Philadelphia Immigration Lawyer Blog

I am pleased to report that a Writ of Mandamus that I filed on behalf of a client in the U.S. District Court for New Jersey resulted in very prompt approval of the client’s I-485 Adjustment of Status application—even before the government filed an Answer to the Writ.

The original I-485 was filed on February 27, 2007 by the minor child of a parent whose own employment based I-485 was filed on the same date.

The parent’s I-140 Immigrant Petition for Alien Worker and the parent’s I-485 application for adjustment of status were approved on October 27, 2007 but, for some unexplained reason, the minor daughter’s application was not decided at the same time. I waited for the daughter’s approval which should have routinely followed the mother’s approval---but nothing. After about 3 months of delay, I contacted the Texas Service Center by phone and mail and I was told I should expect a decision within 60 days.

60 days later, I contacted the TSC again and I was told again that I would have to wait another 60 days. When that second 60 day period ran, I advised the client to simply proceed with the Writ of Mandamus.

Actually, the waiting periods in this case were not as bad as some others. What bothered me about the delay was that there really could not have been any possible reason for the delay. There was nothing controversial about the minor’s daughter’s derivative application whatsoever—once the parent’s applications were approved, the daughter’s approval should have been routine.

I filed the Writ of Mandamus on May 28, 2008 and on June 22, 2008 I received a phone call from the U.S. Attorney who was assigned to the case that the daughter’s I-485 had just been approved!

This is not to say that Writs of Mandamus should be filed lightly or that they should be filed before there has been a truly unreasonable delay. But when there is an inexplicable, unreasonable delay and the facts justify filing the Writ, I recommend that client’s proceed with this extraordinary remedy.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization , Employment Based Immigration

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State Farm Insurance Company announced on June 26 that it will donate $1 million (and be the lead corporate sponsor) to the Ya Es Hora campaign to encourage more Latino U.S. permanent residents to become U.S. citizens. In addition to the cash donations, State Farm agents in Hispanic communities will provide naturalization applications and voter registration materials to their customers.

State Farm will be the first mainstream company to join in this very worthwhile effort--after other such companies declined, being fearful of controversy. According to studies, over 8 million Latino permanent residents are eligible to become U.S. citizens. In 2008, at least 9.3 million Latino voters will vote in the November, 2008 elections and 1.4 million of them were registered by the Ya Es Hora campaign. The current phase of the campaign hopes, with donations like State Farm's, to register another 2 to 3 million new Latino voters, numbers that could have a significant impact on crucial states like Colorado, New Mexico, Nevada and Florida.

Latino immigrants tend to vote in higher numbers than U.S. born Hispanics and the move by State Farm makes a lot of business sense for the insurance company. But State Farm's effort, whether it results in more Democratic or Republican voters is also just the right thing to do and the company should be applauded.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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Despite the fact that N-400 naturalization applications sometimes involve lengthy and inexplicable delays, resulting in great frustration and concern for the applicant, sometimes they do go smoothly.

I attended a naturalization interview today with a client. We filed his N-400 in late October, 2007, biometrics were taken in February, 2008, the interview was today, June 10, 2008 and he is scheduled for his swearing in ceremony on July 2, 2008.

It’s nice when an application is actually approved without any delay.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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On June 5, 2008, the USCIS announced that it has centralized the initial processing of all Form N-400 (Application for Naturalization) at its National Benefits Center in Missouri.

However, this change will not change where an applicant files his or her N-400 application.

Applicants will continue to file their N-400 along with all supporting documents and fees with the USCIS Service Center having jurisdiction over their place of residence

Also, applicants will also continue to report to a local field office for the naturalization interview and naturalization test.

So, don’t send an N-400 to the National Benefits Center because if you do, the USCIS will simply return it to you.

Residents of Pennsylvania, New Jersey and Delaware will continue to send N-400 applications to the Vermont Service Center.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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On April 22, 2008, the USCIS released its latest projected processing times for N-400 naturalization applications at local offices filed during the summer of 2007 when 460,00- N-400s were filed--three times the prior monthly record.

Here is the USCIS memo with all the processing times listed by city. The processing times are projections by the end of September, 2008. The projection for the Philadelphia office is 11.8 months.

Anecdotally, here is the time frame for the most recent naturalization interview notice I just received for a client of mine in Philadelphia. We filed the N-400 with the Vermont Service Center on October 26, 2007, biometrics were taken on February 7, 2008 and the naturalization interview is now scheduled for June 10, 2008. So, at least in one case, where there are no complicating factors, the process is taking somewhat less than the projected time.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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Every applicant for naturalization as a U.S. citizen must, among other requirements, demonstrate 1) an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language and 2) a knowledge and understanding of the fundamentals of the history and government of the United States.

There is an exception to the English language requirement for anyone who, on the date they file, is over 50 years old and who has been living in the United States for at least 20 years after becoming a permanent residence (or if one is over 55 years old if they have been living in the United States for at least 15 years after becoming a permanent resident).

But there is another important exception to both the language requirement and the civics requirement for those who are unable satisfy these requirements because of “a medically determinable physical or mental impairment or combination of impairments which has lasted or is expected to last at least 12 months”

Medically determinable means that the impairment has to result from “anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical or laboratory diagnostic techniques”. If you need to apply for such an exception, you do so by submitting Form N-648, Medical Certification for Disability Exceptions, which has to be completed by a U.S. licensed medical or osteopathic doctor. You then submit the completed N-648 with your N-400 Application for Naturalization.

It’s essential, of course, to be completely honest in consulting with the doctor who is preparing the N-648 and, if the applicant entered the U.S. on an immigrant visa from overseas, it would have been equally important to be honest with panel doctor who conducts the medical exam prior to the applicant’s immigrant visa interview.

If there is a mental health issue at the time of the applicant’s immigrant visa application, the applicant should not pretend that there’s not in the hope that the doctor will write up a fully favorable report. If that happens, and then years later when an applicant files for citizenship and needs a medical certification for disability exception, that panel doctor’s report may be completely inconsistent with the N-648—so much so that it could raise issues of fraud.

Reference to a chronic, lifetime mental impairment on an N-648 when compared to a panel doctor report that makes no reference to any history of a mental impairment is going to be very problematic at the time of a naturalization interview.

At the time of a panel doctor’s exam, an applicant must bring all medical records of vaccinations, prior illnesses, and treatments and has to be prepared to discuss their medical history and current medical conditions, treatments, and medications with the panel physician, including mental health issues. Be honest with the doctor. If there is a problem, it is entirely possible that there is a waiver that is available to allow the immigrant visa to be approved despite the mental health issue.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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On April 2, 2008, the USCIS and the FBI jointly announced a plan to eliminate the backlog of name checks pending with the FBI. Here is the breakdown of the plan:

By May, 2008 the FBI will process all name checks that have been pending more than three years. (It has already eliminated the backlog on name checks pending more than four years).

By November, 2008, the FBI will process all name checks that have been pending more than one year.

By February, 2009, the FBI will process all name checks that have been pending more than 180 days.

Finally, by June, 2009, the FBI plans on processing 98% of all name checks within 30 days and the remaining 2% in 90 days.

This really would be great progress if it can be achieved and sustained.

Please remember, as I noted in my posting of February 9, 2008, that the recently announced USCIS guidance on name check delays for other applications such as the I-485 (by which an application that is otherwise approvable will be approved if the FBI name check is still pending for more than 180 days) does not apply to N-400 applications.

N-400 name check applications must be completed before the N-400 can be approved. Therefore, any viable plan to reduce the current name check times is welcome news.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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On April 2, 2008, the USCIS announced an update to its N-400 Application for Naturalization processing times and it’s reporting progress on the backlog and a projection that processing times will be shorter than previously announced. It’s basing the numbers on the work it has already done during the first six months of this fiscal year on N-400s.

By the end of this fiscal year (September 1, 2008), the USCIS expects to complete 36 % more naturalization applications that it did last year and the expected time it will take to complete a naturalization case, will averaging 13-15 months rather than the 16-18 month projection that USCIS made only six months ago.

The USCIS credits the fact that it has added nearly 3,000 new employees, detailing employees to work in the most heavily affected offices, quadrupling the funding for overtime and using Asylum Office facilities and staff to conduct naturalization interviews.

So good news for a change on processing times.

Posted by James M. Tyler | Permalink | Email This Post

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With the H1-b filing season behind us, it will be nice to be able to spend some time on some other interesting areas of immigration law—there’s no shortage.

Last week, there was an interesting case heard by the Supreme Court (Munaf v. Geren Secretary of the Army and Omar v. Geren, Secretary of the Army) involving two U.S. citizens who are currently being held by Coalition forces in Iraq who the U.S. wants to hand over to the Iraqi government for trial and, depending on the trial’s outcome, punishment. The two men, both Sunni Muslims, voluntarily went to Iraq for employment and they are accused of having committed crimes there – kidnapping for one and assisting Iraqi insurgents in a kidnapping for the other. Both men have filed a habeas corpus petition asking that the U.S. courts order that they not be transferred to Iraqi officials.

Certainly, as a general proposition, once these two U.S. citizens stepped foot on Iraqi soil, they made themselves subject to Iraqi law. Whenever any American travels overseas, that person is subject to that country’s laws just as a visitor to the U.S. is subject to our laws. This is basic international law.

Of course, there are exceptions. Diplomats travel under an immunity from local jurisdiction and military personnel are generally immune from another country’s laws assuming that there is a status-of-forces agreement that controls how host countries can apply their laws to U.S. citizens. Under Iraqi law, there are even greater immunities: for non-Iraqi military personnel and certain civilian security professionals.

The problem for these two U.S. citizens is that none of these immunities apply. They are both private U.S. citizens who voluntarily traveled to Iraq and who, allegedly, committed crimes. The Supreme Court has already said, in Wilson v. Girard (1957), that Americans who travel overseas can be transferred to local authorities for criminal trial. That case involved an American soldier who sued to avoid being transferred to Japanese officials to face criminal charges.

The Bush Administration is arguing that U.S. courts do not have jurisdiction to entertain the men’s respective habeas corpus petitions because, it claims, the two citizens are not under U.S. control—they are under the Coalition's authority, an international authority. If they were under U.S. control, habeas corpus rights would clearly apply.

But this argument ignores reality . . . . .

Continue reading "U.S. Citizens on Foreign Soil – What Protections by U.S. Courts?" »

Posted by James M. Tyler | Permalink | Email This Post

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On March 20, 2008, the USCIS announced that is expanding work hours and adding staff to complete processing N-400 naturalization applications. It’s doing this because it has received a significant increase in N-400 applications and it wants to complete the processing of them within its announced processing times.

Therefore, if you get an interview advising you that you have a received a notice from the USCIS that your naturalization interview has been scheduled on a Saturday, Sunday, or after usual business hours, don’t assume the notice is wrong. In fact, the notice is correct and you must appear at the scheduled time.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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The BIA has issued an opinion in a matter that serves as a useful reminder of how essential it is in being completely truthful and very thorough in completing and filing an N-400 naturalization application. If an applicant is less than truthful in completing the N-400, the fraud will come back to haunt him or her even after the applicant becomes a naturalized U.S. citizen.

In the Matter of Alfonso Gonzalez-Muro (24 I&N Dec. 472 (BIA 2008) Interim Decision #3604, issued March 11, 2008), the Respondent committed crimes when he was a lawful permanent resident, he concealed those crimes during the naturalization application process, then became a U.S. citizen but he was ultimately placed in removal proceedings. The Immigration Judge at the removal hearing terminated the removal proceedings against the Respondent on the grounds that because the Respondent’s convictions (not the commissions of the crimes) occurred after he became a U.S. citizen, he could not be removed.

But the BIA overturned the Immigration Judge and ruled that because the respondent committed some of his crimes when he was a lawful permanent resident (which meant that he was removable at the time he committed those crimes) and because he represented in his N-400 application that he had not committed a crime for which he had not been convicted, his citizenship was obtained by fraud. The BIA ruled that because his citizenship was obtained by fraud, that citizenship would not protect him from adverse immigration consequences relating to his crimes.

Interestingly, the Respondent had entered into a prior settlement agreement with the government by which he accepted the revocation of his naturalization. As part of that settlement agreement, he agreed to be “forever restrained and enjoined from claiming any rights, privileges, or advantages under any document that evidences United States citizenship obtained as a result of [his] June 24, 1994 naturalization.” It is not clear from the BIA decision why the Respondent stipulated to being denaturalized since it should have been clear to him that the government intended to try to remove him. Perhaps he was confident that prior case law (including the U.S. Supreme Court decision in Costello v. INS, 376 U.S. 120 (1964)) would protect him since his convictions all took place after he became a U.S. citizen.

In any event, it’s a lesson in the need for complete honesty in any application for immigration benefits. Being anything less than completely honest in an immigration application always makes a past problem even worse than it may already be.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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There is another common sense editorial in the February 5, 2008 edition of the WSJ pointing out that politicians who run on an anti-immigrant platform are not only wrong on the immigration issue but they typically lose anyway. Rosa Rosales, President of the League of United Latin American Citizens, points out that so far in this primary season, in Iowa, New Hampshire, South Carolina and Florida, the anti-immigration candidates have performed poorly and the candidates who support some form of comprehensive immigration reform have done well. Anti-immigrant candidates are misreading the electorate.

As Ms. Rosales points out, for example, 57 per cent of voters in Iowa support earned citizenship for the undocumented; in New Hampshire, the issue of illegal immigration was not in the top three most important issues to Democratic voters; and in Florida, Cuban Americans voted 5-1 for John McCain over Mitt Romney. McCain favors a path to legalization while Mitt Romney does not--although he did when he was Governor of Massachusetts. I guess he was for immigration reform before he was against it.

The point is clear: Americans are in favor of comprehensive immigration reform during this Presidential primary season just as much as they were last summer when the U.S. Senate shot it down. Let's hope that the next President has a Congress that he or she can work with to get some meaningful reform passed quickly.

That would be in everyone's best interest.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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A tentative settlement of a class action lawsuit that was filed in Federal Court in Philadelphia in December, 2006, that is challenging the delays by the USCIS in deciding applications for both adjustment of status (Form I-485) and naturalization (Form N-400) for applicants who either are or were receiving SSI benefits has been reached, subject to final court approval, in February, 2008.

The issue in the case involved delays in adjustment and naturalization applications where the delays are resulting in actual or possible cut-off of SSI benefits. SSI benefits are paid to severely disabled, blind and elderly poor people and the class action suit was filed because the payments had been stopped to about 12,000 refugees and asylees because USCIS delays were preventing from them becoming U.S. citizens, something that is a new SSI eligibility requirement.

The class action suit does not involve delays in USCIS adjudication of adjustment or naturalization applications filed by anyone not affected by the possibility of an SSI benefit.

The tentative settlement agreement provides that any class member may request Expedited Processing from the for pending applications for naturalization or adjustment of status, or for future applications for naturalization or adjustment of status filed while the settlement agreement is in effect, if six months have elapsed since the filing of the application without a decision. The USCIS has agreed to request priority processing of any pending or future security checks and it will give the earliest available appointment for any such applications that requires an appointment. Also, if an Oath of Allegiance is required, the USCIS promises to schedule the Oath at the next available opportunity.

If a class member has a pending Form I-485 or Form N-400 and has received or is receiving SSI benefits, he or she (or a representative) may call the USCIS at 1-800-375-5283 (which is the USCIS I-800 number) and request this new Expedited Processing.

The idea, of course, is to make sure that applicants who depend on receiving their SSI check not lose out on their benefits just because the USCIS is delaying a decision on their case.

A hearing has been set in Philadelphia for February 29, 2008 to finalize the class action settlement.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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A client of mine who is applying for naturalization couldn’t recall whether he registered with the Selective Service Agency and it was easy enough to find out. Since he is a male who was in the United States in immigrant status between the ages of 18 and 26, it was required that he register and registering is a prerequisite (under the circumstances I describe below) for naturalizing. We were able to go to the Selective Service Agency’s website and by inputting his name, Social Security number and date of birth we were able to confirm he did register (and got an instant, printable confirmation that he had done so) back in 1980.

Here are the basic rules about registering with Selective Service before applying to naturalize to U.S. citizenship.

First, the law (technically the Military Selective Service Act) requires every male citizen of the United States, and every other male person residing in the United States who is between 18 and 26 years old to register with the Selective Service Agency. “Male person residing in the United States” makes the law applicable to green card holders—permanent residents. The law does not apply to any female and it doesn’t apply to males who are in non-immigrant status. For example, it doesn’t apply to male students holding F student visas. It also doesn’t apply to any male who wasn’t even in the U.S. when they were between the ages of 18 and 25.

Second the law requires any naturalization applicant to prove (among several other things) that he or she declare a willingness to bear arms on behalf of the United States when required by law. Therefore, the USCIS will not approve a naturalization application for a male who knowing and willful failed to register for Selective Service if he was required to do so.

So what happens if a naturalization applicant was supposed to register with Selective Service but didn’t? Fortunately, the failure to register is not a permanent bar to naturalization. However, if the applicant simply refused to register or knowingly and willfully failed to register if he was required to, then his application is going to be denied.

A male under 26 years of age who has refused to register for Selective Service will not be

Continue reading "Naturalization and Selective Service" »

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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