What is the Immigration and Nationality Act?
- The Immigration and Nationality Act (INA) was enacted in 1952.
- The INA collected many provisions and reorganized the structure of immigration law.
- The INA has been amended many times over the years and contains many of the most important provisions of immigration law.
- The INA is contained in the United States Code (U.S.C.).
- The U.S. Code is a collection of all the laws of the United States. Title 8 of the U.S. Code covers “Aliens and Nationality.”
More details about INA can be found here
What is the Significance of Good Moral Character?
Under the Immigration and Nationality Act (INA), an applicant for naturalization must establish Good Moral Character( GMC). Although the INA does not directly define GMC, it does describe certain acts that bar establishing GMC of an applicant. Examples of unlawful acts recognized by case law as barring GMC include, but are not limited to, the following:
- bail jumping;
- bank fraud;
- conspiracy to distribute a controlled substance;
- failure to file or pay taxes;
- false claim to U.S. citizenship;
- falsification of records;
- forgery uttering;
- insurance fraud;
- obstruction of justice;
- sexual assault;
- Social Security fraud;
- unlawful harassment;
- unlawful registration to vote;
- unlawful voting; and
- violation of a U.S. embargo
On Dec. 10, USCIS issued separate policy guidance in the USCIS Policy Manual about how two or more convictions for driving under the influence or post-sentencing changes to criminal sentencing might affect GMC determinations, there are additional guidances about GMC in this document.
What is The Significance of This Update?
- Previously, the USCIS Policy Manual did not include extensive information on unlawful acts
- This update to the Policy Manual provides additional examples of unlawful acts and instructions to ensure USCIS adjudicators make uniform and fair determinations and further identifies unlawful acts that may affect GMC based on judicial precedent
- This update does not change the impact of an unlawful act on USCIS’ analysis of whether an applicant can demonstrate GMC
- Adjudicators in the field receive extensive training to apply the law on GMC and unlawful acts regulation
- They are aware of which unlawful acts could bar an applicant from naturalization and are not limited by the examples listed in the Policy Manual
The Policy guideline can be found here
Key Policy Highlights About this Update on GMC:
- Expands existing guidance on the “unlawful acts” bar to establishing GMC for naturalization, including adding additional examples of unlawful acts
- Emphasizes that USCIS officers determine whether an “unlawful act” is a conditional bar on a case-by-case basis and provides guidance on that case-by-case analysis.
According to USCIS Deputy Director Mark Koumans:
“In the Immigration and Nationality Act, Congress determined that good moral character is a requirement for naturalization,”————
“USCIS is committed to faithfully administering our nation’s lawful immigration system, and this update helps to ensure that our agency’s adjudicators make uniform and fair decisions concerning the consideration of unlawful acts on good moral character when determining eligibility for U.S. citizenship.”
In addition to the permanent bars to a good moral character (GMC), the Immigration and Nationality Act (INA) and corresponding regulations include bars to GMC that are not permanent in nature. USCIS refers to these bars as “conditional bars.” These bars are triggered by specific
- convictions within the statutory period for naturalization,
- including the period prior to filing and up to the time of the Oath of Allegiance
Note: An offense that does not fall within a permanent or conditional bar to GMC may nonetheless affect an applicant’s ability to establish GMC.
This Table Below Provides a Quick Summary of Conditional Bars to GMC for Acts Committed in Statutory Period:
|One or More Crimes Involving Moral Turpitude (CIMTs)||Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense|
|Aggregate Sentence of 5 Years or More||Conviction of two or more offenses with a combined sentence of 5 years or more (other than political offense)|
|Controlled Substance Violation||Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana|
|Incarceration for 180 Days||Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad|
|False Testimony under Oath||False testimony for the purpose of obtaining any immigration benefit|
|Prostitution Offenses||Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution|
|Smuggling of a Person||Involved in smuggling of a person to enter or try to enter the United States in violation of law|
|Polygamy||Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)|
|Gambling Offenses||Two or more gambling offenses or derives income principally from illegal gambling activities|
|Habitual Drunkard||Is or was a habitual drunkard|
|Two or More Convictions for Driving Under the Influence (DUI)||Two or more convictions for driving under the influence during the statutory period|
|Failure to Support Dependents||Willful failure or refusal to support dependents, unless extenuating circumstances are established|
|Adultery||Extramarital affair tending to destroy existing marriage unless extenuating circumstances are established|
|Unlawful Acts||Unlawful acts that adversely reflect upon GMC, unless extenuating circumstances are established|
Despite these examples, officers must still perform the case-by-case analysis, including whether the act adversely reflects on one’s moral character and the existence of any extenuating circumstances, in every case. There are also few exceptions to these rules, or the applicant should be able to demonstrate “extenuating circumstances”
Purely Political Offense Exception
This bar to GMC does not apply to a conviction and resulting confinement of 180 days or more occurring outside of the United States for a purely political offense committed abroad
- The Board of Immigration Appeals (BIA) has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct
- The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement
Family Reunification Exception
This bar to GMC does not apply in certain cases where the applicant was involved in the smuggling of his or her spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of the law before May 5, 1988.
Extenuating Circumstances for Inability to Support Dependents:
If the applicant shows extenuating circumstances, a failure to support dependents should not adversely affect the GMC determination. The officer should consider the following circumstances:
- An applicant’s unemployment and financial inability to pay the child support
- Cause of the unemployment and financial inability to support dependents
- Evidence of a good-faith effort to reasonably provide for the support of the child
- Whether the nonpayment was due to an honest but mistaken belief that the duty to support a minor child had terminated
- Whether the nonpayment was due to a miscalculation of the court-ordered arrears
Extenuating Circumstances for Committing Adultery:
- Instances where the applicant divorced his or her spouse but later the divorce was deemed invalid
- The applicant and the spouse mutually separated and they were unable to obtain a divorce
In 2000, Congress added an exception for GMC determinations for unlawful voting and false claims to U.S. citizenship
An applicant qualifies for an exception if all of the following conditions are met:
- The applicant’s natural or adoptive parents are or were U.S. citizens at the time of the violation
- The applicant permanently resided in the United States before reaching the age of 16 years
- The applicant “reasonably believed” at the time of the violation that he or she was a U.S. citizen.
Note: The concept of Good Moral Character and demonstration of extenuating circumstances is a complex process, we recommend consulting reliable immigrant law firms.
Please let us know if you have any questions or comments about this policy update. For more information about our firm, becoming a client, or to schedule a consultation, please contact us using the form on this page or give us a call at 469-994-9407.