One of the first questions we ask an applicant when he/she tells us he/she is interested in applying for citizenship is “How long have you had your green card?” If a person has had his/her green card for the 5 years/3 years, we usually move on to the other eligibility questions. However, the green card deserves a second look for some applicants.
Practice Tip: For most applicants, this will not be an issue. But if you are assisting an applicant with his/her naturalization application, it is worth it to, at the very least, ask how the applicant obtained his/her green card and check the code on the front of the green card. If something does not seem to add up, you may want to ask more questions.
- An extensive list of green card codes can be found here<com/immigration-blog/symbols-of-lawful-permanent-residence-card-green-card/.
USCIS Policy Manual: “In determining an applicant’s eligibility for naturalization, USCIS must determine whether the LPR status was lawfully obtained, not just whether the applicant is in possession of a Permanent Resident Card (PRC). If the status was not lawfully obtained for any reason, the applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the INA, and is ineligible for naturalization even though the applicant possesses a PRC.”
Definition
Lawfully admitted for permanent residence: “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”
INA § 101(a)(20)
There are two main ways that a person may not have become an LPR through lawful means:
- The applicant obtained his/her LPR status through mistake or fraud.
- The applicant’s admission did not comply with the law.
I am going to discuss the first. The second is really a catch-all category.
Practice Tip: It is the applicant’s responsibility to prove to immigration that they did enter the U.S. lawfully and were admitted as an LPR through legal means. USCIS could ask the applicant when, where, and how they came into the U.S. This is sometimes hard information for an applicant to remember. However, the applicant is entitled to use any entry documents or visas to prove their entry and admission to the U.S.
For more information, refer to Section 318 (uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9928.html) of the Immigration and Nationality Act (INA).
LPR Status through Mistake or Fraud
Note: Below are some common examples of obtaining a green card through mistake or fraud. These are not the only ways!
- Marriage Fraud
- Most people have heard of marriage fraud in the context of immigration. This is when a person enters into a marriage for the purpose of obtaining a green card. A lot of investigation is done before a green card is issued, and also for a two year period after (called conditional residence) to ensure that the marriage was bona fide.
- Even if a person obtains his/her green card through a fraudulent marriage and remains married long enough to have his/her conditions removed, they did not obtain his/her green card through lawful means. This means that he/she was not “lawfully admitted” and he/she is not eligible for naturalization.
- “Married Singles”
- This occurs when a person is being petitioned for by a family member, usually a parent petitioning for an adult child (over 21). The parent petitions for the adult child as an “unmarried son or daughter” and the adult child lies at his/her interview that he/she is not married, when in fact, he/she is married.
- It is understandable why people would try to petition for family members this way. The wait time for unmarried sons and daughters is significantly less than the wait time for married sons and daughters, and LPRs are not even eligible to petition for a married son/daughter.
- Government Error
- Unfortunately, sometimes USCIS can erroneously grant a green card to a person (and also rescind a green card in error). They may have adjudicated an application incorrectly or did not consider a piece of information that the applicant provided that would have made him/her ineligible (for example, a past conviction). So long as the applicant provided all information, there is no mistake on the part of the applicant.
- Practice Tip: Some states have applied a limitation on whether a green card can be rescinded if it was granted erroneously on the part of the government. For example, the Third Circuit Court of Appeals (New Jersey, Delaware, Pennsylvania, U.S. Virgin Islands) has said that there is a 5-year limitation. Massachusetts, which is in the First Circuit, has not yet considered this issue.
- More information on this time limitation can be found here (com/dir_docs/publications/WhentheGreenCardIsIssuedinError.pdf).
- Unfortunately, sometimes USCIS can erroneously grant a green card to a person (and also rescind a green card in error). They may have adjudicated an application incorrectly or did not consider a piece of information that the applicant provided that would have made him/her ineligible (for example, a past conviction). So long as the applicant provided all information, there is no mistake on the part of the applicant.
Here are a few real-world examples of people who obtained his/her green card through unlawful means and his/her LPR status was revoked:
- Applicant married a green card holder while still married to her husband in Peru. She lied repeatedly about her first marriage.
- Applicant claimed to be the unmarried child of an LPR, when in fact, he was married.
- Applicant bribed an immigration officer to obtain a green card for him.
- On his application, applicant claimed he had never been to the U.S., when he had actually been in the U.S. and was arrested for attempting to sell cocaine, but had given a fake name in court.