USCIS Updates Policy Guidance on Naturalization, Clarifies Finding of LPR Abandonment

On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance in its Policy Manual to clarify circumstances in which an applicant may be found ineligible for naturalization if the applicant was not lawfully admitted to the United States for permanent residence.

The update affirmed previous USCIS policy that an applicant is ineligible for naturalization if the permanent resident status (LPR) was obtained in error, even in the absence of fraud or willful misrepresentation. Some examples of agency in the process of obtaining LPR status that generally render the applicant ineligible for naturalization include:

• The U.S. Department of State (DOS) incorrectly approved an alien’s immigrant visa application and issued a visa;
• USCIS incorrectly approved an alien’s adjustment application; or
• The alien was otherwise mistakenly admitted as an LPR.

The update clarifies that USCIS will review whether an applicant for naturalization has abandoned his or her permanent resident status during the adjudication of the naturalization application. If an immigration services officer determines that the applicant has failed to meet the burden of establishing maintenance of LPR status, USCIS may deny the application and place the applicant in removal proceedings by issuing a Notice to Appear. The update also clarifies that applicants in removal proceedings may not naturalize if they’re naturalization application was file on or after November 18, 2020.

The new update is generally consistent with previous USCIS policy which rendered applicants ineligible for naturalization after a finding that the permanent residence was improperly granted. What is quite troubling is that under the new policy guidance USCIS has now the authority to determine that an LPR, who was admitted to the United States by the Custom and Border Protection (CBP), may have abandoned permanent residence status for failure to meet the continuous residence requirements. In other words, USCIS may overrule a CBP determination that an LPR has not abandoned status at the time of returning from a trip overseas.

USCIS officers are instructed to examine extended and frequent absences from the United States to determine LPR status abandonment during the review of a naturalization application and interview. Applicants will no longer be able to establish LPR status even if permitted to return to the United States as an LPR at a port of entry. In order to demonstrate that an applicant did not abandon LPR status, an applicant must establish that he or she has not objectively intended to abandon LPR status. To assess maintenance of LPR status, USCIS will review multiple factors including length of absence from the United States, purpose of travel outside the United States, intent to return to the United States as an LPR, and continued ties to the United States. A finding of abandonment of LPR status by a parent will be imputed to a minor child who is in the parent’s custody and control.

The new guidance will likely deter applicants with extensive travel outside United States from applying for naturalization. Additionally, further agency interpretation may lead to USCIS implementing the policy in the context of other affirmative immigration applications, such as Application for Advance Parole (Form I-131) and Application to Renew Permanent Resident Status (Form I-90).

While there are questions concerning the legality of the new policy, LPRs with extensive travel overseas should carefully consider moving forward with filing an application for naturalization. LPRs considering extensive travel outside United States should plan accordingly to preserve permanent residence.

By Charlotte Immigration Law Firm, North Carolina

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