What is expeditious naturalization?
Expeditious naturalization is available to individuals who are seeking to naturalize as the spouse of a U.S. citizen who is regularly stationed abroad. The eligibility requirements for this category of naturalization applicants are outlined in section 319(b) of the Immigration and Nationality Act (INA) and section 319.2, Title 8, Code of Federal Regulations. Although U.S.
Starting on March 11, 2014, USCIS will implement a new process to receive and adjudicate applications for civil surgeon designation centrally at the National Benefits Center. This process change requires physicians seeking civil surgeon designation to file a formal application at a USCIS Lockbox. Centralizing the civil surgeon application process will:
Transcript: Leaving an Employer after Approval of Green Card
Hi everyone this is Rajiv S. Khanna for immigration.com the Law Offices of Rajiv S Khanna, P.C.
I have been trying to get to this email now for a few days and it just keeps getting postponed. But this was from one of our community members who has a bunch of questions about what happens after you get your green card if you have done your AC21, not done your AC21 what to do, not to do to make the process of naturalization eventually smoother.
Question number 1. How long must one stay with their employer after getting a Green Card?
Now we do have a very detailed video on this. If you go to my blog (http://forums.immigration.com/forumdisplay.php?253-Rajiv-s-Blog) you will get a video that talks about how long must you stay. I am not going to repeat that information here. That information has already been covered.
He also asks along with a response to this question please provide any exceptions that might exist
I will give a very small summary. Let’s take the situation where no AC21 is involved. All we have is an employee who is staying with the same employer who sponsored their green card and today they got their green card approval. When can they leave safely without negatively affecting their naturalization?
And the answer is it is difficult to say depends upon the circumstance. There is no six month magic rule that people often talk about. But the way it works is green card is given based upon the premise that the employee is taking the job on a permanent basis. Permanent does not mean forever. Permanent simply means indefinite basis. And what is important is at least in my view that the intention or the intent at the time of getting the green card approval must be indefinite. So if I have already started packing my bags before I got my approval and I move three days later there could be some question about it. Although in the age of AC21 this question, did you really have the intention of working here permanently, which in real words means indefinitely - it has become very diluted because of the AC21. At least that’s the way I would see it. I doubt very much government should make an issue out of it as long as you know the two jobs that you’re doing the one that you go from and the one you go to are substantially similar positions.
I would make an AC21 type argument saying that I basically ported over to a new job which was similar, if it ever became an issue during naturalization. But if you wanted to avoid all issues then I would say stay as long as you can, at least a few months after you got your green card approval and only then leave.
Let’s say in the AC21 context things become more complicated. This is the worse scenario. Lets say you moved job one to job two and before you could file anything with the government your green card got approved, so what has happened is, you were hoping to use you AC21 but before you could inform the government your green card got approved, so you never filed anything formally notifying the government that your changing jobs.
Of course you are not required to under AC21 law. You are not required to file anything. But the fact that you did not file anything, makes it complicated because tomorrow when naturalization time arrives, the government could notice that you left the sponsoring employer ten days before the green card got approved or three days before the green card got approved.
So technically, you never took the job for which the green card was meant. Now again here the argument would be I was going to use AC21, this is a problem in the procedures, it is not something I have done wrong. The AC21 process does not really require government notification by or before a certain time when I am changing jobs and in fact it does not require notification at all, so how can you hold me responsible for something for which I am not even required to inform the government. So what should you do - just make sure you have some documentation that shows that the job that you moved to was substantially similar to the job that your moving from. I would strongly recommend getting a lawyer involved. And keep that documentation for the next several years if it becomes an issue during naturalization you can provide the documentation and make the AC21 argument.
So the situation where you were doing AC21 and the situation were you are doing basically a job after getting the green card approval are the same except were the green card gets approved while you are still in the process of thinking of filing an AC21 level. Otherwise if you change jobs - let’s say you went to job one to job two and you filed a notification with the government and then ten days later the green card got approved now you are in the same situation probably as the guy who stayed at the same job and did not move jobs.
Number 2 question is.... Is there any documentation that one must acquire from his employer at the time of exit?
One point I want to make, what if you want to work and the employer says I don’t have a job for you. I think in those circumstances it is a good idea to have some kind of termination letter or some kind of email or an acknowledgment in the letter that we understand from the employer, that says we understand the you are agreeable to continue to work for us on a indefinite basis however because of XYZ circumstances or business circumstances we can no longer offer you this job. I think that would protect you to a reasonable extent.
There are cases that I have seen a few years ago I did some research on this issue. There were not a whole lot of cases but there were some cases where the government tried to take somebody’s green card and the court said: well if the employee is willing and the employer is not what can you do? We should let them keep their green card.
Documentation in cases where the employer is going to lay you off should be kept in the form of a termination letter and if possible some kind of acknowledgement that the employee is willing and able or even some kind of an email that you can send to the employer saying that I am willing to continue with this job on a indefinite basis, I was hoping it will be a permanent job but I understand that you don’t have it any longer - something like that - it shows that you have documented - I think we are paranoid, but I think it is better to be paranoid.
Number 3 question is: How is the naturalization process impacted by exiting the wrong way? How does anyone find out about how you exited if let's say you apply for naturalization after 10 yrs?
They can not only refuse the naturalization they can even try to take away your green card. So one of the things you can do is, remember when you file for naturalization within 5 years of getting your I-485 approval, it is easy to reverse I-485 approval in the first five years, so one of the things you can do is file for naturalization after five years have passed. The law allows you to file 90 days before the five years are over I would say do the naturalization application ten days after the 5 years from the green card approval are over.
That is another thing you can do. That way if they want to come after your green card they (USCIS) have to go through a longer process rather than just revoking your I-485 approval. One concrete suggestion is apply for a naturalization a few days after the five years from the approval of your green card are over.
How does anyone find out about how you exited if let's say you apply for naturalization after 10 yrs?
If you apply after ten years they probably cannot find out. I think the form N- 400 only asks for your employment history for the last five years.
Question 4 : Can the IO (I guess what you mean is the adjudication officer)involved in the naturalization process reach out to previous employer for any reason? If so how does one prepare for that contingency since the employee (and maybe his boss) might not be with the same employer at the time.
Normally no I have never seen it that happen in over two - three decades of my practice. And of course you point out that by that time maybe the boss and everything is all changed and the answer is yes. That is a practical difficulty. In fact I was reviewing a case from Seattle, Washington State Federal Courts, where the judge had pointed out that when the government creates a situation where it is impossible for an employee to go back and fulfill the requirements of the evidence the government is asking for e.g.: where there was an I-140 revocation and the employee had already left the employer and now they are trying to go back and revoke the I- 140. He cannot get the documentation that they want. They are trying to revoke the I- 140 several years after it was approved. It’s impossible for the employee to get the information that they are looking for. I think something like that would work for us.
I am not that concerned about the adjudication officer reaching out to the old employer it would be just impossible for any employer to keep the records that long anyway, if it is several years down the line.
Number 5: Can any of the employers that one has worked for before getting the GC approval negatively impact one's naturalization process? Any safeguards that you could recommend
No ... I cannot think of anything, except if there is an active fraud that you have committed and that fraud is against the US government in any way for e.g.: giving a false degree certification etc then you can have a problem but otherwise there is no issue and during naturalization they don’t go to the old employers.
Number 6: If a previous employer gets into legal issues because of their business practices can that negatively impact one's naturalization process?
Again that depends, if there was fraud in your green card approval that can definitely become an issue. If it becomes part of the record government could actually unravel the I-140 and try to unravel the green card and then of course that affects your naturalization as well.
Number 7: What documentation does one need to hold on to for naturalization purposes like paystubs, offer letters etc?
I just described that documentation. Paystubs is always a good idea as we are dealing with some of the cases where USCIS is trying to revoke I-140s for fraud and we are able to prove that there is no fraud because the people that they are coming after were actually working. Here are the paystubs, here are the bank deposits slips that show that this money was not only received from the employer, but also deposited.
Number 8: Can negative information or any information posted on the Internet (social media for example) be used against someone in the naturalization process?
Not unless it was the kind of information which would bar you from getting naturalization such as - it is a crude e.g.:- but let’s say you are trying to solicit a minor for immoral purposes. That could become a problem. Because remember good moral character is part of naturalization- moral character is implicated, at least in my mind when there is something negative being done against US government or the laws of this country. It can become relevant, the information on the social media, but not just because you are an obnoxious person or you are in a bad mood and you have written something bad. It has to be something more than that. I get this question all the time what if I am in bankruptcy does that affect naturalization. No it does not. Only time you could have a problem is if you skipped on your taxes but even there - a proper bankruptcy discharges some kind of claims and if those claims are discharged they cannot be held against you.
Number 9: Can a disgruntled employer or colleague negatively impact
Again unless you have committed a fraud I don’t see why.
Number 10: General wisdom on what NOT to do after getting one's GC and before citizenship?
Make you file the AR-11. Try not to get arrested. Lead a good life. Other than that I have nothing else to recommend. Most of our clients get a list of things they should be doing. Filing AR-11 is important. Within 10 days of moving address from one place to another you should file AR-11. You can do it online.
I hope this helps. Good luck people!!!
Fraud Allegations in Immigration Law
Recorded on 12th July 2012.
I wanted to talk to you folks today about an issue that has become problematic in the last four or five years - fraud or misrepresentation. Very often, I see that the government very casually throws in an implication that you have committed a misrepresentation. Actually, they will come out and say that we find misrepresentation. You will think that this is a normal, ordinary thing, and you might ignore it. I have seen people get into so much trouble with that fraud or misrepresentation finding. Let me talk to you about what can happen with that.
First of all, a fraud or misrepresentation finding can lead to criminal prosecution. You can be prosecuted criminally, if the government so chooses. I have seen companies being prosecuted for amazingly trivial things. I have seen government start with a 43 count indictment of a company and then walk away with “Failure to report change of address” or something so trivial that it makes you wonder why did the government spends three, four, or five million dollars on the prosecution of these kind of cases. We have provided advice and help to various defense teams all over the country in criminal defense of these kind of cases. My bottom line approach in these cases is, you’ve got to be extremely careful the moment you see any implication or finding of fraud or misrepresentation. Speak with counsel or speak with somebody who knows all sides of this picture. Unfortunately what happens is, if you are only concerned with benefits like an H-1 or an F-1 or an L-1, you probably won’t pay too much attention to ancillary findings other than the fact it has been denied.
Let us talk about what can happen if there is a fraud or misrepresentation finding a little bit more in detail. The worst thing that can happen is a criminal prosecution. You can go to prison over this, make no mistake, if there is in fact a finding that was not rebutted and then there was a subsequent investigation and more evidence was collected. I will give you this--criminal prosecution and conviction are not as easy as just throwing out a finding and it is surprising how easily USCIS and other agencies toss around that finding, “Oh, this is misrepresentation.” The moment I see that word, I know it is a buzzword for us to go all out for this issue and make sure that the government has it on the record what our side of story is.
So, criminal prosecution is not easy but it can happen. Be careful. Deportation, removal, exclusion. What does that mean? If you are in USA on a visa, F-1 , B-1 , H-1 , L-1 any visa, and they find that there is some fraud or misrepresentation in your past or present, the government can initiate deportation, more accurately, removal from USA, and you can then be barred from coming back to USA for up to permanently . And I am saying that again so that you folks understand. Any attempt to procure a visa or immigration benefit, note that “attempt.” You do not have to have been successful. Even in an attempt could lead to a permanent bar from entering USA.
As I recall, there is only one waiver available based upon a family member--immediate family member-- who is a US citizen or permanent resident, but then you have to convince the USCIS that you should be given that waiver and there is extreme and exceptional hardship on your relative. I recall that is the waiver that is available for these things .Third thing that can happen is denial of sought benefit now or in the future. So think about this very carefully. You applied for an H-1. For some reason, they said, “Oh, your degrees are fraudulent,” and I have seen these kind of cases .They thought that the degrees were fraudulent merely because there was no confirmation of certain kinds of things. For example, you just gave your transcripts. You did not give your final diploma, and USCIS, after doing some cursory checks, decided that you had not been able to prove your case. Instead of merely saying that you have not been able to prove your case, they will throw in something very casually saying, “Oh, this is misrepresentation.”
Next thing is, you get stuck when you apply for an H-1 again. They will pull up the record, and they will say you have a misrepresentation and we cannot give you the benefit. So, in the future, this can come back and haunt you. Next thing that can happen is, if there is any misrepresentation finding, let’s say you applied for an H1 transfer and they found fraud they can revoke whatever they have given you. Now remember that when I say that they find fraud, they do not even, this is very sad, but they will just throw in the finding without considering, and I have seen too many cases like this. It is awful for the government, and I do not think government. Let me rephrase that. I do not think any government officer individually is IQ challenged, but I think, as an organization, the moment we get into a bureaucracy, we are dealing with very unintelligent bureaucracy. Without considering the consequences of what they are doing, they will throw in a finding of misrepresentation. So your benefits can be revoked, and as I said earlier, you can get a permanent bar from entering USA.
So the next question is “When does this come up?” Normally, when a fraud or a misrepresentation finding is made, typically, where do they make this finding, they can do it at the consulate during visa application. I talked with some individuals yesterday, such an easy case and because of a misunderstanding, it’s become a complete problem. What was the case? Boy and girl meet, they get married. According to South Indian ceremonies, I do not want to say the exact state, but South Indian ceremonies, and the marriage occurs in a temple. According to the law of the state where the marriage was entered into, until the marriage is registered, it is not valid. However, when the lady goes for a K-1 interview (K-1 is for fiancées; if you are married you cannot get a K-1), the consul officer grilled her quite thoroughly and decided that she was lying and that she was already married. Next thing, they put a permanent bar on her. Now she is under permanent bar. The husband is scrounging around, trying to get some way of getting her back in. Of course, she will make it back in this particular circumstance, because there is a bunch of factors that go in her favor, but this is a tough case. And normally, US citizen spouses, actually, unless there is a unique case, I usually tell people do not even hire a lawyer. Is this is ethically okay? I think it is. In my judgment, certain cases don’t need a lawyer. Typically, spouse of a US citizen is such a plain and easy case. But look at this example and how badly this got messed up. So now, during a visa application, you’ve got a bar.
What other circumstances? Remember the Tri Valley University? A lot of you might remember that. There were some misrepresentation implications for certain groups of people, not everybody. They had a lot of problems getting visa stamping again from the consulate. Second place where it can happen is at the airport. When you land at the airport, the CBP (Custom and Border Protection) can haul you up there. I have seen cases where somebody said, “Oh, I am coming in for a visit” and the CBP officer went through the luggage of the individual, and they found letters showing that they were meeting up with some potential employers or they were applying to schools. Immediately, there is a fraud implication and the next thing is two things can happen. If they want to be kind, they will let you withdraw your application for admission and tell you to take the next flight back home without coming into USA .If they want to throw the book at you, they can ... actually there is a third possibility. Second is if they levy an exclusion on you, which basically means, we are formally denying you entry into the United States. Now you are barred for five years from coming back. But to throw the book at you, they would deny your entry based upon misrepresentation. Now you have a permanent bar. So these are not simple matters, ladies and gentlemen. They can be quite complex. Please make sure you have competent help if you see any implications or fraud or any chance of fraud in your application.
Then the next thing is you can have a fraud or misrepresentation come up during benefits application. In H-1, hiring without a project, the government now considers that to be a fraud. I do not know how at what point of time hiring somebody without a project became a matter of a fraud. I still think the jurisprudence-- the law in this area--is very poorly developed and poorly managed. But who wants to take a chance for the criminal court? Who wants to go in and spend 800,000 dollars, a million dollars, defending yourself if the government wants to take the stand that this is fraud? So do not hire somebody without a project, employers. That is now considered to be a fraud. I have seen indictments that said that specifically.
Inaccurate Job duties. An H-1 employee is supposed to be a System Administrator, but they are working as a Software Engineer, developing but not doing any administration. That can be a problem. Why? It can be a problem in depressing wages. System Administrators are typically, though it could be other way around, paid differently that a Software Engineer. Actually, if you hire somebody at a lower wage and make do to a higher paid job, that is a problem obviously. I have seen failure to post LCAs at client sites. If you have employees working at end client sites, I have seen the government try to make a fraud case out of that, because, partly, I think it is justified. There is something that we have to look at very carefully, because they can say, “Look when you signed the LCA. You made a representation to the government, ‘ I have posted this application at the end client site.’” That gets quite complicated. So this was H-1. There are many examples I could sit here and talk about for hours. But I just want to give you kind of a flavor of when these things happen and crop up.
Green cards. I remember a very weird case where, when filing the green card application (the perm application), the employer, who is a fairly good-sized company, signed the application without reading it through. The 9089 was prepared by lawyers and it was not mentioned that the employee is related to the company president. It was his brother. The next thing is, USCIS denied the I-140, and, on top of that, they said this is misrepresentation, and we are also revoking the labor certification. When I gave a consultation on the case, I immediately moved in and took certain steps, and I will get to that when I come to the next topic, which is what should you do. But the point is, government’s contention was that in looking at the ETA 9089 perm application, it says, “I have read this application.” It specifically says that. So if you are signing that as an employer or even an employee, you better read and make sure all the material information in there is correct. I have seen this issue come up a lot during Adjustment of Status. Where do they come up the most? Well, mostly lately, it has come up when government says, “Look, you are on H1 and you are authorized to work for an area in California, but you worked in Chicago.” Here is the employee who is stuck with the fact that they cannot do anything about where the LCA was filed by the employer, but now they have got a fraud implication on their record. Well, we deal with it, we make matters clear. We explain the law to the government. But it is still quite hasslesome and bothersome to be in that situation. Anyhow, go ahead and be careful and watch those whenever you see fraud or misrepresentation come up, just make sure it has been taken care of and properly addressed.
When else during Adjustment of Status? G-325-A. When you file the G-325-A, which is the biographical statement, government can take--I have a case actually, in which the employee neglected to mention two or three jobs that they had done illegally. It was definitely an oversight, no question about that, because he disclosed other things. And if he were going to try to deceive the government, he would have done a lot more than merely omit those two jobs. So that became a big problem. They are trying to bar him permanently. We have a MTR (Motion to Rehear) pending against that. During naturalization, there is an interesting case--interesting for me, but sad for the people who are involved. A gentleman ran a company—again, a relatively good-sized company--and somewhere about six or seven years ago, they had submitted a letter from an end client in support of an H1, which the government considered to be fraudulent. They said they could not verify the letter, and they made, I do not remember if they made an express finding a fraud. But they did say that they were not able to verify, so there is doubt as to the veracity of the document. Doubt as to the veracity. Okay, that does not alert you. You do not think, “Well, they are not saying they find fraud, but that is what they are saying. Okay, six or seven years later, they have a lot of approvals for their H-1 after that green card with no problem. Employees have been doing fine, and the issue never came up. This gentleman applies for naturalization. Guess what? Barred from naturalization. The government may go after his green card. Why? There is a fraud. So this issue comes up in naturalization.
It can come up in courts. Sometimes you are there for unrelated proceedings, for example divorce. Next thing is, there is a misrepresentation element or an element of fraud that you have not considered, and you are stuck. The worst case that I have seen come up , which was very unfair and sad is, when an employee on H1 fell out of status for a month or so. Under the law, if you are out of status for even one day, by operation of law, your visa is considered to be cancelled. So the Visa stamp that you have on your passport is cancelled. Very few people know this law. Of course, as they say, ignorance of law is no excuse but when the law is so complex and so difficult to keep track of, who can know when something has been voided or made invalid by operation of law? Nobody can keep track of that. It is something that happens quietly, perniciously in the background. So, when this gentleman applied for Adjustment of Status, his 485, government said, “Your last entry into USA was fraudulent because you used the VISA that was void by operation of law.” I do not think he is going to have much trouble ultimately, but he is definitely being dragged around for misrepresentation. See, I do not mean to imply that the government is always unreasonable, but they can be. Individual officers can be sometimes be very unreasonable and overzealous in what they feel is the right application of the law.
What should you do? Look at the left hand side of the screen. Clarify the record even if you lose the case. You want to make sure your story, your side of the story, is on the record. I do not care if you lose the case. So what did we do in that? Remember I talked about the president who signed the 9089 not realizing that he had signed saying that they were not related to each other, the beneficiary and he were brothers. So what we did was, we immediately filed an appeal, and the appeal got dismissed, but we told our entire story. We explained what happened. We went through the entire document trail. We submitted documents and I think even though the company may not realize it, by doing that, they have now put their own story on the record. So tomorrow, if this issue ever comes up, whoever at USCIS is reviewing his case, they can see both sides of the picture before they deny any future benefits like naturalization. Now we have both sides of the stories there. Appeal it, file a motion to reopen, even file a lawsuit. All of these things you can do.
And what else can you do? If nothing else, send out a letter. Make it clear what the record was. I believe that should at least provide you a modicum of good defense .Good luck, folks, and it is good talking with you. I think I want to do a video next time about these I-140 revocations. I am seeing I-140 revocations coming up after 8-10 years of having been approved. Highly unfair. Let me get into that next time. Good talking with you.