On Oct 16 2019 by Anusree Nair
Elections Are Coming: Filing for U.S. Citizenship
As an election year approaches, I receive many inquiries about applying for citizenship so that individuals are eligible to vote, which is not possible as a permanent resident (also known as having a green card). Therefore, a brief introduction to the naturalization process may be helpful and timely, as we head into a presidential election year.
There are a few ways that an individual may become a U.S. citizen. The two most common are: birth in the U.S. or an application for naturalization.
In this article, I will be discussing the application of naturalization – when a permanent resident applies for citizenship.
In short, the process begins with filing form N-400 with USCIS. Shortly after USCIS issues a receipt notice, the lawful permanent resident (LPR) will be scheduled to appear for biometrics (fingerprinting and digital photographs). Generally, the LPR is then scheduled for an interview between 6-8 months from the date of filing – however, the exact timelines can vary. Once approved, USCIS will schedule the LPR for an oath ceremony, during which the LPR will be sworn in as a citizen of the United States. LPRs are eligible to apply for naturalization if they have been an LPR for 5 years — 3 years if the applicant’s U.S citizen spouse has been a citizen for 3 years, and the applicant has been living with the spouse during that time.
To be eligible, the LPR must meet several requirements including age, residency requirements, good moral character, proficiency in English, and pass a test in U.S. history and government (civics).
The first and easiest criterion is that of age. An applicant must be over the age of 18.
Meeting the residency requirements may be a bit more complicated, depending on the LPR’s unique situation. As processing times vary from state to state, applicants must have resided in the state of filing for at least 3 months prior. Besides this rule, there are two main residency requirements to be met: continuous residence and physical presence.
Absences of more than 6 months but less than one year may disrupt the continuous residence requirement unless the LPR can establish that they did not intend to abandon their residence in the U.S. An LPR can prove that they did not intend this by documenting: that the LPR did not terminate their employment in the U.S. or obtain employment overseas; the LPR maintained access to their home in the U.S., and the LPR has immediate family members in the U.S.
Absences of one year or more at a time outside of the U.S. will generally be considered to have disrupted their continuous residence. Then the LPR will only be eligible to apply for naturalization for four years and one day (or 2 years and a day if based on a marriage) from the date the LPR returned to the U.S.
In order to meet the physical presence requirement, an applicant must be physically present in the U.S. for at least 50% of the prescribed time in a 3- or 5-year period. Those applying based on marriage must be physically present for 1.5 years (or 18 months) prior to the application for naturalization.
In order to meet the physical presence requirement, an LPR must review passport stamps, airline tickets, travel records to determine how much time was spent outside of the U.S. The total number of days spent outside the U.S. during the required period will be added up and if the LPR hasn’t spent the minimum required time in the U.S., the application will be denied. To resolve this, the LPR can simply remain in the United States long enough to meet the eligibility requirement before applying.
The LPR must continue to meet the continuous residence and physical presence requirement from the time of filing the naturalization application until they become U.S. citizens.
Good moral character, another requirement for naturalization, is normally shown by the absence of negative factors. LPRs having any criminal convictions, or who have adverse factors including, but not limited to, engaging in illegal gambling, failing to pay support to dependents, falsely claiming to be a U.S. citizen, or failure to file tax returns. LPRs with any criminal violations or other adverse factors should contact an experienced attorney before applying for naturalization as these factors can not only result in a denial of the application for naturalization but could also negatively affect their immigration status.
An LPR must also demonstrate that they are able to read and write in English. To test this, the interview is conducted in English, and the LPR must read and write one sentence in English.
LPRs must also demonstrate knowledge of the fundamentals of United States civics and history. Out of a pool of 100 questions about U.S. history and government, the USCIS officer will ask the LPR up to 10 out of the 100 questions. The LPR must answer 6 of the 10 questions correctly to pass the exam. If an applicant does not pass the exam, the officer will schedule a second interview within 90 days of the first interview. But if the LPR fails the second interview, the officer will terminate the application.
There are some exceptions to the English language requirements: Applicants who are 50 years or older and have been permanent residents for 20 years, or who are 55 years or older and have been permanent residents for 15 years are exempt from the English language requirement and may conduct the interview and take the civic test in their language of choice using an interpreter. Applicants who are over 60 years of age and have resided in the U.S. as LPRs for at least 20 years are exempt from the English language requirement and, furthermore, their civics exam questions are chosen from a smaller list of 20 questions rather than the standard list of 100 questions.
Those with medical disabilities impacting their ability to learn maybe exempt from both the English language requirement as well as the civics exam. The LPR must submit Form N-648 completed by a medical professional (MD, DO, or Clinical Psychologist) attesting to the nature and extent of the medical condition and how the medical condition relates to the applicant’s inability to comply with the English and civics exams. Finally, the applicant must certify support of the constitution and laws of the United States, must renounce foreign allegiances and titles, and must be willing to perform one of the following three things if required by law: bear arms (fight in the military) on behalf of the United States, perform non-combatant services in the military, or perform work of national importance under civilian direction. If the applicant is not willing to perform any of the last three options, they must confirm that such opposition is based on religious training, belief, or other reasons of good conscience. The LPR can provide a statement or an affidavit from religious officials or other qualified witnesses.
Deciding whether to naturalize is very personal choice and there are several important factors to weigh. A U.S. citizen can vote in elections, sit on a jury, have greater options to sponsor family members, be eligible for employment requiring U.S. citizenship. Additionally, U.S. Citizens are not subject to deportation or abandonment of status by residing overseas. If an LPR is interested in applying for citizenship, they may want to discuss the option with an experienced attorney to help decide if naturalization is the right option for them.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the October 11, 2019 edition of the The Legal Intelligencer© 2019 ALM Media Properties, LLC. All rights reserved.
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