The benefits of citizenship

"This Nation was founded by men of many nations and backgrounds.  It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened."

- J.F.K.

This post is for those of you that have been legal residents of the U.S. for several years, or were born in American Samoa and are currently US Nationals.  I cannot stress enough the importance of becoming a citizen, especially for those of you who are only green card holders because, while your green card gives you a certain amount of rights in this country, at the end of the day - it can be taken away.  You are never completely secure of your place in the United States unless you are a citizen.  Obviously, there are other benefits to becoming a citizen: (1) you can vote in state and federal elections and personally, I believe there is no greater responsibility than participating in the governing of our nation; (2) if you are a green card holder, you no longer have to renew your card every ten years; (3) and you can obtain a U.S. passport and travel with ease.

If you are a resident, depending on how you obtained your residency, you can become a citizen either 3 or 5 years after getting your green card.  For those of you who got your green card through your US Citizen spouse, you can apply for naturalization 3 years after getting your card as long as you are still married.  For all other green card holders, you can become a citizen 5 years after getting your card.  For those of you who were born in American Samoa, you can apply for naturalization as long as you have at least two years of residency in any U.S. state.  While the length of residency requirements are fairly straight forward, if you have had any trouble with the law, it would benefit you to seek legal counsel before applying because some criminal violations could render you ineligible for citizenship (and would likely result in getting your green card revoked if you tried to renew it).  Some of these types of violations can been "cleaned up," even years later.  This is called "post-conviction relief" and usually requires returning to criminal court.  But that is for another post.

Have you been the victim of a crime? Turn that unfortunate circumstance into a visa.

Have you ever been the victim of a crime?  Did you report it to the police?  Did you cooperate with an investigation or prosecution?  If so, you may be eligible for a U Visa.  This is a temporary visa, good for 4 years, and after the third year, you can apply for a green card (assuming you stayed out of trouble for those three years).  This visa was developed to encourage illegal immigrants to report crimes, where normally they would be wary of contacting the authorities.  It was also developed to help women who have been the victims of domestic violence, but could not take advantage of the immigration benefits under the Violence Against Women Act (VAWA) because they were either not married to their abuser, or their abuser also did not have legal status.  This visa is also a good option for some who would otherwise be ineligible even if a family member could apply for them.  For example, if your spouse could petition for you, but you had been previously deported, that deportation would not mean you couldn't apply for a U-Visa.  The same applies to if you over stayed your visa, or have been in the U.S. without permission - you can still apply for a U.  


In order to be eligible for the U Visa, you have to be a victim of a specific type of criminal activity, including: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.  Now while you may not have been the victim of one of the specific crimes above, it is important to seek legal advice about this because many times, the crime is not specifically listed, but can fall under one of the categories.  


The U Visa is basically a two step process, first you must get a certifying official to sign a certification form, attesting to your "helpfulness" in reporting the crime, or aiding in the investigation or prosecution.  This "official" is usually someone from the police/sheriff's department who handled your case, or a district attorney who prosecuted the case.  I should point out here that often times you report a crime and that's it - you aren't asked for any further information or to testify.  Simply reporting a crime is enough - it doesn't even have to result in prosecution.  However, if you report a crime and then go to the police and perhaps withdraw that report, or ask that the perpetrator not be prosecuted - that does not count as helpful.  It obviously helps if the crime occurred fairly recently, but in my experience, it is possible to get an official to sign off on older cases.  It often depends on how well the official understands the U Visa and the requirements. 


Once a certification is signed, you can file for the U-Visa with a waiver for any grounds of inadmissibility that may apply to you - e.g. overstaying a visa, or entering the country without permission.  The application and waiver (I-918 and I-192) are rather complicated and require detailed declarations about the crime and detailing why you and your family would suffer if your waiver was not approved.  Also, there are only 10,000 U-Visas issued each year - so the person helping you should be able to tell you whether that cap has been reached yet.  Often, if you have a good U Visa case, even if the cap has been reached, immigration will give you a type of deferred approval that gives you permission to remain in the U.S. until the new fiscal year when new U Visas can be issued.  

Often times, your family members also get a U Visa, even if only you were the victim of the crime.  You would be called the "principal" and your relative would be the "derivative".  The family member wouldn't have to meet all the requirements of the visa, but they would have to file a waiver if they are in any way inadmissible (e.g. over stayed or are here without permission).  

Did someone file for you a long time ago and you just never completed the process?

There are three types of people who can do all of their paperwork here in the U.S.: (1) if you entered the country lawfully, you are still "in status" (i.e. you haven't overstayed your visa) and a resident spouse or parent, or citizen spouse, parent (if you are under 21) or child (fover 21) is petitioning for you, (2) you entered the country the country lawfully, overstayed your visa/permission, and you have a citizen spouse, parent (if you are under 21) or child (over 21) to petition for you, or (3) you have an old petition filed on or before April 30, 2001.  If you do not fall into any of those categories, then you most likely have to consular process - i.e. leave the country and apply to reenter from outside the U.S. - but that is for another blog.

I addressed #'s 1 & 2 in my last posts - this one is about #3.  Many people when they first entered the U.S. had family members, usually citizen siblings or parents who were already green card holders, who petitioned for them to remain here.  Due to the fact that those types of petitioners are not considered "immediate relatives" under immigration law, the aliens are assigned "priority dates" according to when their family members petitioned for them, and they have to wait until those dates are current.  Think of it like a huge line where people are waiting for their numbers to be called, or in this case for a visa to become available.  Some people started the process and because it took so long, they simply did not finish.  In some cases, just having those petitions filed - as long as they were filed on or before April 30, 2001 - is enough to be able to apply for a green card here in the U.S.  This type of application falls under Sec. 245(i) of the Immigration and Naturalization Act (INA) and requires an addition $1000 fee (or fine) in addition to the application fees.  Most applicants must also be able to prove that they were physically present in the U.S. on Dec. 21, 2000 - some are exempt from that requirement depending on the priority date of the original petition.  

Another benefit of this provision (besides the fact that you can remain in the U.S. while applying for your green card instead of having to return home), is that you don't necessarily have to use that original petition from on or before April 30, 2001 - in fact most people don't use that petition to get their green card.  As long as you can show that the petition from all those years ago was "properly filed," you can use the date on it to "grandfather" - which means if you have an immediate relative who can petition for you now, or you have another petition from a non-immediate relative where the priority date is now current, assuming you meet all other eligibility requirements, you can file your paperwork here in the U.S.

As usual, there are a myriad of eligibility requirements that need to be analyzed by a professional - so seek out an attorney before filing anything!

When you no longer have your passport or proof of your lawful entry into the U.S.

Continuing the theme of my last post, here is more detail on what happens if you lost all evidence of your lawful entry into the U.S. - i.e. your passport or you I-94.  As I stated before, under Immigration and Naturalization Act sec. 245(a), if you entered the country with permission (e.g. visa or border crossing card) your family members may be able to petition for you to become a lawful permanent resident - i.e. green card holder.  If you are still "in status", meaning you haven't yet overstayed your visa, your resident spouse or parent or your citizen spouse, parent, or over 21 child, can petition for you. The important distinction here is that your resident spouse or parent can only petition for you if you haven't overstayed yet.  If you have overstayed, then the petitioner needs to be a US Citizen.  This second situation is the one I am addressing in this post (because if you were still in status, you hopefully still have proof of your entry into the U.S.).  

Alright, so lets say you entered the U.S with a tourist visa some years ago and just never left.  Lets also say that you no longer have the passport you entered on with the stamp showing you were "inspected and admitted" upon your entry into the country.  In the past, this was a serious problem because you had to have physical/tangible/documentary proof of your entry.  Recent case law, however, has changed that and now, as long as you were inspected and admitted and you can prove it - either by testimony, witness, etc. - you can apply for your green card.  Now, if you don't have your passport or visa any more, proving your entry can be an issue and you need to understand that you may very well end up in immigration court, proving your case to a judge.  In my experience immigration officers at local USCIS offices  (United States Citizenship and Immigration Services - used to be called INS) always want a piece of paper showing you came in to the U.S. legally, even though the law does not require that.  So what could happen is that you present your case and your application to an officer, they deny you, and refer your case to Immigration Court.  While this may seem intimidating, the judge and the government attorney understand the law much better than an officer and if your case is strong (and you have competent representation), your case is winnable.  

Lets talk a little about what constitutes proof.  First you need to know the EXACT date you arrived and where you entered.  A vague recollection of the year is not going to do it.  Initially, you can try applying for a duplicate I-94.  That application requires fees (approx. $300) and you have to be able prove your entry, for e.g. (1) a detailed declaration from you regarding when you left your country, when you entered the U.S., how you entered - down to the airline you traveled on, who you traveled with, and the reason why you no longer have your passport or I-94, and hopefully (2) an affidavit from someone you traveled with who can corroborate your statement.  For Polynesians, our communities are fairly small, so there is a very good chance that there is someone you traveled with, or maybe someone who picked you up from the airport, who can vouch for you.  Obviously, this person is going to want to either be a resident or a citizen, because they will be providing a written statement to immigration. This application has about a 50/50 chance of success because you are basically asking immigration to take your word, and the word of any witnesses you may have, that you entered the country lawfully.  If the application is successful, however, and you are issued a new I-94, that pretty much guarantees you a green card, assuming the other elements of your eligibility have been determined.  So this is about weighing the odds of being granted a duplicate I-94 against the $300-ish filing fee.

Assuming you don't want to spend the extra filing fees for a 50/50 chance of getting a duplicate I-94 (because the rest of the applications are going to set you back over $1000), you will need the same type of proof that I mention above for your green card application and your interview.   Also, for those who traveled across the border by car/foot and were simply "waived in" at the border, you wouldn't have had an I-94 in the first place, so you can't apply for a new one, but that "waiving in" is also considered to be "inspected and admitted," so you can still apply and prove your entry with the same evidence I described above.  This case is obviously harder to prove, since you aren't coming from a country where you had to fly here and go through customs, but it has been done.  Again, statements from the person who drove you across perhaps, or someone you traveled with, would be helpful.  I cannot stress enough how helpful a statement from someone else to corroborate your story would be, however, if you really cannot think of anyone who can attest to your  lawful entry, you could consider taking and submitting to a lie detector test and submitting the results.  There are a few cases where this has worked, however, it is still a relatively new method/idea.

As always, all that I have described above is extremely complicated and you will most definitely need an attorney to analyze your case and help you navigate the process.  But at least with this basic information, you can decide whether or not you feel like you may have a case.