Citizenship Can Generally Not Be Granted Where a Green Card is Obtained by Fraud or Government Error
In the journey towards U.S. citizenship, one crucial step is proving that your status as a Lawful Permanent Resident (LPR) was obtained properly and lawfully. This comprehensive guide is designed to help green card holders interested in applying for citizenship understand the eligibility requirements and processes involved in verifying an applicant’s lawful permanent residency status during naturalization proceedings.
Key Takeaways
Applying for Citizenship: Was Green Card Issued Legitimately?
N-400 Will Be Denied if the Green Card Was Obtained by Fraud or Government Mistake
In becoming a U.S. citizen, one key part is showing that your Lawful Permanent Resident (LPR) status was obtained legally. This article is for green card holders to understand the rules and how to prove LPR status during naturalization.
LPR at Time of Filing and Citizenship
This section examines the status of a Lawful Permanent Resident (LPR), also known as a green card holder, when filing for a specific action. It focuses on the requirements for becoming a U.S. citizen through naturalization. Specifically, it will address whether an individual must be an LPR when applying or if some flexibility exists.
Lawful Admission for Permanent Residence
When assessing an applicant for naturalization, it’s important to start by asking how long they have held permanent resident status. If they have possessed their green card for either 3 or 5 years, further investigation is needed to ensure their LPR status was lawfully obtained.
According to Section 318 of the Immigration and Nationality Act (INA), citizenship applicants must demonstrate they were legally admitted to the United States as permanent residents during their initial admission, adjustment of status, and all subsequent reentries into the country.
If LPR status was obtained illegally—whether by fraud, misrepresentation, or otherwise—an applicant is not eligible for naturalization, even if they have a valid Permanent Resident Card (PRC).
Lawfully Admitted for Permanent Residence
“Lawfully admitted for permanent residence” refers to being granted the right to live permanently in the United States as a lawful permanent resident under immigration laws, without any change to that status (INA § 101(a)(20)).
- The applicant acquired LPR status through mistake or fraud.
- The applicant was not admitted in accordance with the law.
Furthermore, it is also mandatory to know that green card holders cannot sponsor their parents to become permanent residents of the U.S. Furthermore if the applicant satisfies all the requirements, they become eligible to petition for a green card for parents.
LPR Status Through Mistake or Fraud
Here are some examples:
Marriage fraud occurs when someone marries solely to obtain a green card. Extensive investigations are conducted before and after issuing the green card to ensure the marriage is genuine. Even if the individual remains married with the conditions removed, they are not considered to have obtained their green card legally if the marriage was fraudulent, making them ineligible for citizenship.
This is when someone is petitioned by a family member, usually a parent, as an “unmarried son or daughter” when, in fact, they are married. The intention is often to reduce the green card waiting period. This misrepresentation makes the person not have gotten their LPR status legally.
USCIS may sometimes issue a green card due to an administrative error or oversight. If the applicant submitted all necessary information, the fault lies with the government. However, some states have restrictions on revoking a green card issued in error.
Abandonment of Lawful Permanent Residence
An applicant who has abandoned their LPR status is not eligible for citizenship. Abandonment is when the applicant shows they no longer intend to reside permanently in the U.S. as an LPR after they leave. Various things are considered: time away, reason for travel, intent to return, and ties to the U.S.
USCIS looks at these things to see if the applicant intended to abandon their LPR status:
- Time away from the U.S.
- Travel reason
- Intent to come back as an LPR
- Ties to the U.S.
Long or frequent absences, along with other things, can be abandoned even though the applicant is allowed to come back to the U.S. as an LPR.
Change of Law
A non-citizen who was lawfully admitted for permanent residence under the laws in effect at the time of their initial entry is legally admitted for naturalization purposes, even if they would not be eligible under current law unless otherwise provided by the governing law.
Basis of Admission
Applicants must be eligible for one of the immigrant visa categories under the law to adjust to LPR status. Officers must check the underlying immigrant visa petition or basis for immigration that was the basis for the adjustment of status or admission as an immigrant.
Even if admitted as an LPR, the applicant might not be eligible for naturalization if the underlying petition was approved incorrectly or illegally.
For applicants admitted on a K-1 fiancé(e) visa, they must have intended to marry their U.S. citizen fiancé(e) within 90 days of admission and have met each other in person within two years of the petition unless waived. Not meeting these requirements makes them not eligible for citizenship.
Applicants admitted as an LPR might be inadmissible if they fell into any of the inadmissible noncitizen classes, including those with refugee status, and therefore not eligible for LPR status. Grounds of inadmissibility include health issues, criminal activity, security concerns, public charges, labor certification requirements, and more.
Inadmissibility Section
The Inadmissibility section delves into why someone might be prohibited from entering or remaining in a particular country. It outlines the various categories of inadmissibility, encompassing factors like criminal history, health concerns, national security risks, and even the potential to become a public burden.
This section will explore the specific criteria for each inadmissibility category and the consequences of being deemed inadmissible. It may also touch upon the possibility of waivers or exemptions for certain inadmissibility grounds.
Inadmissibility Grounds
Certain inadmissibility grounds, including failure to meet physical presence requirements, make the applicant not eligible for admission as an LPR or adjustment of status. With reference to USCIS, these are:
- Health-Related Grounds (INA 212(a)(1)): Communicable diseases of public health significance, physical or mental disorders associated with harmful behavior, drug abuse or addiction, and failure to present required vaccinations.
- Criminal and Related Grounds (INA 212(a)(2)): Moral turpitude, drug offenses, multiple criminal convictions, and other specific criminal activities.
- Security and Related Grounds (INA 212(a)(3)): Espionage, sabotage, terrorism, totalitarian party membership, and genocide.
- Public Charge (INA 212(a)(4)): Becoming a public charge.
- Labor Certification and Qualifications for Certain Immigrants (INA 212(a)(5)): Not meeting labor certification requirements.
- Illegal Entrants and Immigration Violators (INA 212(a)(6)): Those who entered the U.S. without inspection, fraudulently, or through willful misrepresentation.
- Documentation Requirements (INA 212(a)(7)): No valid passport, visa, or entry document at the time of admission.
- Not Eligible for Citizenship (INA 212(a)(8)): Draft evaders and those not eligible for citizenship.
- Aliens Previously Removed (INA 212(a)(9)): Noncitizens previously removed or who unlawfully returned to the U.S. after removal.
- Miscellaneous (INA 212(a)(10)): Polygamists, international child abductors, unlawful voters, and tax evaders.
Inadmissibility Examples
- Health-Related Issues: A contagious disease applicant must not be a public health risk and may need a medical exam and treatment.
- Criminal Activity: A moral turpitude criminal must show rehabilitation and not be LPR-ineligible.
- Public Charge: Employment records, tax returns, and affidavits of support.
- Fraud and Misrepresentation: Fraudulent LPR applicants must address fraud and seek waivers if available.
Waivers of Inadmissibility
In some cases, applicants can apply for waivers. For example:
- Health-Related Grounds: Waiver if communicable disease and receiving treatment are not a public health risk.
- Criminal Grounds: Waiver for old criminal convictions or rehabilitation.
- Fraud and Misrepresentation: Waiver if extreme hardship to U.S. citizen or LPR family member.
Removal Proceedings
USCIS will not consider a naturalization application for an applicant in removal proceedings, except those based on military service. An applicant with a final order of removal is not eligible for naturalization unless the order is vacated or the applicant meets specific military service requirements.
Deny naturalization application if an applicant has a final order of removal, except for military service.
USCIS cannot naturalize an applicant with removal proceedings pending, except for specific military service cases. An NTA means removal proceedings are pending, and the naturalization application must be denied.
As of November 18, 2020, USCIS will deny naturalization applications if the applicant is in removal proceedings initiated by a warrant of arrest. (Volume 12, Part D, Chapter 2)
Exceptions to LPR Status Requirements
This section dives into the limited situations where an individual might be eligible for a benefit typically reserved for Lawful Permanent Residents (LPRs) even without holding current LPR status. It will explore these exceptions in detail, outlining the specific circumstances under which they apply.
Common examples may include non-citizen nationals born in certain U.S. territories seeking naturalization or spouses of U.S. citizens abroad under particular conditions. This section will clarify the requirements and processes for obtaining the benefit despite the lack of traditional LPR status.
Non-citizen nationals of the United States (e.g., born in American Samoa or Swains Island) can naturalize without LPR status if they meet all other naturalization requirements.
Certain members of the U.S. armed forces serving under specific conditions are LPR-exempt for naturalization.
Common Scenario: Fraudulent Marriage Discovered During Naturalization Process
During naturalization, it’s discovered the applicant previously entered into a fraudulent (malicious) marriage, which was the basis for their green card. This is a big problem for naturalization and LPR status.
The Impact of Fraudulent Marriage
If a marriage was entered into to evade U.S. immigration laws, that’s fraud. Since the LPR status was obtained based on that marriage, it’s unlawful, and the applicant is not eligible for naturalization under INA 318.
Procedure for Fraudulent Marriage
- Evidence Review: USCIS officers review marriage evidence: timeline, documents, and sufficient evidence to prove the marriage was entered into in good faith.
- Notice of Intent to Deny (NOID): If fraud is evident, issue a NOID to the applicant with reasons for denial.
- Opportunity to Respond: Applicant responds to NOID with evidence or arguments against fraudulent marriage.
- Adjudication: USCIS decides. If fraudulent, deny naturalization application.
Fraudulent Marriage Consequences
- Deny Naturalization: Applicant will be denied naturalization because of the fraudulent marriage that led to LPR status.
- Start Removal Proceedings: USCIS may start removal proceedings since LPR status was unlawful.
- Criminal Charges: Depending on the fraud severity and type, the applicant may face immigration fraud charges.
Frequently Asked Questions (FAQ’s)
Take the Next Step Towards U.S. Citizenship
Proving the lawful acquisition of your green card is a vital part of the naturalization process. Ensuring that your LPR status is legitimate and compliant with U.S. immigration laws can prevent delays or denials in your citizenship journey. If you have any concerns about your status or need expert guidance on your naturalization application, Herman Legal Group is here to help. Contact us today at 1-216-696-6170 to secure your path to U.S. citizenship and protect your future.
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