Musings on Immigration

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Top Three Excuses for Not Becoming a US Citizen and Why They are Meaningless

If you have ever listened to our radio show, you know that we are constantly encouraging individuals to apply for US citizenship if they are fortunate enough to qualify.  Here are the top three excuses that I often hear as well as reasons these excuses just don’t hold up.

1.       I’m worried about the English Exam.  I have good news for everyone who has ever used this as an excuse for not applying for citizenship:   The English exam is not that hard!  Immigration understands that English is your second language.  Immigration does not expect you to be an English language expert.  All that is required is a basic English and the ability to answer a few questions in English.  And the best news is that Immigration gives you a list of the questions beforehand so you will have plenty of time to practice.  Additionally, many individuals over age 50 can qualify for a waiver of some or all of the English language requirements. Thus, the English language requirement is no excuse for not applying for citizenship.   

2.      I can’t afford the filing fee.  This excuse also doesn't work.  The filing fee is much cheaper than constantly renewing your green card.  Currently, the filing fee is citizenship is $680.  I understand that this can be a lot of money, but when you think about the cost the renew your green card - $450 every time you renew it, you don’t have to be a mathematician to see that it is more expensive to remain a legal resident.  Furthermore, it is much cheaper to become a citizen than it is to have to fight to protect your residency if issues with respect to your residency ever arise.  I know lots of individuals who have spent thousands of dollars fighting the loss of their green card, a loss which could have easily been prevented by paying a $680 filing fee and become a citizen. 

3.      I’m fine with my residency and don’t need citizenship.  This is one of the most common excuses and is the least valid.  Citizenship offers many benefits that are not available to legal residents.  You will be in a better position to help your family with their immigration issues.  You will be able to apply for certain federal jobs.  You will have a far higher limit on the amount of your estate that would be subject to the “death tax” upon your passing.  You can vote!  Finally, you will never have to worry about losing your right to live in the United States because as a citizen you will not be restricted by residency requirements.  I have known many individuals who were “fine with their residency” up until the point it was taken away from them because they unexpectedly had to spend considerable time outside of the country to unforeseen family or employment issues.

In short, there is no valid excuse for not becoming a United States Citizen if you are fortunate enough to qualify.  If you plan to permanently live in the United States, you should take steps to protect that dream and become a United States Citizen.

The New Provisional Waiver – A Promising Program Foundering

For a year we waited for USCIS to put into effect changes it had discussed in processing the needed waiver for the 10 year bar found in INA § 212(a)(9)(B) for those people married to U.S. Citizens who had entered the United States without inspection.  The announcement of the change to a “provisional” waiver program brought with it much anticipation and joy to those who would most benefit from this change.  Nothing was worse than leaving your spouse behind in the United States, many times with young children, for an uncertain number of months, with a strong possibility you would not come back home for 10 years.  And, as a result, many people chose not to take advantage of the waiver because of the fear of the unknown.

The Provisional Waiver regulation announced on January 2, 2013, and effective on March 1, 2013, now made it possible for foreign spouses of U.S. citizens to apply for the permanent residence without the risk associated with departing the U.S. without having the forgiveness offered by the waiver in their hand.  Being assured that you would know of the timing of your return after a brief trip to a consulate was nothing short of gift from heaven for many people.   Predictably, many couples and their lawyers prepared their waiver packages and submitted them to the USCIS as soon as they could after March 1, and many have been waiting patiently for what were promised to be approval notices.  Those approval notices, coupled with their trip abroad, would finally yield what many have desired for so long – normalcy in their lives and permanent residence.

Sadly, the hoped for promise of these provisional waivers has become nothing short of a major disappointment and some say outright fraud on the participating immigrants and their attorneys.  The USCIS has been denying many provisional waivers, not on the merits, but on technical grounds that have nothing to do with the waiver process.  A typical provisional waiver “denial” letter from the USCIS states that the waiver will not be adjudicated because the applicant “may” have another ground of inadmissibility.  For example, one waiver was not adjudicated because the applicant had given a different birth date 15 years ago when he was caught coming into the U.S. (saying he was older than he was to avoid not being sent back) and was returned to Mexico.  As any immigration lawyer will tell you, while the giving of a false date of birth “may” be a ground of denial for misrepresentation, it is not a definite denial, and one that can be dealt with at the consulate and likely without another waiver being needed.   Another example is the “denial” of the adjudication of a waiver based upon a misdemeanor offense that clearly falls within the petty offense exception, something any immigration lawyer (and consular officer) knows will not bar an applicant from being admitted to the United States.
Perhaps more disturbing is the USCIS’s new approach to adjudicating provisional waivers that ignores evidence in the filings.  A recent denial stated that the affidavit from a mental health professional of the psychological issues of the U.S. Citizen spouse were not supported by other “documentary” evidence, and thus could not serve as a basis for the establishing hardship.  Obviously, such a position ignores long-standing case law and policy on the submission of evidence.  This is compounded by the greater problem of the inability to challenge provisional waiver “denials” on appeal. Applicants are left with only refiling and re-paying for the waiver again to try to correct the erroneous decision.

Finally, the grant rate of I-601 waivers from the USCIS office in Mexico (which adjudicated the vast majority of the waivers under INA § 212(a)(9)(B)), was well over 80%.  USCIS will not release the grant rate under the provisional waiver program, but knowledgeable and experienced attorneys are seeing approval rates at or below 50%.  Let’s be fair, perhaps some people are filing cases now that were not as strong as those filed under the original consulate-based program.  But there are widespread reports of cases that are clearly approvable under any standard now being denied for vague and obtuse reasons.

Given the announcement from Secretary Napolitano and the cheery presentation of the new provisional waiver program by various DHS officials, it is alarming and ultimately disheartening to see a program that once worked well being turned into yet another poorly functioning USCIS-run nightmare.  Unless USCIS gets its act together, properly trains the adjudicatory staff, gets out of the consulate’s job of determining inadmissibility, and reinstitutes a culture of yes, the provisional waiver program will cause fewer people to attempt to secure the permanent residence for which they are eligible, and further delay any current-law based fix to their immigration status.  It will become another in a long line of Bait and Switch immigration proposals that fall victim to over-zealous and under-educated enforcement – and it will fail.

Perhaps someone at USCIS will realize how important this program could be to more than a million American citizens and their foreign national spouses. Perhaps someone at USCIS will “buck” the system and demand real adjudicatory action from its employees.  And, perhaps, someone at USCIS will ensure proper training and push for the success of a program that could change the nature of the debate on immigration reform.  I fear the problem is that that “someone” does not really work for USCIS.


When longtime permanent residents come to my office I sometimes ask why they haven’t applied for U.S. citizenship. The most common answer is that it’s too expensive and they can’t afford it. Some answer by asking what good it will do them. I respond by telling them that there are many good reasons to apply for citizenship such as the right to vote, the right to hold public office, and the right to apply for certain governmental positions. I then add that the best reason to become a citizen is that once you are a citizen the immigration courts and USCIS no longer have control over your life. Your right to remain in the United States is absolute. You can’t be deported!
While this may not seem like a big deal if you consider yourself a law abiding person, it is when you think about how many ways a permanent resident can slip up and be deported. All it takes is one slip-up, one mistake and your life can be forever altered.
To illustrate this point let me share with you a few details about a case I recently worked on. This person came legally to the United States at a very young age and eventually became a permanent resident. Several years ago, he was convicted for a relatively minor offense. While I can’t go into detail about it, believe me when I say it was minor! He served no time in jail and was given probation which he completed. He has no other criminal history, well maybe a speeding ticket, but we’ve all been there right? Several years later he is leading a normal life in his mid-30s not worried in the least about being deported. One day Immigration and Customs Enforcement agents show up at his apartment and detain him and he is placed in deportation proceedings. I know what you’re thinking, “how can the government deport somebody like him who has been here virtually his entire life for an offense that happened several years ago with no jail time?” Because of his particular circumstances and the arcane nature of our country’s immigration laws, this individual was not eligible to fight his deportation and he was eventually deported with no legal way to come back. Shocked? It happens all the time!
If only he had applied for citizenship at the moment he was eligible he would have been able to avoid the catastrophe that is deportation. It may be nice to talk about the right to vote and the pride that one feels after taking the oath of citizenship, but nothing beats the right to not be deported! So to all those longtime permanent residents who think they can’t afford it…can you afford not to apply for citizenship? Given today’s enforcement climate and that ICE is deporting record numbers of people each year, there is no reason to delay applying for citizenship. To those who think what is described above can’t or won’t happen to them…what have you got to lose? Answer – possibly everything you have spent a lifetime building! I always say it’s better to have something and not need it than need it and not have it. It’s no different with citizenship.