Naturalization Policy Update: Must Read

One of the parting bombshells the Trump administration left us before leaving office, was an update to the USCIS Policy Manual for Naturalization. The Nov. 18, 2020, Memo primarily touched upon the idea that if a Green Card was improperly issued, it could lead to a Notice To Appear (NTA) after processing a failed Naturalization case. Nothing surprising or new there.

The troubling news came from the restatement of existing rules that were practically not followed: when applying for Naturalization, the entire period of a person’s Lawful Permanent Resident Status can be analyzed (not just the last 3 or 5 years depending on the case type). In particular, reviewing a case for abandonment. Thus if a client obtained their Green Card, and was outside of the US for a year and was permitted to reenter by CBP, then waiting 25 years to apply for Naturalization, the 1 year absence could lead to an abandonment of their residency, denial of the Naturalization application and an NTA!

Practically speaking it was never NOT the rule. But in practice, if CBP made a determination of non-abandonment and permitted a Green Card to reenter, and the Naturalization look-back period is passed, it would not be an issue.

Now Green Card holders can carry this risk on them for the rest of their lives and would face serious consequences by filing for Citizenship. Many Applicants without attorneys (and probably many with attorneys) are not aware of this update and can be subject to this issue. We have not yet seen how USCIS will be dealing with this. Hopefully the new administration will fix this:

“USCIS Policy Manual, Part D, Chapter 2, Section B. Abandonment of Lawful Permanent Residence An applicant who has abandoned his or her LPR status is not eligible for Naturalization. To naturalize under most provisions of the immigration laws, an alien must be lawfully admitted for permanent residence and have maintained LPR status through the naturalization process. USCIS may consider any relevant evidence of abandonment to assess whether the applicant is eligible for Naturalization…If the evidence suggests that an applicant abandoned his or her LPR status and was subsequently erroneously permitted to enter as a returning LPR, the applicant is ineligible for Naturalization This is because the applicant failed to establish that he or she was lawfully admitted for permanent residence at the time of the subsequent reenter and failed to meet the continuous residence requirement for Naturalization.

If the officer determines that the Naturalization applicant has failed to meet the burden of establishing that he or she maintained LPR status, DHS places the applicant in removal proceedings by issuing a Notice to Appear (NTA) (Form I-862), where issuance would be in accordance with established guidance.”

Source: https://www.uscis.gov/ policy-manual/volume-12-partd-chapter-2

Policy Memo: https://www. uscis.gov/sites/default/ files/document/policymanual-updates/20201118LPRAdmissionForNaturalization. pdf

On a side note, although in the past CBP permitted reentry after long absences did not always lead to an NTA, USCIS had the authority to disallow the benefits of permanent residency such as submitted family preference petitions. In Matter of Abdoulin 17 I. & N. Dec. 458 (BIA) (1980) a visa petitioner left the United States for 11 years following his admission as a lawful permanent resident and then reentered thrice as a nonimmigrant visitor. He failed to prove his burden of establishing lawful permanent residence so as to confer preference status to his spouse and his petition was denied by the service even though no adjudication against him in deportation proceedings had been made.

In removal proceedings, the burden is on the Government to show by clear, convincing, and unequivocal evidence that the alien has lost status and is deportable. However, in visa petition proceedings, the burden is always on the alien to show that he is entitled to confer benefits. Matter of Brantigan, 11 I & N. Dec. 493 (BIA 1966). Thus, the USCIS Officer could not take away residency status in that case, but could prevent the Petitioner from trying to confer benefits to others based on that status.