Is a Criminal Conviction Necessarily the Death Knell to a Naturalization Application?

Over the past few years, it has been my experience that USCIS has been very thorough in analyzing naturalization applications.  This has been confirmed to me by other experienced immigration lawyers.  USCIS sees the naturalization application as its last chance to uncover any fraud in the immigration process.  So, it will go back and examine the basis for the applicant's permanent residency.  USCIS will also be sure to look into the applicant's criminal history.  USCIS will want to make sure that the applicant meets all of the requirements of citizenship.

One such requirement is that the applicant have five years of good moral character.  By law, if a person has a criminal conviction for a crime involving moral turpitude (such as thefts, fraud and crimes of violence) in the five years preceding the naturalization application, then the applicant will not qualify for having five years of good moral character, and thus will not qualify for citizenship.

But, does that necessarily mean that every conviction for a crime involving moral turpitude in the past five years is the death knell for a citizenship application?  Not necessarily.  There is case law that says that when a person's conviction qualifies for the petty offense exception, then that person is not automatically disqualified for citizenship.

The petty offense exception holds that where the maximum possible sentence for a crime is one year in jail, and where the actual sentence is less than six months, then even if the conviction is for a crime involving moral turpitude, the applicant can still be considered for citizenship.

First, that means that if a permanent resident is charged with a crime involving moral turpitude, one of the goals of the criminal representation should be to reduce the charge to a misdemeanor, and seek an actual jail sentence of less than six months.  For example, if a person were charged with larceny in Virginia, which is a felony, a possible strategy for the criminal defense attorney could be to negotiate a plea for petty larceny, which is a misdemeanor with a maximum possible sentence of one year, and seek less than six months in jail time.  The defense attorney would need to keep in mind that the whole sentence is considered, even if most of it is suspended.  Thus, if a person receives a sentence of 360 days, with 330 suspended, he would not qualify for the petty offense exception.  But, if that same person receives a sentence of 175 days, with 145 suspended, then, even though the actual time spent in jail is the same, he would qualify for the petty offense exception.

Nonetheless, the conventional wisdom among immigration attorneys has been that even if the conviction qualifies for the petty offense exception, and thus does not automatically disqualify a person from having good moral character, the conviction can still be used by an adjudicator in weighing discretionary factors.  Our advice has typically been to wait until five years after the conviction to apply for citizenship.

While past cases cannot predict future results, I have had some success in naturalization applications even when there has been a criminal conviction in the past five years.  When faced with a client who has gone forward with a naturalization application despite the criminal conviction, the first step is to make sure that the conviction qualifies for the petty offense exception.  Under the Supreme Court case of Padilla v. Kentucky, there is some avenue for an applicant to correct mistakes made by well-intentioned criminal defense attorneys who just did not understand immigration law.  If the applicant is in a situation where the full jail sentence was for greater than six months, but most of it was suspended, it could be possible to go back and re-open the case to ask the court to reduce the full jail sentence to less than six months.  To do this, first the conviction must be less than two years old.  Then you have to work hard to convince the Commonwealth's Attorney and the Judge to go ahead with the plan.  This is not always an easy task.

Once you are sure that the conviction qualifies for the petty offense exception, the next step is to build a record of good moral character.  The applicant will need to show that the sentence was served, that all court costs were paid, that any restitution was paid, that any probation time was served, and that any required community service took place.  To be safe, the applicant should do more than this.  Affidavits and letters from friends, family, pastors, employers and community leaders, attesting to the applicant's good moral character will go a long way to convince the adjudicator that despite the mistake that led to the conviction, this is a person deserving of citizenship.

It must be emphasized that this course of action does not guarantee success.  If you have an adjudicator who believes that the conviction itself, even though it is a petty offense, is sufficient in weighing the discretionary factors to deny citizenship, then you will be out of luck.  There is an appeals process.  But, it is extremely difficult, if not next to impossible, to overturn a discretionary call like that.

Citizenship applications should not be treated as simple, run of the mill proceedings.  An applicant would be well-advised to consider how USCIS will analyze the application.  It will likely make sense to consult an attorney first, and go over everything, from conviction records to how the applicant became a permanent resident in the first place, to make sure that the application will go smoothly.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Take Steps to Avoid Immigration Scams!

People seeking help to stay in the country, unfortunately, tend to be the most vulnerable to immigration scams.  USCIS warns to watch out for such scams.

What are some of the common immigration schemes?  USCIS provides a list of immigration scams.

One of the most common schemes are notarios.  Notarios publicos in Latin American countries have a different role than notary publics in the United States.  In the United States, a notary public verifies signatures.  But, in other countries, notarios are public officials with important duties.  The duties can include performing marriage ceremonies.  Many unscrupulous people will exploit this linguistic problem, and advertise that as notarios they are qualified to help someone get immigration status.  At times, the advice given by such notarios is just plain wrong.  Other times, notarios will fill out forms and file them for their clients, without checking into whether the forms are appropriate to file in the alien's specific case.  Notarios have also been known to charge money for services that are never delivered.

Then, there a local businesses who promise that they can get a person immigration benefits.  These can include promises to get a green card, work authorization and other visas.  Many of these businesses will advertise that their services are cheaper than a lawyer's services.  Of course, only a lawyer can give proper immigration advice.

One such immigration scheme was busted outside of Houston.  There, an elderly woman bilked aliens out of thousands of dollars to perform services which she never provided.  According to authorities, the woman promised to file forms on behalf of aliens, but failed to deliver.  Instead, she would make repeated excuses as why she had not performed as promised.

According to USCIS, other scams include the use of .com websites, which imitate real U.S. Government websites.  U.S. Government website always end in .gov.  Forms are available from USCIS with no charge, so aliens should be careful not to pay to obtain forms.

Another common scam involves the visa lottery.  Scammers will promise to make it easier to win the diversity visa program, or will send emails claiming that the alien has won the visa lottery.

One key that can be useful in identifying a scammer is whether the advertisement references the INS, or Immigration and Naturalization Service.  This agency was eliminated after 9/11, and replaced by three agencies with responsibility over immigration:  U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

Those seeking immigration help would be best served by seeking advice from a knowledgeable immigration lawyer, or a reputable organization known to offer immigration help.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

How to Prepare for a Marriage Interview

Every applicant for a visa will be interviewed by an official from the U.S. Citizenship and Immigration Service (“USCIS”). It is USCIS’s opportunity to ensure that the intended immigrant is a real person, and that there is no fraud. The trickiest of interviews tend to be
those where a young marriage is involved.

The spouse of a U.S. citizen can become a permanent resident without waiting for a visa to become available under the preference system. That means that there is no long wait. Being a spouse of a U.S. citizen has other advantages under immigration law. A spouse can adjust in the United States, and does not have to go overseas to process at a U.S. consulate. If a spouse entered legally, the spouse can be out of status when he or she applies for permanent residency. Plus, unauthorized work will not count against the spouse of a U.S. citizen.

All of these benefits under the law create a temptation for a foreigner present in the United States to find a U.S. citizen to marry, so that the foreigner can apply for permanent residency. This is particularly true where the foreigner is out of status. It is because of this temptation that USCIS is suspicious of young marriages.

How, then, can a candidate for a visa based on a marriage prepare for a USCIS interview? The first bit of advice is to try to relax and be yourself. The USCIS officer may ask questions just for the sake of getting to know you as a person. Simply answer the questions honestly.

Next, it is a good idea to talk to your spouse about your history together before going to the interview. Talk about how you met. Reminisce about your dates. Talk about what you got each other for special holidays. Don’t try to memorize every detail. Simply go over your history so it is fresh in your mind. If your answers appear too memorized, it might draw suspicion.

Don’t shy away from bad facts. If your spouse’s parents don’t like you, say so. If you hated the last birthday present you got, don’t hide that fact. Real life has its conflicts. USCIS officers know that.

It is a good idea to have pictures with you at the interview. Try to review them before hand, and remember who was with you, who took the pictures, and what you were doing.

Review your written petitions. The interviewer will ask questions about them. It may have been months since you last saw them. Refreshing your memory is a good idea. If you see mistakes, be sure to correct them up front in the interview.

USCIS insists on evidence of a shared life together. Having a joint bank account is one way to show a joint life. But, don’t open a joint bank account simply to have one. USCIS officers may ask if you have other accounts, and which accounts you use to pay the bills and deposit your paychecks. If you have a long standing account that you use frequently, but the account with both of your names is one that is used infrequently, that will create more suspicion.

Be prepared for questions that might otherwise appear too personal or out of bounds. Some USCIS officers will ask who sleeps on which side of the bed. Some will ask about the decor of your bedroom. Don’t be insulted. Just answer calmly and accurately.

If there is suspicion during the interview, USCIS may bring out the questionnaires. They will ask one spouse to leave the room, and have the remaining spouse fill out a written questionnaire. They will tell you that it is voluntary. Of course, if you refuse it can be held against you. This is not criminal law, thus the 5th Amendment does not apply. Once finished, the USCIS officer will ask you about your answers.

Then, the other spouse will be brought in to answer the same questionnaire. The USCIS officer will compare answers. Be prepared that this might happen.

If you and your spouse normally speak in your native language, be careful about that during your interview. The interviewer can become annoyed if you speak to each other in a language other than English. If your spouse does not speak English, you must bring the interpreter. Again, try not to talk to each other in front of the officer in your native language.

If you have a lawyer, it is a good idea to have the lawyer present in the interview. The lawyer’s role is limited to that of an observer. That is, your lawyer cannot interrupt and answer questions for you. But, if an interviewer is being abusive, your lawyer can, and should, interpose. The best advice is simply to relax and tell the truth. A little preparation beforehand can help calm your nerves, and have you ready to answer whatever questions the interviewer poses.