From the field manual
(C) Immigration Status . In addition to the date on which the applicant acquired permanent residence, your file review should determine the basis upon which such status was gained. In reviewing this section of the application and questioning the applicant about his or her immigration status, you may determine that the applicant was not entitled to permanent resident status at the time he or she immigrated or adjusted status. If the applicant unlawfully acquired LPR status via an immigrant visa you can place the applicant in remov al proceedings. If the applicant unlawfully adjusted status in the United States and has been a LPR for less than five years, you can rescind his/her LPR status under section 246 of the Act (see chapter 26 of this field manual). If the applicant unlawfully adjusted status in the United States and has been a permanent resident for more than five years, a five-year statute of limitations prevents you from rescinding the LPR status under section 246. However, you can still deny the naturalization application under section 318 if the applicant did not lawfully acquire permanent resident status. You should also speak to your supervisor about placing the applicant in removal proceedings. [See sections 212 , 237 , 238 , 239 , and 240 of the Act and 8 CFR 239 and 240 .]
The type of questions you ask the applicant to determine whether the applicant acquired LPR status lawfully, depends on how the applicant obtained LPR status. The following are typical examples of how an applicant may have obtained LPR status.
• Through An Employment Based Petition – An applicant obtained permanent residence through employment with a U. S. company. You should review the employment history section of the N-400 application to ensure that the I-140 petitioning employer is listed. If the petitioning employer is not listed, you should prepare questions to address this issue. Such questions might include:
– Did you ever work for the petitioner?
– How long did you work for the petitioner?
– In what capacity did you work for the petitioner?
– Why did you leave the position?
– What were you paid?
– Where did you work for the petitioner (location)?
– Where did you go or work after you left your job with the petitioner or instead of working for the petitioner?
– When did you first learn that there would not be a long-term position for you?
You should also determine whether the applicant met all of the eligibility requirements of the employment classification under which he/she was granted status. For example, did the applicant have the necessary training or experience that the labor certification required for that classification? The labor certification, which seeks to classify the applicant’s occupation as a shortage occupation, must be filed with the U. S. Department of Labor for most employment-based immigrant petitions. [See 8 CFR 204.5 . and Chapter 22 of this manual.]
