Q. I became a permanent resident after I self-petitioned as an abused spouse. Can I naturalize after just three years’ permanent residence? Can you help me complete the N-400 Application for Naturalization? Also, what documents, if any, must I submit with my citizenship application? I submitted the naturalization application, but it was returned because I didn’t complete Part 2. That part asks how I am eligible for citizenship. The choices are five years’ permanent residence, three years’ residence based on having been married to and living with a U.S. citizen while a permanent resident for three years, military service and “other.”
- B.T., Brooklyn
A. If your husband (or ex-husband) is a U.S. citizen, you qualify to naturalize after only three years of permanent residence. Otherwise, you must have five years of permanent residence. If you qualify after only three years, I suggest that you mark “other.” For the explanation request, write “INA Section 319a - self-petitioning spouse of a U.S. citizen.”
Individuals who get permanent residence as the self-petitioning abused spouse of a U.S. citizen qualify for naturalization after three years of permanent residence. They qualify under the same section of the law as those who qualify based on a continuing marriage relationship with a U.S. citizen.
You need not submit any documents with your citizenship application. If you can, submit a copy of your permanent resident card. Bring relevant documents to your naturalization interview. U.S. Citizenship and Immigration Services will send you a list with your naturalization interview appointment notice.
Employer sponsorship
Q. I have been trying to get my permanent residence based on employer sponsorship. Now my employer has sold the business, and my new boss wants to pay me “off the books.” Should I try to find a new sponsor? The U.S. Department of Labor approved a labor certification application for me. After the approval, my employer filed USCIS form I-140, Immigrant Petition for Alien worker, and I filed USCIS form I-485, Application to Register Permanent Residence. I also applied for and received USCIS employment authorization. My new boss has promised to sponsor me. However, he says he cannot afford to report the salary listed in my labor certification application and wants to pay me part in cash. What are my options?
- Pepe, New Rochelle
A. I am sure you know that whether you are paid on or off the books, the law requires you to report all your income when you file tax returns. Getting permanent residence does not depend on whether you are working on or off the books.
To continue with your permanent residence application with your new employer, the employer must file a new I-140 petition for you.
The law allows a substitution of employers provided that the original employer filed the I-140 petition within 180 days of the labor certification approval. Let us hope your new employer cooperates.
If you change employers, you will have to start the labor certification process from the beginning. The main reason the law requires a new I-140 petition is to make sure that the new employer can pay the required wage.
As for your wage, the law requires that your employer pay you the wage offered once you become a permanent resident. If you are receiving less than that amount now, you can nevertheless get your permanent residence. However, the employer must prove the ability to pay the offered wage. The fact that you receive less now may raise questions, but if your employer has sufficient resources to pay you the offered wage, you can get permanent residence with that employer.
As you can see, the rules that apply to your case are quite complicated. Get some expert advice.
Be patient on petition
Q. My brother filed petitions for me and his son in May 2001. His son got his permanent residence, but for me he has only received a filing receipt. What’s the next step?
- Brian Haynes-Copeland, New York
A. Be patient. The agency should decide your petition in the next few months. Regardless, despite the fact that you have waited seven years already, you won’t qualify for permanent residence for another four to 16 years, depending on your native country. That is because of the backlog in the quota for the brothers and sisters of U.S. citizens.
Allan Wernick is a lawyer and director of the City University of New York Citizenship and Immigration Project. He is the author of “U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition.” Send questions and comments to Allan Wernick, Daily News, 450 West 33rd Street, New York, N.Y. 10001. Professor Wernick’s web site is www.allanwernick.com.
Allan Wernick’s Immigration column is reprinted from the Thursday, October 16 edition of the New York Daily News.
