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Divorces can have far reaching effects on naturalization, and one possible effect concerns nonpayment of child support.

Most often this problem surfaces when a permanent resident files  citizenship without the assistance of an immigration attorney. After all,  how complicated can it be to fill out the government form, right? Unfortunately, it is not just about filling in the form. Among other considerations, there is the matter of demonstrating “good moral character.” While there is no statutory or regulatory definition, the term generally means character that measures up to the standards of average citizens of the community in which the applicant resides.

Vague enough? Well, there are some helpful guidelines.

An applicant for naturalization who willfully fails or refuses to support dependents will be found to lack good moral character, unless there are extenuating circumstances. Willful failure may include someone who has the ability to pay child support, but simply refuses to do so, or someone who fails to provide support over a long period of time.

However, it is possible to establish extenuating circumstances affecting one’s ability to pay child support  where the applicant is out of work, or has made a reasonable effort to pay.

If an applicant is delinquent in his or her child support payments prior to filing an application or has been denied on this basis and has filed an N-336 Request for a Hearing, every effort should be made to bring payment current during the statutory period, or at least demonstrate a history of past payments or a commitment to bring the payments up to date.

It may be a stretch in most cases, but an additional step is to present an affidavit from a former spouse in order to establish good moral character.

Tom & Peter
The Immigration Guys

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Good Moral Character Requirement

All applicants for naturalization must be of good moral character. Certain crimes and bad acts, even though not resulting in a criminal conviction, may make one ineligible to naturalize for lack of good moral character. In addition some crimes or acts may be sufficient cause to deny the application and place the applicant in proceedings to be removed from the United States. It is highly advisable to contact an immigration attorney if you have committed (even if not arrested) or been convicted any crime or bad act before filing for naturalization.  More Information About Good Moral Character

Continual Residence Requirement

Applicants must have resided continuously within the United States at least 5 years after having been lawfully admitted for permanent residence or at least 3 years if applicant’s permanent residence was obtained by marriage to a U.S. citizen. (See INA §316.5) However, this does not mean that an applicant must have actually remained in the United States for the entire five or three year period of residence. (see Physical Presence Test and Breaks in Residence below).

Physical Presence Requirement /Test

In order to naturalize an applicant must demonstrate that s/he has, subsequent to lawful admission as a permanent resident, resided has been physically present in the United States at least 30 of the past 60 months or 18 of the past 36 months where the applicant’s permanent residence was obtained by marriage to a U.S. citizen. (See INA § 316(a))

Effect of Breaks in Continuous Residence of Less than Six Months Absence from the United States

No break in continuity of residence for naturalization purposes.

Effect of Breaks in Continuous Residence of More than Six Months Absence from the United States – but less than one year

Only presumptively breaks the continuity of residence for naturalization purposes. This means that an applicant may rebut the presumption with evidence that s/he did not intend to abandon their residence for naturalization purposes.

However, if the applicant is unable to overcome the presumption, s/he must wait 4 years and a day to apply for naturalization, or 2 years and a day if they obtained lawful permanent resident status by marriage to a U.S. citizen. (See 8 CFR 316.5(c)(1)(ii))

Effect of Breaks in Continuous Residence of More than One Year Absence from the United States

If a applicant remains outside the United States for more than one year they will break the continuity of residence for naturalization purposes and must wait 4 years and a day to apply for naturalization, or 2 years and a day if they obtained permanent residence by marriage to a U.S. Citizen. (See 8 CFR 316.5(c)(1)(ii))

Tom & Peter

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(TPS) Designation Announced

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Yesterday, Department of Homeland Security Secretary Janet Napolitano announced that she was designating Haiti  for Temporary Protected Status (TPS), a move that will make many Haitian nationals  eligible for U.S. immigration benefits.

Eligible Haitian nationals who were in the United States as of January 12, 2010 will be  able to apply for protection and authorization to work.

TPS Status for Haiti and it nationals living in the United States has been tossed about by the government over the past decade but now it is finally a reality.

The recent horrific earthquake forced the world to take a renewed look at the harsh realities of day-to-day life in the impoverished nation.  Granting TPS designation will help lessen the burden for Haiti and is people living in this country.

Full Text of Secretary Napolitano’s Announcement:

“As part of the Department’s ongoing efforts to assist Haiti following Tuesday’s devastating earthquake, I am announcing the designation of Temporary Protected Status (TPS) for Haitian nationals who were in the United States as of January 12, 2010. This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration’s continuing efforts to support Haiti’s recovery.

“At this moment of tragedy in Haiti it is tempting for people suffering in the aftermath of the earthquake to seek refuge elsewhere. But attempting to leave Haiti now will only bring more hardship to the Haitian people and nation. The international community has rallied to deliver relief to Haiti. Much has already arrived and much more is on its way.  The Haitians are resilient and determined and their role in addressing this crisis in their homeland will be essential to Haiti’s future.

“It is important to note that TPS will apply only to those individuals who were in the United States as of January 12, 2010. Those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.

“The Department of Homeland Security continues to extend sympathy to our Haitian neighbors and support the worldwide relief effort underway in every way we can. Four Coast Guard cutters have arrived in Haiti, in addition to a variety of Coast Guard assets that were already in the area to support military air traffic control, conduct damage assessments and rescue people in need of assistance. The Federal Emergency Management Agency (FEMA) continues to work closely with the U.S. Agency for International Development (USAID) and the State Department—the lead U.S. federal agencies in the response—while coordinating the deployment of state and local Urban Search and Rescue Teams from across the country to Haiti and standing by to provide food, water and other resources as requested. U.S. Customs and Border Protection (CBP) has provided aircraft to support response efforts.

****************end

We would like to thank Secretary Janet Napolitano for her historic and compassionate decision in designating Haiti for TPS.

Tom & Peter

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Generally, the laws apply to lawful permanent residents of the United States who have a good moral character, and can demonstrate: 1) a knowledge of the English language, 2) knowledge of US government and history (civics), and an attachment to the United States by taking an oath of allegiance to the US Constitution.

Some requirements such as residency and physical presence in the United States may be waived. The specific sections of the Immigration and Nationality Act, referred to as the INA, which apply to citizenship for Armed Forces members, are Sections 328 and 329.

Section 328 applies to all members now serving, and to those who have been discharged. Section 329, on the other hand, applies to members of the Armed Forces who are currently serving or have been on active-duty during certain periods of time, including WWI; September 1, 1939-December 31, 1946; June 25, 1950-July 1, 1955; and February 28, 1961-October 5, 1978, or any addtional period designated by the Presendent in an Executive Order. The most recent such Executive Order identified September 11, 2001 and after as an authorized period of conflict.

In either case, to qualify, the applicant must have served honorably for one or more years, and file the citizenship application with the United States Citizenship and Immigration Service (USCIS) while still in service or within six months of being discharged.

For members of the Armed Forces at US embassies, consulates, and military installations abroad, applications may be filed while overseas, and the normal filing fee of $675 will be waived. In the case where an Armed Forces member is married to a US citizen who is or will be deployed abroad for one year, naturalization may be expedited. Citizenship may even be awarded posthumously to those who die while serving in the Armed Forces, and surviving family members are given special considerations.

A Military Help Line has been established at the USCIS in order for you and your family to have access to immigration information. The number to call is 1-877-247-4645. You will be able to find additional information about citizenship on the government website at www.uscis.gov. We, at Goldman & Loughlin, strongly recommend you seek counsel from an attorney before filing for citizenship. A number of crucial issues should be addressed before a decision is made to file your application. A misstep in this process can in some cases lead to a loss of permanent resident status.

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It is important to understand that there two areas of consideration that the agency takes into account when making a determination in granting/denying naturalization.

1)  Statutory bars the finding of good moral character where the applicant:

•  has committed and been convicted of one or more crimes involving moral turpitude

•  has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more

•  has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana

•  has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more

•  has committed and been convicted of two or more gambling offenses

•  is or has earned his or her principal income from illegal gambling

•  is or has been involved in prostitution or commercialized vice

•  is or has been involved in smuggling illegal aliens into the United States

•  is or has been a habitual drunkard

•  is practicing or has practiced polygamy

•  has willfully failed or refused to support dependents

•  has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

•  Also, persons convicted of murder at any time or convicted of aggravated felonies on or after Nov. 29, 1990, cannot establish good moral character and are thus permanently barred from naturalization.

Consult an Immigration Attorney

If you have committed crimes or acts that at may fall within the statutory bar category you should consult with an immigration attorney before filing. Certain offenses not only make you ineligible for naturalization but could actually trigger removal (deportation) proceedings against you.

Another reason you should consult an attorney is that some offenses may not be as damaging as they may seem to be. For example, a single DUI conviction is typically not considered to be a crime involving moral turpitude unless there are aggravating factors such as bodily injury and/or a DUI with a suspended driver license. –But each case is different and based on the particular charges and disposition so you must be certain before proceeding with your application.

2)  Catch All Provision:

In addition, there is a so called “catch all” provision that provides wide discretionary authority to the USCIS examiner in looking to other bad acts that may have been committed or admitted to during the “statutory period”.  And, in certain circumstances, USCIS may look into negative factors that occurred beyond the statutory period.

Warning: Owing to the potential serious consequences that may result from filing an application for naturalization, it is highly recommended that you consult with an immigration attorney before proceeding.

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