USCIS revised its denaturalization guidance and put it into effect on September 14
On September 14, USCIS revised its guidance on denaturalization. Denaturalization means a court taking away citizenship that a person obtained by applying, taking the test, and taking the oath. USCIS cannot take it away on its own; it refers the case to another agency so that it goes to trial in court. The announcement USCIS issued when it revised the guidance contains a sentence saying that when a U.S. citizen files a document with USCIS, USCIS also checks whether that person obtained citizenship lawfully. This means that when a person who became a citizen files a family-based petition (applying for a green card so that a family member can live in the United States), that filing becomes an occasion to look again at that person's citizenship application record.
When you file a family-based petition, USCIS also checks the sponsor's citizenship application record
"In its September 14 announcement, USCIS stated that whenever it reviews a filing from a U.S. citizen (a family-based petition or another application), it checks whether that person obtained citizenship lawfully. This covers both filings already submitted and under review and filings to be submitted in the future."
The USCIS Policy Manual (USCIS's review guidance) lists four ways of identifying cases to consider for denaturalization. The first is an officer finding one while reviewing an incoming filing, and as an example of such a filing it names the family-based petition (Form I-130). This review includes looking through the person's immigration file, which collects the documents the person has filed with USCIS so far.
The other three are as follows. There are automated screening tools that look for fraud, national security, or public safety concerns; there are cases that USCIS headquarters or the Department of Homeland Security (the department USCIS belongs to) reviews directly; and there are cases where another agency, such as the Department of State (the department in charge of passports and visas), asks for a review.
What changed this time and what stayed the same should be looked at separately. USCIS stated that it did not change the situations in which citizenship is taken away, that is, the grounds for denaturalization. It rewrote the entire denaturalization part of the Policy Manual, but what mainly changed is the order setting which cases to refer first and the ways cases are identified. The announcement's sentence about checking citizenship application records also does not create a new power; it restates that USCIS checks using a power it already has.
In the same announcement, USCIS itself wrote that the great majority of people who became citizens did so lawfully. The new guidance does not say how much the number of cases sent toward the courts will rise. Filing a petition should not be read as meaning that citizenship will be taken away.
The cases USCIS refers first are hidden crimes, fraud, false identities, and sham marriages
"According to the USCIS Policy Manual, USCIS gives priority in referral to cases such as serious crimes not disclosed during the citizenship application process, fraud against the government or individuals, giving a false identity to the government, and sham marriages (fake marriages entered into to get a green card)."
When USCIS decides the evidence is sufficient, it refers the case to U.S. Immigration and Customs Enforcement (the agency that enforces immigration law). After that there are two paths. One is for the Department of Justice (the department that handles lawsuits on the government's side) to file a lawsuit asking a court to cancel the person's citizenship. The other is for prosecutors to bring the person to criminal trial, because obtaining citizenship by breaking the law is itself a crime. Either way, a court decides whether citizenship is taken away.
The Policy Manual lists sixteen kinds of cases to refer first. National security cases such as terrorism, war crimes, and criminal organization cases come first. Things that could come up in an ordinary household come after those: serious crimes not disclosed during the citizenship application process, sex crimes and violent crimes, financial fraud against the government, and fraud against individuals or businesses. As examples of fraud against the government, it names loan fraud under the business payroll support program (PPP) and fraud against government health insurance such as Medicaid and Medicare.
The list also includes these cases: giving a false identity to the government, falsely claiming to be a U.S. citizen when not one, voting illegally in a U.S. election before becoming a citizen, and sham marriage. Obtaining citizenship through bribery or fraud, or by lying about an important fact, is also included. This list is only the order in which USCIS refers cases first. For citizenship actually to be taken away, the case must fall under the grounds for denaturalization explained below, and there must also be evidence.
Examples of the records reviewed when referring a case are also given: arrest records, records of how a court ended a case, marriage and divorce records, entry documents, recorded interviews, and so on. The court decisions the Policy Manual gives as examples include a person who got a green card through a sham marriage, and a person who, after becoming a citizen, was convicted of a crime committed before becoming a citizen.
It can be a ground even without intent to deceive, but the government must prove it in court
"The USCIS Policy Manual states that if a person who was eligible when becoming a citizen later commits a crime, the government generally cannot begin denaturalization proceedings against that person."
A crime committed after becoming a citizen is generally not a ground for denaturalization. This is because both of the main grounds for denaturalization ask whether there was a problem at the time the person became a citizen. One is when the person did not meet even one of the eligibility requirements at the time of the citizenship application. The requirements include the length of residence, the time actually spent inside the United States, whether the green card was obtained lawfully, and whether there were problems with the person's moral character (everyday conduct). This ground applies even if the person had no intent to deceive. The Policy Manual gives this court decision as an example. A parent got a green card by paying a bribe, and the child got a green card along with the parent as the parent's family member and later became a citizen. Even though the child personally never deceived anyone, the court found that because the parent's green card was wrongly obtained, the child's green card, which came with it, was not lawful either.
The other is when the person obtained citizenship by hiding an important fact or by deliberately lying. Everything written on the citizenship application (Form N-400), what was said at the interview, and the documents submitted with it all count, and leaving out something that should have been written down is included too. Whether a fact is important is judged by whether it could have affected the decision on the application. The government does not have to go so far as to prove that USCIS would definitely have denied the application had it known that fact. Besides these, there are separate rare grounds, such as joining an organization prohibited by law within five years after becoming a citizen.
Denaturalization lawsuits brought by the Department of Justice have no statute of limitations (a deadline after which a case can no longer be brought to court). A person does not become safe just because it has been a long time since becoming a citizen. Criminal trials have a 10-year statute of limitations, but a case past 10 years can still be brought as a denaturalization lawsuit. In exchange, in this lawsuit the level of proof the government must meet is high. The Policy Manual says there must be evidence clear and convincing enough to leave no doubt.
If citizenship is taken away, family filings are reviewed again, so check your own records before filing
"According to the USCIS Policy Manual, if citizenship is taken away, USCIS reviews again the filings the person made for foreign family members, both those under review and those already approved."
When a court takes away citizenship, the person is treated as never having been a citizen, starting from the day citizenship was granted. The person goes back to the status held before becoming a citizen. USCIS decides again whether the family members the person sponsored are eligible and, for those already approved, whether they were eligible at the time of approval. Depending on the result, it denies the filings or revokes approvals already given.
Family members' citizenship can also be affected. This covers children and spouses who got citizenship along with a parent or a husband or wife because that person became a citizen. If the ground for denaturalization is hiding facts or lying, those children and spouses also lose citizenship. If the ground is not having met the eligibility requirements, those children and spouses do not lose citizenship. When citizenship is taken away through a criminal trial, the court generally decides the effect on family members as part of its judgment.
So before filing a petition, check your own records first. The places to look are whether every arrest or court appearance was listed without leaving any out, whether marriage and divorce dates are correct, whether time spent abroad was written down accurately, and whether there was any problem with the path by which the green card was obtained. You should also think back to whether you ever voted in a U.S. election before becoming a citizen.
Conclusion
There are three things to do before filing a petition. First, find copies of the documents filed when getting your green card and of your citizenship application, and compare what was written against the actual facts one by one. Second, if anything does not match, talk with an attorney before filing the petition. You need to work out whether it happened before or after you became a citizen and whether it affects eligibility for citizenship. Third, make sure the name, marriage and divorce records, and addresses you write on the petition match the documents you filed before, and then file. The grounds for denaturalization have not changed, and USCIS itself wrote that the great majority got citizenship lawfully. If there is nothing to worry about, there is no reason to put it off. Anyone with records that cause worry should check first and file only after that.
FAQ
If I sponsor a family member, can my citizenship be taken away? Filing a petition does not mean your citizenship will be taken away. In its September 14 announcement, USCIS stated that when it reviews a filing from a U.S. citizen, it checks whether that person obtained citizenship lawfully, but it did not change the grounds for denaturalization themselves. USCIS cannot take away citizenship on its own; it must go through a trial in court.
Can my citizenship be taken away even if I became a citizen long ago? Denaturalization lawsuits brought by the Department of Justice have no statute of limitations, so you do not become safe just because it has been a long time since you became a citizen. However, in this lawsuit the government must prove its case with evidence clear and convincing enough to leave no doubt. A new crime committed after becoming a citizen is generally not a ground for denaturalization.
If my citizenship is taken away, what happens to the family members I sponsored? USCIS can review again the filings the person made for family members, both those under review and those already approved, and deny them or revoke the approval. Children and spouses who got citizenship because a parent or spouse became a citizen also lose citizenship if the ground for denaturalization is hiding facts or lying. If the ground is not having met the eligibility requirements, they do not lose it.
General information, not legal advice for your specific case. Prior results do not guarantee a similar outcome. English translation of the attorney's Korean-language newspaper column.
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