Acquisition of U.S Citizenship by Naturalization

U.S. Citizenship may be acquired by operation of law (i.e., birth in the U.S. or birth abroad to U.S. citizens or nationals) or by naturalization. In this article, I will explain the latter. However, if you have any doubt about the possibility of deriving your U.S. citizenship from one of your parents who is U.S. citizen, or the possibility of your child's U.S. citizenship, you should contact a qualified immigration lawyer to know for sure.

To acquire U.S. citizenship by naturalization, the applicant must first be a lawfully admitted permanent resident. He/she may ask, "Why do I want to become a U.S. citizen?" and "What is the difference between the rights of one with a 'green card' and those of a U.S. citizen?". Finally, and often most importantly is "If I apply for naturalization, do I lose my own citizenship?"
Although it is ultimately a personal choice, several factors may sway one to become a U.S. citizen. First, there are many ways one can lose permanent resident status and be excluded or deported from the U.S., especially with '9/11', whereas a U.S. citizen will always remain a citizen regardless of his/her conduct. For example, long absences from the U.S. can be interpreted at the border as abandonment of permanent residency, and many, even minor, criminal convictions can trigger removal. As explained in the previous column, maintaining a permanent resident status should not be taken lightly, and, in fact, is not easy.

Secondly, acquiring U.S. citizenship often may prove to be useful in the future, i.e., if one later decides to marry or bring other family members, most often parents. The visa waiting line for permanent residents' spouse and other family members is so long that it is often faster to wait for the petitioning permanent resident to obtain citizenship.

Third, in times of emergency, U.S. citizens are more likely to receive protection from the U.S. government than permanent residents are. This may be a concern to some individuals who are adventurous or committed to international issues and travel to remote or potentially dangerous places. Lately, we heard about Chinese scholars, who are permanent resident of the U.S., being detained by the Chinese government under the suspicion of espionage while they were conducting academic research. In reality, once one gains a permanent resident status in another country, one's allegiance to the home country may be already in doubt from the perspective of the home country. This can potentially create a limbo status in which one does not belong to any country and cannot expect assistance or protection. The above point brings the issue of dual citizenship. A person may be a citizen of more than one country. Dual citizenship situations arise because there is no single international norm on the acquisition of citizenship. Some countries follow the jus soli principle while others adhere to the jus sanguinis rule. Dual citizenship situations arise under several circumstances, including: by birth in the U.S. to parents who are nationals of a country that bases its citizenship on parentage; by birth in a foreign country that follows jus soli to at least one U.S. citizen parent; by naturalization of a U.S. citizen in a foreign state, provided the U.S. citizen is not found to harbor the intent to relinquish U.S. citizenship; by naturalization in the U.S. of a foreign national where the foreign country does not recognize any expatriation, etc.

Dual citizenship is not explicitly allowed or disallowed in the U.S., and yet it is not favored under law because the oath of allegiance to one country may conflict with one's allegiance to another country.

Although U.S. law does not require a dual national to elect one nationality over another, and therefore effectively allows dual citizenship, some countries take a position that the oath of allegiance to the U.S. expatriates the person from his/her citizenship, which disallows dual citizenship. In such situation, one must consider the practical reality that the acquisition of U.S. citizenship can be viewed as an evidence of lack of loyalty to the mother country and may have negative influence on his/her career if he/she wishes to return to home country.
If you have considered all the above issues and wish to apply for U.S. citizenship by finding out if you are eligible for it, please read the rest of the article that will discuss the requirements and regulations regarding naturalization.

Now if you have read my caveat, considered all the preliminary issues, and wish to become a U.S. citizen by naturalization, you need to find out the requirements and your eligibility for naturalization.
You may apply for naturalization if you are at least 18 years of age, are a lawfully admitted and continuous permanent resident, and have satisfied the 5-year/30-month (or 3-year/18 month) residency requirements. You must also be a person of good moral character. While the first requirement is self-explanatory, the last three requirements are not as clear. If you have any doubt, you should discuss in detail your eligibility with a qualified immigration lawyer before beginning the N-400 application.

In addition to the above basic requirements, one must show the examiner your knowledge of the history and government. There are other important considerations, that are less known to the public. For example, if you received your green card based on employment (no matter how long ago), you may be required to show that you worked for your sponsor after the grant of permanent residency (green card). As an immigration lawyer, I see many applicants come to us in panic after they were asked at the naturalization interview for such evidence. Similarly, if your green card was based on a marriage to a U.S. citizen and you are no longer married to the same spouse, the circumstances must be explained.
Further, the BCIS now increasingly inquires into the applicant's prior conduct and moral character past the five-year statutory period. If you have had any brush with the law, either in the U.S. or abroad, throughout your life, you must discuss it with your attorney and be prepared to produce all records and criminal dispositions.

Special Situations

In some special situations, you may be able to get naturalized without meeting the basic requirements described above. If you are married to a U.S. citizen and your spouse is employed abroad by qualified U.S. business entities such as the U.S. Government, research institution, qualifying U.S. firm or corporation, or certain other personnel performing duties abroad, you may preserve your residency by notifying the BCIS beforehand. If you must leave the U.S. for one of the stated reasons and wish to qualify for naturalization within the statutory period, again, please call an experience immigration lawyer to discuss your situation.
Finally, there has been a new development regarding minor children of U.S. citizens. According to the new law, if at least one of the parents becomes naturalized, his/her minor children derive their U.S. citizenship from their parent's without making a separate application.

Good Moral Character

Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization. The Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:
Has committed and been convicted of one or more crimes involving moral turpitude
Has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
Has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana
Has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more
Has committed and been convicted of two or more gambling offenses
Is or has earned his or her principal income from illegal gambling
Is or has been involved in prostitution or commercialized vice
Is or has been involved in smuggling illegal aliens into the United States
Is or has been a habitual drunkard
Is practicing or has practiced polygamy
Has willfully failed or refused to support dependents
Has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.
Language Applicants for naturalization must be able to read, write, speak, and understand words in ordinary usage in the English language. Applicants exempt from this requirement are those who on the date of filing:
Have been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 15 years or more and are over 55 years of age;
Have been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 20 years or more and are over 50 years of age; or
Have a medically determinable physical or mental impairment, where the impairment affects the applicant's ability to learn English.

United States Government and History KnowledgeAn applicant for naturalization must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States. Applicants exempt from this requirement are those who, on the date of filing, have a medically determinable physical or mental impairment, where the impairment affects the applicant's ability to learn U.S. History and Government.

Applicants who have been residing in the U.S. subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 65 will be afforded special consideration in satisfying this requirement.
Oath of Allegiance To become a citizen, one must take the oath of allegiance. By doing so, an applicant swears to:
support the Constitution and obey the laws of the U.S. ;
renounce any foreign allegiance and/or foreign title; and
bear arms for the Armed Forces of the U.S. or perform services for the government of the U.S. when required .
In certain instances, where the applicant establishes that he or she is opposed to any type of service in armed forces based on religious teaching or belief, USCIS will permit these applicants to take a modified oath.
These are general guidelines only. If you wish to discuss your eligibility, please e-mail a brief description of your situation to heller@hilglaw.com.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

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