Q. My daughter, a Canadian citizen, just married a U.S. citizen. How long before you can get her U.S. citizenship application approved?

A. A common misconception we often hear is that a non-resident alien can apply for U.S. citizenship based on marriage to a U.S. citizen. Marriage to a U.S. citizen only allows the alien to apply for permanent residence [ "green card"] status. For "newlyweds" [married less than 2 years as of time of the approval for permanent residence], this status is only conferred for two years and requires what is referred to as a "petition to remove the conditional basis of the permanent status" between 21 and 24 months after the initial grant of permanent residence]. After three years of green card status, if the alien is still married and living in "marital union" with the U.S. citizen spouse, she may be eligible to apply for naturalization for U.S. citizenship. Most legal resident aliens must wait five years to apply for citizenship. Certain aliens who serve or have served on active duty in the U.S. military during hostilities can apply directly to be a U.S. citizen without first having to obtain legal residence status.

Q. I just obtained my naturalization certificate for U.S. citizenship and would like to sponsor my mother in Mexico to come for a visit. How do I do this?

A. If your mother desires to visit the U.S. she needs to apply for a Nonimmigrant Visitor Visa at a U.S. Consulate in Mexico. She does not need anyone to "sponsor" her for this. The most important consideration is for your mother to be able to persuade the Consular officer that she is not an intending immigrant. [In "legalese," she needs to overcome the presumption of immigrant intent applicable to every alien applying for a Visitor or Student Temporary Visa. Section 214(b) is the section of the Immigration and Nationality Act that is cited to explain most Nonimmigrant Visa denials]. Your mother may be asked to demonstrate her "ties" to Mexico, which will likely motivate her to return to Mexico after her U.S. visit, as opposed to overstaying her temporary authorization or applying for permanent immigration. In addition, if she is determined to be inadmissible on medical, criminal, past immigration violation or any other "exclusion" ground she would need to qualify for and be granted a discretionary waiver.

As a U.S. citizen, assuming you are over 21 years of age, you can now petition for your mother to immigrate under the Immediate relative [no quota waiting period] category. However, if you have siblings, even if they are still children, they could not come with your mother. You could file separate petitions for your siblings, but the quota back-log for Mexico is almost 12 years. [Please see our article under the Info tab, "Overview of Legal immigration system" for more details on this process].

Q. The Citizenship and Immigration Services Office finally issued its approval notice for the family petition I filed on behalf of my wife, who is from Costa Rica. She came to the United States in 2002 illegally through Mexico, avoiding inspection at the border. We got married last year on Valentine's Day, February 14, 2003. Given that I am a U.S. citizen and we now have the approved relative petition, can she apply for a "green card" now and get employment permission while we are waiting for approval of her green card? Do you expect a problem with the fact she pled no contest to shoplifting and was placed on 6 months probation, which is just about over?

A. The approval notice means that your wife has been classified as an immediate relative, and, if otherwise eligible, she can apply for legal permanent residence status. Unfortunately, unless there was a family petition or labor certification filed on her behalf before January 14, 1998, she will not be able to adjust status in the United States. She will have to return to Costa Rica and proceed with an Immigrant Visa application at the U.S. Embassy in San Jose. She does not benefit by the 245(i) law to adjust in the U.S. Under that law any petition had to have been filed before April 30, 2001, and the applicant had to have been present in the U.S. on December 20, 2000. A person who was not present in December 2002 could still possibly benefit by "grandfathering" off any petition that was filed before 1/14/98 under the old 245(i) law. Upon leaving the U.S. to attend the Immigrant Visa interview in San Jose, your wife will trigger the 10 year bar for her prior unlawful presence in the U.S. in excess of one year. This makes her inadmissible for 10 years. Because she is married to a U.S. citizen she can file for a waiver, but this requires a demonstration that her spouse would suffer extreme hardship is she is not allowed to come. The law on extreme hardship can be difficult, but in some cases a more relaxed standard is applied. Being from Latin America your wife would have a better chance than if she were from Asia, for example. Nevertheless, you would have to make a strong showing that the hardship you would suffer is more than the common hardship that anyone would suffer in your situation. We always emphasize health considerations. If you are in good physical health then we would emphasize mental and emotional health. In that regard we would recommend a psychological evaluation by a qualified professional. The waiver application can be submitted at the time of the interview in Costa Rica and you should expect that it will take a number of months for a decision. In regard to the shoplifting incident we will have to carefully review the court records and the text of the particular law that was violated. Hopefully, the matter will qualify under the petty offense exception [maximum punishment of one year or less under the law and no sentence to imprisonment of more than 6 months]. We will have to do a criminal record search to assure there are no other convictions because one is only allowed to have one petty offense and still be inadmissible. Aliens convicted of moral turpitude crimes, who do not have the benefit of the petty offense exception are inadmissible. A waiver is available if extreme hardship can be established to a U.S. citizen or lawful permanent resident spouse, child or parent. Even if hardship is established the waiver is discretionary and involves a balancing of all the relevant factors.

Q. I am a 30 year old Canadian and have been accepted to Harvard Law School, but when I was 19 years of age I was convicted of possession of LSD and was fined $100, with no jail time imposed and did not even get probation. Last year the Canadian government issued a Pardon for this offense, so I do not understand why the Border Inspector refused my admission to the U.S. What can I do to get in? What if I marry my U.S. fiancee?

A. We are sorry to have to tell you that any controlled substance violation is a life-time bar to admission to the U.S. The U.S. government does not recognize foreign pardons. That is the bad news. The good new is that if the LSD conviction is your only mistake in life and you can show you are conducting yourself properly now there is a good chance that the U.S. government will approve your application for a nonimmigrant waiver if is properly filed. This would permit you then to obtain the temporary F-1 authorization. The waiver process will take several months so hopefully Harvard will keep a slot open for you for the next semester. More bad news. With the LSD conviction you can never immigrate, even if you marry your fiancee or even if you graduate first in your class and find an employer who wants to petition you for permanent residence. Unlike for garden variety moral turpitude crimes or a single conviction of simple possession of less than 30 grams of marijuana, there is no immigrant waiver available for you.

Further, unlike the situation in most U.S. jurisdictions, the Canadian criminal justice system does not have a procedure to vacate old criminal convictions. We have not totally given up hope that this will someday be possible. Unfortunately, earlier this year a Canadian obtained a court order purporting to vacate an old conviction but, in a precedent decision, the U.S. Board of Immigration Appeals ruled that the court order was no good for U.S. Immigration purposes. Among other concerns it was clear from the order that it was solely to assist the Canadian citizen to overcome the U.S. immigration bar and was not based on innocence of the client or any type of legal defect in the prior criminal proceedings.

Q. I have been a legal permanent resident in the U.S. since 1950. I was 2 years old when I immigrated with my parents, both of whom are deceased. They never filed for U.S. citizenship. I filed for naturalization last year and last week I had my interview and the Examiner said I may have a problem because of my 1992 robbery conviction for which I served 3 years in prison. When I pled guilty at that time my lawyer said it was not a problem for immigration so I don't understand how my citizenship application can be denied?

A. We will carefully review all your records and provide you with a comprehensive evaluation. However, it is likely that you are not eligible for citizenship now, and, under current law, you will never be eligible. This is because your robbery conviction will probably be classified as an "aggravated felony" under U.S. Immigration Law. Anyone with such a conviction occurring on or after November 29, 1990, can never show the necessary good moral character for citizenship. We also expect that the DHS will commence a removal proceeding against you. This is because the laws that were passed in 1996 are retroactive, meaning that your 1992 conviction can be used for deportation even if it was not a deportable offense in 1992. Fortunately, because you pled guilty and did not serve 5 years in prison you will likely be eligible for a waiver under the old 212(c) law, so you may be able to keep your residence status. Even though the 212(c) law was repealed in 1996, in 2001 the U.S. Supreme Court ruled that relief is still available under that law for convictions involving guilty pleas which occurred before 212(c) was repealed. If you are indeed eligible for this waiver please understand that this is a "discretionary" remedy. The Immigration Judge will balance the favorable factors in your life with any negative factors, including the seriousness of the crime, your rehabilitation and your family equities. Because your criminal case was over before 1998 you should not be subject to mandatory detention. The DHS may set a bond to assure that you show up for Court or you may even be released on your own recognizance.

Q. I am a Canadian citizen with a Master's degree in English and a job offer to teach at Fort Myers High School. I do not understand why the Border officer refused to issue me a "TN" to allow me to start the job. The semester starts in three weeks and I am afraid of this lost opportunity. Middle school has already started for our 12 year old daughter. We just had a new baby, actually born in the U.S. when was I was interviewing for the teaching job. My wife, who is a licensed physical therapist, is not able to work now because she had a difficult pregnancy. We actually bought a home already in Fort Myers, and would like to retire there in 10 years. How can you help us?

A. We feel confident that we can help your family, both in the short term and for your longer term objectives. Unfortunately, high school teacher is not on the list of professions for which you can obtain the NAFTA "TN" authorization. Only college and seminary teachers are on the list. Fortunately, we should be able to obtain an H-1B status for you, which can be accomplished as early as 15 days from filing. You or the school will have to pay a $1,000 premium processing fee to the government for the expedited adjudication. We will have to demonstrate that the school will be paying you the prevailing wage, which should not present a problem for this kind of case. After we take care of e-mail filing of the "labor condition application" which is essentially an attestation, we file a petition by express mail with the DHS Service Center office in Dallas, Texas. Upon receipt of the anticipated approval notice you take it to the friendly border officer and he should be happy to issue you the I-94 card. The school serves as petitioner but we will make it as easy as possible for their staff in terms of the paperwork. We will ask them to frame a 3 year job offer even if their normal policy is to appoint teachers on an annual basis. This is because the initial H-1B can be for 3 years. You can actually have H-1B status for 6 years, so we will need to evaluate your permanent options. Ideally we can talk your wife into getting back into the labor force when she feels better. If she wants to work now, with an appropriate job offer as physical therapist, she can get a "TN" at the border. Of course, she will need to fulfill the applicable state professional licensing requirements. Although you would likely need Labor Certification to obtain a green card, physical therapists are considered a "Schedule A" occupation so we could qualify your whole family for green cards through an employer petition for your wife without having to undertake the lengthy and unpredictable labor certification process. We definitely can see Palm trees in your future.

Q. What are the normal requirements to become a U.S. citizen?

A. Before outlining the requirements for naturalization, we wish to point out that there are other ways to become a U.S. citizen besides being born in the U.S. or filing for naturalization. Some children born outside the U.S. are considered U.S. citizens from date of birth. This requires that at least one of the parents be U.S. citizens at the time and there are certain requirements involving parents' prior U.S. residence which are different depending on whether or not both parents were U.S. citizens and also how the law read when the child was born. We often have to consult with our "Citizenship Charts" to evaluate a particular case. This can be a relatively simple tax or can sometimes be quite complex, especially if we have to go back several years or several generations. Additionally, some children automatically become citizens when one or both parents naturalize. The Child Citizenship Act of 2000 substantially liberalized this law, but it is not considered to apply retroactively for children who had already turned 18 as of the effective date of February 27, 2001.

The general requirements for naturalization are: applicant must have been a permanent resident for 5 years [you can actually apply 3 months before the 5 year anniversary]; you must have resided in the U.S. at least 2 ½ years out of the preceding 5 years, and no absence can have been more than one year unless you had special permission; you need to show good moral character during the preceding 5 years [in some cases conduct occurring outside the 5 years can be considered]; you need to demonstrate fluency in the English language in terms of speaking, writing and reading and you must pass a basic "Civics" test on U.S. history and form of government [We have exceptions for certain older long term permanent residents and disabled applicants]. Applicants who are married to a U.S. citizen and are residing in marital union for at least 3 years only need 3 years of permanent residence. Special benefits are available for our Military personnel. Applicants must take an oath that they support the U.S. Constitution. It is now possible for many applicants to enjoy dual citizenship. This depends on the particular foreign country. For example, Canada allows for dual citizenship whereas Sweden does not.