Posts Tagged ‘N-400’

USCIS: Legalized Marijuana Use Will Disqualify Naturalization Applicants, for Lack of Good Moral Character

Friday, April 19th, 2019 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that it updated its Policy Manual to explicitly state that possession of marijuana, even in legalized states, will disqualify naturalization applicants. The Policy Manual is relied upon by adjudicator’s to make decisions on applications. The agency’s position is legal marijuana use violates the federal Controlled Substances Act, even though the U.S. government allows states to legalize. If an applicant admits to use, they will be found to not have “good moral character,” and their application will be denied.

The agency’s position seems to be that its hands are tied on this issue, in light of federal law. This strikes me as disingenuous, for several reasons.  First, marijuana use should not be tied to “good moral character” in any event.  Many people use marijuana for many different uses, and they don’t have bad moral character, whatever Washington D.C. is doing.  Second, federal agencies aren’t enforcing the Controlled Substance Act like this, and particularly the U.S. Department of Justice. Third, noncitizens, who are tested for basic English as part of the naturalization applications, are here expected to be experts on federal/state law distinctions. That is absurd. Marijuana stores are not hidden from sight.  They are common in states that have legalized, and by all appearances,  legitimate. Fourth, increasingly, there are CBD products on the market–even in grocery stores–that may have attributes of marijuana, and serve other purposes than getting high. Does the purchase of a CBD product, for medicinal purposes, have good moral implications?  Fifth, what if a doctor prescribes a marijuana product? Does a person have a good moral character issue for following a doctor’s orders?

We are also hearing periodically of naturalization applications which are denied because a person is working for a legalized marijuana related business. Such work can be working in the production of marijuana (farms, trimming, testing), working in a marijuana store, or holding an ownership interest in a marijuana-related business.

Naturalization applications cost $725 typically, and are taking the agency more than a year to adjudicate in most locations. A person typically applies for naturalization after residing in the United States for at least three years, if married to a U.S. citizen; or after five years of residence in most other cases. A denied application can be heart-breaking. Also, depending on the agency’s findings and the violations involved, the matter may be considered for a removal hearing.

The time is long past for federal legislators to step in, as policies like this will hurt U.S. families and businesses.

Here is what the announcement says:

USCIS Issues Policy Guidance Clarifying How Federal Controlled Substances Law Applies to Naturalization Determinations

USCIS is issuing policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.

Please see the Policy Manual Update (PDF, 211 KB) for more information.

 Last Reviewed/Updated:

And here is what the updated Policy Manual says:

2. Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana

A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” [19] or “recreational” [20] use of marijuana. [21] Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. [22] Schedule I substances have no accepted medical use pursuant to the CSA. [23] Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law. [24]

Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. [25] For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense. [26] Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.

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Posted in General, Marijuana and Immigration, Scott Railton |

USCIS Processing Times Are Getting Longer

Tuesday, September 25th, 2018 by W. Scott Railton

Longer waits, longer applications, and higher fees are the unfortunate reality for persons and businesses seeking immigration benefits with U.S. Citizenship and Immigration Services.  Here in Washington State, the USCIS Field Office in Seattle says it is taking 15 to 16.5 months to adjudicte a naturalization application.  The application itself costs $725, has 18 pages of instructions, and 20 pages of application to complete.  USCIS Field Offices appear to be swamped with additional vetting responsibilities, with no additional funding, despite the high application costs.

Similarly, the Service Centers have long waits for many important benefits.  Work authorization documents are taking 4.5 to 6.5 months to issue out of the National Benefits Center.  It used to be that the agency was required to issue a work authorization document within 90 days by regulation, but since that regulation was stricken, wait times have increased. This can be really hard on adjustment application couples, who need their significant other to be earning income to pay the bills.

H-1B applications have really slowed down too, now taking 5.5 to 7.5 months, according to the California Service Center.  We’ve heard of longer adjudications. The agency has noted the issue as well, and has suspended much of its premium processing program in order to try to get a handle on things.  It seems likely that the increase in Requests for Evidence and Denials has added to the agency’s workload.  H-1B applications include thousands of dollars in filing fees, but that doesn’t seem to be relevant.

Last week I participated in a teleconference with Congressional staffers and discussed the issue of delays.  It is a universal concern in immigration law right now, and hopefully something can be done. As part of that call, I put together the following list of published adjudication timeframes:

Timeframes for initial adjudications:

Local Field Offices:

I-485s

(Seattle):             10 to 19.5 months

(Yakima)              9.5 to 21.5 months

(Spokane)           9.5 to 21.5 months

Application fee:                $1225

Form length:                      18 pages; 42 pages of instructions, not including parole and work authorization applications

N-400s

(Seattle):                              15 to 16.5 months

(Yakima)                              3.5 to 5.5 months

(Spokane)                           11.5 to 18 months

Application Fee:               $725

Form length:                      20 pages; 18 pages of instructions.

 

National Benefits Center:

I-765                      4.5 to 6.5 months for adjustments;   5 to 7 months at NBC for all others

I-131                      4.5 to 6.5 months at NBC

 

California Service Center (I-129s)

H-1B:                     5.5 to 7.5 months

Ls:                           4 to 6 months

Rs:                          4 to 7 months

 

Nebraska Service Center (I-140s)

Extraordinary ability (E11)                                         5 Months to 7 Months

Outstanding professor or researcher (E12)                 5 Months to 7 Months

Multinational executive or manager (E13)                  9.5 Months to 12 Months

Advanced degree or exceptional ability (E21)           5 Months to 7 Months

Skilled worker or professional (E31; E32)                  5 Months to 7 Months

Unskilled worker (EW3)                                             7 Months to 9.5 Months

Advanced degree/ (NIW)                                           5 Months to 7 Months

Schedule A Nurses                                                     8 Months to 10 Months

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Posted in General, Scott Railton |

USCIS Encouraging On-Line Naturalization Applications

Monday, December 11th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration Services is now encouraging individuals to file naturalization applications on-line. The agency has been struggling to modernize on-line application processes for many years now. Applicants should be aware that while filing on-line may provide some advantages, the laws surrounding naturalization have not changed. In fact, the actual process is slowing down administratively, as applications and processing times have gotten longer. Every question on an application form needs to be considered fully, as a simple “Yes” or “No” on the form can have far-reaching consequences in some cases.

The naturalization process is perhaps my favorite part of immigration law. Naturalization is a big deal for anyone. It represents the culmination of the lengthy and often-trying immigration process. It’s also the step where the government takes one last look at the immigrant, and so a certain measure of caution is prudent.

Here’s USCIS’s announcement sent out today regarding on-line applications:

Dear Stakeholder,

Applicants can file Form N-400, Application for Naturalization online through their USCIS online account. When they use the interactive Form N-400, applicants will see questions, alerts, and notifications specific to the answers they provide while completing the form. Applicants will also see prompts and reminders to upload required evidence. This means each person follows a personalized path for completing the form based on the information that they provide.

By using the online account, applicants will be able to:
• Update personal information online,
• Answer optional questions in the Naturalization Eligibility Tool to help determine their eligibility for naturalization,
• Create, edit, save, or delete a draft application,
• Upload evidence,
• Pay any fees and submit the application,
• View real-time case information and the history of their interactions with USCIS, and,
• Securely and directly communicate with USCIS about their case.
Currently, individuals can create a unique, online account and file their Form N-400 online, with only three exceptions. At this time, applicants must submit a paper Form N-400 if:
• They are applying for citizenship based on having served in the U.S armed forces or based on their current service,
• They want to apply from outside of the United States, or,
• They are requesting a fee waiver or reduced fee.

The Form N-400 online application was built based on input we received from community-based organizations and past applicants. Stakeholders from across the United States informed our development process by testing portions of the online form and providing feedback.

USCIS is also introducing an online naturalization eligibility tool that helps intending applicants determine if they may be eligible to apply for naturalization. This optional tool provides information about the most common eligibility requirements for naturalization.

We encourage you to share this option for an online and interactive filing experience with your clients who are ready to file Form N-400, Application for Naturalization.

Kind regards,

USCIS Public Engagement Division

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Posted in General, Scott Railton |

USCIS Doubles the Length of its N-400 Naturalization Form

Tuesday, February 4th, 2014 by W. Scott Railton

U.S. Citizenship and Immigration Services today released a new 21 page N-400 form that must be completed to naturalize as a U.S. citizen. The old form was only 10 pages. This is the most significant change to the format in a long, long time.

The Government’s official statement on the revision says:

The revised Form N-400 contains:
• Clearer and more comprehensive instructions which highlight general eligibility requirements and specific instructions on how to complete the application;
• 2D barcode technology used for each page on the revised Form N-400, which will enhance our ability to quickly and accurately process the application; and
• New questions based on legal requirements related to national security and good moral character.

Although USCIS revised the Form N-400, it is important to note that:

• The naturalization eligibility requirements have not changed; and
• The filing fee remains the same where applicable.

USCIS will continue to accept previous versions of Form N-400 for a period of 90 days until May 5, 2014. After May 5, USCIS will only accept the revised version of the Form N-400.

A brief comparison of the old and new forms shows many differences:

• The new form calls out the legal basis for requesting exemption from the English Language Test.
• A more detailed personal contact information section, separate from the residence section.
• A new, full section on parentage, presumably for better examination of existing claims to citizenship.
• More exhaustive questioning about past employment, education, and residences in the new form. Gathering the information will provide headaches on occasion, I’m sure.
• The new form also goes to greater lengths to investigate marital and children history. For example, the new form specifically calls out the need to list all children, including children alive, missing, deceased; born in and outside the U.S.; married and unmarried; living with you or not; current stepchildren; legally adopted children; and children born out of wedlock. The old form did not get into this level of detail in explaining information needed.
• Additional new questions regarding hereditary titles and orders of nobility.
• “Have you ever called yourself a “non-U.S. resident” on a Federal, State or local tax return since you became a Permanent Resident?” is a new question.
• The new form seeks more information about any Group an applicant has been a member of, including the “Purpose of the Group” and the “Dates of Membership.”
• Many, many more questions with specificity regarding being involved or attached to terrorist activities and human rights violations (e.g. “Were you ever involved in any way with any of the following: “badly hurting, or trying to hurt, a person on purpose?”
• The new form requests more information concerning arrests, and specifically asks for a year/month/day count on served jail or prison time.
• Other new questions on the new form include, “Have you ever married someone in order to obtain an immigration benefit?”; “Have you ever made any misrepresentation to obtain any public benefit in the U.S.?”; and “Have you ever given any U.S. Government official(s) any information or documentation that was false, fraudulent or misleading?”
• The new form adds and modifies questions regarding U.S. armed service.

On the one hand, the new form provide adjudicators more information about each applicant. On the other, I expect it will take longer to prepare and adjudicate, and there will most certainly be some questions that end up creating issues of interpretation.  The current fee to naturalize is $680 for most applicants. I hope that USCIS is not creating a basis for asking even higher fees to adjudicate the same form, as a raised fee would make it all the tougher for long-time residents to apply.

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Posted in General |