With the New Year come several immigration policy changes that are not always transparent to the immigrant population. This article will briefly highlight my recent observations of the Atlanta Immigration District Office, [hereinafter “Atlanta Office”] as it applies to permanent residence and citizenship applications.
The Atlanta Office is the local office that administers interviews for a varied number of immigration petitions. Applicants who reside in Georgia are required to appear for their interviews at this office before their case is adjudicated. During an interview it is the Immigration Officer’s duty to verify the Applicant’s information to weed out fraudulent applications. The Immigration Officer is also charged with establishing Applicant’s eligibility for the specific immigration benefit based on the current immigration laws. It is also the Immigration Officer’s duty to identify those issues that will disqualify an applicant from receiving a specific immigration benefit. The Immigration officer is an agent of the united states Citizenship and Immigration Services, [hereinafter “USCIS]. As such, the Immigration Officer is bound by law to apply the law as prescribed by the united states Government.
During my recent client interviews for citizenship and permanent residence I have noticed some interesting developments in the Atlanta Office’s approach to certain cases. My first observation is specific to spousal petitions for permanent residence. Every year USCIS receives a large number of fraudulent marriage-based permanent residence petitions. As such, the Atlanta Office is on high alert for fraudulent cases. To that end the Atlanta Office is now predisposed to label an application as fraudulent if there is even a minute amount of discrepancy. Petitions in which the non-U. S citizen spouse was previously married prior to marrying his/her current U. S. citizen spouse are always deemed to be suspect. Immigration has specific guidelines regarding the authenticity of a divorce that was obtained in a foreign country. Applicants of foreign countries who have obtained customary divorces are at an increased risk of receiving a denial on their petitions for permanent residence.
My second observation regarding spousal petitions pertains to newlyweds. Immigration’s definition of a newlywed couple is any couple that has been married for less than two years. Historically, Immigration has always applied greater scrutiny to marriage-based permanent residence petitions for newlyweds. As such, newlyweds who submit their petitions are at a disadvantage because their evidentiary documents that document the validity of their relationship will be fewer in comparison to couples who have been married for several years. However, despite the inherent disadvantage, newlyweds are still able to receive approvals if certain precautions are taken. One such precaution is to present the documentation of the couple’s relationship prior their marriage. The other precaution is to hire a competent immigration attorney.
My third observation pertains to the citizenship, (naturalization) petitions. As previously discussed in my articles, some criminal convictions will disqualify an applicant from receiving citizenship or permanent residence. Some criminal convictions, for example aggravated felonies, will disqualify an applicant and will trigger deportation proceedings. Historically non-arrest traffic citations are not offenses that would trigger an Applicant’s disqualification or deportation. However, recently the Atlanta Office has taken the policy mandate to request that Applicants bring court certified copies of all traffic citations to their interviews. As such, a failure to produce these documents could result in a denial of an Applicant’s petition despite the fact that a traffic citation for speeding has no bearing on the Applicant’s petition. Some officers have argued that an unresolved traffic citation in which the Applicant did not pay the ticket and/or appear for the court hearing could result in a warrant being issued for the Applicant’s arrest. This argument is true. However, prior to the Applicant’s interview USCIS has already obtained the Applicant’s FBI report which would clearly show the existence of any outstanding warrants on the Applicant’s case. Despite this fact, USCIS will deny an Applicant’s citizenship application for non-compliance if traffic citation documents are not submitted in a timely manner. The best recourse is to retain documents of all of your traffic citations that occurred prior to applying for citizenship. This is especially important because not all judicial jurisdictions will retain permanent records of minor traffic offenses.
My final observation relates to Applicants who have received a “deferred judgment” sentence from any court. The term “deferred judgment” has a plethora of definitions. In some instances pertaining to “deferred judgment”, the defendant must enter a plea of guilty. The case is continued for a period of time subject to certain conditions, usually including that the defendant not be convicted of another crime. If the defendant satisfies these conditions, at the end of the time period the guilty plea is considered withdrawn and no judgment of conviction or sentence is entered. In other cases, the defendant has no finding of guilt. The judgment is set-aside for a specified amount of time and the defendant must comply with any conditions given to him or her. The case can be dismissed if the defendant completes all requirements. “Deferred judgment” can be a confusing concept for non-attorneys. Likewise, Immigration Officers are usually not attorneys and they usually have limited exposure to the varied sentencing options that a criminal court may utilize in a defendant’s case. As such, Applicants who have any criminal history would be best advised to obtain immigration advice before applying for immigration benefits.
Disclaimer: This article is a broad overview of Attorney Byars’ observations. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.