Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Utah’s Same-sex Marriages Eligible for Immigration Benefits

Last Friday, the Department of Justice released a video (embedded below) that states explicitly the federal government will treat Utah’s same-sex marriages as “lawful and considered eligible for all federal benefits.” Currently, same-sex marriage licenses are not being issued in Utah, but couples that are already married are eligible for immigration benefits. Among those benefits are a higher priority for the receipt of green cards (i.e. permanent resident cards) and a shorter wait time to become a U.S. citizen.

For couples who can no longer become married in Utah but would like to be, it is possible to be married in other states. New Mexico and California are the closest states that currently perform same-sex marriages. Although Utah will not recognize those marriages either, the federal government will. The federal government recognizes marriages that were legal at the time the were performed, regardless of where the couples move or travel afterward.

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Citizenship Naturalization Requirements

The process of naturalization grants foreign born citizens or nationals U.S. citizenship, provided they meet the requirements Congress established. Previously, I have written about getting citizenship through military service. This information is for civilians wishing to become naturalized citizens.

The most common way for a person to become a citizen is by being a lawful permanent resident (green card holder) for at least 5 years and is at least 18 years old. After 5 years, a potential applicant may fill out “Form N-400” to start the process. During the past 5 years, the applicant must have spent at least 30 months (2.5 years) of that time inside the United States. Also, the applicant may not have had any foreign trips that lasted longer than 6 months. (These rules exist under the rationale that applicants who spends more than half their time outside the country may not have strong enough ties or allegiance to the United States.)

Another way a person can apply is if they are at least 18 years old, have been a lawful permanent resident for 3 years, and have been married to and living with a U.S. citizen for 3 years. The U.S. citizen spouse must have been a citizen for all of that 3 year period. Such applicants also fill out Form N-400.

This next way is relatively rare but is worth mentioning. A small group of people are classified as “U.S. nationals” and yet were not born U.S. citizens. People born in some U.S. territories, such as American Samoa, belong in this category. U.S. nationals who have lived in a state long enough to be legal residents can request naturalization through Form N-400; it is not required that they be a permanent resident first.

For some people it may be possible to have USCIS declare that they automatically became a citizen after they were born. This requires filling out Form N-600 “Certificate of Citizenship.” Often, the N-600 is naturalization as well, since such applicants are born as citizens of a different country but become citizens after birth. The N-600 deserves its own post, however.

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Without a Sponsor, It Can Be Hard to Get a Green Card

Immigrating to the United States is a lot easier if you have a family member or employer eligible to sponsor you. The U.S. Congress has made a policy choice that makes it straightforward for employers and U.S. relatives to sponsor immigrants seeking green cards (or permanent residency), but difficult for everyone else. Most immigrants either need a sponsor or they need to fit into one of the narrowly defined exceptions. This includes immigrants who came to the U.S. as young children and have lived here for as long as they can remember. If no one in their family is a U.S. citizen, they remain in the precarious position of every other undocumented immigrant, regardless of the U.S. being the only home they remember and speaking English as a first language.

There are exceptions, of course. Citizens of specific countries get preferential treatment. For example, Cuban nationals who manage to set foot on U.S. land have a relatively easy path toward permanent residency. (If, however, they are stopped while still at sea, they are sent home or to another country.)

U.S. Citizenship and Immigration Services (USCIS) has a tiered system for family sponsorship. The first tier is for immediate relatives of U.S. citizens, and there is no limit or quota on the number of green cards that can be issued each year. USCIS defines an immediate relative as a spouse, an unmarried child under the age of 21, or the parent of a child over the age of 21. The wait for immediate relatives is only a few months.

Other relatives are subject to quotas, if they are eligible for sponsorship at all. Relatives such as grandparents, cousins, aunts, and uncles are not eligible for sponsorship. Because of the quotas, the wait for a green card is several years for the children of U.S. citizens that are already over the age of 21, and the wait is currently well over a decade for the brothers or sisters of U.S. citizens. That’s one of the reasons that marrying a U.S. citizen is a common method for acquiring a green card.

You can also be sponsored through an employer or through a job, or if you have enough money to invest in the United States, you can sponsor yourself. Entrepreneurs who invest at least $1 million in the United States are eligible for a green card. Obviously, not many immigrants qualify for that category. Generally, employer based sponsorships go to immigrants with advanced degrees or who have “extraordinary ability in the sciences, arts, education, business, or athletics.” The category is vague enough that many skills qualify, but it does require some specialized ability. Although there are quotas for employment based sponsors, the wait times tend to be significantly lower than many of the relative-based ones. So if you have an employer who is willing to sponsor you, that may be an attractive option.

As I mentioned before, there are a few narrowly defined exceptions that exist for humanitarian or policy reasons, such as for refugees seeking asylum. In future posts I will delve into those exceptions, but the largest category of green cards are given to immigrants who have someone to sponsor them.

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Derivative Citizenship; or How You Can Be a U.S. Citizen and Not Know It

Several years ago, Luis Fernando Juarez wanted to buy a firearm. At the time of purchase he filled out what is called a “Firearms Transaction Report.” Among the questions asked was whether or not he is a U.S. Citizen. Federal law makes it a felony for anyone to lie about being a U.S. Citizen on official documents. Mr. Juarez believed he was not a U.S. Citizen when he completed the form, but, as Mr. Juarez found out later, he may actually be a citizen.

Derivative citizenship is a method of citizenship that has not yet made its way into popular culture. It’s citizenship that children receive after their parents are naturalized, provided certain conditions are met, or to foreign-born children adopted by parents who are already U.S. citizens. Mr. Juarez may be a derivative citizen of the United States. His mother became a U.S. citizen when he was 16 years old, which is important because only immigrants under the age of 18 can gain derivative citizenship. Mr. Juarez’s father was already dead, and he intended to live in the United States permanently at that time, so Mr. Juarez may have met the conditions for derivative citizenship. Obviously if Mr. Juarez is a U.S. Citizen, he can’t have lied on the Firearms Transaction Report about being a U.S. citizen.

Unfortunately for Mr. Juarez, he discovered this after he had already pleaded guilty. His lawyer candidly admits that he had never heard of derivative citizenship. He appealed his case to a federal court, which initially denied his appeal, but last Friday, the Fifth Circuit Court reversed and remanded the case to the district court.

Utah is not a part of the Fifth Circuit, so last weeks decision is not binding on the federal courts here. Nevertheless, the derivative citizenship law is applicable to the whole country, but the derivative citizenship defense is one that trips up even seasoned immigration counsel.