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Chapter 2 - Lawful Permanent Resident Admission for Naturalization

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Chapter 2 - Lawful Permanent Resident Admission for Naturalization U.S. Citizenship and Immigration Services Alert On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Inadmissibility on Public Charge Grounds final rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019) (“Public Charge Final Rule”) nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On Mar. 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule was implemented on Feb. 24, 2020, to the adjudication of any application for adjustment of status. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status. On or after Mar. 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I- 944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). If an applicant or petitioner has already provided such information, and USCIS adjudicates the application or petition on or after Mar. 9, 2021, USCIS will not consider any information provided that relates solely to the Public Charge Final Rule, including, for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required by the Public Charge Final Rule, including but not limited to Form I-944, and your response is due on or after Mar. 9, 2021, you need not provide the information solely required by the Public Charge Final Rule. You do, however, need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, it will issue a subsequent RFE or NOID. or information about the relevant court decisions, please see the litigation summary. USCIS will issue additional guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, and will not reject Form I-129, Form I- 129CW, Form I-539, or Form I-539A based on whether the public benefits questions (Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3) have been completed or left blank. USCIS Response to Coronavirus 2019 (COVI D-19) U.S. Citizenship and Immigration Services Home > Policy Manual Chapter 2 - Lawful Permanent Resident Admission for Naturalization Guidance Resources (2.Q) .8P-P-endices (JJ. .Updates (8). 0 Alert On Sept. 11, 2020, the U.S. Cou rt ofAppeals for the Second Circuit issued a decision that allows DHS t o resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency. Therefore, we will apply the public cha rge final rule and related guidance in the USCIS Policy Manual, Volumes 2., .8. and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. Ifyou send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date. Fo r information about the relevant court decisions, please see the public charge injunction .lCll.e..bp_gge. A. Lawful Permanent Resident at Time of Filing and Naturalization 1. Lawful Admission for Permanent Residence Section 318 of the Immigration and Nationality Act (INA) requires a naturalization applicant to show that he or she has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of the INA in effect at the time of admission or adjustment.Ul This requirement applies to the applicant's initial admission as a lawful permanent resident (LPR) or adjustment to LPR status, as well as all subsequent reentries to the United States.Iii The applicant generally must make this showing at the time he or she files the naturalization application. If the LPR status was not lawfully obtained for any reason, regardless of whether there was any fraud or willful misrepresentation by the applicant, the applicant is ineligible for naturalization even if the applicant was admitted as an LPR and possesses a Permanent Resident Card (PRC) (Form 1-551).l~l In order for the applicant to establish that he or she was lawfully admitted for permanent residence, the applicant must have met all the requirements for admission as an immigrant for adjustment of status.I~] An applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the INA if his or her LPR status was obtained by fraud, willful misrepresentation, or if the admission was otherwise not in compliance with the law_.l~l Any such applicant is ineligible for naturalization in accordance with INA318. 2. Conditional Permanent Residents A conditional permanent resident (CPR) filing for naturalization on the basis of his or her permanent resident status for 5 years (or 3 years for spouses of U.S. citizens) must have met all ofthe applicable requirements of the conditional residence provisions. CPRs are generally not eligible for naturalization unless the conditions on their permanent resident status have been removed because such CPRs have not been lawfully admitted for permanent residence in accordance with all applicable provisions of the INA. 1§1 However, there are certain exceptions,.111and under certain circumstances, an officer may adjudicate a Petition to Remove Conditions on Residence (Form 1-751) during a naturalization proceeding.ml If the record indicates that the alien spouse was admitted or adjusted as a spouse of a U.S. citizen married less than 2 years at the time of admission (CR-1 or CR-6), but should have been admitted or adjusted as a spouse of a U.S. citizen married more than 2 years at the time of admission (IR-1 or IR-6}, the officer may update the alien spouse's class of admission code accordingly. The erroneous classification ofthe alien spouse as a CR-1 or CR-6 instead of an IR-1 or IR-6 does not render the alien's admission or adjustment unlawful. In addition, the applicant would be eligible for naturalization even if a Form 1-751 was not filed or approved. If the record indicates that the alien spouse was admitted or adjusted as a spouse of a U.S. citizen married more than 2 years at the time of admission (IR-1 or IR-6), but should have been admitted or adjusted as a spouse of a U.S. citizen married less than 2 years at the time of admission (CR-1 or CR-6), the officer should request the submission of Form 1-751 and adjudicate Form 1-751 before adjudicating the Application for Naturalization (Form N-400). The fact that the applicant was admitted or adjusted under the wrong code of admission does not render the adjustment unlawful, and the applicant is still eligible for naturalization, if otherwise qualified, upon the approval of Form 1-751. 3. Effective Date of Permanent Residence A person is generally considered an LPR at the time USCIS approves the applicant's adjustment application or at the time the applicant is admitted into the United States with an immigrant visa.121 Most applicants applying for adjustment of status become LPRs on the date USCIS approves the application.1101 For certain classifications, however, the effective date of becoming an LPR may be a date that is earlier than the actual approval of the status (commonly referred to as a "rollback" date). For example: • An alien admitted under the Cuban Adjustment Act (CAA) is generally an LPR as of the date of the alien's last arrival and admission into the United States or 30 months before the filing of the adjustment application, whichever is later.Illl • A refugee is generally considered an LPR as of the date of entry into the United States.[121 • An asylee is generally considered an LPR 1 year before the date USCIS approves the adjustment application.
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