Articles Posted in Citizenship

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Usnaturalization.jpgThe New York Times reported the story of a man who came to the United States from Pakistan as a child, faced possible deportation several times, and finally became a U.S. citizen after years of waiting. Mohammad Sarfaraz Hussain came to the U.S. with his mother, and remained here after she died. He became fully “Americanized,” according to the Times, but the nation’s response to the events of September 11, 2001 put him and others in a difficult position. He was required to register with the National Security Entry-Exit Registration System (NSEERS), a now-defunct program created as part of the “War on Terror.” He avoided deportation and obtained asylum. By enduring some of the worst the immigration system has to offer and becoming a citizen, Hussain offers quite the success story.

According to the Times story, Hussain’s uncle, a physician in Queens, New York, petitioned for an immigrant visa for his sister, Hussain’s mother. As her minor son, Hussain would share her immigrant status. While the petition was pending, she was diagnosed with cancer and traveled to the U.S. on a tourist visa for treatment, bringing eight year-old Hussain with her. Hussain’s mother died in New York, and he overstayed his visa to remain with his uncle. His father died of a heart attack in Pakistan when he was fifteen. Another relative petitioned for an immigrant visa for Hussain, but the September 11 attacks occurred while it was pending.

The Immigration and Naturalization Service (INS), the predecessor to U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), created NSEERS in 2002. The program required certain nationals or citizens of various countries in the Middle East, North Africa, and South Asia to register with INS. This included male nationals of Pakistan who were over the age of fifteen at the time. 67 Fed. Reg. 77136 (Dec. 16, 2002). NSEERS was heavily criticized as a form of racial profiling that was both offensive and ineffective. The Department of Homeland Security began scaling the program back as early as 2003, and effectively ended it in 2011. Hussain registered with NSEERS in early 2003, and managed to avoid deportation when massive public support led ICE, which had by then replaced INS, to exercise “prosecutorial discretion” and dismiss the case.
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Us-passport.jpgThe U.S. Department of State (DOS) announced a significant increase in the fee it charges to process renunciations of U.S. citizenship. The DOS states in its Interim Rule, published in the Federal Register on August 28, 2014, that processing expatriations is both costly and complicated, requiring extensive investigation by consular officials overseas, followed by final approval in Washington, DC. Under the new fee structure, which took effect on September 6, 2014, the processing fee has increased from $450 to $2,350.

The number of renunciations of U.S. citizenship, also known as expatriations, has reportedly shown a sharp increase in the past two years: 932 in 2012, nearly 3,000 in 2013, and more than 1,500 in the first half of 2014. The specific reasons people choose to renounce U.S. citizenship probably vary widely from one person to another, but U.S. tax policy seems to be a common reason. The Foreign Account Tax Compliance Act (FATCA), which took effect in March 2010, targets concealment of offshore assets by U.S. citizens. It requires citizens, including those living abroad, to disclose offshore financial accounts and other assets to the Internal Revenue Service (IRS).

The DOS requires that a person seeking to renounce citizenship appear in person before a U.S. diplomatic or consular officer to sign an “oath of renunciation.” This must take place in a foreign country, usually at a U.S. Embassy or consular office. 8 U.S.C. § 1481(a)(5). Attempts at expatriation that do not meet these criteria have been ruled invalid by U.S. courts. The DOS must investigate the renunciation to confirm that it is truly voluntary, which includes confirmation that the person understands that renunciation is, with very limited exceptions, irrevocable.
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Conscientious_Objector_memorial,_Tavistock_Sq_Gardens.jpgU.S. Citizenship and Immigration Services (USCIS) denied a woman’s applicant for naturalization based on her stated reasons why she would not be willing to “bear arms on behalf of the United States.” Federal immigration law allows a naturalization applicant to decline to take an oath to bear arms if he or she can demonstrate a religious objection. The woman stated in her application that she is an atheist with significant personal convictions against war and violence, and USCIS denied her application. It reversed its decision after secular advocacy groups, such as the American Humanist Association (AHA) intervened on her behalf. The woman’s case is the second in the past year involving the denial of a naturalization application based on religion.

The applicant, who is originally from Colombia, became a permanent resident of the United States in 2008. She applied for naturalization in October 2013. In her Form N-400, she identified herself as an atheist and provided a statement explaining her unwillingness to take the full oath of allegiance. She described her own history of advocacy for non-violence, and drew on Martin Luther King, Gandhi, Albert Einstein, and Jiddu Krishnamurti to provide a secular explanation for her principles. She also noted that it was unlikely that she would ever be called to serve in the military, but that she wanted to provide an honest answer. On January 29, 2014, USCIS denied her application, reportedly solely because of her opposition to bearing arms.

Federal immigration law requires applicants for naturalization to state their willingness to take an oath of allegiance to the United States, including an oath “to bear arms on behalf of the United States when required by law.” 8 U.S.C. § 1448(a)(5)(A). The statute allows a person to omit the “bear arms” provision if they show, by clear and convincing evidence, that they are opposed to military service “by reason of religious training and belief.” The statute also specifically states that this term refers to “belief in relation to a Supreme Being” but not “political, sociological, or philosophical views or a merely personal moral code.”
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169849_3851.jpgImmigration reform has been a contentious topic all over the country for months, and proposed reform bills continue to make their way through the legislative process in Washington DC. The U.S. Senate passed a bill in June 2013, which now awaits the House of Representatives. Closer to home, a recent study showed that the immigration reform provisions expanding work eligibility could increase New Jersey’s tax revenue by tens of millions of dollars. New Jersey would benefit more than most states from an expanded tax base. The state already receives hundreds of millions of dollars in taxes, mostly sales and excise taxes, from undocumented immigrants living here.

The U.S. Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, on June 27, 2013. The bill resulted from the work of a bipartisan group of senators, known as the “Gang of Eight,” which included New York Senator Charles Schumer and New Jersey Senator Robert Menendez. It includes provisions for border security, employer compliance with work authorization laws, and new and modified nonimmigrant visa categories. It also includes the Registered Provisional Immigrant (RPI) Program, part of what has been called a “path to citizenship” for undocumented immigrants currently living in the U.S. Work authorization would be included in RPI and other immigrant and nonimmigrant categories.
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1046480_19872499.jpgU.S. Citizenship and Immigration Services (USCIS) released the first volume of a planned twelve-volume comprehensive Policy Manual (the “Manual”) earlier this year. The first volume, actually designated as Volume 12, covers policies related to citizenship and naturalization. It took effect January 22, 2013, and takes the place of a “field manual” and a set of policy memoranda with rather inefficient organization. The Manual is the result of several years of review of the decade-old immigration agency’s policies and procedures. It will hopefully bring greater organization and efficiency to USCIS, although from the standpoint of immigration attorneys and advocates, that lack of organization sometimes works to the benefit of clients.

Previous USCIS Resources

USCIS officially came into being on March 1, 2003, thanks to the Homeland Security Act of 2002. The former Immigration and Naturalization Service (INS) split into three separate agencies within the newly-created Department of Homeland Security, with USCIS charged with “national immigration services.” This includes processing of most petitions and applications for immigration benefits. Prior to the Manual, the two primary sources of USCIS policies and procedures were the Adjudicator’s Field Manual (AFM) and the set of immigration policy memoranda maintained by USCIS on its website.
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Kyrgyzstan-mountains_in_summer_panorama.jpgAmerican families who wish to adopt a child from abroad face an array of challenges. While federal immigration law places few, if any, barriers to citizenship for a child adopted by U.S. citizen parents once the child is in the U.S. and the adoption is complete, the process of actually getting the child to the U.S. can be difficult, depending on the laws of the child’s home country. Several countries have instituted bans on intercountry adoptions with the U.S., including adoptions that were in progress. This has prevented some families, who have already met and bonded with the children they want to adopt, from bringing them home.

The AP reported on the “Kyrgyz 65,” a group of Americans who are trying to adopt sixty-five children from Kyrgyzstan in central Asia. The adoption process stalled in 2008, when the Kyrgyz government halted international adoptions because of alleged corruption. Kyrgyz government officials were accused of “dealing in what was effectively a trade in children,” according to the AP. The situation grew even more complicated in April 2010, when an uprising deposed the country’s president, who fled to neighboring Kazakhstan and then to Belarus. Two months later, ethnic violence broke out between Kyrgyz, who constitute the majority ethnic group, and minority Uzbeks.

Kyrgyzstan’s new president signed a law in May 2011 establishing new guidelines for adoptions, but much of the law still has not taken effect. The Kyrgyz government shut down adoptions again in July 2012 because of corruption charges. While some of the Americans have given up in the roughly five years since their adoption processes started, about fifteen families continue to travel to Kyrgyzstan to visit the children, and they regularly send letters and packages. The U.S. State Department last updated its adoption information for Kyrgyzstan in June 2011.
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600px-Facebook_on_Nasdaq.jpegA bill pending in the U.S. Senate targets citizens who renounce their citizenship, a process known as expatriation, as a means of avoiding tax liability. An increasing number of citizens are expatriating every year, although it is not clear how many, if any, do so to avoid taxes. U.S. immigration law deems anyone who expatriates for such tax-related reasons inadmissible to reenter the country, but the burden of proof of intent is generally on the government. The new bill, if passed, would effectively reduce the government’s burden for certain expatriates. Lawmakers were motivated to write the bill from news of Facebook co-founder Eduardo Saverin’s expatriation, announced shortly before he stood to make a huge profit on Facebook’s initial public offering (IPO).

Saverin was born in Brazil and moved to the United States with his family, when he was still a minor, in 1992. He became a naturalized citizen in 1998. As a Harvard undergraduate student, he co-founded the now-global social networking website Facebook. The company’s formation was presented in a dramatized form in the 2010 film The Social Network. Facebook’s IPO in May 2012 brought in billions of dollars and set several records, making the founders and early investors quite wealthy.
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Laboratory deskEllie Lavi, a Chicago native living in Tel Aviv, Israel, has reportedly given up trying to get United States citizenship for her twin daughters. Lavi conceived the twins through in-vitro fertilization, using donated sperm and eggs at a clinic in Tel Aviv. She carried the twins to term after the clinic implanted the embryo, but in the eyes of the United States Department of State, she is not the twins’ “mother.” The twins are now two-and-a-half years old. She applied for citizenship at the U.S. Embassy in Israel as the U.S. citizen mother of children born abroad, but the State Department rejected her. The stated reason for the denial is that she cannot prove that either “parent” is a U.S. citizen. The technology of childbirth, Lavi says, has outpaced American law when it comes to immigration and nationality.

Laws governing the acquisition of U.S. citizenship by children born abroad are complex. Many requirements depend on whether the child was born to two U.S. citizens, or to one U.S. citizen and an “alien.” The law also draws a distinction between children born to married parents and those born “out of wedlock.” For children born “out of wedlock” with only one U.S. citizen parent, the law places different requirements on mothers and fathers. Most of the requirements relate to the length of time the U.S. citizen parent continuously resided in the United States before the child was born. For children born out of wedlock to a U.S. citizen mother, the mother must have lived in the U.S. continuously for at least a year. For children of U.S. citizen fathers born out of wedlock, the residence requirement for the father is five continuous years prior to the child’s birth. Although they can obtain citizenship through birth, children obtaining citizenship this way are not considered “natural-born” citizenship.
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Arte greca, pietra tombale di donna con la sua assistente, 100 ac. circaA study conducted at Michigan State University has found possible flaws in the citizenship test administered to immigrants applying for naturalization. While the study’s sample size is very small, the main author, Paula Winke, has argued that the standards used to determine whether or not to grant citizenship to a particular applicant may in fact be random.

The citizenship test used by U.S. Citizenship and Immigration Services (USCIS) was introduced in 2006 as a pilot program and has been mandatory nationwide since October 2009. It was designed to test an applicant’s knowledge of core American values more than just facts about American government and history. The test consists of four parts. Three parts test the applicant’s English language proficiency in reading, writing, and speaking. The fourth part of the test, commonly known as the “civics test,” consists of ten questions chosen from a set of 100 questions in three broad categories: American Government, Integrated Civics, and American History.

“American Government” questions cover the system and structure of the federal government, the rights and responsibilities of citizenship, and the “principles of American democracy.” “Integrated Civics” addresses questions of American geography, holidays, and symbols. “American History” covers all periods from the Colonial era to modern day.

The civics test is conducted verbally, and applicants must answer six of the ten questions correctly to pass. If an applicant does not pass any part of the citizenship exam, they can re-take that part within ninety days. According to USCIS, ninety-three percent of applicants who have taken the exam since October 2009 passed on the first try.

The MSU study administered two versions of the test to 414 participants, some of whom were citizens and some of whom were non-citizens. Of the total group, 136 participants failed both tests, and 181 passed both. The remaining 97 individuals, who passed one test and failed the other, caused concern for Winke.

Based on the participants’ results, Winke concluded that seventy-seven of the questions were equally difficult for both the citizens and non-citizens. Ten questions were easier for the citizen participants, and thirteen were easier for the non-citizens. She described those thirteen as “counterintuitive” and said they did not appear to address the core issues the test is intended to cover. She recommends phasing those questions out. An example of one of the thirteen questions, according to the Detroit Free Press, is “Who is the governor of your state now?”
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251751_6443_02022012.jpgThe federal government has traditionally handled both establishing and enforcing the nation’s immigration laws. Since its creation, the Department of Homeland Security (DHS) has had authority over immigration enforcement. U.S. Citizenship and Immigration Services (USCIS) processes applications and petitions for visas, green cards, naturalization, and other benefits. Immigration and Customs Enforcement (ICE) investigates individuals they suspect of being present in the United States without proper documentation, or “illegally” as some might say. Article I of the U.S. Constitution places authority over laws affecting citizenship and “aliens” squarely in the federal government’s jurisdiction. More and more state governments, however are passing their own laws regarding enforcement of immigration laws. These state laws could conflict with federal law, cause civil rights violations, and have many other unforeseen consequences affecting immigrants and citizens alike.

A bill introduced in Missouri by Republican State Senator Will Kraus would expand immigration enforcement beyond just local law enforcement. Under the bill, school officials would also be required to check their students’ immigration status. State and local police would be required, during stops, to check immigration status if there is “reasonable cause.” Failure to carry documentation of immigration status or citizenship would also be punishable as a misdemeanor.

The bill is similar to laws passed in the last few years in Arizona and Alabama. These laws make state and local law enforcement responsible for verifying immigration status of people stopped or arrested, and in some cases the laws might even allow police to stop a person based solely on suspicion of some immigration violation. Federal courts have blocked enforcement of some parts of the laws, and the U.S. Supreme Court will consider the constitutionality of Arizona’s law later this year. Still, the mere passage of these laws has had a profound impact on immigrant populations in both states, and that impact has affected everybody else.

Senator Kraus has explained that his bill is part of an effort to calculate the cost to Missouri of efforts by the state government and local governments to enforce federal immigration laws. He has previously tried to get the state Attorney General to sue the federal government to recover the state’s expenses incurred in immigration enforcement. He claims that the bill is not intended to prevent immigrant children from attending school. A 1982 U.S. Supreme Court decision affirmed the right of children, no mater what their immigration status may be, to attend public school. The bill’s requirement that school officials check students’ immigration status is allegedly part of a bigger plan to enable the Missouri Board of Education to calculate the cost of educating undocumented students.
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