Committed a crime? Maybe you should not be deported due to retroactivity.

Military Naturalization. How to become a U.S. Citizen.

In the Military? See if you qualify to become a U.S. Citizen.

I’m in the Military. Can I naturalize?

Question: I’m in the military and I know somebody who was in the military years ago. Can we become U.S. Citizens?

Answer: Members and certain veterans of the U.S. armed forces may be eligible for naturalization through their military service under a couple of different sections of the Immigration and Nationality Act (INA). Additionally, the INA provides for posthumous naturalization if that particular person in the military has died.

Question: What branches of the armed services will qualify for military naturalization?

Answer: Qualifying military service is generally in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard and the Selected Reserve of the Ready Reserve. The general requirements for naturalization may be diminished or waived for qualifying service member.

Question: I am still in the military and have served for two years. What do I qualify for under the INA?

Answer: You may qualify for naturalization through serving at least one year of qualifying service during “Peacetime”. Of course, if you have served during a time of designated hostilities, you may qualify for the other provision of military naturalization which waives even more provisions to allow you to become a U.S. Citizen. However, under the peacetime provisions, a person who has served honorably in the U.S. armed forces at any time may be eligible to apply for naturalization. The military community sometimes refers to this as “peacetime naturalization.”

Question: What are the requirements for ‘peacetime naturalization’ for somebody in the military?

Answer: You must be age 18 or older, have served honorably in the U.S. armed forces for at least 1 year and, if separated from the U.S. armed forces, have been separated honorably; be a permanent resident at the time of examination on the naturalization application; be able to read, write, and speak basic English; Have a knowledge of U.S. history and government (civics); Have been a person of good moral character during all relevant periods under the law; and have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the U.S. during all relevant periods under the law.

Question: What about the residency and physical presence requirements? I have been serving outside the U.S for my tour of duty and do not have physical presence requirement.

Answer: If you are filing this naturalization application under the peacetime provisions, and you are still serving or have been honorably discharged no more than 6 months ago, you are not required to meet the residence and physical presence requirements. Otherwise, you are required to meet those provisions.

Question: What about my friend who served years ago, but was serving in a period of hostility?

Answer: Generally, members of the U.S. armed forces who serve honorably for any period of time (even 1 day) during specifically designated periods of hostilities are eligible for naturalization under this provision of the Immigration and Nationality Act.
Question: What are the requirements for naturalization for people who served under a period of hostility?

Answer: In general, an applicant for naturalization under this provision must have served honorably in active-duty status or as a member of the Selected Reserve of the Ready Reserve, for any amount of time during a designated period of hostilities and, if separated from the U.S. armed forces, have been separated honorably.

Question: My friend was never a lawful permanent resident. Is that a requirement?

Answer: Generally, the answer is yes. However, your friend would not be required to have been a resident if that person has been physically present in the United States or certain territories at the time of enlistment or induction (regardless of whether that person was admitted as a permanent resident).

Question: Does a person under this section have be a certain age?

Answer: There is no minimum age requirement for an applicant under this section.

Question: What are the designated periods of hostility?

Answer: The designated periods of hostilities are: April 6, 1917 to November 11, 1918; September 1, 1939 to December 31, 1946; June 25, 1950 to July 1, 1955; February 28, 1961 to October 15, 1978
August 2, 1990 to April 11, 1991; September 11, 2001 until the present. Therefore, any military personnel serving anytime from September 11, 2001 until now can apply under this provision of naturalization during hostilities if they qualify.

Question: What about if the person died while serving in the military?

Answer: There is what is known as Posthumous Citizenship for Military Members. Generally, individuals who served honorably in the U.S. armed forces and who died as a result of injury or disease incurred while serving in an active duty status during specified periods of military hostilities, as listed above, may be eligible for posthumous citizenship.

This application must be filed within 2 years of his or her death. If approved, a Certificate of Citizenship will be issued in the name of the deceased veteran establishing posthumously that he or she was a U.S. citizen on the date of his or her death.

Don’t even think about filing a frivolous asylum application.

Don’t even think about filing a frivolous asylum application!

Don’t even think about filing a frivolous asylum application!

Question: I have a friend who came into the U.S and filed a fake asylum application. Is there anything that can happen?

Answer: Yes. This would be one of the worse things that your friend could do. In fact, the consequences for filing a frivolous application are extremely severe. If such a ruling is made, then the law states that this person will NEVER be able to obtain immigration benefits for the rest of his or her life.

Question: How do we know if this ruling is properly made?

Answer: There are three parts to getting a ruling of a frivolous application on an asylum application. First, the application must be frivolous. Second, it must be knowingly filed. Finally, the foreign national must have been given the proper advisals on the consequences of filing a frivolous application.

Question: On the first item, what does frivolous mean?

Answer: This means that the application was simply fake and had absolutely no basis in truth. Essentially, it was a fraudulent application.

Question: If the asylum application is denied, does that mean that it is frivolous?

Answer: No. Having an asylum application denied is far better than having a frivolous application. Getting denied might be for a wide variety of reasons such as there was not sufficient proof or that there was an adverse credibility finding, or that the legal basis for the asylum application is not applicable. These matters could be appealed or a motion to reopen could be made.

Question: How do you know if the foreign national ‘knowingly’ made the frivolous application?

Answer: This is a question of fact. However, if for example, the person came into the United States and did not speak a word of English and a ‘notario’ or somebody claiming to be an expert in Immigration Law simply filled out a fake application so that the foreign national would get a work-permit, then it is arguable it is not knowingly submitted. Especially if the foreign national was just told to sign everywhere without reading the application or understanding the application or what is said.

Question: What types of advisals exactly must be given in order for this section of law to be applicable?

Answer: The law specifies two major advisals that must be given: 1) the right to counsel and 2) what happens if a frivolous asylum application is filed. Specifically, if the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice, the alien shall be permanently ineligible for any benefits under the Immigration and Nationality Act.

Question: What is the ‘notice’ you referred to above? Specifically, how does the foreign national have to received the notice?

Answer: It has to be given at the time the asylum application is submitted. Therefore, if the frivolous asylum application is filed and is knowingly filed, but no advisals given, then the person does not fall under this area of law. It should then be immediately withdrawn.

Question: If somebody got this ruling, but years later marries a U.S. Citizen and has children and no crimes, can he adjust?

Answer: No. The bar against immigration benefits is for life. Therefore, I would have to go back to the original ruling and determine if it was incorrect and/or whether one of the elements necessary for the permanent bar to take effect has not been properly complied with by the government. I would then make a Motion to Reopen to try to get this ruling vacated.

In any case, it is an extremely harsh ruling and must be avoided at all realistic costs.

How to pass immigration reform and the reasons for the Government Shutdown

How to get back to the U.S. after a Deportation Order

Been Deported? Apply for the Permission to Reenter.

I was deported. Now what?

Question: I was previously deported and want to come back to the United States. Can you let me know what I can do? I heard I have to do a Waiver for the crime and Consulate Processing through my wife. Is there anything else?

Answer: Since you have mentioned you are doing the Waiver and the Consulate Processing, I will concentrate on what must be done that you are missing. It is called a Permission to Reapply and is necessary because of your deportation order.

Question: OK, but what exactly is a Permission to Reenter?

Answer: The opportunity to apply for relief for inadmissibility is scant for the vast majority of foreign nationals subject to this ground, due primarily to the rule that the foreign national must have spent 10 years outside the United States before applying for relief or 5 years depending if it was an expedited removal order or even up to 20 years. However, there are exceptions to this rule. One must apply for the Permission to Reenter in order to essentially erase the ‘deportation’ bar. It does not erase grounds of inadmissibility of which a Waiver would be needed, but is critical to successfully coming back to the U.S. Any alien who has been deported or removed from the United States is inadmissible to the United States unless the alien has remained outside of the United States for five consecutive years since the date of deportation or removal. If the alien has been convicted of an aggravated felony, he or she must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States. Any alien who has been deported or removed from the United States and is applying for a visa, admission to the United States, or adjustment of status, must present proof that he or she has remained outside of the United States for the time period required for re-entry after deportation or removal. The examining consular or immigration officer must be satisfied that since the alien’s deportation or removal, the alien has remained outside the United States for more than five consecutive years, or twenty consecutive years in the case of an alien convicted of an aggravated felony as defined in section 101(a)(43) of the Act.

Basically, sn alien who is inadmissible because of a prior deportation order under the Immigration and Nationality Act (INA) files Form I-212 to obtain “consent to reapply for admission” that is required before the alien can lawfully return to the United States. “Consent to reapply” is also called “permission to reapply.”

Question: Is it just the form that must be used?

Answer: No. That is only the beginning. There must be a cover letter explaining eligibility and convincing the officer to grant the Permission to Reapply along with declarations, medical documents, hardship documents and all supporting evidence.

Any alien who does not satisfactorily present proof of absence from the United States for more than five consecutive years, or twenty consecutive years in the case of an alien convicted of an aggravated felony, to the consular or immigration officer, and any alien who is seeking to enter the United States prior to the completion of the requisite five- or twenty-year absence, must apply for permission to reapply for admission to the United States as provided under this part.

Question: Can I just stay in the United States for the required period of time and then get the visa to come back?
Answer: No. This is time outside the United States. Therefore, if you have not been outside the United States for the requisite period of time you need to apply for the Permission to Reapply.

Question: How long must I wait to apply for this?

Answer: You can apply the day after you get the deportation order. There is no statutory time to wait to apply. However, it is not easy to get approved, so it must be prepared completely, fully and with all types of supporting evidence.

Are you an Australian Citizen? Try the E-3

Are there any work visas from Australia?

Are there any special visas from Australia?

Question: I’m an Australian Citizen. Are there any special visas from Australia that I might be able to qualify for as an Australian Citizen?

Answer: Yes. The E-3 nonimmigrant classification is for Australian citizens who will perform professional “specialty occupation” assignments in the United States. E-3 status may be valid for up to two years and may be renewed indefinitely. The foreign national may apply for an E-3 visa at a U.S. consulate abroad or request a change of status or change of employer from U.S. Citizenship and Immigration Services (USCIS). Dependent spouses and children of E-3 professionals hold E-3D status. E-3D spouses are eligible for employment authorization documents. An extension of E-3 status may be filed with USCIS, or the foreign national may apply for a new period of E-3 status at a U.S. consulate abroad. There is an ample annual numerical limitation of 10,500 E-3 visa numbers, and E-3 extensions and E-3D dependents are not counted towards the quota. The E-3 is actually similar to the H-1B, but is for people only from Australia.

Question: What is basically needed for this type of visa?

Answer: You must be a citizen or national of Australia. There must be a professional assignment in the United States. You need a Bachelor’s degree. You need a professional license, if required for the assignment by federal, state, or local law.

Question: What documents basically are needed?

Answer: The U.S. job description. Copies of the foreign national’s educational degrees, including transcripts. Copies of the foreign national’s professional licenses, if applicable. Foreign national’s experience letters, if applicable. A Copy of foreign national’s résumé. Basic information about the company. A Copy of biographic page(s) of passport(s) of the foreign national and any dependent spouse and children.
Question: Is there a numerical limitation on E-3 Visas?
Answer: There is a numerical limitation of 10,500 E-3 visas that may be issued annually, but “[o]nly E-3 principals who are initially being issued E-3 visas, or who are otherwise initially obtaining E-3 status,” are counted towards this cap. Neither Australian citizens who seek E-3 extensions with the same employer nor E-3D dependents are subject to the quota. Unused E-3 visa numbers “do not carry over to the next fiscal year.” The Department of State (DOS) tracks usage of the visa numbers used by the U.S. consulates and by USCIS, so if it appears that the quota will be exhausted, DOS “will instruct posts to cease E-3 issuances for that fiscal year.” It seems unlikely, however, that the cap will be reached.
Question: If I do not have a Bachelor’s Degree, can I still get the H-1B?
Answer: Generally you cannot. However, you can try to get the equivalent of the Bachelor’s Degree. There are different ways that you can try to do this. They are as follows: 1) “An evaluation” from a specific type of educational official; 2) A credentials evaluation of education prepared “by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials”; 3) “The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI).” 4) Recognition from a professional association; or 5) USCIS determination.
However, keep in mind that even if you successfully show that you have a college degree equivalence, the position itself in the United States must require the use of that college degree.

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