Category Archives: U.S. Citizenship

Why Give Birth in the U.S. When a Surrogate Can Do It For You?!

pacifierIt was only a matter of time, really. First, there was “birth tourism,” in which people from around the world who are interested in gaining a foothold in the U.S. arrange to enter as tourists and have a child here — their own little U.S. citizen “anchor baby.”  (See details in my earlier blog, on “Anchor Babies in the News.”)

Now, some parents are avoiding that nerve-wracking plane ride while pregnant, and simply arranging to have surrogate women in the U.S. give birth and cede their parental rights to them. For real. You can read about it in California Lawyer magazine.

This strategy doesn’t work in every U.S. state (because many state legislatures have made surrogacy contracts illegal or unenforceable), but it works in California, which is plenty convenient for the many Asian couples going this route.

I do need to take issue with one statement in the article on “Having a Citizen Baby,” however. It says that, “At $100,000 to $200,000–which includes legal fees, insurance, medical care, and $30,000 to $45,000 for the surrogate–hiring a surrogate is still much cheaper than taking another fast track to legal residency: paying $500,000 or more for an entrepreneur visa.”

The surrogacy route is no “fast track” to legal residency, other than for the baby, who wasn’t exactly worried about immigrating to the U.S. in the first place. Mom and dad still must wait 21 years outside the U.S. before gaining any rights here (also described in my earlier blog post). The entrepreneur or investor visa, by contrast, allows parents and children to enter the U.S. right away.

But the surrogacy route offers certainty for at least one member of the family, and doesn’t carry the risk that the business upon which the investor visa was based will fail within the  first two years–in which case green card eligibility is lost.

“Anchor Babies” in the News: The Pregnancy Path to U.S. Citizenship

asianbabyEvery law seems to have unintended consequences. The original intent of granting citizenship to every baby born on U.S. soil (done within the 14th Amendment to the U.S. Constitution) was to avoid creating an underclass, particularly among people who were brought to the U.S. as slaves.

(Congress was responding to the infamous Dred Scott decision of 1857, in which the U.S.  Supreme Court denied citizenship rights to freed slaves.)

Now, however, a cottage industry has seemingly developed to assist people from outside the U.S. — particularly from Asia — to come here on temporary visas in order to give birth to new little U.S. citizens.

The price tag for such “maternity hotel” services tends toward the tens of thousands of dollars. The fee covers travel and visa arrangements, medical care, and more. (See, for instance, “Giving birth in U.S. to get babies citizenship draws suspicion” and “In suburbs of L.A., a cottage industry of birth tourism” and “Chinese birth tourism booms in Southern California.”)

One such service reportedly advertises, “We guarantee that each baby can obtain a U.S. passport and related documents.” That’s not a hard guarantee to make, given the Constitutional backing!

Some of the reasons expectant parents give for wanting to give birth in the U.S. have immediate or short-term utility. For example, interviewees from China mentioned goals such as as circumventing that country’s one-child restrictions, or wanting to ensure that their child will be able to study in the U.S. or have the protection of the U.S. government in times of difficulty.

Other reasons, however, are remarkably long-term in scope. The families are creating an “anchor” for future U.S. immigration — and it’s one that can’t help them until the child turns 21.

To be clear, having a child who is a U.S. citizen does NOT provide any immediate rights to live or gain status in the United States. Only a U.S. citizen who is age 21 or over can petition his or her parents for U.S. lawful permanent residence (a green card). That application process alone will likely take at least a year.

What’s more, if the little citizens’ parents were to take a chance and attempt to remain in the U.S. illegally for the requisite 21 years, they’d become “inadmissible” — that is, ineligible for a green card — based on their history of unlawful presence here. (In fact, the “birth tourism” agencies likely warn the parents of this, since reports have it that they fly home soon after the births.)

There’s nothing in U.S. immigration law that expressly forbids birth tourism. Arguments could be made that the parents are committing visa fraud by claiming to enter as “tourists.” Still, even if the immigration enforcement authorities push this point, a finding that the parents’ committed visa fraud won’t negate the children’s status as citizens. (It will, however, make the parents inadmissible and unable to receive any U.S. visa or green card in the future.)

Whatever one might think of the practice of birth tourism, we’ve got to admire that level of long-term planning!

How Will You Know When USCIS Declares a Snow Day?

whitehousesnowWhen local schools are closed due to snow, you will usually hear it announced it on local radio and TV stations (and you can hear the cheers from around the neighborhood).

But how do you find out whether the office of U.S. Citizenship and Immigration Services (USCIS) at which you are scheduled to attend an interview or provide your biometrics has been closed due to bad (sometimes called “inclement”) weather? Sometimes the media may mention the closure of federal buildings, but it’s best not to count on this as your sole source of information.

If you have a lawyer, and he or she is a member of the American Immigration Lawyers’ Association (AILA), your lawyer will likely receive an email with any notifications of USCIS office closings.

If you don’t have a lawyer working on your immigration case, however, you may need to do a little research on your own if the weather is looking bad. USCIS does not make any attempt to reach out to people individually — trying to call or even email the thousands of people who are scheduled for appointments on a given day would probably take well into that night!

USCIS will reschedule non-INFOPASS appointments due to its own closure automatically, but that’s done by letter, and could take weeks. (If you made an INFOPASS appointment to visit a USCIS office, however, you’ll need to go online and reschedule that one yourself.)

The most reliable source of such information is on the “Field Office Closings” page of the USCIS website. On most days, it will simply say (in the top paragraph under the date) “All offices are open on schedule today.” On other days, however, this page will state which of USCIS’s offices nationwide are closed. According to a USCIS spokesperson whom I contacted, they also make an effort to advise people via social media, including the USCIS Facebook page and Twitter.

If in doubt, you could also try calling the National Customer Service Center at 800-375-5283.

If you are still in doubt, do your best to make it to your appointment. Failure to do so could result in weeks of delay at best, and possible denial of your application for immigration benefits.

Check Your Passport BEFORE Submitting Form N-400 Naturalization Application

airplanePicture this: You fill out Form N-400, the application for U.S. citizenship. On one of the questions, you’re asked to list all your trips outside the U.S. for the past five years. “That’s easy, I haven’t taken any trips for at least five years,” you think, and enter “N/A” in this section.

The day of your interview arrives. You go over the list of what you need to bring to the interview. It includes the passport of your home county. You dig through your possessions until you finally find the passport, and rush to your interivew.

Everything at the interview is going well. Your spoken and written English are fine, and you’ve memorized the history and government questions and easily pass this part of the test. Then the U.S. Citizenship and Immigration Services (USCIS) examiner opens your passport. “Hmm, there’s a visa stamp showing that you HAVE traveled outside the U.S. in the last five years,” she notices.

Uh oh. This is exactly the situation faced by an applicant with whom I reasonably spoke — a careful, professional person, whose memory had just happened to lapse slightly when it came to the matter of recent travel. And now the applicant was facing a USCIS examiner who was suddenly suspicious about the discrepancy between what was written on the N-400 application and what the passport showed.

Fortunately, after some embarrassed explanation, this applicant was able to convince the examiner that the undisclosed travel was a mere oversight, and obtained approval for U.S. citizenship. But not every applicant is going to meet a similarly understanding examiner.

The lesson here is simple: No matter how good you think your memory, check your passport and any other official documents concerning matters to be entered on your N-400 application for U.S. citizenship. For more information on the application process, see the book, Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview (N0lo).

Green Card Holder Forever?

usil-blog.jpgSome U.S. immigrants literally count the days from when they receive their green cards, waiting for the five (or in some cases, three) years to pass before they can apply for naturalized U.S. citizenship. And given all the benefits that come with U.S. citizenship — easier travel in and out of the U.S., ability to sponsor a wider group of family members for a green card, access to government jobs, and so on — this is widely assumed to be the sensible approach for anyone planning to live permanently in the United States.

As pointed out in a recent article in The New York Times, however, called “Making Choice to Halt at Door of Citizenship” (by Kirk Semple), that’s not how many immigrants see the matter. Many are content with a green card alone — even if they fully qualify for citizenship and would be permitted dual citizenship in their home country — for reasons that include:

  • national identity — they want to retain a tie to their home country and don’t necessarily “feel” American
  • trauma — the process of dealing with U.S. government officials the first time around is more than they want to face again (don’t laugh, it can be a hellishly difficult bureaucracy to deal with)
  • the $680 application fee
  • the perception that they already have nearly all the same rights as U.S. citizens, including the right to work in the U.S.
  • dissatisfaction with U.S. government or its foreign policy
  • the “cool” factor — a U.S. passport seems less glamorous than it once did, and finally
  • inertia — they just haven’t gotten around to applying.

This is, of course, a personal decision, and nothing in the law requires green card holders to apply for U.S. citizenship. For the people dealing with “inertia,” however, I offer just one phrase: “Change of address requirement.”

If you’re having trouble getting it together to apply for U.S. citizenship, might you also fail to do as required — or have you already failed in this required task — and advise the U.S. government within ten days of every time you move to a new address? It sounds trivial, but messing this one up is a deportable offense. For real. See the articles on the “After Getting Your Green Card: How to Keep It” page of Nolo’s website for details.

Me, I’d pay the fee, deal with the symbolic significance, and lower my cool factor just to know I couldn’t be deported on grounds as seemingly minor as these. (And the change of address notice is just one item on the list of grounds of deportability . . . . )

Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted

flagThe New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009  bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.

Attending Naturalization Oath Ceremony Could Have Saved Immigrant From Deportation

A recent case out of the Third Circuit Court of Appeals, called HECTOR DURAN-PICHARDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, is a good reminder of why attending and passing your naturalization interview (for U.S. citizenship) is not enough by itself. You’ve got to actually complete the oath ceremony before you will be considered a U.S. citizen — and receive the benefits and protections that come with that status.

Mr. Duran-Pichardo, originally from the Dominican Republic, became a U.S. lawful permanent resident in 1981. He applied for naturalization in 1997, and attended his naturalization interview in 1998.  Apparently, he passed the examination, though he was given only a document stating that the “INS will notify you later of the final decision on your application.”

The trouble arose when the INS never got around to sending him that “decision,” much less an appointment for his oath ceremony. Mr. Duran-Picardo tried to call the agency many times, but says he ultimately was told that all or part of his naturalization file had been lost. At that point, he seems to have given up.

That was a bad idea, especially in light of Mr. Duran-Pichardo’s later activities: In 2008 (nearly ten years later), he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine. The sentence was 51 months’ imprisonment.

Later in 2008, the U.S. government began removal proceedings against Mr. Duran-Pichardo, alleging that he was deportable both due to the controlled substance violation and as an aggravated felon. In his defense, he claimed that he was either a U.S. citizen or should have been, given that the U.S. government itself was at fault in failing to finalize his naturalization application.

That argument got him nowhere. As is typical in cases where the U.S. immigration bureaucracy is at fault, it takes no responsibility for the consequences. This also illustrates the severe immigration consequences of any type of drug crime.

This case might not create much sympathy or worry for other U.S. citizenship applicants who think, “No problem, I’m not planning to sell drugs.” Nevertheless it’s an important reminder of the need to track the scheduling of your citizenship oath ceremony, and attend it when scheduled. Far less severe actions than a drug crime can make a person deportable — for example, see my article, “Can I Really Be Deported for Failing to Advise USCIS of My Change of Address?” What’s more, you need to maintain your eligibility for citizenship right up to the day of the oath ceremony. The longer it gets put off, the greater the risk that something will happen to affect your eligibility.

Why Rachel Weisz Needed U.S. Citizenship

According to MSN‘s rather tabloid-y “Movie News,” Actress Rachel Weisz “now admits she applied for [U.S.] citizenship to ensure she would not be stripped of her permanent residence status if she decided to move back to Britain.”

Shock and horror! Okay, it’s not exactly a showstopper of an “admission.” In fact, it sounds to me like Ms. Weisz is getting better legal advice than some green card holders, who operate according to various myths like, “I can keep my green card as long as I visit the U.S. every six months.”

The truth of the matter is that once a person receives U.S. lawful permanent residence (a green card), that person is expected to actually reside, otherwise known as live, in the United States. If a green card holder’s main home is in another country, it doesn’t really matter how much time the person spends there — the U.S. authorities can deny reentry to the U.S. and cancel the green card on grounds of abandonment of residence.

So, ironically, becoming a U.S. citizen will allow Rachel Weisz to spend less time in the United States. But don’t worry — having recently spent $11.5 million on a New York penthouse to share with new husband Daniel Craig, Ms. Weisz will probably be spending plenty of time here.

For details on abandonment of residence, see the articles on Nolo’s website under, “After Getting Your Green Card: How to Keep It.”

Last-Minute Summer Travel Plans? Watch Out for U.S. Passport Denial

Being a U.S. citizen comes with the right to a U.S. passport, right? Yes, but . . . what many passport applicants don’t realize is that proving your citizenship, and therefore your right to a passport, is up to you. What’s more, passport denial is sometimes used as a way to enforce other U.S. laws.

If you are applying for your first U.S. passport, the required form (DS-11) will ask you for proof of your citizenship, and suggest documents that you should provide.  Even after you’ve done so, the U.S. Passport Agency may ask for more. Let’s say, for instance, that you were born at home on the U.S. side of the Mexican border (rather than in a hospital, which would have created a U.S. birth certificate for you), and then were raised in Mexico. To prove that you’re a citizen, the Passport Agency may want to see your medical records, any relevant other public records having to do with your family, evidence of your parents’ residence in the U.S., your siblings’ birth certificates, and so on.

As for when a passport may be denied for law enforcement purposes: As of 2010, the U.S. Passport Agency checks the FBI database whenever it processes a passport application (new or renewal). If you have an outstanding warrant in any county in the United States, a federal warrant of arrest, a federal or state criminal court order, a prohibition on leaving the U.S. (or the jurisdiction of the court) as a condition of parole or probation, or a request for extradition on your record, you will not qualify for a passport until you have cleared the issue up.

Another question that may arise is whether the passport you are trying to renew, or your underlying U.S. citizenship, were obtained fraudulently. If such evidence comes up; for example, if your certificate of naturalization has been cancelled by a federal court; you will not be given a new passport. Negative evidence may also come up in the context of a suspicious situation that the Passport Agency is monitoring. For example, the U.S. government has stated within the past year that Texas has a “fraudulent midwife problem.” Thus the Passport Agency keeps a list of midwives suspected of providing  false evidence that people were born in the United States.

In addition, passport applicants who owe child support in amounts over $2,500 can expect to see their passports denied. For details on this, see Nolo’s article, “Passport Denial for Failure to Pay Child Support. “

Media Muddles Description of Indiana Teen’s Difficult Visa Case

Okay, I’ve practiced immigration law; I shouldn’t have had to read the news articles on Elizabeth Olivas, who got stuck in her native Mexico and almost missed graduation due to a leap-year timing glitch, five times to figure out what they were talking about.

To listen to the news tell it, Elizabeth, an undocumented citizen of Mexico who arrived at age four and was about to graduate from high school, was facing a law that says that “children of immigrant parents have until 180 days from their 18th birthday to leave the United States for their country of origin and apply for a visa.” (That’s straight from the CNN article called “Indiana student returns home from Mexico after a visa mixup.”)

But with a little pressure on the consulate, according to these reports, Ms. Olivas applied for a waiver, got a visa, and can now graduate and live happily ever after.

Huh? Any layperson, especially of the anti-immigrant variety, might be left wondering things like why she had to wait for age 18 to get a visa in the first place; how it can be so easy for an undocumented person to leave the U.S., go to a U.S. consulate and say, “Please give me a waiver and a visa to resume my life in the U.S.,” and what this oddball law about turning 18 is.

So, let’s try to clear things up.

1) Elizabeth wasn’t just any undocumented immigrant. She was the unmarried daughter of a (naturalized) U.S. citizen. That makes her an “immediate relative,” and immediately eligible for U.S. lawful permanent residence (a green card). Why couldn’t she apply for it? First off, the news mention some processing delays in the initial paperwork (all too common). Second, for her to apply for her green card in the U.S., she would have to be eligible for “adjustment of status” — a procedure allowing immediate relatives who are in the U.S. after a legal entry to avoid returning to their home country to complete the application process. I’m guessing that Elizabeth and family entered unlawfully, across the Mexican border, in which case her only choice for applying for the green card is “consular processing,” via the U.S. consulate in Mexico.

2) When the news talks about her needing to apply for a “visa,” they’re not talking about the type of visa most people think of, as in a tourist or student visa. She was applying for an “immigrant visa,” which is the rough equivalent of a green card. (Immigrants use it to enter the U.S. and claim permanent resident status, and the actual green card arrives a few weeks later.) The CNN report that I picked on earlier was actually the only one I came across to mention this, stating that Elizabeth’s father “filed an immigrant visa petition for his daughter to gain legal status.”

3) The 180-day issue arises because people who spend excessive amounts of time in the U.S. unlawfully become “inadmissible,” that is, ineligible for any U.S. green card, visa, or other entry. That law applies to everyone over the age of 18, whether or not they are children of immigrants. If someone over 18 spends more than 180 days in the U.S. unlawfully, and then leaves (perhaps to attend a visa interview at a U.S. consulate), he or she is barred from returning for three years. A 365-day unlawful stay will get the person a ten-year bar on returning. Once Ms. Olivas turned 18, the clock started ticking, such that her unlawful presence would trigger a time bar. And due to her lawyer using a calendar that forgot leap year, she accrued 181 days of unlawful presence. Oops.

4) With 181 days of unlawful presence on Ms. Olivas’s record, her only hope for the U.S. consulate to approve her for an immigrant visa/green card was to apply for a waiver, which one can apply for only by showing that extreme hardship would result to U.S. citizen or permanent resident close relatives in the United States if the applicant were denied the visa. Again, Ms. Olivas was in a special position — many undocumented immigrants do not have qualifying relatives like this, and so would not be able to apply for the waiver.

That’s complicated stuff, I know. There’s a good reason the news reports didn’t devote as much space to this topic as I did. Nevertheless, with the fast-and-loose reporting about immigration laws that we see in this and other cases, it’s no wonder that strange rumors abound in this area. People start believing weird things, like that a new amnesty has been authorized, or that undocumented people could apply for green cards — or even U.S. citizenship — if they would just take a little initiative, and so on. The truth is inevitably more complicated.