POSTING DATE: March 2, 2020
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How Do I Know If I Need To Change My Social Security Immigration Records?
USCIS Plans To Make It Harder For Residents
Who Stay Outside The U.S. For Six Months To Naturalize
Helpful Immigration Tips You Can Use...
Question: I have a question about proving my citizenship. My dad got his citizenship when I was 16, so I got mine automatically because I was a resident and living with him. He got me my passport. But my mother says I need to have some kind of certificate to prove I am a citizen of the U.S. in case I need it in the future, is that true?
Answer: That is a very common question. Under the Child Citizenship Act, U.S. Resident children who are under age 18 automatically obtain U.S. Citizenship when a biological parent Naturalizes. Similarly, children of U.S. Citizens who immigrate to the U.S. from abroad and enter the U.S. before turning age 18, become automatic U.S. Citizens as well. Qualifying children must be under age 18 at the time their parent actually naturalizes (takes the Oath), not the date the parent files for Naturalization. As a result, parents should carefully plan the date of filing for Naturalization to ensure that they will complete the process before their child(ren) reach age 18. Figuring about 6-8 months to take into account any USCIS processing delays is reasonable, under current lengthy Naturalization processing times. Importantly, even when children become U.S. Citizens through this process, the USCIS does not automatically issue a Naturalization Certificate to the child. The certificate is not required to obtain a U.S. Passport, which itself serves as the child’ proof of U.S. Citizenship status. To obtain the child’s U.S. Passport, in addition to other information, the U.S. Passport office requires a copy of the parents’ Naturalization Certificate and proof that the child actually resides with his or her U.S. Citizen parent in order to qualify. But even though the actual certificate is not required, I have recently come to believe that having one is actually a good safeguard, especially in cases where a U.S. Citizen loses his or her passport. Proving eligibility for a replacement passport could be difficult in the future without an actual Naturalization Certificate. I hope this is helpful.
The USCIS issued a Policy Alert on February 26, 2020 which confirms that the agency intends to begin strictly enforcing existing rules requiring Residents to maintain continuity of residence in the U.S. in order to be eligible to naturalize.
The Policy Alert, called: “Effect of Breaks in Continuity of Residence on Eligibility for Naturalization” provides guidance to officers that for Residents with any absence from the U.S. for a continuous period of six months, but less than a year, it will be presumed that he or she has broken the continuity of their residence in the U.S..
Green Card Holders With Criminal Records: Use Caution Before Travelling Outside U.S.!
With strict immigration policies being applied by the Trump administration across all areas of immigration, it’s especially important for U.S. Residents (Green Cards holders) with criminal records to take great care before travelling abroad, since even old criminal convictions can cause difficulties in re-entering the U.S., result in a bar to readmission and in some cases, even removal from the U.S.. Under the Department of Homeland Security’s strict enforcement priorities, the Customs and Border Patrol (CBP) more closely scrutinizes both foreign visitors and U.S. Residents seeking to enter the U.S. from abroad.
For the past several years, family sponsored immigration has been under constant attack by the Trump administration. The new public charge rule is just the latest tool being used by Trump to try to restrict legal immigration. Therefore, it is more important than ever for Immigrants and sponsors to educate themselves about basic Immigration Issues.
I often get questions from U.S. Citizens and U.S. Residents alike about which family members they are eligible to sponsor, when they are allowed to initiate the process, how many family members can be sponsored at one time and how long it will be before their loved ones can immigrate to the U.S..
Family Immigration: Which Family Members Can Be Sponsored
And How Long Does It Take To Immigrate To the U.S.
Immigrants often receive a Social Security Card for many reasons, for instance while working on OPT after college graduation, while working on a work visa such as an H-1B, etc. However, those types of Social Security cards require USCIS authorization in order to work. Therefore, once an immigrant becomes a U.S. Resident, Social Security Administration Records need to be updated so that the Social Security records and card allow unrestricted employment, without the need for USCIS authorization. Similarly, once a U.S. Resident Naturalizes and becomes a U.S. Citizen, Social Security records need to be updated to reflect the new Citizenship in order to later be eligible for certain Social Security benefits.
For background, in order to qualify for naturalization, among other things, a Resident must meet the “physical presence” test, requiring them to have been physically present in the U.S. for at least 2.5 years over a five year period (or 1.5 over a three year period for those married to U.S. Citizens). However, when a Resident stays outside the U.S. for a continuous trip of 180 days or more, it has negative consequences on meeting that requirement.
This means that the period required to prove physical residency (continuity of residence) in the U.S., “resets” and begins all over again once the Resident returns from a trip of 180 days (up to 364 days) from abroad. The new period required to show physical presence would be 4.6 years (requiring 2.3 years of physical presence) and 2.6 years for early naturalization through marriage to a U.S. Citizen (requiring 1.3 years of physical presence).
When applying for naturalization, Residents who have stayed outside the U.S. for a continuous period of 180 days or more have the burden of presenting persuasive evidence to the USCIS officer which demonstrates that he or she did not break the continuity of their residence in the U.S.. Proof generally includes documentation, which shows that during the period of absence, the Resident continued to maintain a residence (home or apt lease) in the U.S., automobile/auto insurance, maintained payment of utilities, received payment from a U.S. employer, etc. Simply having a U.S. bank account or driver’s license is not proof of actually residing in the U.S..
The physical presence rule has existed for quite some time, and USCIS officers have broad discretion in applying it when adjudicating naturalization cases. The Policy Alert is meant as a notice to officers that going forward they are to apply the rule strictly and to require more documentation and proof from Residents showing they qualify. This should also alert Residents who are planning to naturalize that continuous time spent outside the U.S. can affect their eligibility for naturalization. Trips should always be limited to no more than five continuous months at a time, since hitting the 180 day mark triggers the physical presence rule.
Updated USCIS Policy Manual
Here’s how it works:
U.S. Citizens are eligible to sponsor:
1) Spouses, Minor Children and Parents (called "Immediate Relatives")
2) Adult Single Sons & Daughters (and their minor children) F1
3) Adult Married Sons & Daughters (and their spouses and minor children) called F3
4) Brothers & Sisters (and their spouses and minor children) called F4
U.S. Residents are eligible to sponsor:
1) Spouses and Minor Children called F2A and
2) Adult Single Sons & Daughters (and their minor children) called F2B
Note that U.S. Residents cannot sponsor their Parents, Adult Married Sons & Daughters or their Brothers & Sisters. If a child who has been sponsored by a Resident marries before the parent becomes a U.S. Citizen, the Immigration case is automatically cancelled, even if the child later divorces.
Waiting Times For Family Members in all Countries (except Mexico/India & Philippines where waiting times are often much longer):
1) Immediate Relatives (Spouses, Minor Children and Parents of U.S. Citizens), there is no waiting line, just USCIS and consular processing time (approx 8-12 months).
2) F1 - Adult Single Sons & Daughters of U.S. Citizens, the waiting line is approx 6+ years,
3) F3 -Adult Married Sons & Daughters of U.S. Citizens, the waiting line is approx 12+ years,
4) F4 -Brothers & Sisters of U.S. Citizens , the waiting line is approx 13+ years,
5) F2A -Spouses and Minor Children of U.S. Residents, currently there is no waiting line, just USCIS and consular processing time (approx 8-12 months). In previous years the waiting line has typically been approx 1 1/2 – 2 years and
6) F2B -Adult Single Sons & Daughters of U.S. Residents, the waiting line is approx 5 years.
Under current Immigration regulations, once an Immigrant receives U.S. Residency, (even Conditional Residency through marriage), and similarly when a Resident becomes Naturalized, they are eligible to sponsor any and all family members in any of the qualifying categories. There is no limit on the number of family members which can be sponsored at the same time. For instance, a U.S. Citizen can sponsor an adult, single daughter, a married son and 3 sisters and 2 brothers all at the same time. However, due to the difference in waiting times, each family member be immigrating at different times, depending upon the Family Immigration category. If Trump gets a second presidential term, he and fellow republicans may be successful in limiting the type and amount of family members allowed to immigrate to the U.S., but for now, the number is limitless, so don’t wait until it is too late.
Finally, in most cases, family members in the F-1 – F4 categories above must be in legal Immigration status (unexpired I-94) in order to be eligible to adjust status to residency in the U.S.. Those filing for adjustment who are not in legal status will be denied and may be put in deportation under current strict immigration policies, so get professional advice before filing any residency case! Waivers are available which allow family members who are out of status to obtain residency through consular processing, but not through adjustment of status in the U.S..
You can learn more about sponsoring a family member by calling our office at: 954-382-5378
The government recently released the public charge questionnaire (form DS-5540) for consular processing, which is similar to the form I-944 required for applicants inside the U.S. since February 24, 2020.
As a result, consular officers now have the discretion to require that applicants for visas provide a completed form DS-5540 along with supporting documentation to prove income and assets, in cases in which the immigrant or visa applicant is not otherwise able to prove adequate income showing that he or she will not require public benefits in the U.S. in the future.
Public Charge Rule Now Being Formally
Implemented At U.S. Consulates Abroad
In addition to income requirements, applicants may now be required to prove that they have secured health insurance to cover medical expenses in the U.S. or that they have the funds available to pay for such insurance once they enter the U.S.. Essentially, applicants must now be prepared to explain on a practical level exactly how they will actually pay for their living and medical expenses in the U.S., without the need to obtain public assistance once they arrive here in order to be approved.
Read the Foreign Affairs Manual (FAM) update
Download form DS-5540
Question: I just got my citizenship and plan to sponsor my daughter and her husband. I just turned 68 and I am now retired, getting a small social security check which I supplement that with some self employment. I know this new immigration restriction just went into effect about the financial requirements for sponsors. Given my situation, would I still be able to sponsor them? I am worried that the case will be denied because of my low income. Thank you for answering my question.
Answer: It’s important to note that even with the new restrictive Public Charge rule effective as of February 24, 2020, the issue of meeting the financial requirements does not apply to the first step in the immigration process for your children. Once the family petition is filed by the a U.S. Citizen, it must be processed and approved by the USCIS, then the case transferred to the National Visa Center to hold, waiting for an Immigrant Visa to be available. For nationals of most countries (except, India, China, Mexico and Philippines) for single adult children in the F1 Family Immigration category, the waiting time is about 5 years and for married adult children, it’s about 12+ years. No financial documents are required to be submitted until a visa becomes available down the road. At the time the final processing begins, Trump will no longer be in office and we will hopefully have more flexible minimum income requirements as in the past and you will likely be eligible to have a Joint-Sponsor who's income does qualify to file an additional Affidavit of Support. Therefore, at this time, don’t worry about the Affidavit of Support issues, just file the applications for your children as soon as possible to get them a place in the Immigrant Visa line. The longer you wait, the longer the line becomes. I hope this is helpful to you. Let me know if you want me to handle filing the petitions for your children.
Question: In 2017 I got my 2 yr green card through my us citizen husband. Then we filed for my permanent residency last year in May 2019 just before my green card expired. I haven’t gotten anything back yet, except the receipt and did my fingerprints, the case is taking so long. We want to visit my family in Canada this summer and now that my green card expired I don’t know how I will be able to travel. When I went for my fingerprints last year the officer gave me a sticker on my green card to extend it for a year, but that expires in may. I called the immigration 800 number and they said my case was still in processing time whatever that means. We are really worried about that now, should we cancel the trip, is there anything else we can do?
Answer: I understand your frustration, but rest easy knowing that applications to remove conditions on residency to obtain permanent Green Cards for spouses (Form I-751) are generally taking more than a year for USCIS processing. And of course there is no option available to expedite these cases. However, understand that the initial receipt that you received from the USCIS (called form I-797 Notice of Action) automatically extends your residency status for 18 months, so until approximately November 2020. In late March, call the USCIS at 1 (800) 375-5283 and give them your case number, explain that your residency sticker expires in May and you need to travel. They will make an Infopass appointment for you at your local USCIS office so the officer can give you another sticker to extend your residency at least until November 2020. This makes it easier to travel, rather than having to use the USCIS I-797 Notice of Action receipt along with your expired green card to travel, which can be confusing to airlines and very inconvenient. I hope this gives you some peace of mind.
This is a particular concern for U.S. Residents with certain criminal convictions who travel abroad, even for brief periods, since they will now be more fully vetted upon returning to the U.S.. Many Residents are unaware of the immigration implications of old, seemingly insignificant criminal convictions. Under the regulations, many crimes are considered Crimes of Moral Turpitude, which fall into three categories: 1) those involving fraud, larceny (i.e. theft), 2) crimes against persons or 'things', and 3) governmental authorities. Alone, many crimes do not have negative consequences for Residents, however, if a person has two or more such offences, no matter how old, depending upon the circumstances, they run the risk of being inadmissible to the U.S. or of being deportable. And while waivers are available in some cases, there is never a guarantee of approval and new border policies may require such individuals to remain in detention until the case is resolved. Note that many crimes committed by juveniles before age 18, may be excused, and under some circumstances, a pardon will be recognized, but for immigration purposes, expunged criminal convictions remain convictions and may still have consequences.
Therefore, the best advice for Residents with a criminal background who wish to travel, is to have their particular circumstances reviewed by a criminal immigration attorney first, before making any plans to travel abroad. Better to be safe, then sorry….
Updating Immigration Status In Social Security Administration Records:
To change your records, go to your nearest Social Security card and take your current Social Security card, Naturalization Certificate, U.S. Residency card, Driver’s License (if applicable) or valid Passport. The Officer will change your records in the system to reflect your new status and order a new Social Security card which does not have any restrictions.
Learn more about how to update your records: Tips from the Social Security Administration