Naturalization - Child Citizenship Act

As we await and hope for Section 245(i) to be resurrected by Congress, we would like to remind everyone that you don't need 245(i) to file a petition for permanent residence based on labor certification (a permanent job offer from an U.S. employer). You will only need 245(i) to adjust status to permanent resident, (to finish the petition) and then, you would only depend on 245(i) if you cannot use another paragraph of law to adjust status, like for example paragraph 245(k). This paragraph is less talked about then 245(i), but is helps a lot of people complete their petitions without having to use 245(i). It allows for breaches of status (like overstays or unauthorized employment) of under 180 days to be disconsidered (or pardoned) by I.N.S. for employment-based petitions. Another paragraph, 245(a), allows for certain relatives of U.S. citizens to adjust status without having to qualify under 245(i).

Many foreigners also do not know that they may already have qualified to use 245(i) and not even be aware of it. Did you know that any previous attempt to become a permanent resident could qualify you for 245(i)? Through a process called "grandfathering", the registration date of an old petition for permanent residence can be transferred to a new petition, and qualify the new petition for protection under paragraph 245(i). Among others, the main requirements to transfer 245(i) protection from an old, unsuccessful petition, to a new one, are:

• that the old petition must have been filed anytime before 04/30/2001;
• that the old petition was "approvable when filed" - meaning it was a viable petition the date it was filed with the labor department or with the immigration service and had all the parameters necessary (even if later abandoned or denied)

Further, the right to transfer protection under 245(i) from an old petition to a new one many apply to family members who missed out on becoming permanent residents together with their families in the past, because a child turned 21 years old, or because a spouse divorced his wife or husband before permanent residence had been granted.

NATURALIZATION
If you are already a Permanent Resident, congratulations! You should consider becoming a U.S. citizen as soon as you are eligible. U.S. citizenship will award you a series of additional rights and protections not available to Permanent Residents. Did you know that a Permanent Resident can lose his/her residence if convicted of certain crimes? It does not even take a very serious crime. Should you be convicted of drug trafficking because your friend was arrested while in your car with drugs and somehow you were not aware of it but could not prove you weren't involved, such aggravated felony involving drugs (or weapons) could trigger deportation proceedings against you. Even if you've been a legal and law abiding resident for 20 years.
In order to qualify for naturalization, you must, among other things:

• be a permanent resident for 5 years (3 if married to (and still living with) a U.S. Citizen). Could also be 3 years in certain situations where the armed forces recommend you for early citizenship.
• Have resided in the U.S. for the last 5 years;
• Have accumulated physical presence of at least 30 months in the U.S. during the last 60 months; (accumulation of physical presence may be interrupted for absences of more than 180 days - in such case, you must start counting again!)
• You have never failed to present a U.S. tax return when required to do so, since becoming a permanent resident;
• You were not arrested or convicted of certain serious crimes, including crimes of "moral turpitude".

CHILD CITIZENSHIP ACT
Did you know your children (under 18) may be U.S. citizens and not know it? He/she may be eligible for a U.S. passport without having to file for naturalization. Check the requirements:

1. At least one parent of the child must be a U.S. citizen, either by birth or naturalization;

2. The child must be under the age of 18;

3. The child must be residing in the United States in the legal and physical custody of the U.C. citizen parent and must be a legal permanent resident.

4. If the child has been adopted, the adoption must be final.

This law allows for automatic citizenship of such children, with no need to file for naturalization or a certificate of citizenship.

As always, the above is just illustrative. Do not take any decisions based on this text. Consult a qualified immigration attorney to verify your particular situation and options.

by Robert A. Kravitz, Esq.

Law Offices of Kravitz & Guerra, P.A.

(305) 372-0222

Letters to Attorney@Kravitzlaw.com