Immigration and firm news

2017 Update on Naturalization and Citizenship and Changes for 2018

Naturalization applicants are seeing longer waiting times for interview and testing. This is because employment based immigration cases now must be interviewed, and those are being scheduled along with family immigration and naturalization cases.  In addition, there are huge numbers of people applying to become citizens.  Applicants need to be prepared to be asked about their entire immigration history from their very first visa application, extensions, changes of stay requests, the green card application, and any applications in between. They may be asked about all prior trip histories and any border or ICE contacts. DHS wants to determine whether any visa, any admission, extension, change of status or green card was ever obtained unlawfully or through misrepresentation. For this reason, many attorneys are ordering Freedom of Information Act (FOIA) requests to get copies of old files where clients haven’t kept a copy.  This can cause a delay in filing if the client wants certainty about eligibility.

Another citizenship issue is that DHS discovered that several hundred people were naturalized BEFORE their background checks were complete. Under “Operation Janus,” some of those new citizens are finding themselves in de-naturalization proceedings.

As for the military and the concept of “expedited naturalization,” it has been a year of complete upheaval for immigrant members of the military.

  • MAVNI (Military Accessions Vital to the National Interest). MAVNIs are nonimmigrants who could, while still in valid visa status for at least two years, enlist in the military, go to basic training and then file for expedited naturalization without needing a green card first.  The debacle started at the end of the Obama Administration when DOD felt it needed more extensive security clearances for foreign born enlistees. First, commanding officers would not sign the N426 form to verify military service. This is required to be filed with the N400 naturalization application. Then, of the people that were able to file, USCIS decided not to adjudicate the N400s at all or in a timely fashion. As a result MAVNIs were not shipped to basic training pending more extensive background checks of various types. MAVNI soldiers in these two groups then started to fall out of status. While the Obama administration created a route to “deferred action” for the MAVNIs and their families while waiting for the completed security checks shipment to basic training, USCIS sat on the deferred status applications, or grants have been hit and miss around the country.  Thus, here we had originally lawful status immigrants willing to risk their lives serving in the military and then DOD did everything it could to delay their service, work and family lives.  As a result, two major class actions were filed: Nio et al v. DHS (N-426 problems) and Kirwa v. DOD (N-400 adjudication delays). These cases can be tracked here. Both of the pleadings are well worth a read, especially the government’s justifications for their positions.
  • Already Naturalized Members of the Military.  Another group of military members involves already naturalized MAVNIs and other foreign born naturalized citizens who were then discriminated against when they sought top level positions and the highest security classifications. This class action case, Tiwari v. Mattischallenges DOD’s policy based on national origin discrimination.   All of these cases can be followed on Facebook (by invitation only) at “Mavni Legal” run by Margaret Stock who helped create the MAVNI program in the first place and for which she won a MacArthur Genius Award.
  • Green Card Holders. Meanwhile, green card holders and MAVNIs can no longer ship to basic training and pursue expedited naturalization until their higher level security checks are completed. Per an October 2017 DOD memo, “the security clearance process could take up to a year.”  DACA holders in the military have been caught up in this delay as well. At one point there were about 900 DACA holders in the military. 

The final coup de grace against immigrants in the military is that now DOD is recruiting from an applicant pool of people with histories of drug and alcohol abuse, mental health and criminal problems.  It does make sense to delay the status of foreign born recruits with no such histories and enlist less qualified US citizens, right? Right?

Finally, on the citizenship front, we continue to see problems with Americans getting passports, in particular those with delayed birth certificates. While traditionally a problem for those born along the southern border with the help of midwives filing fraudulent affidavits or birth registrations, we are also seeing cases involving births in more northern states with and without the use of midwives at birth where births were not registered until much later. The US Passport office rejects applications or demands more evidence of birth in the USA for people whose parents filed their birth certificates with states many months or years after the birth. These cases often turn into genealogy type research projects. They are not impossible but can be a lot of work. Similarly, in 2010 following a serious breach of Puerto Rican registered family records, Puerto Ricans were required to get new birth certificates. Now, the US passport is sometimes holding up passport applications to determine the legitimacy of birth certificates.