"Good Moral Character" by Amaury Laporte is licensed under CC BY-NC 2.0
“For my own part, I wish the bald eagle had not been chosen the representative of our country. He is a bird of bad moral character. He does not get his living honestly.” - Benjamin Franklin
Welcome back and Happy New Year! 2021, woohoo! We did it!
With that out of the way, let’s jump right back in where we left off last week. So assuming you have met the other requirements, your English skill is adequate or you have an exception, and you make it to interview day. What else could go wrong? This is where our lawyer friends often get involved. There is a small subset of green card holders who may experience major problems during naturalization: those who cannot meet the Good Moral Character (GMC) requirement and those who were “improperly adjusted”. We talked about improper adjustments a few weeks ago during our green card series, so we will focus on GMC today.
This is the best infographic I could find regarding the “statutory period”, so I will leave the information at the bottom as a form of attribution while reminding everyone that we don’t endorse or represent any specific attorney or firm.
GMC is a difficult concept to explain, and subject to much derision among the immigration law community due to the capricious and sometimes arbitrary nature with which it is applied.
In practice a GMC determination usually comes down to a checklist. Most people who were “properly” adjusted overcame any ineligibilities like criminal history or immigration problems during the green card process, so the citizenship review mainly focuses on what has happened since then. The absolute minimum amount of time that has to pass after you receive your green card before you can apply for citizenship is 3 years for those married to U.S. citizens and 5 years for everyone else (there is a form of expedited naturalization that only requires 1 year but that is applied in very narrow circumstances). If you apply at some point after you are eligible, those 3 or 5 years immediately preceding your application date become your “statutory period”, even if you have had your green card for decades. Though immigration officers technically are allowed to look at everything in your life for the GMC review, in practice they tend to confine their review to the applicable statutory period, unless there is a pattern of behavior that extends outside that period which they believe is appropriate to consider.
There are a few things that will permanently bar you from receiving a positive GMC determination, and by extension from naturalization. These are mainly criminal/human rights offenses. The “aggravated felony” bar, specifically, is subject to a lot of debate because it has evolved to include some crimes that are not considered very serious in the criminal context. There is a lot of legal precedent and case law that surrounds these permanent bars, so if you think you fall into this category seeking legal advice is highly recommended. Note that these can occur at anytime, inside or outside the statutory period, though if the aggravated felony occurred before 1990 technically it wouldn’t apply. In practice, though, it would still lead to a negative GMC determination because of something fairly unique to the GMC requirement: the immigration officer can exercise “discretion”.
This brings us to an important point: the exercise of discretion in the immigration system is fairly rare. While it may seem like arbitrary judgements are being made about various aspects of benefit adjudication, according to the law most of these decisions have strict legal guidelines and requirements. This is why USCIS sends a detailed letter, citing specific sections of law, when they deny most applications. I know immigration attorneys who are reading this are like:
Anyway, for GMC this is not so, instead the immigration officer must weigh the factors in your application and make a discretionary decision (this is usually reviewed by supervisors and sometimes agency legal representatives to ensure at least some level of consistency). When we say “weigh the factors” it means much more than just criminal history. They can look at tax records, whether you have tried to vote (a big no-no), your involvement in community organizations, and whether you support your dependents financially.
A negative GMC finding can be overcome in a future application (unless you have a permanent bar). Unlawful acts that occurred within the statutory period have greater weight during the GMC determination, and for that reason many people choose to wait until these acts (whether they be serious or trivial) are outside their statutory period before applying. Cleaning up things like child support or taxes in arrears are also very important. For those male immigrants in the proper age range, registration in the selective service or failure to do so can also weigh. The more of these boxes you can check satisfactorily before your interview the better chance you have of meeting the GMC bar and moving forward.
Most of the other steps in the citizenship interview are administrative. You confirm your information, agree to any updates that have occurred in the interim, and finally review the oath of allegiance (you can request certain modifications to the wording if needed). If all goes well you are on your way to your ceremony in a few weeks!
To sum it up, our experience suggests that GMC issues and the English language requirement constitute the major hurdles to naturalization for most eligible green card holders in the United States. Of course, as we mentioned at the beginning of last week’s newsletter, many people just aren’t interested in obtaining citizenship for whatever reason, and that’s okay, too!
What we would like to do next week in our final piece on naturalization is address some of the areas where we think our current system falls short, explore some of the possible changes that have either been discussed in the past or are in pending legislation, and finally highlight the contributions that immigrants-turned-citizens have brought to the U.S. over the years. See you next week for Part 4!
In the news:
'The US isn't an option anymore': why California's immigrants are heading back to Mexico - This story is very important because it lays out the perfect storm of challenges facing a lot of immigrants right now. The COVID pandemic, their “essential worker” status, the public charge rule, and the precarious employment prospects for those who lose their jobs have all combined to make the American Dream an illusion for many families. Among the most shocking statistics in the article: the immigrant population in California has dropped 6% this year. That’s hundreds of thousands of people. Also mentioned in the article: many of these families have American citizen children who are going back with them.
Owner of Immigration Business Pleads Guilty to Defrauding USCIS and IRS - A very interesting readout of an indictment for an immigration service provider who engaged in an array of illegal practices related to identity theft of their “clients”. It is useful to read the whole thing to see the myriad ways some less scrupulous people take advantage of vulnerable populations under the guise of providing advice or assistance. While this case occurred and affected people inside the U.S., these kinds of businesses operate with impunity overseas and are much harder to identify and prosecute. We believe that the U.S. government and its federal agencies should be much more proactive in getting in front of these crooks by making the immigration system accessible rather than simply focusing on chasing prosecutions on the back-end.