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< Back to current issue of Immigration Daily

Significance Of Prerequisites Within Various INA Contexts

by Joseph P. Whalen

Introduction

Benefits and/or relief under the Immigration and Nationality Act (INA) may be requested from one of the various Department of Homeland Security (DHS) Agencies [generally USCIS, CBP, or ICE], the Department of Justice in Immigration or other Proceedings (Removal Hearings including appeals; or OCAHO's fine, employment, or compliance cases), the Department of State (DOS) for visas and passports etc, or the Department of Labor (DOL) for Labor Condition Applications, Permanent Labor Certifications, or Prevailing Wage Determinations, etc. Those various determinations made by the various agencies get adjudicated pursuant to requests in various formats and contexts, and through various methods and mechanisms. As a prime example, benefits available by petitions or applications to U.S. Citizenship and Immigration Services [USCIS] will be discussed briefly herein.

Certain eligibility requirement demand establishing specific facts and information relating to relationships and qualifications. In order to attain classification or an actual tangible benefit certain specifically prescribed required facts must be established by the evidence submitted in support of such request. There are different points within these adjudication contexts at which certain fact must be established. Depending on the specific benefit sought, the timelines vary. Sometimes a fact must exist prior to filing a request, sometimes a fact must be proven at the end of the process or "at time of adjudication", and in certain contexts subsequent decisions are affected by earlier decisions and intervening events, i.e., removal of conditions. Here are some terms and concepts one needs to understand for these purposes.

Prerequisite: noun condition, demand, essential desideratum, exigency, fundamental, groundwork, indispensable item, necessary condition, necessary item, necessity, need, needed item, precondition, preliminary condition, pressing need, prior condition, proviso, requirement, requisite, specification, stipulation, vital part

Associated concepts: condition precedent, jurisdictional prerequisite[1]

Something that is necessary to an end or to the carrying out of a function[2]



Condition Precedent: A contractual condition that suspends the coming into effect of a contract unless or until a certain event takes place.

Also in reference to events which must occur before being eligible for other legal rights such as in Canada, an immigrant has to pass through the stage of permanent resident before applying for citizenship.

Many residential real estate contracts have a condition precedent which states that the contract is not binding until and unless the property is subjected to a professional inspection, the results of which are satisfactory to the purchaser. Compare with condition subsequent.[2]



Condition Subsequent: A condition in a contract or will that causes the contract to become invalid if a certain event occurs. ....

The happening of a condition subsequent may invalidate a contract which is, until that moment, fully valid and binding. In the case of a condition precedent, no binding contract exists until the condition occurs.[4]



As mentioned above, "context" is key to understanding exactly "what" must be proven and "when" it must be proven. Next, some specific contexts will be examined through specific common examples. Naturalization, immigrant and nonimmigrant visa petitions, the application to preserve residence for naturalization (extended absence benefits), application for admission to the U.S. (or change of nonimmigrant status), and petitions for the removal of conditions will be used to illustrate certain points and concepts. These are not exhaustive of all potential contexts or conditions that may be encountered under the INA.

Filing Prerequisites

An immigrant to the United States may seek citizenship though naturalization by filing the USCIS Form N-400. Certain conditions precedent apply to the naturalization process. This is most easily seen in the basic filing prerequisites as follows. In order to merely apply for consideration, in general, the applicant must have been a "lawful permanent resident" (LPR) for a minimum period of time, been a bona fide resident of the U.S. for a prescribed minimum period, who was physically present inside the U.S. for at least half of the statutory period, who was also a resident of the State or USCIS Office jurisdiction for a minimum period, and be a person of good moral character (GMC) as prescribed by law. Each and every one of these prerequisite facts may be altered by various specific sections of law that treats particular classes of persons eligible for naturalization somewhat differently. Some of the basic prerequisites may be shortened or eliminated or even enhanced or made amenable to conditions subsequent. A "national" (American Samoan) is afforded certain considerations under INA 325. U.S. military members have special consideration under INA 328 and 329 and their spouses and children have special considerations under INA 319(e) and 322(d). Seamen (such as merchant marines and cruise ship crew) have special consideration under INA 330 and the list goes on.

An LPR or USC may file an immigrant petition for certain family members on USCIS Form I-130. In order to do so, the petitioner must qualify and their relationship must meet the definitions as prescribed under the INA at the "time of filing". An employer may file on behalf of an immigrant employee or prospective employee who is fully qualified as prescribed under the INA and 8 CFR "at the time of filing" either the Labor Certification Application (PERM electronic filing), or the Form I-140 with USCIS, as applicable.

Application for Admission Prerequisites

While an I-129 petition for a nonimmigrant worker has certain prerequisites for the petitioning employer as well as the alien worker beneficiary, as with any "visa petition" the mere classification is but a preliminary step. If abroad, the alien will have to demonstrate full eligibility for issuance of the visa by DOS and admission by a CBP Officer at the port-of-entry. To illustrate this, the "L" non-immigrant classification requires that there is a pre-existing employer-employee relationship at time of "application for admission". This allows, for example, a "blanket L petition" to be filed by a qualified employer on behalf of unnamed members of its workforce. The actual alien employee will apply for either a nonimmigrant visa with DOS abroad or change or extension of status with USCIS domestically. The employer must qualify when filing the blanket but the unnamed alien does not. Instead, the alien will have to qualify at time of filing the subsequent application with DOS and upon entry when presenting themselves for inspection by CBP or when filing for change or extension of status with USCIS.

Departure Prerequisite

The USCIS Form N-470 is used to obtain consideration under INA 316(b) and 317 with regard to how extended absences will be treated during subsequent naturalization application proceedings. Under INA 316(b) there is a prerequisite to "departing abroad for the qualified purpose". Unlike a filing prerequisite, this is a factual determination that could be sustained or refuted after filing the N-470 or indeed, after it has been approved. The N-470 will generally serve to put USCIS on notice of an intent to take advantage of the extended absence benefit later during the actual naturalization proceeding. During that subsequent separate proceeding, it will be incumbent upon the applicant to substantiate the purpose for which (s)he was tentatively approved actually came to pass. This situation will require production of corroborating evidence during the N-400 processing. The true prerequisite to obtaining this benefit is accumulating one uninterrupted year of continuous presence inside the U.S. as an LPR prior to departing abroad for the qualifying employment assignment or any other purpose whatsoever.

As for the other main group of individuals who might file an N-470 (under INA 317). Those folks must accumulate the required one year prior to filing their N-400 itself. Additional sub-groups have still other variants in order to obtain benefits pertaining to qualified extended absences for specific qualifying purposes. The minister or religious worker or missionary may fulfill their solid one year before or after the long absence and is not required to file an N-470 at all. They are only required to fulfill the solid year as an LPR prior to filing for naturalization. It seems to be necessary to file the N-470 under 317 when the qualified household members must be covered as well to protect their naturalization eligibility. [The jury is still out on that point as well as the assertion made above that the solid one year is not a filing prerequisite for 316(b) either.]

"Back-End" Burden of Proof and Conditions Subsequent

As mentioned above, the naturalization applicant will have to substantiate their entitlement to utilize the extended absence benefits during that subsequent proceeding through the production of evidence to corroborate their claim in connection to the benefit of naturalization itself. Just like any of the other groups cited as examples above, anyone claiming some type of special consideration has to prove it as per the actual statute under which (s)he has applied for naturalization as a citizen.

More Conditions Subsequent: Removal of Conditions

Two specific USCIS Forms are used in order to request the removal of conditions from LPR status. The alien spouse of less than two-years of an LPR or USC will be admitted as a conditional resident as will the petitioner's new stepchildren. At the appointed time, they file the I-751 in order to be allowed to submit evidence to substantiate that the marriage was and remains bonafide or to request a waiver if the marriage has failed. The EB-5 immigrant entrepreneur/investor is also admitted on a conditional basis. At the appointed time, (s)he must file the I-829 in order to submit evidence of the required minimum investment and required job creation.

Intervening Events: Loss of Eligibility and Material Changes

While earlier determinations may rise to the level of being considered as acknowledgment of "settled facts" for the purpose of invoking collateral estoppel or "issue preclusion", circumstances can and do change. One can lose eligibility for naturalization even after a favorable determination has been made on the application based on specific events that occur after that "recommended approval" and taking the Oath of Renunciation and Allegiance. A "Material Change" in facts or circumstances may negate and earlier determination in this and other contexts.

In another context, visa petitions may be revoked. Under INA 205 [8 U.S.C. 1155] "The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition." This may happen at any time but the mechanisms vary depend on the particulars of the case. If adjustment of status was the means employed to obtain LPR status, rescission may be utilized but it has a statute of limitations.

However, when the statute of limitations has expired, alternate mechanisms apply via INA 240 Removal Proceedings, or INA 340 Revocation of Naturalization or "Denaturalization" Proceedings, or 349 Relinquishments caused by specified actions or the making of a Formal Renunciation.

In yet another context, an LPR who travels abroad may be found inadmissible or excludable while "seeking admission" per INA 101(a)(13) as follows:

(A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

(B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,

(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

Conclusion

It is important to clearly identify the proper context for the benefit (or relief) sought in order to isolate the appropriate issues. If one has identified the wrong issues then they will usually submit evidence that is irrelevant, incompetent, and immaterial. USCIS (or DOS or DOL or a Court) is not required to do the work for the applicant or petitioner.

If a poorly prepared case lacking support is filed, it can be dismissed or denied for:

(1) lack of subject matter jurisdiction, or

(2) clear ineligibility, or

(3) a failure to state a claim for which relief can be granted, or

(4) as incompetent, or

(5) a failure to submit required evidence, or

(6) failure to prove either prima facie or full eligibility.

The items listed above, like the rest of the topics discussed in this essay, are not meant to exhaustive. These are merely illustrative of a few contexts and issues that readily "jump out" at me. I offer these thoughts merely to get you thinking about some issue that I find important and relevant to anyone seeking any benefit or any form of relief under the Immigration and Nationality Act. Good luck!


Footnotes

1http://legal-dictionary.thefreedictionary.com/prerequisite

2http://www.merriam-webster.com/dictionary/prerequisite

3http://www.duhaime.org/LegalDictionary/C/ConditionPrecedent.aspx

4http://www.duhaime.org/LegalDictionary/C/Conditionsubsequent.aspx


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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