California Immigration Lawyer Blog

The issue of applying or having applied for Selective Service comes up a lot when applying for naturalization. Recently I have seen a number of clients at my San Francisco office who have not registered for Selective Service. I will write a couple of blog posts on the issue of Selective Service and naturalization.

Applicants for naturalization need to establish good moral character for the five years prior to the filing of the naturalization application (Form N-400) up to the time the oath of allegiance is taken. Although there is no specific law, USCIS (United States and Citizenship Services) interprets a failure to register for Selective Service as an act that reflects negatively on an applicant's ability to establish good moral character.

The Selective Service agency is the agency responsible for maintaining a list of men who are eligible the military draft, if we should have one. All men, even if in the United States illegally, between the ages of 18-25, must register for Selective Service. (If you 26 or older, you are too old to register.) A Social Security number is not required to register. The only exception to the registration requirement is for men who are in the United States in valid non-immigrant status (i.e., students on F-1 visas or professionals on H-1B visas). Women are not required to register.

You may register for Selective Service online on their website or you can use the link at the bottom of this page. You may also register at a post office. In addition, you can register if you are applying for a student loan by completing a Federal Student Financial Aid (FAFSA form). You can check "Register Me" on Box #22 of that form, and the Department of Education will furnish Selective Service with the information to register. Finally, if you are applying for adjustment of status in the United States, you will automatically be registered upon USCIS' acceptance of your Form I-485. (The last page of the form indicates that you agree to have USCIS transmit your information to Selective Service.)

If you are not sure whether or not you have registered with Selective Service or you want proof that you have registered, you may go to their website and click on the link to check registration.

My next few blog posts will discuss how to obtain a status letter from Selective Service and what to do if you have not registered with Selective Service.

Yesterday President Obama announced the elimination of the HIV inadmissibility ban at the signing of the Ryan White HIV/AIDS Treatment Extension Act of 2009. Currently individuals with HIV are inadmissible to the United States. As part of the new legislation, individuals with HIV will be admissible and individuals seeking permanent residence will no longer have to be tested for HIV as part of the medical exam that is given to all new immigrants.

The final rule was published yesterday and goes into effect on January 4, 2010.

I recently had a client inquire as to whether her enrollment in San Francisco's "Healthy Families" health insurance plan would endanger her green card application because she might be considered a "public charge." I originally thought it would be a problem but it turned out not to be.

San Francisco has a health insurance program called "Healthy Families." It is for uninsured children and low income individuals living in San Francisco. Members pay a small monthly fee and the program is partly funded by the government.

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."

An individual becomes a "public charge" when he or she is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

USCIS has a very extensive article on their website that discusses what type of benefits, if received, would and would not be relevant in a determination concerning public charge. Non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Specifically regarding San Francisco Healthy Families, USCIS states that Healthy Families benefits "are not considered for public charge purposes."

Requesting continuances of cases in Immigration Court can be tricky. You never know if it will be granted because it most often depends on the judge's discretion. There is very little case law on when continuances should be granted. Fortunately, a few days ago, the Board of Immigration Appeals ("BIA" or "Board") decided a case in which it has provided some guidance on when a continuance may be granted.

In Matter of Hashmi, 24 I&N Dec.785 (BIA 2009), the respondent (Mr. Hashmi) was married to an American citizen who had filed a visa petition (Form I-130) on his behalf. The Immigration Judge permitted several continuances in the proceedings to allow time for USCIS to adjudicate the visa petition. If the visa petition would have been approved, Mr. Hashmi would have been immediately eligible for adjustment of status (green card). Mr. Hashmi managed to obtain four continuances but the Judge denied the fifth request. The Judge denied it because he stated that he was forced to meet case completion goals and he needed to make a decision because the case had already been pending for 18 months in the Immigration Court. Mr. Hashmi appealed and after the Board of Immigration Appeals initially denied it, he was finally was successful at the Third Circuit. The Third Circuit reversed and remanded back to the Board of Immigration Appeals.

Upon the case's return to the Board, the BIA considered what factors would constitute good cause for the grant of a continuance in a situation in which the person in removal proceedings (known as the "respondent") has a visa petition pending and would be immediately eligible for adjustment of status (green card) but is waiting for USCIS to adjudicate the visa petition. The BIA decided that there are five factors that a Judge must consider before ruling on a Motion to Continue in this situation. These factors are:

1. the Department of Homeland Security's response to the Motion to Continue;


2. whether the visa petition is prima facie approvable;


3. the respondent's statutory eligibility for adjustment of status;


4. whether the respondent's application for adjustment of status merits a favorable exercise of discretion;


5. the reason for the continuance and any other relevant procedural factors.

The Board stressed that these factors were "illustrative, not exhaustive." (Id., at 790)

Finally, the BIA found that a judge's "case completion goals" "is not a proper factor in deciding a continuance request." (Id. at 794)

Overall this is a very helpful case because it provides us with some guidance in a situation in which we had none before. It will now hopefully be easier to obtain continuances in cases when, through no fault of their own, respondents have been waiting for USICS to adjudicate their petitions.

Tomorrow (Saturday), April 4, 2009, at 3:00 p.m. (pacific daylight time), I will be giving a presentation on Second Life© (www.secondlife.com) to a group of avatars on how to bring a fiance (K-1) or spouse to the United States. The group that has asked me to speak is called "crossing borders." It is comprised of people (avatars) who have met on Second Life and now wish to bring their relationships into real life.

I will be talking about the following topics:

• consular processing vs. adjustment of status;


• tips on filing a petition with USCIS;


• tips on preparing for the interview.

If you are on Second Life and are looking for the meeting, send me an IM (to my avatar "Geri Kuhn") and I will send you a landmark to the meeting. Hope to see you there.