Swaray Law Office building on a bright sunny day.

Residency and physical presence in the United States are among the centerpiece requirements for naturalization in the country. The applicant must reside in the country for the five year period immediately before he files his naturalization application.  If married to a United States citizen, he must reside continuously in the United States for the three year period immediately before the date of his application.  He must also be physically present in the country for at least 30 months or for two and half years of the five year period immediately before his application.

But if  a permanent resident must live outside the United States because of a job with the US Government, private sector or religious organization, and wants to apply for naturalization, he can avoid the residence and physical presence requirements by applying with the Citizenship and Immigration Services (CIS) for preservation of his residency for naturalization. If the CIS approves his application, he can live outside the country as a permanent resident and the period will not be counted against the residency and physical presence requirements of his naturalization application.

The application is filed on a Form N-470, also known as an Application to Preserve Residence for Naturalization purposes.  To qualify for the relief, the applicant must first have been physically present and resident in the United States continuously, without absences, for at least one year upon admission as a lawful permanent resident.  Religious workers are exempt from this requirement.  Second, the applicant must be employed with the United States Government, a private sector or a United States religious organization.  One is deemed to be physically present in the United States when the person is within the territorial borders of the United States.  One is deemed to be resident in the United States when the person has a principal residence in any part of the country.  Examples of principal residences include the ownership by the person of a house, apartment or other of abode type which the person owns or possesses with no immediate intent to abandon while outside the United States.  Examples of employment with the United States Government are work with the United States Government under a contract or with an American research institution, firm, corporation or the like.  Employment with a public international organization of which the United States is a member by treaty or statute is another example of a job with the United States Government.  But the applicant should not have been employed with the public international organization before becoming a lawful permanent president.

Spouses of United States citizens that are eligible for naturalization are exempt from establishing the naturalization residency and physical presence requirements, and therefore, not required to file for preservation of continuous residence.  Note that the grant of an application to preserve residence for citizenship does not relieve a permanent resident from obtaining a re-entry permit in advance of trips outside the United States for one year or more.  The grant does not also exempt the permanent resident from United States admissibility requirements of his permanent residency status.

This blog is by an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is located in the northern suburbs of the Twin Cities.  It is north of Minneapolis, Minnesota, and contiguous to Brooklyn Park, Crystal, Robbinsdale, Maple Grove and Blaine.  To visit Swaray Law Office, please go to www.swaraylawoffice.com, or call 763-549-0670 or email us at swarayassociates@cs.com.

Without an executed and signed certification, the Citizenship and Immigration Services (CIS) cannot issue a U-Visa.  Certification is where the U-Visa applicant requests and a law enforcement officer confirms that the applicant suffered from a qualifying U-visa crime, and is helpful or likely to be helpful in the prosecution of the crime. The process is also referred to as “Certification of Helpfulness”.

Side view of Swaray Law Office

Under the U-Visa Act, “Helpfulness” is not specifically defined.  But in several post enactment guidelines, DHS has explained the term, and in general, now means that a victim of a U-visa crime informs law enforcement that she is a victim of the crime, and has specific and detailed knowledge of the crime, and has been, or is being or likely to be helpful to law enforcement in the detection, investigation or prosecution of the crime.  Some of the ways a victim can be helpful to law enforcement is to identify the crime perpetrator, assist in his apprehension, provide evidence useful to finding and apprehending him, and agree to testify against him if the case were to go to trial.

The certification starts with the victim filling out the USCIS Form I-918 and filing it with a particular law enforcement agency, which will, in turn, assess her usefulness to the investigation of the crime, and if satisfied sign the form.  Occasionally, the process is initiated by law enforcement.  Where certification is initiated by a crime victim, it is usually done with advocate or attorney assistance.  The agency head or his delegate signs the certification.  The law enforcement agency is not obligated to certify a U-Visa application since certification is purely discretionary.  Neither the victim, nor her attorney or the DHS or any other agency can compel a certification.  By signing a certification, law enforcement attests that the victim’s crime information is true and correct to the best of his knowledge.

Certification has no statute of limitation, and valid even where the investigation or the prosecution of the case is closed.  Once the certification is completed, the law enforcement official must return it to the victim or her attorney.  It does not need to separately send it to the CIS.  The victim can then send it together with her U-Visa application to the CIS.  The head of a law enforcement agency at the federal, state of local level or prosecutor, judge or other agency with authority to investigate or prosecute a qualifying crime can issue a certification.  This includes, among others, agencies with criminal investigative authority, child and adult protective services, Equal Opportunity Commission, federal and state departments of labor, and even law enforcement officials with a memorandum of understanding with DHS.

A U-Visa certification can be revoked if the victim unreasonably refuses to provide assistance after the U-visa has been granted.  In such a case, the law enforcement agency would inform the USCIS of the victim’s refusal, and after due investigation, the visa will be revoked.  The signing of a certification does not guarantee a U-visa grant.  It is merely a fulfillment of a requirement in the U-visa process.  Other requirements have to be met for the U-visa to be ultimately granted.

A U-visa certification is valid even if the initial crime being investigated is different from the crime that is eventually prosecuted.  For example, a U-visa investigation starts with burglary, which is not a listed qualifying crime, but in the process of investigation, the person is found to be a victim of torture.

This blogger is an attorney at Swaray Law Office, LTD.  About 65% of the attorney’s practice is in immigration law.  Swaray Law Office is located in Brooklyn Center in Minnesota.  Brooklyn Center is north of Minneapolis/St. Paul.  The city is contiguous to Robbinsdale, Crystal, Brooklyn Park, Blaine, Maple Grove and Golden Valley.  Should you be interested in contacting the office, visit www.swaraylawoffice.com or 763-549-0670 or email at swarayassociates@cs.com.