June 2019

Foreign National Granted U.S. Citizenship After USCIS Attempted to Revoke Long-Held Permanent Resident Status

North America - United States | North America

After a challenging immigration process, a foreign national successfully became a U.S. citizen. Faegre Baker Daniels represented the individual through a fraught naturalization process, taking his case after United States Citizenship and Immigration Services (USCIS) had denied his naturalization application and threatened to revoke his permanent residence status.

USCIS denied the foreign national’s original N-400, Application for Naturalization, on the grounds that he should not have been granted Permanent Resident (Green Card) status 15 years ago. USCIS had approved the foreign national’s I-485 adjustment of status application to become a permanent resident in 2004. However, following the N-400 in-person interview in 2019, USCIS claimed that the foreign national had not demonstrated that he had been lawfully admitted for permanent residence. USCIS did not allege that the foreign national had committed fraud in the permanent residence process. Rather, USCIS claimed that (its) grant of permanent residence was improper because the I-140 company petitioner had gone out of business and the foreign national had not requested to “port” his offer of employment to a new employer in the “same or similar occupational classification” as the job offer in the original I-140 petition. 

After hitting this roadblock, the foreign national engaged FaegreBD. The firm filed an N-336, Request for a Hearing on a Decision in Naturalization Proceedings Under Section 336, refuting the arguments in the USCIS decision denying the N-400 application. The immigration team asserted as a factual matter that the I-140 company petitioner had not gone out of business. In addition, FaegreBD argued as a legal matter that the foreign national was not required to proactively notify USCIS that he intended to “port” his job offer to another employer under the “same or similar” standard for portability. FaegreBD noted that in 2004 USCIS issued a Request for Evidence (RFE) on the foreign national’s I-485 application and only requested proof of employment authorization. As part of the RFE, USCIS could have, but did not, require the foreign national to provide evidence that the I-140 company petitioner was still in business or that he had another job in the “same or similar occupational classification.” Moreover, FaegreBD pointed out in the N-336 appeal that USCIS did not implement a regulation that clarified a foreign national’s obligation to prove new employment in the “same or similar occupational classification” until January 2017.

Within two weeks of receiving the N-336 appeal, USCIS vacated the denial of the N-400 application and recommended the case for approval. A month later, the foreign national attended the naturalization oath ceremony and was sworn in as a U.S. citizen.  

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