USCIS is increasingly denying naturalization (N-400) applications on the grounds that the applicant was never legally admitted for permanent residence. In such cases, the green card holder may face a status rescission procedure, so consultation with an attorney is needed before traveling abroad and before reapplying. Based on documented cases, cardholders can usually still renew it, but the risks when traveling are higher than before.

How This Kind of Denial Arises

Sometimes USCIS claims that a person was never legally admitted for permanent residence because they should have filed a waiver petition, but the officer failed to notice this and the green card was issued anyway. In other cases, the problem is that the conditions of permanent residency were not properly removed.

Example: a couple jointly files I-751, the marriage breaks down during adjudication, but approval is granted on the basis of a good-faith marriage. If USCIS is not notified after the divorce that the I-751 was approved under the wrong category, the agency may claim that the conditions were never removed and the person is subject to removal.

Such defects usually arise at the stage of obtaining the green card: through a consulate via immigrant visa or through I-485. For example, if a person accumulated unlawful presence, left the US, and returned illegally, they fall under a 10-year bar. In the described case, the attorney and officer failed to notice this, and permanent residence was granted. Later, when applying for citizenship, USCIS stated that the admission was unlawful because a permanent bar was in effect and adjustment of status was impossible. The applicant, however, qualified under 245(i) requirements, so proof of lawful entry was not required.

What to Do After a Denial

First of all, it’s worth having an attorney verify that USCIS’s decision is justified. Based on the author’s experience, such determinations are usually correct, though mistakes do happen. The author personally hasn’t encountered this kind of error yet, but acknowledges it’s possible.

The question of traveling abroad. For most green card holders, the risk, in the author’s assessment, is very low but not zero. It’s higher for those with a criminal history, prolonged absences, or issues with how status was obtained. Once USCIS has already issued a decision stating that admission never occurred, the risks, in the author’s view, increase overall. Customs officers may currently not challenge the status, but information sharing between Department of Homeland Security agencies is becoming increasingly active, including through AI, so the situation could change. For this reason, traveling abroad is not recommended in such a position.

Can a Green Card Be Renewed

A green card can generally still be renewed, and this has historically been the case. Status can be lost in two ways: by an immigration judge’s removal order, or by physically signing Form I-407 to voluntarily abandon residency.

By observation, most people who receive an N-400 denial on this ground do not end up in removal proceedings. Until recently, the recommendation was not to refile N-400 but to keep renewing the card instead. Now, given recent practice, this advice may no longer hold.

There have also been cases, according to the author, where people were placed directly into actual removal proceedings for the first time, rather than rescission proceedings, which can only be initiated within 5 years of obtaining permanent residence. How successfully the government can strip such people of their permanent residence through this procedure remains disputed. If more than 5 years have passed since obtaining permanent residence, the removal argument looks weaker. There have been cases of notices to appear in immigration court following a citizenship denial on this ground, but they are rare and not widespread.

A line of people outside a federal immigration office building in the center of an American city.