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U.S. Citizenship and Naturalization

 

The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

For most non-U.S. citizens, naturalization is the final and happy destination in a long journey through the immigration process.

Many immigrants will spend between ten and twenty years in both nonimmigrant and lawful permanent resident status before becoming eligible for U.S. citizenship through naturalization. Advising and guiding an immigrant through the process can be both rewarding and challenging. This chapter will discuss the different ways that individuals can acquire U.S. citizenship, including citizenship at birth, through parental relationships, and naturalization.

As a threshold matter, it is important to distinguish between derivation of citizenship and citizenship through naturalization. The former involves a client a client who can make a claim that he or she is a citizen; perhaps he or she is in need of assistance obtaining documentation of U.S. citizenship. The latter involves a process by which lawful permanent residents of the U.S. become citizens after making an application for naturalization, undergoing an examination by the Department of Homeland Security, and taking the oath of allegiance to the United States. This chapter primarily will discuss citizenship through naturalization. However, it also will touch upon the various ways an individual derives citizenship either at birth or at a later date through a parental relationship.

I. Deriving U.S. Citizenship

Individuals can derive U.S. citizenship either through birth in the United States or one of its territories, or through a parental relationship. You may come into contact with a client who always believed he was a U.S. citizen, only to find out that he cannot prove that citizenship later in life. You also may come into contact with a client who was born outside the United States, but who now wishes to make a claim to citizenship because his parents or grandparents lived in the U.S. Oftentimes, attorneys get involved when the client learns from another administrative agency, like social security, that they do not have a record of citizenship for the individual. Or, the individual will have a difficult time obtaining or extending a driver’s license, or completing and documenting a Form I-9 at a new job.

When representing a client who is exploring a claim to U.S. citizenship, it is important to understand the client’s complete history, from where and when he was born, when and where his parents were born and where they resided, and even when and where his grandparents were born and where they resided. These facts can be the key to determining whether the client has a claim to U.S. citizenship.

a. Citizenship at Birth

The U.S. follows the principle of jus soli: citizenship is acquired through birth in the United States or certain territories. The Fourteenth Amendment to the Constitution states that “all persons born or naturalized in the United States…are citizens of the United States.” While there has been some debate over the past few years of whether the United States should continue the principle of jus soli or move to the principle of jus sanguinis, that is, citizenship determined by parentage, we remain a “right of the soil” country for now.

Congress has expressly stated that “a person born in the United States, and subject to the jurisdiction thereof” is a citizen at birth.1 The key to proving citizenship at birth is producing a birth certificate, although the absence of an official birth certificate is not entirely decisive.2 The Immigration and Nationality Act (“INA”) outlines further the classes of persons who are citizens and nationals at birth. Persons born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe are citizens at birth.3 Persons born outside the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person also are citizens at birth.4

If a person is born outside the U.S., he or she also is a citizen at birth if he or she has: (1) one U.S. citizen parent who has been physically present5 in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and (2) the other parent is a national,6 but not a citizen of the United States.7 An individual also is a citizen at birth if born in an outlying possession of the United States of parents, one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.8

An individual who is born outside of the U.S. and its outlying possessions who has one U.S. citizen parent and one alien parent is a citizen at birth if the U.S. citizen parent, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.9 Periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with certain international organizations, may be included in order to satisfy the physical-presence requirement.10

For many individuals, the key to proving citizenship at birth in these cases is documenting the U.S. citizen parent’s physical presence in the United States. There is a presumption of alienage for individuals who were born abroad, and consequently the burden of proof falls on the individual claiming citizenship by a preponderance of the evidence.11 Submission of the applicant’s birth certificate, parents’ birth certificates, tax records, school records, real estate records, leases, and bank records can help to meet this burden.

If you are assisting a client in proving U.S. citizenship at birth, and the individual has a claim to citizenship under 8 U.S.C. §1401, the individual can apply for a certificate of citizenship using Form N-600 and filing it with U.S. Citizenship and Immigration Services (“USCIS”).12 USCIS will determine citizenship and issue a formal certificate of citizenship, which is used to obtain a U.S. passport. Alternatively, the individual can apply directly for a U.S. passport.13 The certificate of citizenship and passport are primary evidence of U.S. citizenship.

b. The Transmission Rule

As you will notice, many of the laws governing citizenship require the applicant to prove that a parent has spent periods of time physically present in the U.S. These are requirements for the “transmission” of citizenship from parent to child. In these cases, the transmission law that was in effect at the time of child’s birth controls.14 This is important to remember, as the citizenship laws have changed greatly over time.

c. Derived Citizenship through Parent’s Naturalization or Birth in the U.S.

An individual also can derive citizenship through their parent’s naturalization or birth in the U.S.15 Under 8 U.S.C. §1431, the Child Citizenship Act of 2000, a child derives citizenship if: (1) one parent is a citizen by birth or naturalization; (2) the child is under 18; (3) the child is residing in the U.S. as a lawful permanent resident; and (4) the child is residing in the U.S. in the legal and physical custody of the U.S. citizen parent.16 A client may have a claim to U.S. citizenship through derivation under this section of the law even if the U.S. citizen parent does not meet the physical presence requirements for the child to be a citizen at birth.

There is a presumption of legal custody by the U.S. citizen parent if any one of the following are true: (1) the biological child resides with both parents who are married and not separated; (2) the biological child resides with a surviving natural parent and the other is deceased; or (3) the child is born out-of-wedlock but has been legitimated and resides with the natural parent.17 Joint custody is sufficient for legal custody.18 If the child is adopted, a formal adoption decree is required. Step-children of U.S. citizens do not count.19 The applicant also uses Form N-600 and applies for the certificate of citizenship from USCIS, thereafter obtaining a U.S. passport as primary evidence of citizenship.

The Child Citizenship Act of 2000 went into effect on February 27, 2001. For children who turned 18 prior to this law’s enactment, there are heavier burdens on the applicant to prove U.S. citizenship.20 Like the law on acquisition of citizenship at birth, the law on acquisition of citizenship through derivation from a U.S. citizen parent has changed many times, and a full discussion is outside the scope of this chapter.

Practice Tip: A complete and helpful guide to the laws for citizenship is available in the Department of State’s Foreign Affairs Manual (“FAM”).21 Because the transmission rule requires research into the citizenship law in effect at the time of the child’s birth, the FAM is a helpful resource for the history of the citizenship laws and can assist in this research.

II. Citizenship through Naturalization

Although you may occasionally have a client who has a claim to U.S. citizenship at birth or through derivation from a parent, the large majority of cases involving citizenship are applications for naturalization. This is an affirmative application to USCIS to become a citizen of the United States. It is the formal mechanism set in place by Congress under Article I, §8, cl. 4 to the Constitution whereby lawful permanent residents of the United States acquire citizenship through a “uniform law of naturalization.”

a. Basic Requirements

The basic criteria for naturalization are:

  1. The applicant must be a lawful permanent resident (or a “green card” holder).22 The only exception to this rule is if a person honorably served in the U.S. military in a time of war or declared hostilities during period designated by the President by Executive Order;23
  2. The applicant must be 18 years or older;24
  3. The applicant must meet the “continuous residence” and “physical presence” requirements;25
  4. The applicant must meet the good moral character requirements prior to filing and up to the time of admission as a U.S. citizen;26
  5. The applicant must be attached to the principles of the Constitution and well-disposed to the good order and happiness of the United States;27
  6. The applicant must be willing to bear arms, perform noncombatant service or work of national importance;28 and
  7. The applicant must demonstrate knowledge of the English Language, U.S. History and Government.29

When advising an applicant for naturalization, it is very important to understand the alien’s immigration history, criminal history, work history, international travel history and residence both in the U.S. and abroad to accurately assess whether the client should file an application for naturalization. Denial of a naturalization application on certain grounds can land a client in removal proceedings.30

Practice Tip: There are special naturalization rules for individuals who served in the U.S. military. If your client discloses that he or she has served in a branch of the U.S. military, or has a spouse that is serving or has served in a branch of the U.S. military, visit www.uscis.gov/military for information on the special military naturalization programs (which waive the residency and physical presence requirements for applicants).

b. Examining the Residence Requirements

There are four main residence requirements in the naturalization application: (1) time spent as a lawful permanent resident; (2) time residing in the State where the application is being filed; (3) time spent physically present in the United States; and (4) time spent continuously residing in the U.S. from the time of filing the application until the time of admission to citizenship.

To be eligible for naturalization, the applicant must be a continuous resident for five years after lawful permanent resident status is achieved.31 If the applicant is married to a U.S. citizen for three years and the parties have been living in marital union for three years and actually residing together during that time, then a person need only be a permanent resident for three years before applying for naturalization.32

Further, the applicant must have resided for at least three months in the State where the application has been filed.33

Practice Tip: This is sometimes overlooked by the attorney or the applicant. Thus, it is important to examine the past residences of the applicant for the entire five years preceding the application for naturalization.

The applicant also must be physically present in the United States for at least one-half of the five (or three) years immediately preceding the application for naturalization.34 As a practical matter, the Form N-400, Application for Naturalization, requires the applicant to list all days spent outside of the United States over the previous five years; it requires a tally, to the best of the applicant’s ability, of all days spent outside the United States during that period.

Practice Tip: Advise non-citizen clients to keep a list of all days spent outside the U.S. to ease the naturalization process, including trips by car to Canada and Mexico. This will avoid the necessity of recreating all international trips from passport stamps and plane tickets.

Finally, the applicant also must reside continuously in the U.S. from the date of filing the application to admission as a U.S. citizen.35 Absences of over six months but less than one year raise a rebuttable presumption that the continuity of residence has been interrupted.36 Absences of one year or more disrupts the continuity of residence.37

There are several exceptions to the continuity of residence rule. Time spent abroad by a spouse or child or a member of the Armed forces residing with the family member abroad is deemed to be time spent in the U.S.38 Employees of the U.S. government, an American research institute,39 a U.S. firm engaged in the development of foreign trade and commerce, or a public international organization of which the U.S. is a member can be exempted from the requirement if they first file Form N-470 to preserve their residence in the U.S.40 The same exceptions apply to permanent resident spouses of U.S. citizens who work for the U.S. government, an American research institute, a U.S. firm engaged in the development of foreign trade and commerce, or a public international organization of which the U.S. is a member.41

A person with a disruption in continuous residence may reapply for naturalization four years and one day following the date of return to the U.S.42 If the permanent resident is married to a U.S. citizen and living with them, thereby implicating the three year period of residence for naturalization, the individual must meet two years and one day of residence following the return before filing for naturalization.43

c. The Good Moral Character Requirement

Naturalization requires the applicant to be a person of good moral character for five years (or three years in the case of marriage to a U.S. citizen) prior to filing the N-400, Application for Naturalization.44 This requirement extends all the way up through when the applicant takes the oath of allegiance and is sworn in as a U.S. citizen. A determination of good moral character is governed both by the statute and as a matter of discretion.

Every good moral character determination is a two part inquiry. First, USCIS will determine if there is a statutory bar under 8 U.S.C. §1101(f) to finding good moral character ever (in the case of a convicted murderer or aggravated felon who can never naturalize) or within the requisite period under the statute (either three or five years). If there is a statutory bar to finding good moral character, the application must be denied. If there is no statutory bar to finding good moral character, then USCIS determines if there is some discretionary reason for denial of the application on good moral character grounds. For example, is the applicant convicted of a crime outside the three or five year period? Has the applicant failed to pay court ordered child support? Has the applicant failed to file income tax returns or pay U.S. taxes? USCIS will balance these negative character factors against the other equities in the application in deciding whether to approve or deny the naturalization application.

i. Statutory Grounds of Denial for Good Moral Character

Good moral character is defined in the Immigration & Nationality Act.45 Specifically, the INA dictates that certain classes of individuals cannot be found to have good moral character during the statutory period required, including: habitual drunkards, polygamists, prostitutes, smugglers, aliens convicted46 of a crime involving moral turpitude (“CIMT”), aliens convicted of multiple crimes, aliens convicted of a drug crime, except for a single offense of simple possession of marijuana under 30 grams, and an alien who has been confined to a penal institution for an aggregate period of 180 days or more.47 Additionally, an individual who at any time has been convicted of an aggravated felony and that conviction was entered on or after November 29, 1990 can never establish good moral character for purposes of naturalization.48

Most often, the issue of good moral character arises when a lawful permanent resident client has been convicted of a crime. Aliens convicted of aggravated felonies (and whose conviction was entered on or after November 29, 1990) can never establish good moral character, even if the conviction occurred outside of the statutory period of good moral character, and thus, they can never naturalize.49 Aggravated felonies are defined in 8 U.S.C. §1101(a)(43), and include murder, rape, trafficking of guns and drugs, crimes of violence, serious fraud convictions, alien smuggling, and theft offense among other things. Such an alien is both removable from the United States and ineligible for naturalization, and so filing the application serves only the detrimental purpose of alerting the Department of Homeland Security that the alien is removable. You should refer the client immediately to an experienced immigration attorney if he or she discloses an aggravated felony conviction.

Aliens convicted of CIMTs50 and aliens convicted of multiple crimes51 or a drug crime, except for a single offense of simple possession of marijuana under 30 grams,52 are ineligible for naturalization if the conviction(s) occurred during the required period of good moral character (either three of five years). CIMTs are not defined in the INA; instead, a patchwork of immigration cases from the Board of Immigration Appeals (“BIA”) and the U.S. Circuit Courts of Appeals have determined which crimes are CIMTs. The most common elements involving moral turpitude include fraud, larceny, or intent to harm persons or things. A full discussion of which crimes are categorized as CIMTs is outside of the scope of this chapter. However, attorneys familiarizing themselves with the various CIMTs should visit the State Department’s website53 for an excellent list of common crimes involving moral turpitude, including crimes against property, crimes against persons, family or morality, crimes against the government, and attempts, accessories to crimes, and conspiracy. This list can be utilized as a research starting point for determining whether a crime is considered a CIMT.

Additionally, an alien cannot establish good moral character during the requisite period if the alien has been convicted for two or more offenses (other than purely political offenses), regardless of whether or not the convictions arose from a single trial or arose from a single scheme of conduct involving moral turpitude and whether or not the offenses involved moral turpitude, if the aggregate sentence of confinement actually imposed is five years or more.54 Drug crimes also are a serious issue, unless the conviction is for a single offense of simple possession of 30 grams or less of marijuana.55 Moreover, an alien who, during the good moral character period, has been confined as a result of conviction to a penal institution for an aggregate period of one hundred and eighty days or more is ineligible for naturalization, regardless of whether the offense, or offenses, for which he has been confined were committed within or outside the good moral character period.56 If any of these statutory bars apply, the applicant cannot establish good moral character during the requisite period, and the application should not be filed until at least five years have passed and the applicant can demonstrate rehabilitation and good moral character.

Practice Tip: It is important to be absolutely certain of all law enforcement contact with the client. The Form N-400, Application for Naturalization,57 asks not only about criminal convictions, but also about any arrests the client has had and any charges that have been filed against alien. The form also asks if the alien has ever been arrested, cited or detained by any law enforcement officer (including USCIS or former INS and military officers), or if the alien has ever been placed in an alternative sentencing or rehabilitation program.58 With these questions, USCIS is determining whether there is a statutory ground of ineligibility based on moral character or whether, as a matter of discretion, the application should be denied.

ii. Discretionary Denials for Good Moral Character

Failure to support dependents, adultery tending to destroy a marriage, and commission of unlawful acts that adversely reflect upon the applicant’s moral character, regardless of whether they constitute CIMTs, have been used to deny naturalization applications as a matter of discretion.59 Convictions outside of the statutory period of good moral character of either three of five years also are still influential on the application. Naturalization is a discretionary application; therefore, crimes committed outside of the good moral character period do not demand ineligibility, but they do have bearing on the application.60 USCIS will balance the negative factors against the applicant’s good moral character.

Practice Tip: Rehabilitate your client. If a client is seeking naturalization and he or she has a CIMT conviction outside the statutory period of good moral character, or has a conviction of a crime that is not a CIMT but which occurred during the good moral character period, have the client prepare evidence of his or her “good moral character.” Such evidence can include donations to charitable organizations, volunteer activities, participation in a Church or other community-based organization, etc. The client should have this ready for presentation to the officer at the naturalization interview, should USCIS require evidence of good moral character and rehabilitation.

d. Other Common Pitfalls and Roadblocks to Naturalization

Other than the criminal convictions discussed above, USCIS examines additional elements of good moral character that could present issues for clients, including false claims to U.S. citizenship, failure to register for the selective service, a bad driving record or history of DUIs, and failure to file and pay federal, state and local taxes.

i. But I Thought I was a Citizen?! False Claims to U.S. Citizenship

False claims to U.S. citizenship are very problematic for alien clients. In general under immigration law, making a false claim to U.S. citizenship is considered a serious fraud against the government and makes the alien permanently inadmissible to the U.S., and removable from the U.S.61 It is important to properly screen the client as an applicant for naturalization to determine whether the client has ever called himself a U.S. citizen on Form I-9 when he started a new job, on a social security application, on an application for benefits with another administrative agency, or in the course of registering to vote in a federal, state or local election.

If the client was actually convicted under 18 U.S.C. §1015(f) for making a false claim to U.S. citizenship to vote or to register to vote, or if the client is convicted under 18 U.S.C. §611 for voting in a federal election as a noncitizen, he or she will have a conviction of a CIMT, as a fraud against the U.S. government.62 If there is no conviction, USCIS will determine if there is a discretionary reason for denial of the naturalization application, including unlawful voting, unlawfully registering to vote, or a false claim to U.S. citizenship. There will be a balancing of the equities in the application. If a client discloses a false claim to citizenship or unlawful voting, the alien should contact an experienced immigration attorney.

There is only one narrow exception to this rule: in the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.63

As a practical matter, filing a naturalization application for a client who has made a false claim to U.S. citizenship within the requisite period of good moral character will result in a discretionary denial of the application, and could result in the initiation of removal proceedings. At a minimum, the client should be advised to wait until he or she meets the requisite period of good moral character after the false claim was made or the unlawful voting occurred. During that time, the applicant also can work on his or her good moral character by donating to charitable organizations, volunteering and being active in the community. The client also must be fully warned of the risks of filing the application, including the risk of a discretionary denial for the false claim to citizenship, even though it may be outside of the requisite period of good moral character.

ii. Selective Service Registration? What’s That?

Almost all male U.S. citizens, and male aliens living in the U.S., who are 18 through 25, are required to register with Selective Service.64 Noncitizens who are not required to register with Selective Service include men who are in the U.S. on student or visitor visas, and men who are part of a diplomatic or trade mission and their families.65 Almost all other male noncitizens are required to register, including illegal aliens, legal permanent residents, and refugees.66 The general rule is that if a male noncitizen takes up residency in the U.S. before his 26th birthday, he must register with Selective Service.67

Knowingly and willfully failing to register with the Selective Service Registration between 18 and 26 years of age during the statutory period of good moral character can result in the denial of a naturalization case. As a practical matter, USCIS can deny the application on the basis that the applicant refuses to bear arms pursuant to INA §337(a)(5)(A).68 Also in practice, an applicant is not permanently barred from establishing good moral character even if he knowingly and intentionally failed to register with the selective service. In general, males over 31 seeking to naturalize are outside the 5 year statutory good moral character period and are ordinarily eligible for naturalization. Again, USCIS will balance the equities of the case, including failure to register with the selective service against other evidence of good moral character presented in the application.

iii. When a Bad Driving Record Presents a Roadblock

Unfortunately, speeding, reckless driving and driving under the influence convictions are ever-increasing on the rap sheets of clients. The N-400 Application asks for the applicant to disclose any arrests, charges, citations, or convictions received ever. This includes traffic infractions. As a practical matter, a pattern of disregard of the driving laws may result in a lack of good moral character finding at the USCIS level. However, courts have found that failure to pay parking fines and repeated parking tickets could not be used as a basis to find a lack of good moral character.69 The attorney should weigh the gravity and frequency of traffic violations against the other positive factors in the application. Repeated DUIs, for example, could signify a disregard for the laws of the United States, and could demonstrate a lack of good moral character. In short, be prepared to rehabilitate the client to balance out these negative factors.

iv. Failure to File Tax Returns or Pay Taxes

The N-400 Application inquires whether the applicant has failed to file a required federal, state or local tax return since becoming a permanent resident of the U.S. The form also asks if the applicant filed as a “nonresident” or if the applicant owes any federal, state or local taxes that are overdue. In practice, failing to file tax returns or to pay taxes owed are discretionary factors in the good moral character determination. Deliberate failure to file tax returns or pay taxes due can be used as a reason to deny the application on discretionary grounds.
Practice Tip: Determine the date on which the applicant became either a conditional permanent resident of the U.S. (if applicable) or the date on which the applicant became a lawful permanent resident of the U.S. Inquire about the tax history of the client in detail from that point forward, making sure that tax returns were filed each year as a “resident” and not a “nonresident.” If there is a pattern of a failure to pay taxes owed within the statutory period of good moral character, advise of the possible risk of denial.

e. The Application Procedure

An Application for Naturalization is filed on Form N-400 with USCIS. Applicants can obtain the form instructions and download the current version of the form at the USCIS website: www.uscis.gov. The current USCIS filing fee for the N-400 Application is $680. Instructions on where to file the application based on the applicant’s residence also are found on the USCIS website.

An application should be fully completed, and should include a copy of the lawful permanent resident card of the applicant, along with two (2) passport style photos of the applicant. If the applicant has been convicted of a crime, an original record of conviction should be attached showing the final disposition. Once completed, the application can be filed up to 3 months before the continuous residence requirements are met.70

Practice Tip: As discussed above, under 8 U.S.C. §1431, the Child Citizenship Act of 2000, a child derives citizenship if: (1) one parent is a citizen by birth or naturalization; (2) the child is under 18; (3) the child is residing in the U.S. as a lawful permanent resident; and (4) the child is residing in the U.S. in the legal and physical custody of the U.S. citizen parent.71 Including a lawful permanent resident child under 18 on the N-400 application of the parent will allow the child to derive citizenship from the parent when he or she naturalizes. The child does not file his or her own application for naturalization. After the parent’s naturalization, the child can apply directly for a U.S. passport or can file Form N-600 with USCIS to obtain his or her own certificate of citizenship, which is primary proof of U.S. citizenship and also can be used to obtain a U.S. passport.

Once the application is filed, USCIS will commence a background check on the applicant, including FBI background checks.72 USCIS will schedule the applicant for a “biometrics” appointment, and at the appointment, USCIS will capture the electronic fingerprints and photo of the applicant. The fingerprints are run through several databases for both security clearance checks and criminal background checks. Also at the biometrics appointment, the naturalization applicant will receive a book from USCIS that contains a list of 100 questions that could be asked on U.S. history and government at the naturalization interview. The applicant should utilize this resource when studying for the naturalization test, further discussed below.

After completion of the background checks, the file will be forwarded from a USCIS Service Center to a USCIS District Office for scheduling of the naturalization examination, a.k.a. the naturalization interview and tests.

f. The Naturalization Examination

USCIS immigration officers must conduct an examination of applicants for naturalization.73 The naturalization examination is essentially a two-part interview: first a determination regarding the applicant’s naturalization eligibility, including the good moral character inquiry, and secondly a test of the English language, and U.S. history and government.
During the naturalization interview, the USCIS officer must establish that the applicant continues to qualify for naturalization. This includes a complete review of the N-400 application form with the applicant during the interview. In most instances, many months can pass between the time the applicant completes and signs the Form N-400 and the naturalization examination. During that time, the applicant may have arrests or other issues that bear on good moral character.

Practice Tip: It is important to thoroughly prepare a client for the naturalization examination. This includes a review of the form with the client. Have the client confirm that he or she has not been arrested, cited, charged, detained or convicted since filing the application. Confirm with the client that tax returns were filed and taxes paid if tax season has passed since the filing of the application.

After a thorough review of the application form with the applicant, the USCIS officer will move onto the test portion of the examination. Applicants for naturalization must demonstrate elementary-level reading, writing and understanding of the English language,74 U.S. history and government.75 During this second part of the naturalization examination, the applicant will answer 10 questions on U.S. history and government, out of the 100 standard questions on the naturalization test. To pass the test, the applicant need only get 6 questions correct. If the questions are answered correct, the USCIS officer will then administer an English test, which requires the applicant to read an elementary-level sentence and then write the answer (the answer is given by the USCIS officer).76 If an applicant fails the English or civics test, he or she will be offered a second test within 90 days.77

The applicant also must demonstrate an attachment to the Constitution and take the oath of allegiance to the U.S.78 As part of the naturalization examination, the USCIS officer conducting the interview will inquire about the applicant’s attachment to the Constitution and his or her willingness to take the Oath of Allegiance. Prepare the client that he or she likely will need to explain what the Oath of Allegiance means, and they should always review the Oath again prior to the interview.

USCIS shall grant the application if the applicant has complied with all requirements for naturalization.79 A decision to grant or deny the naturalization application must take place “at the time of the initial examination or within 120 days after the date of the initial examination.”80 The process is not over at the naturalization examination, however. The applicant still must take the oath of allegiance to the United States.

g. Oath of Allegiance

If a naturalization application is granted, USCIS must schedule the applicant for a ceremony at which the applicant takes the “oath of renunciation and allegiance” and is sworn in as a citizen of the United States.81 Usually, the oath ceremony is scheduled for another date and time after the naturalization examination, so the applicant can return with friends and family who would like to share in the ceremony. At the oath ceremony, the new citizen returns his or her lawful permanent resident or “green card.”82 In exchange, he or she receives a naturalization certificate, which is primary evidence of U.S. citizenship. The naturalization certificate is then used to obtain a U.S. passport for international travel.

h. Administrative and Judicial Review of Denials

Unfortunately, not all applications for naturalization are approved. If, after an examination under 8 U.S.C. §1446, an application for naturalization is denied, the applicant may request a hearing before an immigration officer.83 This is essentially an administrative appeal of the naturalization application. A person whose application for naturalization is denied, after a hearing before an immigration officer under 8 U.S.C. §1447(a), may seek review of such denial before the United States District Court for the district in which such person resides.84 The review is de novo, and the court makes its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.85 The appeal may involve an evidentiary hearing including the right to subpoena witnesses.86

III. The End of the Road – The U.S. Passport

The culmination of the naturalization process is obtaining a U.S. passport for international travel. With certain limited exceptions, U.S. citizens must re-enter the U.S. using a U.S. passport, and, in general, it is unlawful for any U.S. citizen to depart or enter the U.S. without a U.S. passport.87 If a passport is granted, it is conclusive proof of U.S. citizenship.88

Practice Tip: Visit the U.S. State Department’s website at http://travel.state.gov/ for a host of resources for obtaining passports by U.S. citizens.

IV. Helpful Resources for Attorneys

USCIS has many helpful resources for both naturalization applicants and attorneys. On its website in the Citizenship Resource Center, http://www.uscis.gov/portal/site/uscis/citizenship, USCIS posts both videos and publications on the naturalization process. The videos include: “Becoming a U.S. Citizen: An Overview of the Naturalization Process” and “The USCIS Naturalization Interview and Test.” USCIS also publishes reading vocabulary flash cards, writing vocabulary flash cards and a reading test vocabulary list. USCIS also posts practice naturalization tests on its website.

The USCIS publication, “A Guide to Naturalization,” is also a helpful resource for naturalization applicants and attorneys.89 The Guide describes the benefits and responsibilities of citizenship, FAQs, eligibility requirements, document checklists, and a naturalization eligibility worksheet.

Another helpful resource for attorneys is the USCIS Adjudicator’s Field Manual. Found on the www.uscis.gov website under “Laws” and then “Immigration Handbooks, Manuals and Guidance,” this field manual guides adjudicators in deciding naturalization and citizenship applications. Part VII specifically deals with nationality and naturalization, and contains citations to statute, regulations and case law governing the eligibility requirements for transmission and acquisition of citizenship as well as naturalization.

Attorneys who do not regularly practice immigration law should utilize the resources in this chapter to effectively represent non-citizen clients on their path to citizenship. I hope you will find that assisting a client through the naturalization process is both rewarding and challenging.


1 8 U.S.C. §1401(a).
2 U.S. v. Breyer, 841 F.Supp. 679, 684 (E.D.Pa. 1993), citing Liacakos v. Kennedy, 195 F. Supp. 630 (D.D.C. 1961); 4 Gordon & Mailman, Immigration Law and Practice § 99.02[1][b].
3 Id. at §1401(b).
4 Id. at §1401(c).
5 Physical presence is discussed in detail below, Section II.b., infra.
6 A “national” of the United States is a person born in an outlying possession of the United States. 8 U.S.C. §1408. The outlying possessions are defined in 8 U.S.C. §1101(A)(29) as American Samoa and Swains Island. All U.S. citizens are U.S. nationals but only a relatively small number of persons acquire U.S. nationality without becoming U.S. citizens. They cannot vote or hold office, but they can work in the U.S. without restriction and they can apply for U.S. citizenship through naturalization.
7 8 U.S.C. §1401(d).
8 Id. at §1401(e).
9 Id. at §1401(g).
10 Id.
11 8 C.F.R. §341.2(c). See also Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969).
12 Visit www.uscis.gov/forms to download Form N-600 and its accompanying instructions.
13 22 C.F.R. §51.44(b)(2).
14 U.S. v. Flores-Villar, 536 F.3d 990, 994-98 (9th Cir. 2008), cert. granted, No. 09-581, 2010 WL 1005955 (Mar. 22, 2010).
15 The first inquiry always is whether the client may have a claim that he or she was a citizen at birth, as described supra. If no such claim is possible, then the next inquiry is whether the client has derived citizenship through a parent at some time after birth.
16 PL 106-395 §101, 114 Stat. 1631 (2000). See also 8 C.F.R. §320.
17 Id. at §320.1.
18 Id.
19 Matter of Guzman-Gomez, 21 I&N Dec. 824 (BIA 2009).
20 8 U.S.C. §1431, as amended by P.L. 95-417, Repealed by P.L. 106-395.
21 See 7 FAM 1100 et. seq., available at http://www.state.gov/m/a/dir/regs/fam/.
22 8 U.S.C. §1429.
23 8 U.S.C. §1440(a).
24 8 U.S.C. §1445(b).
25 8 U.S.C. §1427(a)(1).
26 8 U.S.C. §1427(a)(3).
27 Id.
28 8 U.S.C. §1448(a)(5)(A)-(C).
29 8 U.S.C. §1423(a)(1); 8 C.F.R. §312.1-2.
30 For example, if an individual has committed certain crimes as a lawful permanent resident, he or she may lack the requisite good moral character for naturalization. The denial of a naturalization application may also draw attention to the Department of Homeland Security that the individual is also removable from the United States, triggering the issuance of a Notice to Appear before an Immigration Judge. Consequences can be severe, so preparation and thorough intake are key to preparing the application.
31 8 U.S.C. §1427(a)(1). 8 C.F.R. §316.5.
32 8 C.F.R. §319.1(a)(3).
33 8 U.S.C. §§1427(a)(1), 1430(a). Residence is defined as the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. 8 U.S.C. §1101(a)(33).
34 8 U.S.C. §1427(a).
35 8 U.S.C. §1427(a)(2); 8 C.F.R. §316.2(a)(6).
36 8 U.S.C. §1427(b); 8 C.F.R. §316.5(c)(1)(i).
37 8 C.F.R. §316.5(c)(1)(ii).
38 8 U.S.C. §1439.
39 See 8 C.F.R. §316.20.
40 8 U.S.C. §1427(b)-(c).
41 8 U.S.C. §1430(b).
42 8 C.F.R.§316.5(c)(1)(ii).
43 Id.
44 8 U.S.C. §1427(a)(3); 8 C.F.R. §316(a)(3).
45 8 U.S.C. §1101(f).
46 Attorneys should take note that while a final record of conviction is primary evidence of the bar to good moral character, an admission of the crime will also bar a finding of good moral character. See 8 U.S.C. §1101(f)(3).
47 Id.
48 8 U.S.C. §1101(f)(8).
49 8 U.S.C. §1101(f)(8).
50 8 U.S.C. §1101(f)(3).
51 Id.
52 Id.
53 See 9 FAM §40.21 (Notes) found at http://www.state.gov/documents/organization/86942.pdf.
54 8 U.S.C. §1101(f)(3). See also 8 U.S.C. §1182(a)(2)(B).
55 8 U.S.C. §1101(f)(3). See also 8 U.S.C. §1182(a)(2)(C).
56 8 U.S.C. §1101(f)(7).
57 This form can be found on the USCIS website: www.uscis.gov/forms.
58 Such programs include diversion, deferred prosecution, withheld adjudication, or deferred adjudication. In many circumstances, these programs can be considered a “conviction” under the INA, even though they may no longer be considered a conviction under state law. Under INA §101(a)(48), “conviction” is defined as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
59 8 C.F.R. §316.10(b)(3).
60 8 U.S.C. §1427(e). 8 C.F.R. §316.10(a)(2).
61 8 U.S.C. §1182(a)(6)(C)(ii), 8 U.S.C. §1227(a)(6).
62 8 U.S.C. §1101(f)(3).
63 8 U.S.C. §1101(f).
64 Visit http://www.sss.gov/FSwho.htm to determine who must register for the Selective Service Registration.
65 Id.
66 Id.
67 Id.
68 See Memo, Virtue, G.C. to Penca, Eastern Reg. Counsel (HQCOU 90/15-P, HQCOU 70/33-P) (April 27, 1998).
69 Yin-Shing Woo, V. U.S., 288 F.3d 434, 435 (2d Cir. 1961). See also Etape v. Napolitano, 664 F.Supp.2d 498, 518 (D. Md. 2009).
70 8 U.S.C. §1445(a). See also 8 C.F.R. §334.2(b).
71 PL 106-395 §101, 114 Stat. 1631 (2000). See also 8 C.F.R. §320.
72 8 U.S.C. §1446(a), Pub. L. 105-119, Title I, 111 Stat. 2440, 2448-49 (1997). See also 8 C.F.R. §§ 335.1, 335.2.
73 8 U.S.C. § 1446(a). See also 8 C.F.R. §§ 335.2, 332.1.
74 8 U.S.C. §1423(a)(1). See also 8 C.F.R. §312.1.
75 8 U.S.C. §1423(a). See also 8 C.F.R. §312.2.
76 There is a limited exception to the English test. Applicants who are over 50 years of age and have lived in the U.S. for 20 years in lawful permanent resident status need not take the English test. 8 U.S.C. §1423(b)(2). Applicants who are over 55 and who have lived in the U.S. for 15 years in lawful permanent resident status are also exempt from the English test. Id. Persons who are physically or developmentally disabled or who have a mental impairment are exempt from the English language and history and government requirements. 8 U.S.C. §1423(b)(1). As a practical matter, however, the disability waiver is difficult to obtain and must be accompanied by credible, medical evidence of the disability.
77 8 C.F.R. §312.5.
78 8 U.S.C. §1427(a)(3). See also 8 C.F.R. §316.11.
79 8 C.F.R. § 335.3(a).
80 8 C.F.R. § 335.3(a). In fact, if USCIS does not make a decision within 120 days following the naturalization examination, the applicant can file a civil lawsuit in United States District Court under 8 U.S.C. §1447(b) to seek judicial determination of the application or an order that USCIS complete adjudication of the application within a specific timeframe.
81 8 U.S.C. § 1448(a).
82 Under 8 C.F.R. §338.14, no certificate of naturalization shall be delivered unless the applicant surrenders the green card.
83 8 U.S.C. §1447(a).
84 8 U.S.C. §1421(c).
85 Id.
86 8 U.S.C. §1447(c), (d). See also 8 C.F.R. §336.2.
87 8 U.S.C. §1185(b); 8 C.F.R. §235.1(b); 22 C.F.R. §53.1, 53.2.
88 22 U.S.C. §2705.
89 This guide is also found in the Citizenship Resource Center.

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