For almost a decade, foreign nationals and their employers have benefited from the provisions of the American Competitiveness in the 21st Century Act (AC21) in employment-based, permanent residence cases. These provisions allow for enhanced employment flexibility as part of the permanent resident (commonly referred to as the \"green card\") process. Given the passage of years, AC21 matters can reappear in the context of applications for naturalization to U.S. citizenship. The U.S. Citizenship and Immigration Services (USCIS) reviews the naturalization applicant\'s green card history as naturalization requires that the green card approval was proper and lawful. .
Naturalization Case Denials
Prior to our firm\'s involvement in this case, the individual applied for naturalization to become a U.S. citizen. This case was filed without the help of an attorney, as he felt that the case was fairly straightforward. The USCIS viewed the matter differently, denying the case for two reasons. Both reasons were related to the legitimacy of the approval of the applicant\'s permanent residence. The USCIS denied the individual\'s application for naturalization (N-400) because it was believed that his priority date was not current when his I-485 was approved. Additionally, the naturalization adjudicator understood the green card approval to be improper because the required employer petition (Form I-140) had been revoked by the employer prior to the I-485 approval.
USCIS Position: Applicant Had No Lawful GC Approval
One important requirement for naturalization to U.S. citizenship is that the applicant possess the status of a lawful permanent resident for a specific duration. There are instances in which foreign nationals may hold permanent resident status improperly, due to an approval having been inappropriately granted. In USCIS terminology, such individuals do not meet the \"lawful\" permanent resident requirement, because their approval was not correct under the law. This was the underlying problem in this particular case. The USCIS agreed that the individual had a green card approval, but did not agree that it was a proper, lawful approval.
Argues GC Approvals Proper Under Law
This individual came after receiving a denial in his naturalization case. We also assisted his wife, as her naturalization case had been denied on essentially on the same basis, as she had been a derivative beneficiary in the principal\'s green card case. Our attorneys reviewed the case background and determined that valid arguments could be put forth in support of the approval of the original green card case. We showed that concern over the priority date was just a matter of confusion, and so it was fairly easily resolvable.
The AC21 arguments were somewhat more complex, but fit within the USCIS guidance on AC21. We argued that the green card cases for our clients had been properly approved, notwithstanding the sponsoring employer\'s withdrawal of the underlying I-140 petition. Our attorneys demonstrated successfully to the USCIS that this case fit within the parameters of the August 4, 2003 USCIS memo from William Yates, which addresses the availability of AC21 portability benefits after the initial sponsoring employer withdraws or revokes the I-140 petition. Under the guidance in the applicable memorandum, in cases where an I-140 is approved and the I-485 is pending 180 days, the foreign national still has eligibility for green card approval, even if the initial employer or sponsor chooses to withdraw or revoke the I-140 petition approval.
Procedural Steps: Challenges Denials
Procedurally, the filing that is made to challenge the denial of an application for naturalization is an N-336, Request for Hearing on Decision in Naturalization Proceedings. Thus, we prepared the N-336 for our clients, requesting a new hearing on the case, and for the USCIS to reverse the denial of the N-400 naturalization application. We supported this with a detailed brief setting forth the clarifications and arguments regarding the priority date, and the AC21 eligibility.
In support of the AC21 eligibility, we documented that the USCIS had actually reviewed and considered our clients AC21 eligibility prior to approving the green card case. We showed that the USCIS had issued a notice of intent to deny (NOID) the I-485 following the I-140 withdrawal. We documented that, in response to the NOID, the individual had responded with a letter verifying his employment in a new job met the AC21 requirements. The USCIS approved the I-485s for the primary applicant and his spouse following receipt of the NOID response. Thus, the USCIS was aware of the facts in the case, and, after review, had approved the green cards of the couple properly, and lawfully.
U.S. Citizenship Approved After N-336 Hearing
In the end, our clients were interviewed by USCIS a second time at the N-336 hearing. However, this went much better than the initial interview, and the officer determined that the couple was indeed eligible to become U.S. citizens. The USCIS determined that our clients had lawfully become green card holders because the primary I-485 applicant had properly used AC21. This case is important to highlight how the USCIS looks back to determine one\'s process of becoming a permanent resident, when deciding a naturalization case.