General Tech Tips Archives - Shaftel Law

When Tax Issues Affect One’s Ability to Naturalize (Become a U.S. Citizen)

Shaftel Law — Tue, 02 Mar 2021 20:15:14 +0000

To be eligible for naturalization (the process of obtaining U.S. citizenship), a lawful permanent resident must show “good moral character” for the five years preceding the naturalization application. Good Moral Character (“GMC”) encompasses conduct beyond simple an absence of criminal behavior. The most common non-criminal GMC problems we see are failure to pay child support and failure to pay taxes. This “tech tip” will discuss how USCIS approaches tax issues when evaluating naturalization applications.

USCIS’s Traditional Approach to Tax Issues and Naturalization

Traditionally, USCIS took the following approach. If you ever failed to file taxes or ever owed taxes, most officers would then request tax transcripts for the full GMC five-year period. Some officers would request the 5 years of tax transcripts even if the violation (failure to file or pay taxes) occurred beyond five years.

Next, the officer would determine if the violation had been fully cured; namely, had all taxes now been filed and had all amounts owed been paid. If a tax return had still not been filed in the last five years, the applicant would be unable to show the required GMC. However, in the event that the person had filed all taxes and was current on a payment plan, USCIS would generally accept this as sufficient to establish GMC.

New USCIS Policy Manual Guidance on Tax Issues and Naturalization

USCIS recently updated their guidance on how tax issues affect GMC. This new guidance suggests that USCIS will be stricter on tax violations during the 5-year GMC period. (See below for the full text of this new guidance.)

Under the new guidance, USCIS first asks the somewhat ambiguous question when a person has failed to file or pay taxes: Does the conduct “violate the standards of an average member of the community.” If the officer decides that it does not, the applicant must then show that the error or problem has been corrected or is being addressed; namely, the error has been fully corrected or if the violation was a failure to pay, then the person is making payments in accordance with the payment plan.

The language of the new guidance is disturbing because it implies that being up-to-date on a payment plan is no longer necessarily sufficient to qualify for naturalization. This is because the officer must first determine whether the reason for owing violates the standards of an average member of the community. If the officer decides that the conduct does violate the standard of an average member of the community, then even correcting the violation is insufficient to establish GMC. If the officer determines that the violation did not violate this community standard, then a person may be able to remedy the problem and establish GMC.

An officer makes this initial determination by looking into why the person owed taxes: Was it for a technical reason such as a business owner not fully understanding tax liability after a complicated deal? Or, did the person simply fail to file and pay taxes?

This new guidance begs the following question: if you simply failed to file taxes during the period, but since have corrected this and now are up-to-date on a payment plan, are you eligible for naturalization? Before, we would have advised that USCIS is very likely to approve your case, but now, we are proceeding more cautiously. Namely, it is important to look at the violation and payment plan more closely, and ask the following questions:

How much was the original, total debt? More is bad.
How much do you still owe? If you have paid off little of the debt, that of course is also a negative factor.
How bad was the violation: As discussed, was it simple a failure to file and pay taxes (not good), or was the violation more understandable because of a complex rule that was not fully understood?

Unfortunately, the new rule creates some murkiness for applicants who have committed a tax violation in the last five years. At the end of the day, USCIS still has a fair amount of discretion on this issue, even when a person is up to date on a tax payment plan.

When a person has a tax violation since becoming a permanent resident, particularly when that violation occurred and/or has not been corrected in the last five years, it is important to consult with a good immigration lawyer to evaluate your eligibility. Denial of naturalization applications based on tax violations is one of the most common denials we see. We are happy to help: Reach out to us at 303-872-6985 to chat with an attorney and potentially set up a full consultation.

USCIS POLICY MANUAL GUIDANCE ON TAX ISSUES AND NATURALIZATION – USCIS Policy Manual, Volume 12 (Citizenship and Naturalization), Chapter 5 (Conditional Bars for Acts in Statutory Period)

Failure to File Tax Returns or Pay Taxes in Accordance with Tax Authority

An applicant who fails to file tax returns, if required to do so, or fully pay his or her tax liability, as required under the relevant tax laws, may be precluded from establishing GMC. If there are inconsistencies between the record and the applicant’s tax returns, the applicant may be precluded from establishing GMC due to the commission of an unlawful act. Once the failure to file tax returns or pay taxes and the relevant law has been identified, the officer must assess on a case-by-case basis whether the applicant is ineligible for naturalization under the unlawful acts provision. If the officer determines that the unlawful conduct violates the standards of an average member of the community, the applicant will not be able to establish GMC. However, recognizing the complexities of filing taxes, there may be instances where the officer may determine that the applicant’s conduct regarding his or her tax return or tax payment did not violate the standards of an average member of the community, or that the applicant established extenuating circumstances. In such cases, GMC may be established by the applicant showing that he or she has corrected all inconsistencies or errors. An example of when an applicant may not be prevented from establishing GMC despite filing taxes incorrectly could be where the applicant is divorced and mistakenly claimed a child as a dependent on his or her tax return for a tax year that the former spouse was entitled to claim the child as a dependent based on the terms of the divorce.

Examples of corrections of such inconsistencies or errors might include a letter from the tax authority to evidence indicating that:

The applicant has filed the appropriate forms and returns; and
The applicant has paid the required taxes, or has made arrangements for payment and is doing so in accordance with the pertinent tax authority

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Breaking down the New “90-Day” Rule Regarding Inconsistent Conduct After Entry that Suggests a Misrepresentation

Shaftel Law — Sun, 22 Oct 2017 04:14:57 +0000

On September 1, 2017, the Department of State revised their Foreign Affairs Manual (or “FAM”, the manual consular officers use when making decisions on visa issuance abroad) regarding what type of “inconsistent conduct within 90 days of entry” raises a presumption that a misrepresentation was made at a consular interview or upon entry into the U.S. This new rule is a noted departure from the old “30/60” day rule. Under the old rule, a misrepresentation was only presumed if conduct inconsistent with your status occurred within 30 days of entry. If such conduct occurred after 30 days, but less than 60 days, a consular officer would only find fraud if additional facts suggested fraud (beyond the mere timing of the conduct) and the foreign national could not rebut the finding. If the inconsistent conduct occurred after 60 days, the consular officer was instructed not to look into the issue.

A Replacement of the 30/60 Day Rule

The new rule throws out the 30/60 day distinction and replaces it with a much broader 90 day rule. Now, a consular officer can presume fraud if inconsistent conduct occurs within 90 days. Examples of inconsistent conduct includes marrying a U.S. citizen or applying for F-1 status.

This new rule raises challenging questions for foreign nationals who have engaged in inconsistent conduct within 90 days of entry. In the common scenario where a marriage occurs and a subsequent application for adjustment of status is filed in the U.S., the first question is to what extent will USCIS (United States Citizenship and Immigration Services) adopt or follow this new consular rule? Remember, in the U.S., USCIS is the agency decision maker and is not bound by the Department of State rules in the FAM. Historically, USCIS may consider FAM rules in their own decision making, but they will not strictly adopt a FAM rule. USCIS has their own rules and operating procedures which currently do not include a 90 day or similar rule regarding misrepresentations.
It is also important to understand that a foreign national has more rights and recourse in the U.S. than when applying for a visa at a consulate abroad; and that the 90-day rule is really just the Department of State’s interpretation of how to uphold the law. If their interpretation in a particular case conflicts with the actual law, their interpretation or policy can be challenged. Consequently, whether an inconsistent act occurs 10 days or 80 days after entry, a foreign national should be afforded the right to prove that their intent understandably changed after entry, and they never affirmatively mispresented their intent before or upon entry.

The “ESTA” Question

Another question is how does the new 90-day rule change the risk analysis for “ESTA” entrants who are pondering whether to marry their U.S. citizen fiancée after they come to the U.S.? Because ESTA entrants are only allowed entry for 90 days, they are faced with 3 tough options:

Leave the United States after marriage, and conduct the process from abroad, which will likely entail a long separation from their spouse. [As an aside: It is terribly frustrating that USCIS and DOS does not acknowledge how the extremely long consular processing time for spouses creates this whole problem. There should simply be a faster non-immigrant visa for spouses of U.S. citizens (like a stream-lined K-1 but without a USCIS petition) and this problem would be largely solved. Or, a strong policy that allows foreign nationals to continue to enter as visitors (if they have a B visa or ESTA) after the I-130 is filed and until the consular process concludes.]

File for adjustment of status before 90 days and be prepared to rebut a potential presumption of fraud.

Get married and file for adjustment of status after 90 days. The downside to this approach is that the foreign national will accrue “unlawful presence” in the U.S. which means they likely will never be able to use the ESTA program again. Hopefully, they will never need ESTA again, but what if the couple moves overseas and the foreign national abandons his/her green card or the couple separates before completing the entire process? Additionally, if a foreign national overstays their ESTA period, they are vulnerable to “expedited deportation” in the event that they are picked up by ICE before filing for adjustment of status or if their application is denied, rather than having the right to challenge the decision in immigration court.

The bottom line is that the new rule creates new risks for foreign nationals who engage in inconsistent conduct within 90 days of their initial entry into the U.S. However, it is still too early to gauge how much this new FAM rule effects USCIS decision making.

If you or a friend or family member has engaged in inconsistent conduct within 90 days of entry, and now are seeking to adjust status, change status or obtain a visa abroad, we strongly advise you to seek the advice of an experienced immigration law.

The full text of the new rule is below:

(2) (U) Inconsistent Conduct Within 90 Days of Entry:

(a)  (U) However, if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.  To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal.  See 9 FAM 304.3-2.

(b)  (U) For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

(i)     (U) Engaging in unauthorized employment;

(ii)    (U) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)    (U) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv)   (U) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

(3)  (U) After 90 Days:  If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, no presumption of willful misrepresentation arises.  However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.  (See 9 FAM 302.9-4(C)(2).) 

Photo Credit: Sebastian Grochowicz

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Knowing Your Rights at Ports of Entry as a Lawful Permanent Resident (LPR) Traveling Abroad and Returning to the United States

Shaftel Law — Fri, 24 Mar 2017 19:10:50 +0000

Lawful Permanent Residents (LPRs) should know their rights when traveling abroad so that, upon return, you don’t run into issues at an U.S. port of entry. For example, if a CBP officer alleges that you have lost your permanent residence status for some reason, or are not admissible into the U.S., you have the right to fight this decision in front of an immigration judge. It is also important to understand CBP’s scope of authority when it comes to searching electronic devices, a practice that is becoming increasingly more common. Read on for specifics.

Returning Resident or Arriving Alien?

Know that as an international traveler, LPRs are subject to an inspection by customs (CBP) just like anyone else entering the United States from another country. Agents might question and screen you to ensure you are a returning resident (and not an arriving alien), and should not regard you as someone “seeking admission” to the United States unless you:

Have abandoned or relinquished your LPR status
Have been absent from the U.S. for a continuous period of more than 180 days.
Have engaged in illegal activity after departing the U.S.
Have departed the U.S. while under legal process seeking your removal (as an alien) from the U.S. (including removal proceedings under the INA and extradition proceedings).
Have committed certain criminal offenses.
Are attempting to enter at a time/place other than one that’s been designated by immigration officers or have not been admitted to the U.S. after inspection and authorization by an immigration officer.

The problem with being deemed as seeking admission is you might be charged as removable from the United States as an arriving alien. As an LPR charged as such, you have the right to a hearing before an immigration judge, but you certainly want to contact an immigration lawyer so you don’t make a wrong move.

Refusing a Search of Electronic Devices and Social Media Accounts

The current policy, as released by the CBP, states that officers may search your electronic devices at a port of entry “without individualized suspicion.” Why? Thanks to some long-upheld rulings by the Supreme Court, the CBP has the authority to conduct suspicious-less searches because the court recognizes these as “border search exceptions” to the 4th Amendment. They don’t need a warrant due to national security interests as conducting a border search is reason enough.

When it comes to your private social media accounts, this is where things get a little tricky. Technically, CBP can only ask you for social media “identifiers”–not to be confused with passwords. However, the American Immigration Lawyers Association (AILA) has received several reports of CBP officers requesting login information to access private accounts and their messages.

CBP officers can take physical possession of your electronic device either when upon searching it they discover probable cause for seizing it (with or without suspicion of wrongdoing) or they have “technical difficulties” in searching it such that they need technical assistance to continue the border search. What counts as a technical difficulty? A prime example is the inability to unlock the device due to non-consent. From there, they should return you device within 5 days, but are allowed to keep it for up to 15 days or gain an extension for keeping it longer.

For more on inspection of electronic devices, consult the U.S. Customs and Border Protection Tearsheet.

Click to access inspection-electronic-devices-tearsheet.pdf

No Right to Counsel

During the inspection and admission process, although LPRs have no right to counsel, sometimes CBP will allow an attorney to be present. Of course, this is at the agency’s discretion and specifically when it comes to accompanying clients detained in a secondary inspection and/or ordered to appear at a deferred inspection office.

When to Consult an Immigration Attorney

Making sense of the law is difficult. Therefore, if you have questions regarding your rights as an LPR, contact an immigration attorney before you arrive at a U.S. port of entry—perhaps even before you leave the U.S. to travel abroad. We are here to help, so feel free to contact us online.

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Liberty, Justice and Gonorrhea Testing for All—Staying Up to Date on Form I-693 Medical Exam Requirements

Shaftel Law — Fri, 24 Mar 2017 17:05:01 +0000

A new technical instruction issued by the Centers for Disease Control and Prevention (CDC) requires gonorrhea testing for most adjustment of status applicants who are:

Ages 15 and older and
Already required to have a full medical exam when
Filing Form I-485 (Application to Register Permanent Residence or Adjust Status)

The requirement went into effect August 1, 2016, but if you completed your Form I-693 (Report of Medical Examination and Vaccination Record) before then, you don’t need to report the results of such testing nor should officers issue a Request for Evidence. And by “completed,” the government means the date on which the civil surgeon signs the form’s certification statement.

For more info, consult the page covering CDC Immigration Requirements: Technical Instructions for Gonorrhea for Civil Surgeons. There, you will also note that on March 15, 2017, the Gonorrhea TI were updated to reflect that laboratory reports do not need to be included with the I-693.

Guidance from USCIS for Civil Surgeons on Form I-693 Gonorrhea Testing

As an applicant for adjustment of status, it’s best to stay up to date on such requirements. USCIS also provides guidance for the civil surgeons who must comply with the new Form I-693 Gonorrhea Testing Requirement.

This guide also features a chart with specifics on who must be tested for gonorrhea. For example, some applicants are exempt from having to submit a full medical examination and do not need testing.

Download the USCIS guide for more info or feel free to call us at (303) 872-6985 if questions arise. We’d love to help.

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Tips for Working with the National Visa Center

Shaftel Law — Fri, 11 Nov 2016 23:02:17 +0000

As many of you may have experienced, the National Visa Center, or “NVC” is the mysterious government agency that demands all kinds of documents before setting up your visa interview at an U.S. consulate or embassy abroad. The NVC is part of the Department of State, the government department in charge of all visa issuance (from short term “non-immigrant” visas to immigrant visas that grant lawful permanent resident status upon entry). To their credit, the NVC has been improving their systems to make it easier to navigate the many steps that proceed an immigrant visa interview. Their latest tips and information are below:

Do not send original documents to the NVC. Do bring original civil document to your visa interview.
Visit nvc.state.gov/inaterview after receiving your interview notice to review the embassy specific instructions for scheduling a medical exam, a required step before the interview.
I-864 affidavit of support tip sheets are online at nvc.state.gov/aos and uscis.gov
In cases where a I-601A waiver is required (waiver of the 3/10 year ground of inadmissibility), you can continue to submit the required documentation to the NVC while you await a final decision on the waiver. This will result in a faster interview date, presuming your waiver is granted.
For USCIS to accept your I-601A waiver application, you must submit proof that you have paid your Immigrant Visa fee. Applicants who pay online can retrieve a receipt at ceac.state.gov
I-601A applicants do not need to tell NVC when a waiver is approved or denied; USCIS will notify NVC of its decision and then NVC will proceed with scheduling the immigrant interview if the wavier was approved.
Frequently asked questions are posted in both English and Spanish at nvc.state.gov (scroll to the bottom of the page) and nvc.state.gov/espanol

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