Becoming a U.S. Citizen

A foreign national can become a citizen of the United States in two ways.

The first is by operation of law. Two examples include: (1) Persons born in the United States; and (2) persons born abroad to qualifying U.S. Citizens. See “Citizenship By Operation of Law” in the navigation menu. Citizenship by law can be automatic, derivative or transmitted.

The second is by naturalization. It is discussed in the paragraphs that follow.

General Requirements For Citizenship by Naturalization

The following general rules apply to most naturalization applicants. There are exceptions. See “Naturalization Through Military Service” in the Navigation Menu. The applicant must:

• Be lawfully admitted for permanent residence. That is, the applicant must not only hold a green card. He or she must also be fully entitled to it. For example, a green card secured by fraud would not support a naturalization application.

• Be 18 years of age. But minors with at least one citizen parent may be naturalized upon application of the parent. More below.

• Meet three separate residency requirements. These are (1) time in state or district; (2) physical presence; and (3) continuous residence. These are discussed in more detail in the next subsection.

• Be a person of good moral character (GMC). As a bare minimum, the applicant must have: (1) Committed no crimes of moral turpitude during the five- or three-year residency period; (2) paid U.S. taxes during that period; and (3) registered for the Selective Service System before age 26 (if a male who secured a green card before that age). More on GMC below.

• Be attached to the principles of the U.S. Constitution and well disposed towards the good order and happiness of the United States.

• Read, write and speak English. There are exceptions for disabled persons, aliens 50 years or older who have held green cards for 20 years, and aliens 55 years or older who have held green cards for 15 years.

• Pass a history and government test. Click here, here and here.

• Take an oath of allegiance to the United States.

More on Residency Requirements and Exceptions

First, the applicant must reside within the state or USCIS district where the application is filed for at least three months immediately before: (1) filing the N-400 Application; or if filing early (2) taking the interview examination.

Second, the applicant must have been physically present in the U.S. for at least half the total continuous residence period. Most applicants must thus show 30 months of actual presence in the U.S. during the five years before filing the N-400 application. The husband or wife of a U.S. Citizen, if still living with that citizen, or a VAWA* applicant, would need to show only 18 months of physical presence.

*VAWA = Violence Against Women Act

Third, the applicant must prove “continuous residence” in the U.S. during the five- or three-year residency period. Residence means the “place of general abode which means one’s principal, actual dwelling place in fact, without regard to intent.”

• An absence of six months or less does not break continuous residence.

• An absence of more than six months but less than one year creates a “rebuttable presumption” of abandoning continuous residency for naturalization purposes. Intent is determinative.

• An absence of one year or more breaks continuous residence, with limited exceptions. See “Protecting Your Greencard” under “Greencard Strategies and Dangers” at this website.

Qualifying religious missionaries are eligible to naturalize after five years of permanent residence if they resided in the U.S. for one uninterrupted year any time after acquiring their green cards. Also, INA §319(b) permits the naturalization of married persons whose citizen spouses are employed abroad by the U.S. government and other designated organizations despite no residence or physical presence in the United States.

An applicant is no longer required to prove intent to reside in the U.S. after becoming a citizen. But if the new citizen wants to sponsor another family member for immigration, he must maintain a U.S. domicile to complete the mandatory affidavit of support (Form I-864).

More on Continuous Residence

The “continuous residence” period is only three years, instead of the normal five years, for persons married to U.S. citizens. The couple must live in marital union for the entire three years. The U.S. Citizen spouse must remain a citizen throughout that period. If the couple divorces, the noncitizen spouse must then wait five years to naturalize.

If an LPR breaks continuous residence, he must create a new continuous residence period to naturalize. The breaks before the new continuous residence period will not matter. If a break occurs, the LPR need then establish only four years and one day of continuous residence (two years and one day if married to a USC) to apply for naturalization.

Readmission alone, whether with a green card or re-entry permit, does not establish “continuous residence.” What matters is “the principal actual dwelling place in fact, without regard to intent.” Readmission means only that status as an LPR has not been revoked. LPR status is different from continuous residence for naturalization purposes. Two examples illustrate the difference.

First, assume an LPR with a home and family in the U.S. travels to Europe to attend medical school. But he returns to the U.S. every few months to visit his family. Continuous residence is not broken on these facts. But the time abroad cannot count towards the physical presence requirement.

Second, assume an LPR travels to Asia to marry. There the new couple lives for the first year of their relationship – although the LPR spouse returns regularly to the U.S. to avoid losing the green card. Continuous residence for naturalization is broken on these facts. (And the green card can potentially be revoked on grounds of abandonment of residence).

More on Good Moral Character

Good moral character (GMC) must exist during the five- or three-year statutory period up to taking the oath of allegiance. The CIS can look back earlier than these statutory periods if relevant to a present GMC determination.

GMC is not defined – but certain classes of persons are ineligible to prove GMC. See INA §101(f) and 8 CFR §316.10. Some of these are also grounds for green card revocation. Any LPR with a criminal history should therefore consult with an immigration attorney before filing an N-400 application.

An applicant on probation, parole or suspended sentence during the statutory period can still meet the GMC requirement. But these circumstances can be considered by the examiner. And naturalization will not be approved until these conditions are removed.

Since 1996, when “conviction” was re-defined, expungement of an arrest or crime is legally ineffective. The underlying arrest or criminal conviction must be disclosed on immigration applications, including naturalization applications.

Aggravated felonies as defined in the INA are bars to both immigration and naturalization. CIMT’s (crimes involving moral turpitude) committed during the statutory naturalization period will also preclude a finding of GMT for naturalization purposes -- and may preclude a GMT finding if committed earlier. What constitutes a “conviction” and a “CIMT” under the INA is a challenging task. It turns on the governing state or federal law at the time of the criminal incident as well as the facts of each case. In making this assessment, the CIS always requires full authenticated copies of the underlying documentation to the extent available.

Barred Persons

The U.S. Naturalization statutes bar the following persons from becoming citizens:

• Anarchists
• Those advocating or teaching opposition to all organized government (including members or affiliates of such organizations so teaching)
• Communists
• Members of any other totalitarian party of the U.S.
• Those not Communists who advocate Communist doctrines or totalitarian dictatorship
• Advocates of overthrowing the U.S. Government by force or violence
• Saboteurs
• Writers or publishers of subversive material advocating overthrow of the U.S. Government
• Convicted deserters, unless granted a Presidential Pardon
• Persons under an order of deportation. There are exceptions for those who served honorably in the U.S. military during times of war and those who have honorable military service aggregating three years.
• Aliens who applied for and received an exemption or discharge from training or service in the U.S. Armed Forces, with limited exceptions.

Naturalization of Children Under Age 18 Born Outside the U.S. Upon Parent’s Application

The following children need not meet the age 18 requirement. Under INA §322, the two groups who qualify are:

1. U.S. Citizen parent meets presence requirements. The child has one USC parent who has been in the U.S. for five years, two after age 14. Child is physically (but temporarily) present in the U.S. pursuant to lawful admission, is in status, is under age 18 – but child resides outside the U.S. in the legal and physical custody of the citizen parent. (If child via adoption, it must have occurred before age 16).

2. U.S. Citizen parent does not meet presence requirement. Child is under age 18, is present in the U.S. pursuant to lawful admission, and a grandparent (parent of the USC parent) has been physically present in the U.S. for five years, two after age 14.

Naturalization of Other Special Groups

The INA also permits naturalization of:

1. Previous expatriates. Those who expatriated themselves by serving in the armed forces of a country with which the U.S. fought in World War II.

2. Those who married foreign nationals. (if female, law was repealed in 1934).

3. Surviving spouses of USC’s who died in honorable service in an active duty status in a U.S. Armed Service.

4. Employees of U.S. Nonprofit Information Corporations.

5. Filipino World War II Veterans.

6. Persons determined by the Director of the CIA, the Attorney General, or Secretary of DHS to have made extraordinary contributions to the security of the U.S. or conduct of intelligence activities.

7. Certain Laotian Guerillas and their spouses who served in support of the U.S. military between February 28, 1961 and September 18, 1978. if admitted as refugees, the civics requirement and English language test may be waived.

Application Procedures

In most routine naturalization cases, the applicant files an N-400 application with supporting documents, photographs, evidence of LPR status, and filing fees at one of the four USCIS Regional Service Centers (RSC’s) with jurisdiction over the place of residence. This is followed by fingerprinting at the local CIS ASC (Application Support Center).

A naturalization interview at the local CIS office is required for all naturalization applicants. The English and History and Government tests are administered during this interview. Caution: A Naturalization applicant can be placed in deportation proceedings if a ground of removability is discovered during the interview.

The examining officer must grant or deny the N-400 application within 120 days of the interview (unless the applicant signs a waiver), failing which the applicant can seek federal court review.

If the examiner denies the N-400, the applicant may appeal within 30 days to another examiner in the same office, who must schedule a review hearing within 180 days of the appeal date. If the N-400 is again denied, or if no decision is reached within 180 days, the applicant can also seek federal court review. Once federal review is sought, the CIS loses jurisdiction over the case.

Most naturalization applicants are now naturalized in a CIS ceremony. But federal district courts that request to do so have exclusive jurisdiction to administer the oath of allegiance within 45 days after the application is approved by the CIS. The applicant can choose between court or CIS naturalization.

Caution: Failure to appear for either the interview or oath ceremony can result in denial of the citizenship application.

How Can We Help You?

Most naturalization cases are routine. Many applicants file without lawyer help. But months or even years may be lost by mistakes on the lengthy N-400 form or in the filing procedures. Name-change issues can be challenging. The modest fees for our firm to properly prepare, review, document and file your N-400 Application can help ensure your speedy and trouble-free naturalization.

Applicants who have spent lengthy periods outside the United States or who have prior brushes with the law should consider hiring our firm both to prepare their applications and to accompany them to their citizenship interviews.

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.