification. It does not make sense for this applicant to go back to the old job, which may not exist.  It is also  not good policy to rescind permanent residency only because the I-485J was not submitted before the I-485 application was approved. The USCIS should still be able to determine if the applicant ported under Section 204(j) based on other facts and circumstances even in the absence of the I-485J.

At this point, there is fortunately no anecdotal evidence that USCIS is initiating rescission proceedings if  permanent residency was granted prior to the receipt of the I-485J. However, naturalization examiners have been known to question applicants if they did not take up the position that was the subject of the I-140 petition. If there has been an allegation that the applicant did not properly receive permanent residency, it has been possible to convince a naturalization examiner that the applicant changed to a job in a same or similar occupational classification and thus was properly granted permanent residence. It has also been demonstrated that the I-485J was only issued on January 17, 2017 and so there was no notification requirement prior to that date. However, those who file for naturalization in 2022 will not be able to argue that there was no notification requirement in the 5 years preceding the filing of the application as the I-485J has been in existence for the past 5 years. If such a person did not file the I-485J, the naturalization application should not be denied on the ground that the applicant was not properly admitted as a permanent resident 5 years ago. This person should be  able to demonstrate on a case by case basis that the new job was in a same or similar occupational classification even if the I-485J was not submitted or acknowledged prior to the approval of the I-485 application.

A simple edit to the USCIS  policy manual would resolve this issue and put to bed any anxiety:

In any situation where a Supplement J was not approved or filed before the adjustment of status was granted, USCIS shall not rescind, nor shall it initiate removal proceedings to revoke, the legal permanent residence of any applicant who used section 204(j) so long as the new job was, in fact, in a same or similar occupation as the job for which USCIS approved the I-140. Where the requirement of a same or similar occupation is met, but no Form I-485 Supplement J was filed, USCIS shall consider an applicant for naturalization to have been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of law, for purposes of section 318 of the INA, notwithstanding the absence of the Supplement J.

This would be consistent with Section 204(j) as well as USCIS’s own regulation at 8 CFR § 245.25(a) that does not make the I-485J mandatory. The failure to file an I-485J should not jeopardize permanent resident status if an applicant ports to a new job so long it can be determined that it is in a same or similar occupational classification. The I-485J should not be the only vehicle for an I-485 applicant to express portability as it would be absurd if USCIS approves the I-485 application one minute before the I-485J is received at USCIS and thwarts one’s ability to port under INA 204(j). The I-485J was designed to provide a way for the applicant to notify the USCIS about portability, but it should not be mandatory, and ought not create peril and anxiety for the applicant. Now USCIS has also decided that filing I-485J is required with an interfiling request and this affects portability eligibility by starting the 180 day clock even though the I-485 has been pending for over 180 days. This is a ghost filing that is not supported in the INA or 8 CFR!

Congress did not intend to put  an applicant in a worse off position as applicants who filed their I-485Js prior to the  adjudication of the I-485 application. Congress by enacting AC21 intended to ameliorate the plight of applicants who were waiting endlessly for their green card and it would be inequitable, bordering on involuntary servitude, for such a person to maintain an intent to work for the sponsoring employer for years on end. There are other provisions in AC21 that provide similar relief, such as extending the H-1B status beyond the six year limit, and thus the entire purpose of AC21 was to provide relief to professional and skilled workers who are in the US here but caught in the green card backlogs. While the example of the grant of permanent residency without the submission of the I-485J starkly demonstrates the absurdity of the disparity when the person clearly had a job offer in a same or similar occupational classification, the same benefit should broadly apply to persons who got the green card after an endless wait as I-485 applicants but changed their intention after receiving it. It makes no sense to allow portability while the applicant is the subject of an I-485 application that has been pending for 180 or more days, but then restrict this benefit to one who obtains permanent residency and receives a job offer in a same or similar occupation shortly thereafter.

 

 

 

 

 

 

 

Cyrus Mehta

CSPA Triumphs in Cuthill v. Blinken: Child of Parent who Naturalizes Should not be Penalized

/0 Comments/in , /by

By Cyrus D. Mehta

One of the unresolved conundrums in our immigration law is the inability of children of lawful permanent residents to be protected under the Child Status Protection Act (CSPA) when their parents naturalize to US citizenship. The CSPA was enacted to ensure that a child remained under the age of 21 in order to obtain permanent residency with the parent or to stay in a more advantageous family visa category. Sure enough, the CSPA protects the age of a minor child of a who has been sponsored for permanent residency by the parent who is a green card holder even when the child turns 21. Unfortunately, based on erroneous government policy, the goal of the CSPA gets thwarted when the parent of this child naturalizes especially after the child’s biological age is over 21 years.

The Second Circuit in Cuthill v. Blinken recently clarified by holding that a child of a permanent resident whose age is protected under the CSPA ought to be able to continue to claim age protection under the CSPA even when the parent naturalizes to US citizenship.

Section 2 of the CSPA, codified in the Immigration and Nationality Act, protects the age of minor children of US citizens under the age of 21. These minor children are termed Immediate Relatives (IR) under INA 201(b)(2)(A)(i). When a US citizen parent files an I-130 petition for an IR minor child, the child’s age will be frozen under 21 even if there is a delay in the grant of permanent residency and the biological age of the child crosses 21. See INA 202(f)(1).

What happens when a minor child of a permanent resident naturalizes? The child automatically converts from the Family Second (2A) to the IR category. If the biological age of the child is under 21 at the time of the parent’s naturalization, the child’s age pursuant to INA 201(f)(2) freezes. Even if there is a delay in the grant of permanent residency and the child’s biological age is over 21, the child’s statutory age remains frozen under 21.

So far so good. What happens if the child’s biological age under the F2A was over 21 but was protected under the CSPA?  Section 3 of the CSPA protects the age of a child who is the beneficiary of a F2A petition under a special formula. This is how it works:

When the Family 2A petition becomes current under the State Department Visa Bulletin, one has to look at the age of the child on the first day of the month when the F2A becomes current.  If the biological age of the child is over 21 at that time, the age can be subtracted by the amount of time the I-130 petition took to get approved from the date of filing. If this subtraction reduces the age of the child under 21, the child can remain under F2A rather than slide into the less favorable Family 2B preference (F2B), which applies to unmarried sons and daughters of permanent residents. There is clearly a big advantage of remaining under F2A rather than F2B. The F2A is current under the March 2021 Visa Bulletin while the F2B cutoff date in the worldwide category is July 22, 2015.

Although the age of the child is protected under F2A, when the parent naturalizes, the USCIS has taken the position that the age could no longer be protected. Thus, the child gets penalized when the parent became a US citizen. It also leads to the absurd result of inhibiting the parent from naturalizing as the child is better off remaining the child of a lawful permanent resident than a citizen.

These were precisely the facts in Cuthill v. Blinken. On September 29, 2016, when Veronica Cuthill was a permanent resident, she filed an I-130 petition for her daughter, Tatiana Maria Diaz de Junguitu Ullah, who was exactly 19 years 9 months and 6 days old. U.S. Citizenship and Immigration Services (USCIS) took 363 days to process the I-130 petition and approve it.  Although the daughter’s biological age exceeded 21 while she was waiting for the F2A visa, under the CSPA formula the daughter remained in the F2A preference.

On June 25, 2018, while Diaz was waiting for an F2A visa, Cuthill naturalized as a US citizen. At that time Diaz was still statutorily eligible under the F2A visa based on the 363 days of subtraction of processing time from her biological age. Cuthill sought to convert Diaz’s F2A petition for an IR visa, but the State Department instead notified her that Diaz would be placed in the Family First Preference (F1) queue rather than be considered an IR.

The key issue is whether Cuthill’s daughter Diaz could remain in F2A or whether she would convert into F1. If the daughter converted from F2A to F1, it would cause a great setback. Under the March 2021 Visa Bulletin, the cutoff final action date for F1 beneficiaries is August 8, 2015.  The F2A, on the other hand, is current.

INA 201(f)(2) allows a conversion from F2A to IR when the parent naturalizes. This provision is reproduced below:

Age of parent’s naturalization date – In the case of a petition under section 204 initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted to permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under section (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age on the date of the parent’s naturalization (emphasis added).

The question before the Second Circuit was whether “the age on the date of the parent’s naturalization” is the biological age of the child or the CSPA age of the child? Judge Katzmann writing the decision for the three judge panel, acknowledged that “although no one will ever accuse the CSPA of being reader-friendly” ingeniously found a textual path to hold that it is the CSPA age and not the biological age that counts. Although INA 203(h)(1)(A) (which protects the age of F2A beneficiaries) and INA 201(f)(2) (which protects the age of IRs) are separate sections within the INA, there is a connection between the two as they both reference the definition of a child under INA 101(b)(1).

Under INA 101(b)(1), a child is “an unmarried person under twenty-one years of age.” However, the definition of the child is modified under INA 203(h)(1)(A) for F2A children. As noted, under this provision, a child’s CSPA age under F2A can be reduced to under 21 even if the biological age has exceeded 21 by subtracting the age based on the amount of time the I-130 petition took to get approved. Since INA 201(f)(2) also references INA 203(a)(2)(A), there is a connection between the two sections, and the child’s  age can be interpreted as the CSPA age rather than the biological age when the parent naturalizes, and thus Diaz should convert from F2A to the uncapped IR rather than remain in the backlogged F1.

Judge Katzmann did not end the analysis here, but examined the broader purpose of the CSPA.  “We examine Congress’s purpose in enacting the CSPA, and it is there that we find our clincher: The legislative history shows a clear desire by Congress to fix the age-out problem for all minor beneficiaries, and there is nothing to suggest that Congress intended to exclude beneficiaries like Diaz,” Judge Katzmann wrote.

The government’s argument of insisting that Diaz move from F2A to F1 after her mother Cuthill naturalized ran counter to CSPA’s purpose of to protect child beneficiaries from aging out of their age-dependent visas. While reliance on legislative purpose is often criticized since Congress is a divided body, with respect to the CSPA, Judge Katzmann emphasized that it passed the House by a unanimous 416-0 vote, then passed the Senate by a unanimous vote and again passed the House again by a unanimous vote.  “Penalizing people for becoming citizens runs counter to the entire family-based visa scheme,” Judge Katzmann said.  Finally, Judge Katzmann also did not give Chevron deference to a prior decision of the Board of Immigration Appeals, Matter of Zamora-Molina, 25 I&N Dec. 606, 611 (BIA 2011),  in which the BIA adopted the same flawed interpretation as the government tried  to unsuccessfully advance in Cuthill. When the intent of Congress is clear, a court need not give deference to an agency’s interpretation of the statute.

The Second Circuit in Cuthill v. Blinken follows the  Ninth Circuit’s decision in Tovar v. Sessions that also  held that the naturalization of a parent ought not to adversely impact the protected age of the child under the CSPA. Both these courts of appeals have ruled correctly and consistently with the purpose of the CSPA. Rather than appealing to the Supreme Court, it is about time that the  DHS and the State Department under President Biden issue a policy to ensure that the holdings of the Second and Ninth Circuits be uniformly implemented  – at the USCIS and State Department – for all children whose age is protected under F2A and whose parents subsequently naturalize.

If these decisions are not implemented uniformly, parents of children whose age is protected under the F2A will be inhibited from naturalizing to US citizenship. If they go ahead and naturalize, children will be involuntarily converted into the F1 category, which is hopelessly backlogged. Such a result could not have been the intent of Congress when it spoke with one voice to pass the CSPA,  and two courts of appeals, the Second Circuit and the Ninth Circuit, have correctly held that  INA 203(h)(1) and INA 201(f)(2), when read together,  unambiguously  provide a pathway for children to gain permanent residency as immediate relatives even when their parents become US citizens.

 

 

Cyrus Mehta

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

/0 Comments/in /by

On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.

The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”

The updated policy guidance does not break new ground.  USCIS has always rendered applicants ineligible for naturalization after it finds that they were not lawfully admitted for permanent residence. One example is if the applicant made a misrepresentation while applying for a tourist visa many years ago and failed to disclose this fact when filing the I-485 application for adjustment of status along with the submission of a waiver to overcome this ground of inadmissibility under INA 212(a)(6)(C)(1).

What is more troubling about this new guidance is that it incentivizes USCIS to find that lawful permanent residents may have abandoned that status previously even though Customs and Border Protection (CBP) may have admitted them into the United States. A naturalization applicant may have  at some point in the past been outside the US for more than 180 days, and then admitted by CBP into the US. Even if the LPR remained outside the US for over a year, as a result of inability to return to the US due to Covid-19, the LPR may still be admitted into the US.  The new guidance now encourages naturalization officers to investigate whether the applicant may have abandoned LPR status regardless of the length of prior trips abroad, even if the trips abroad were for less than 180 days. Indeed, the guidance encourages naturalization examiners to overrule a determination that CBP made at the time of the LPRs admission into the US. At that point in time, the government had a very heavy burden to establish that the LPR had abandoned permanent residence.

Under INA 101(a)(13)(C), LPRs shall not be regarded as seeking admission into the United States unless, inter alia, they have abandoned or relinquished that status or have been absent from the US for a continuous period in excess of 180 days.

It has historically been the case that when an applicant for admission has a colorable claim to lawful permanent resident status, the burden is on the government to show that they are not entitled to that status by clear, unequivocal and convincing evidence. This standard was established by the Supreme Court in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. Subsequent to Woodby, in Landon v. Plasencia, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to a permanent resident in exclusion proceedings.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) introduced the notion of “admission” in INA §101(a)(13)(C).  “Admission” replaced the pre-IIRIRA “entry” doctrine as enunciated in Rosenberg v. Fleuti,  which held that a permanent resident was not considered making an entry into the US if his or her departure was “brief, innocent or casual.” Under §101(a)(13)(C), an LPR shall not be regarded as seeking admission “unless” he or she meets six specific criteria, which include the permanent abandoning or relinquishing of that status or having been absent for a continuous period in excess of 180 days. Fleuti has been partially restored in Vartelas v. Holder with respect to grounds of inadmissibility that got triggered prior to the enactment of IIRIRA.  Moreover, the returning permanent resident who returns from a trip abroad that was more than 180 days would be treated as an applicant for admission under INA 101(a)(13)(C)(ii), and thus vulnerable to being considered inadmissible. INA 240(c)(2), also enacted by IIRIRA, requires an applicant for admission to demonstrate by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.”   INA 240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible.  On the other hand, with respect to non-citizens being placed in removal proceedings, INA 240(c)(3), also enacted by IIRIRA, keeps the burden on the government to establish deportability by “clear and convincing” evidence.

Notwithstanding the introduction of INA 101(a)(13)(C), as well as INA 240(c)(2) and INA 240(c)(3),  the Woodby standard still prevails and nothing in 101(a)(13)(C) overrules it, and the burden of proof is still on the government through clear, convincing and unequivocal evidence that LPR has lost that status. See Matadin v. Mukasey.  This was further established in 2011 by the Board of Immigration Appeals in Matter of Rivens, which held:

Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense identified in section 212(a)(2).

Although in Matter of Rivens, the BIA acknowledged that the language in INA 240(c)(3) indicated “clear and convincing” evidence rather than “clear, convincing and unequivocal” evidence as in Woodby, the BIA has not had occasion to determine that the deletion of one word “unequivocal” has  effected a substantial change to the standard.

Additionally, in cases involving the abandonment of permanent residence, it is not the length of the absence that is determinative but whether it was a “temporary visit abroad” pursuant to INA 101(a)(27)(A). The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts that requires a searching inquiry of the purpose of the trip, thus making it harder for the government to find that the LPR abandoned that status even if the trip abroad was for an extended period of time in addition to the high burden of proof that the government is required to meet under Woodby. The Ninth Circuit’s interpretation of “temporary visit abroad”  in Singh v. Reno is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

The Second Circuit in Ahmed v.Ashcroft, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales held that LPR status was not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

Although the USCIS guidance to naturalization examiners cites these and other cases regarding abandonment of LPR status, this determination was already made by the CBP at the time of the applicant’s admission when the burden was on the government to establish through clear and convincing evidence that the LPR had abandoned that status. Since presumably the government did not meet this burden then, the LPR was admitted into the US.  It is inappropriate to empower the USCIS through new policy guidance to once again meet this burden after the fact in a naturalization interview. It is one thing to investigate whether an applicant was ineligible for LPR status at the time of receiving it based on a ground of inadmissibility (e.g. fraud or misrepresentation) that was not overcome, but it is quite another to waste government resources to require USCIS to meet its heavy burden again regarding abandonment of LPR status during naturalization.  If the USCIS wants to retain guidance regarding finding abandonment in a naturalization interview, it can be narrowed, which the Biden administration may wish to consider, in circumstances where naturalization may be denied when it is readily obvious that the applicant is no longer a permanent resident. This may apply to one who was once an LPR as  the unsuccessful plaintiff in Biglar v. Attorney General, departed the US over a period of several years and then was subsequently admitted in B-2 visitor status, after which the applicant applies for naturalization. The Eleventh Circuit held that Biglar had abandoned his LPR status even though he sought to renew his green card after he was admitted into the US in B-2 status. Except for these unusual facts, the USCIS should not be investigating abandonment based on any and every absence especially when the CBP admitted the applicant as an LPR after being aware of the length of that absence from the US.

While the government will argue that the burden is on the applicant for naturalization to establish his or her eligibility, see Berenyi v. INS, the guidance also instructs the USCIS to initiate removal proceedings against LPRs who have been deemed to abandon their status. While in removal proceedings, applicants must insist that the government continue to meet its heavy burden through clear and convincing evidence to demonstrate that they abandoned LPR status, and this burden becomes doubly difficult when USICS is required to second guess a CBP officer’s determination regarding an LPRs admission several years later in a naturalization interview.

The new guidance has been introduced by the Trump administration to create a chilling effect on potential applicants on naturalization based on past travel abroad.  The Biden administration should immediately revise the guidance on January 20 or shortly thereafter.

 

Cyrus Mehta

FAQ for Green Card Holders during the COVID-19 Period

/0 Comments/in /by

I have received inquiries from lawful permanent residents, or green card holders, who are outside the United States and have been unable to return to the United States in the COVID-19 period. They are unable to return either because there are no flights out of the country to the US or they feel vulnerable to contracting the infection or they may have unfortunately contracted the infection.

These green card holders are understandably concerned as their inability to return to the US is due to no fault of their own.  If a lawful permanent resident is unable to return to the US within a year, the green card technically becomes invalid for reentry to the US. This does not mean that the person ceases to be a lawful permanent resident, and it can still be asserted that lawful permanent residence has not been abandoned.

Similarly, a reentry permit allows a green card holder to remain outside the US for two years. One who is outside the US with a reentry permit must return back prior to the expiration of the reentry permit. Otherwise, if the person remains outside the US beyond the date of the reentry permit, the reentry permit is technically invalid as a travel document, although the person can still claim to be a lawful permanent resident.

Green card holders stuck outside the US have to also be mindful about their eligibility for naturalization. The eligible applicant must have at least 2.5 years of physical presence in the US in the past 5 years prior to filing the application. If the applicant has been married to a US citizen for 3 years, then the eligible applicant must have 1.5 years of physical presence in the US.  Spouses and children who obtained lawful permanent residence as a result of being subject to extreme cruelty by a US citizen are also allowed to apply for naturalization after 3 years. Furthermore, the applicant must be continuously residing in the US during the relevant 5 or 3 year period. An applicant who has been outside the US for more than six months is deemed to have broken continuity of residence. This presumption of breaking continuous residence can be rebutted if the applicant can show that the applicant did not terminate his or her employment in the United States or obtain employment while abroad; the applicant’s immediate family members remained in the United States; and the applicant retained full access to or continued to own or lease a home in the United States.

Below are my brief answers to Frequently Asked Questions (FAQ) by concerned green card holders during the COVID-19 crisis.

1.I am unable to return to the US as all flights have been cancelled in my country. Will I have any problems if I return to the US in excess of 180 days from my last departure?

If a green card holder seeks admission to the US after being outside for more than 180 days, he or she will again be considered as an applicant seeking admission into the US under INA 101(a)(13)(C)(ii). While you may be subject to more scrutiny at the port of entry as an applicant seeking admission, you will likely not be denied admission for abandoning permanent residency especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether you are returning within or in excess of 180 days, there may be other grounds under which you will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

2. I am unable to return to the US as all flights have been cancelled in my country. Will I have any problems if I return to the US in excess of 1 year from my last departure?

The green card (Form I-551) is technically invalid for reentry into the US if you have spent in excess of 1 year outside the US from your last departure. If your reason for not coming back was related to COVID-19, you should apply for a Returning Resident (SB-1) Visa at the US Consulate as soon as it reopens to the public and explain that your inability to return was due to circumstances beyond your control. You must still demonstrate that you never abandoned permanent residence by demonstrating that you are returning from a temporary visit abroad, continued to  maintain ties with the US and that you always harbored an intention to resume permanent residency.

The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) of what constitutes a temporary visit abroad is generally followed:

A trip is a temporary visit abroad if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

3. What if the US Consulate refused the SB-1 Visa, or has not resumed operations soon enough, and I have spent in excess of 1 year overseas from my last departure?

If your green card (Form I-551) has not expired, you may wish to travel directly to the US and assert at the port of entry that you never abandoned permanent residency. While this is more risky than applying for an SB-1 visa, the Customs and Border Protection official has discretion to waive you into the US even without a technically valid I-551. The CBP official may ask you to complete Form I-193, Application for Waiver of Passport and/or Visa and pay the requisite filing fee. In the event that the CBP official does not waive you into the US, as a lawful permanent resident you have the right to have an Immigration Judge review your claim, and the burden of proof is on the government through clear and convincing evidence that you abandondoned permanent residency.

4. As a result of being unable to travel back to the US, I have gone beyond the expiration date of my reentry permit?

My responses to Questions 2 and 3 are equally applicable to one who has stayed beyond the expiration date of the reentry permit.

5. Can I attempt to renew the reentry permit while stuck overseas?

No. You can only apply for a reentry permit while you are physically in the US.

6. How will my being stuck outside the US in excess of 180 days but less than 1 year impact my ability to naturalize?

You have to demonstrate that you have been physically present in the US for half of the relevant period – 5 years or 3 years (if married to a US citizen for 3 years) – preceding the filing of the N-400 application. In other words, you must demonstrate that you have physically spent at least half of 5 or 3 years in the US. Each day you spend outside the US may erase the time you have already accumulated until you get readmitted into the US and gain more days. Of course, if you have already accumulated days that exceed the threshold, you would still have sufficient time to spare.

If you are on the cusp, and will likely have less than half of the required time of physical presence in the US because of your forced stay outside the US, then you may wish to consider filing the N-400 application from overseas in order to lock in the required physical presence.

If you meet the physical presence test, you have to also demonstrate that you did not break continuity of residence, and so remaining outside the US in excess of six months will lead to a rebuttable presumption that you broke continuous residence. Under current law, one can rebut the presumption by demonstrating that you did not move your residence or seek employment overseas, or your immediate family members remained in the US. There is no accommodation in the existing rules regarding remaining outside the US due to circumstances beyond your control. Still, an applicant is nevertheless encouraged to use a COVID-19 related ground to also rebut the presumption of breaking continuity of residence.

7. How will my being stuck outside the US in excess of 1 year impact my ability to naturalize?

Unfortunately, whatever physical presence that was accumulated will be erased, and you will need to wait 4 years and 1 day before you can file Form N-400 again, provided you have the requisite physical presence as discussed above, and you have also been continuously residing during the relevant period. The USCIS Policy Manual suggests that an applicant apply after 4 years and 6 months to avoid the presumption of a break in continuity of residence.

8. Are there any exceptions if I am unable to meet the requirements of naturalization if I am stranded overseas?

Yes. Spouses of US citizens who are employed abroad for certain organizations may not need to meet the physical presence of residence requirement. Most people who avail of this exception are spouses of US citizens working for an American corporation or its subsidiary abroad that is engaged in the development of foreign trade or commerce of the US,  but see Chapter 4 – Spouses of US Citizens Employed Abroad of the USCIS Policy Manual for further details and other exceptions.

(This blog is for informational purposes, and should not be viewed as a substitute for legal advice)

 

 

 

 

 

 

 

 

 

 

 

Cyrus Mehta

Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply To All Immigration Benefits

/0 Comments/in /by

Form N-400, Application for Naturalization, asks broadly “Have you EVER committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Another broad question is “Have you EVER been a member of, involved in, or in any way associated with, any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?”  It would be difficult for an applicant to answer this question accurately or remember every instance of membership in his or her life. For instance, does the applicant need to include membership in a school club in 8th grade? Until recently, an inaccurate but immaterial response to these two questions could have resulted in both criminal liability and revocation of naturalization.

On June 22, 2017, in Maslenjak v. United States,  the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship under 18 USC 1425(a). Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

This ruling is significant. It prohibits a government official from revoking a naturalized American’s citizenship based on an insignificant omission or misrepresentation. If the applicant did not indicate that she was a member of her school club to the question on the naturalization application asking about membership in any club at anytime and anywhere in the world, a vindictive prosecutor can no longer use this as a basis to indict her under 18 USC 1425(a), seek a conviction and then revoke her citizenship.

What is even more significant is that the Supreme Court sets a higher standard for demonstrating a connection between the violation and naturalization under 18 USC 1425(a) than the earlier standard of determining materiality under 8 USC 1451(a), the civil revocation statute, and elaborated at length in Kungys v. United States.  At issue in Kungys v. United States was whether the failure to indicate the correct date and place of birth was material to justify the revocation of Kugys’s citizenship under the civil provision. Justice Scalia writing for the majority held that the test of whether Kungys’ concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the former Immigration and Naturalization Service. The formulation in Kungys v. United States has been adopted in the State Department’s Foreign Affairs Manual to determine whether a visa applicant made a material misrepresentation that would render him or her ineligible for fraud or misrepresentation under INA 212(a)(6)(C)(i):

The word “tends” as used in “tended to cut off a line of inquiry” means that the misrepresentation must be of such a nature as to be reasonably expected to foreclose certain information from your knowledge. It does not mean that the misrepresentation must have been successful in foreclosing further investigation by you in order to be deemed material; it means only that the misrepresentation must reasonably have had the capacity of foreclosing further investigation.

See 9 FAM 40.63 N6.3-1

In Maslenjak v. United States, the Supreme Court built on the formulation in Kungys to create a heightened standard for the government to prove that a person committed a crime pursuant to 18 U.S.C. 1425(a), which provides: “knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship.” Justice Kagan developed the following standard:

[T]he Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation [citation omitted]. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit.

As to the second link in the casual chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation “would predictably have disclosed” some legal disqualification (citation omitted).   If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think §1425(a) requires.

Justice Kagan’s opinion went on to state that “[e]ven when the Government can make its two-part showing, however, the defendant may be able to overcome it. §1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”

Justice Gorsuch with whom Justice Thomas joined, issued a concurring opinion stating that there was no need for the Supreme Court to create a new formulation, and that the Court of Appeals could do just that.  “This Court often speaks most wisely when it speaks last, ” according to Justice Gorsuch.  In a separate concurring opinion, Justice Alito suggested that the formulation in Kungys v. United States should apply equally to §1425(a).  According to Justice Alito, “§1425(a) does not require proof that a false statement actually had some effect on the naturalization decision.” But this is pivotal to Justice Kagan’s new formulation. The illegal act must have somehow contributed to obtaining citizenship. Take Justice Kagan’s example of John obtaining a painting illegally. This would connote that John stole the painting from the museum or impersonated the true buyer when the auction house delivered it. But if John did something illegal on his way to buy the painting legally, such as excessively violating the speed limit or purchasing an illegal weapon, those acts did not contribute to obtaining the painting illegally. Justice Alito would see it differently. A runner who holds the world record wants to ensure that she gets the gold medal at the Olympics, and takes a performance enhancing drug. She wins the race and is disqualified. The second-place time is slow and sportswriters speculate that she would have come first anyway even without taking the drug. According to Justice Alito, she cannot argue that her illegal act of taking drugs did not make a difference and was not material to her performance in the race.

Justice Kagan’s logic should have more force over Justice Alito’s. A naturalization applicant who stole bread when he was desperately hungry, but was never arrested and does not answer “Yes” to the question of whether he had ever committed a crime for which he was never arrested, should not have his citizenship revoked. First, determining whether a criminal defendant has committed a crime is based on the applicable law where the alleged conduct occurred and whether a prosecutor was able to prove beyond reasonable doubt that the defendant met all the elements of the offense. If the applicable law provides defenses, such as the doctrine of necessity, then no crime would have occurred. This defense too – that the defendant stole bread to avoid death through starvation – also has to be established within the penal system.  It would not be appropriate for an applicant to judge himself guilty on an immigration form – or for his immigration lawyer to condemn him for theft. Even with respect to making an admission, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.  Justice Kagan’s heightened standard to demonstrate materiality should not just apply to 18 USC §1425(a), but ought to also apply to 8 USC §1451(a) cases as well as cases involving willful misrepresentation under INA §212(a)(6)(C)(i). The following words of Justice Kagan’s in Maslenjak v. United States are prescient:

Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen.  That would give prosecutors nearly limitless leverage – and afford newly naturalized American precious little security.

The need for a uniform heightened standard becomes even more urgent in light of questions in immigration forms becoming increasingly broad and ambiguous.   For example, the latest Form I-485 asks whether an applicant intends to “engage in any activity that would endanger the welfare, safety or security of the United States.”  The next question in Form I-485 asks whether the applicant intends to “engage in any other unlawful activity?”  If the applicant answered “No” to the latter question and was later found to have engaged in an unlawful activity that would have no bearing on either the procurement of the green card or on the naturalization, such as participating in a peaceful protest that resulted in an unlawful road blockage, a vindictive prosecutor could still potentially use this to revoke either permanent residence or citizenship. This would not be a just outcome. A lie told out of embarrassment, fear, a desire for privacy or lack of comprehension of the question asked – which is not relevant to naturalization, the green card or a visa –  should never result in revocation.

Cyrus Mehta

USA v. OLIVAR: Conspiracy To Commit Criminal Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship

/0 Comments/in /by

One of the advantages of becoming a US citizen is that one is no longer susceptible to being deported from the United States, especially if the person has been convicted of a crime. While being convicted of a crime results in criminal penalties, a US citizen can at least take comfort that that there will be no removal, and the United States will continue to remain home for the convicted person.

Think again.

In United States of America v. Olivar, the Ninth Circuit Court of Appeals on April 18, 2016 upheld the revocation of citizenship of a naturalized person who was convicted of criminal conspiracy for acts undertaken prior to applying for naturalization.  Olivar, a native of the Philippines,  was naturalized as a US citizen in May 2002. In the same year, according to a Law360 story, Olivar began working at a law firm in the Los Angeles area in 2002. Seven years later, in early 2009, he was indicted on conspiracy charges in connection with a visa fraud scheme. Olivar and a second invidual recruited  people who were not authorized to work in the U.S., charging them anywhere between $1,000 and $7,500 to find a business that would sponsor them for an employment-based immigrant visa. They filed applications with the Labor Department and immigration authorities claiming the individuals would be working in skilled positions, like accountants or public relations specialists, according to Law360. The businesses allegedly never actually intended to employ the individuals, the prosecutors alleged. Olivar was also accused of helping the immigrants falsify their education and work experience if they didn’t meet the requirements for the H-1B visa, by using false diplomas, transcripts and reference letters. Olivar eventually pled guilty to conspiracy to commit visa fraud in April 2009 in violation of 18 USC 2, 371 and 1546 and was sentenced to just over one year in jail. Federal authorities later started efforts to revoke his citizenship, claiming he lacked good moral character in the five year period leading up to naturalization in May 2002 based on unlawful acts that adversely reflected upon his good moral character. These acts involved a conspiracy to commit visa fraud, which was a crime involving moral turpitude.

While this sounds Kafkaesque, it is possible to lose the coveted US citizenship if a person is convicted of a crime, based on conduct that occurred prior to naturalization. While a person only knows for certain about the crime being committed at the point of conviction, prior acts, or even an agreement to commit acts in the future, can potentially lead a court to conclude retroactively that acts prior to conviction adversely reflected on the person’s good moral character.

The Form N-400, Application for Naturalization, asks broadly “Have you ever committed a crime or offense for which you have never been arrested?” In a prior blog,  “Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?” this author puzzled on how an immigration attorney should advise a client to answer this overbroad question. It is impossible to know whether a person has committed a crime or offense, unless it is proven beyond reasonable doubt in the criminal justice system. It may thus be problematic to advise a client to admit to a commission of a crime on the N-400 application when one does not know what provision of the law was violated, and whether the applicant met all the elements of that offense. Since this overbroad question also requires admitting non-criminal offenses, it would be difficult, and frankly ridiculous,  to plumb through the memory of the client to recall every minor offense that may have been committed in this person’s life, which may include such insignificant offenses as jay walking  (a daily occurrence in New York City!) or driving above the speed limit.  Nevertheless, failure to disclose whether a person has committed a crime for which there was no charge or arrest can be used against the person if there is a conviction after the naturalization. In U.S. v. Bogacki, for example, the defendant was convicted for conspiracy to bring in and harbor aliens, make false statements, commit mail fraud and wire fraud, and fraud by misuse of immigration documents, among others, after he had naturalized. However, the government was successful in denaturalizing him for his failure to specifically mention the question about committing a crime for which you have not been arrested on the N-400 application.

In USA v. Olivar, the Ninth Circuit Court of Appeals avoided relying on this ambiguous question on the N-400 application, and instead found that he lacked good moral character during the five year period preceding his naturalization. According to the Court, “The district court made clear that the Appellant was denaturalized because he lacked good moral character during the statutory period, and did not find that Olivar should be denaturalized because he made a material misrepresentation on his naturalization form.”  What is unusual about USA v. Olivar is that he had only agreed to commit a criminal act in the future, and the essential element of conspiracy, the overt act, only occurred after his naturalization. Was Olivar a criminal during the five year period prior to his naturalization, and thus lacking in good moral character? The following extract from the Law360 story is worth noting:

During oral arguments earlier this month, his attorney, Nimrod Haim Aviad of Crowell & Moring LLP, acknowledged that authorities alleged the conspirators began discussing the visa scheme back in 2001, several months before Olivar became a citizen.

But Aviad said no one acted on the plan until after Olivar’s naturalization. So, when Olivar was sworn in as a U.S. citizen, he was not a criminal and had not committed an illegal act, Aviad argued.

“When I agree to commit an act, that does not mean that I committed it,” he said. “That is the very basic principle that underlies the law of conspiracy.”

Judges appeared to be skeptical of the argument.

“So somebody could decide to engage in four or five illegal conspiracies to smuggle drugs, smuggle aliens, do a whole bunch of stuff, and say ‘but hold off, I’m going to become a citizen next week and then we’ll start buying the guns?’” Circuit Judge Susan P. Graber asked. “And that’s okay?”

As a result of his conviction in 2009, Olivar is no longer a US citizen based on an agreement prior to his naturalization to commit criminal acts in the future, and is potentially deportable. His case is especially striking since conspiracy, in addition to proving that two or more people two or more people were in agreement to commit a crime,   also requires an “overt act” taken in furtherance of the crime.  In USA v. Olivar, the applicant could not have been accused of conspiracy during the statutory period requiring good moral character prior to naturalization as the overt act had occurred long after he had become a citizen.  This appears to be a case of first impression, and the Ninth Circuit’s conclusion seems to be at odds with the law of conspiracy. Even with respect to decisions involving deportation, the only relevant decision involving deportation as a result of conspiracy that this author found (with David Isaacson’s assistance) is Matter of T-, 2 I&N Dec. 95 (1944). In Matter of T, the respondent was found not to be deportable for a crime involving moral turpitude committed within 5 years after entry as the overt act in that conspiracy occurred prior to his entry into the United States. The respondent, however, was still found deportable for having admitted to the commission of a crime involving moral turpitude prior to this entry, but it is significant that the charge of deportability for the commission of a crime after entry was not sustained as the overt act took place prior to entry. Because the Ninth Circuit’s decision in USA v. Olivar does not appear to be crystal clear, this is not going to be the last word on whether citizenship can be revoked based on an agreement to commit a crime prior to naturalization, but where the overt act occurred after naturalization.

Cyrus Mehta

The Impact of Obamacare on Green Card Holders Who Reside Outside the United States

/0 Comments/in /by

By Gary Endelman and Cyrus D. Mehta

Unlike many, if not most countries, the long reach of Uncle Sam’s tax laws extend far beyond geographic boundaries to affect citizens and lawful permanent residents (LPR) on an extraterritorial basis. Status not physical presence triggers the tax obligation. The need for LPRs living abroad to comply with US tax regimes is another example of how,  since enactment of the Immigration Reform and Control Act of 1986, immigration has become increasingly and inextricably intertwined with all other aspects of American life and law. Beyond that, lawful permanent residence is not only a legal status but an economic one as well with tax implications that intimately affect the maintenance of such status and the fiscal consequences of its continued exercise. The impact of the individual health care mandate under the Affordable Care Act (ACA), also popularly known as Obamacare, upon LPRs who reside overseas is the most recent example of a growing tension between a domestically focused immigration policy and the increasingly global nature of both individual and national economic conduct in the global economy of the 21st century.

A number of LPRs, also known as green card holders, temporarily live outside the United States for a variety of legitimate reasons. In a globalized world, LPRs may more readily find employment assignments in other countries or they may need to be outside the United States to look after a sick relative. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts, and although the LPR may remain outside the United States for an extended period of time, the visit may still be considered temporary so long as there is an intention to return. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.” If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

For a more extensive review on this subject, we refer you to our article, Home Is Where TheCard Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008.

With the deadline period for enrollment on March 31, 2014, a number of non-citizens, including LPRs,  are eligible for health care benefits under the ACA.  The ACA requires all “applicable individuals” including LPRs to maintain “minimum essential health coverage,” and the failure to do so will result in a penalty when they file their federal income tax returns for year 2014 onwards. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as applicable individuals.”  On March 26, HHS released guidance which clarifies that many consumers who were unable to enroll through the marketplace before the March 31 deadline are eligible for a special enrollment period (SEP). The SEP gives qualifying consumers additional time to get health coverage without being assessed a penalty. To be eligible for the SEP, the consumer must have experienced one of the barriers identified in the guidance. These barriers include experiencing errors related to immigration status and being transferred between the marketplace and state Medicaid/CHIP agency. The additional time available to apply depends on the specific barrier and when it is resolved.

An LPR residing outside will need to purchase health insurance under the ACA.  There are circumstances under which LPRs can still be deemed to be maintaining minimum essential coverage even when they are outside the United States if they meet the Internal Revenue Service test for shielding their foreign income from US taxation.

Under 26 CFR 1.5000A-1, “An individual is treated as having minimum essential coverage for a month—

(i) If the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual”.

In turn, section 911(d)(1) provides:(d) Definitions and special rules
For purposes of this section—

(1) Qualified individual

The term “qualified individual” means an individual whose tax home is in a foreign country and who is—

(A) a citizen of the United States and establishes to the satisfaction of the Secretary that he has been a bona fide resident of a foreign country or countries for an uninterrupted period which includes an entire taxable year, or

(B) a citizen or resident of the United States and who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days in such period.

Section 911 of the Internal Revenue Code allows certain US citizens and LPRs to shield their foreign income from US taxation by virtue of living outside the United States. The foreign earned income exclusion for 2013 is $97, 600.

Since the full consequences of decisions on Obamacare will not become plainly evident until April 2015, any interpretations advanced now must be necessarily both preliminary and tentative, subject to modification if and when the IRS provides future guidance. It is this continuing involvement of the IRS, as well as the byzantine complexity of the ACA itself, that commends a healthy dose of modesty to all commentators. LPRs who are eligible to take the section 911 exemption because they are not physically present in the United States for a full 330 days within a 12 month consecutive month period are treated as having minimum coverage for that 12- month period. It is still not clear whether  LPRs would have to elect to claim the foreign earned income exclusion by filing Form 2555 with  their tax returns so that they be deemed to have minimum essential coverage or whether the IRS will develop a special form for that purpose.

While it is true that only a US citizen can claim the bona fide resident of a foreign country exception, an LPR, if s/he is also tax resident in a county with which the US has an income tax treaty, can use the bona fide residence test pursuant to the treaty’s nondiscrimination provisions to also claim the foreign earned income exclusion. The bona fide residence test can be utilized even if the individual has not been physically present in the United States for 330 or more days.   If that is the case, can a non US citizen of a treaty country also claim minimum coverage under the ACA?

For example, the nondiscrimination provision of the US-India tax treaty, states in relevant part:

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall apply to persons who are not residents of one or both of the Contracting States.

This language in the US-India tax treaty would seem to apply to the ACA health mandate exemption, since it is taxation or a requirement connected therewith. After all, the Supreme Court in National Federation of Independent Businesses v. Sebelius, especially Chief Justice Roberts’ opinion, upheld the constitutionality of the health mandate in the ACA by characterizing it as a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” according to Chief Justice Roberts. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” the Chief Justice further opined.  While the commerce power apparently has its distinct limits for the Roberts Court, the power to tax does not. For this reason, Solicitor General Donald Verelli, who suggested the possible utility of such reasoning to the Court, may turn out to have singular, if unexpected importance.

On the other hand, it could be argued that the ACA statutes refer only to section 911 and not to treaties.  Also, the treaties define the scope of their application, which may have to be revised to include the ACA penalty. The US-India treaty, for example, applies to the following US taxes:

“In the United States, the Federal income taxes imposed by the Internal Revenue Code (but excludingthe accumulated earnings tax, the personal holding company tax, and social security taxes), and the excise taxes imposed on insurance premiums paid to foreign insurers and with respect to private foundations (hereinafter referred to as “United States tax”)”

Therefore, unless the IRS provides more specific guidance, it is not clear at this time whether an LPR who takes the bona fide residence exception for purposes of shielding foreign income can also be deemed to have the minimum essential coverage.

LPRs who seek to claim a section 911 type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under Singh v. Reno, supra. Even if LPRs assert that their trip abroad was temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. As we discussed in The Taxman Cometh: When Taking a Foreign Earned Income Exclusion On Your Tax Return Can Hurt Your Ability To Naturalize, taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5 or 3 year period. INA § 316(b) states that an absence from the United States of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. Indeed, utilizing the bona fide residence exception, if it is allowed for LPRs under the ACA, would be more perilous than the physical presence exception as the individual must declare a residence in a foreign country. Another issue worth noting for people who claim bona fide residence under tax treaties is that they must file Form 8833 to do so.  Page 4 of the instructions to that form warns that this sort of bona fide residency claim for an LPR under a tax treaty triggers the exit tax for Long Term Residents (LTR):

If you are a dual-resident taxpayer and a long-term resident (LTR) and you are filing this form to be treated as a resident of a foreign country for purposes of claiming benefits under an applicable U.S. income tax treaty, you will be deemed to have terminated your U.S. residency status for federal income tax  purposes. Because you are terminating your U.S. residency status, you may be subject to tax under section 877A and you must file Form 8854, Initial and Annual Expatriation Statement. You are an LTR if you were a lawful permanent resident of the United States in at least 8 of the last 15 tax years ending with the year your status as an LTR ends.

LPRs who live outside may wish to seek other ways to claim minimum essential coverage under the ACA if they do not wish to risk jeopardizing their green cards or their ability to naturalize in the future. For instance, LPRs who have health insurance provided by foreign insurers may qualify as having minimum essential coverage if the coverage is recognized by the Secretary of Health and Human Services. Coverage under group health plans provided through insurance regulated by a foreign government may also be recognized as minimum essential coverage, depending on specific circumstances and whether those plans have received U.S. approval. There are also the following statutory exemptions:

Religious conscience. Membership of a religious sect that is recognized as conscientiously opposed to accepting any insurance benefits. The Social Security Administration administers the process for recognizing these sects according to the criteria in the law.

Health care sharing ministry. Membership of a recognized health care sharing ministry.

Indian tribes.  (1) Membership of a federally recognized Indian tribe or (2) an individual eligible for services through an Indian care provider.

Income below the income tax return filing requirement. If the individual’s income is below the minimum threshold for filing a tax return. To find out if you are required to file a federal tax return, use the IRS Interactive Tax Assistant (ITA).

Short coverage gap. Going without coverage for less than three consecutive months during the year.

Hardship. Suffering a hardship that makes one unable to obtain coverage, as defined in final regulations issued by the Department of Health and Human Services.

Affordability. Unable to  afford coverage because the minimum amount the individual must pay for the premiums is more than eight percent of household income.

Incarceration. Being in a jail, prison, or similar penal institution or correctional facility after the disposition of charges against the individual.

Not lawfully present. Not being a U.S. citizen, a U.S. national or an alien lawfully present in the United States.

LPRs can also avail of the short coverage gap exemption. In general, a gap in coverage that lasts less than three months qualifies as a short coverage gap. If an individual has more than one short coverage gap during a year, the short coverage gap exemption only applies to the first gap.

LPRs who fail to maintain the required minimum essential coverage must pay a penalty known as the “individual shared responsibility payment.” In general, according to the IRS, the payment amount is either a percentage of your income or a flat dollar amount, whichever is greater.  The individual will owe 1/12thof the annual payment for each month he or she (or dependents) do not have coverage and are not exempt. The annual payment amount for 2014 is the greater of:

1 percent of household income that is above the tax return threshold for the indvidual’s filing status, such as Married Filing Jointly or single, or

the family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a maximum of $285.

The individual shared responsibility payment is capped at the cost of the national average premium for the bronze level health plan available through the Marketplace in 2014. The individual will make the payment when he or she files the 2014 federal income tax return in 2015.

For example, a single adult under age 65 with household income less than $19,650 (but more than $10,150) would pay the $95 flat rate.  However, a single adult under age 65 with household income greater than $19,650 would pay an annual payment based on the 1 percent rate.

If an LPR chooses to pay the penalty instead of purchasing insurance, and fails to pay the penalty or delays in making the payment,   this would need to be disclosed on an N-400 application relating to whether the applicant owes any taxes. This too could jeopardize the naturalization application, and would bring the penalty section of the ACA directly into the context of immigration issues. Furthermore, an LPR opting for the penalty over health insurance may create the impression, whether intentional or unintended, that he or she may not be maintaining ties with the US, further bolstering the government’s charge of abandonment of LPR status.

The ACA is connected to immigration issues, and it behooves a careful practitioner to review the provisions of the ACA as they apply to non-citizens, and LPRs in particular. The interconnectedness of all these issues to the authors is the larger and more widely significant point, such as how seeking an exemption from the health insurance mandate can trigger potential loss of LPR status,  invocation of the exit tax, or the ineligibility to become a US citizen in the future. No longer can any of these decisions be made in a vacuum without consideration of the broader consequences.  The practice of immigration and tax law must invite the collaboration of experts from both disciplines.

Any consideration of the possible adverse consequences resulting from a decision to seek an exemption from the individual mandate imposed by the ACA must be informed by an understanding of the fact that an extended absence from the United States, without more, should never serve as the basis for involuntary abandonment of LPR status. We live in a global economy where international relocation is often the price for career advancement and even job retention.  The law should and must provide that no LPR can be stripped of their “green card” on the basis of abandonment unless he or she clearly manifests or overtly states an intention to give it up. No inference from proven conduct can be possible absent compelling evidence that such was the desired and intended consequence. Application of this caution to the debate over Obamacare would properly reflect the profound importance of LPR status while also serving as a recognition of the enormous and continuing contributions that such permanent residents have made and continue to render to their adopted home.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)