On Apr 09 2009

Naturalization: Acquiring U.S. Citizenship By Choice

A person who has become a lawful permanent resident (a “green card” holder) in the United States, and is over 18 years of age, may want to consider becoming a United States citizen. That process is called naturalization, and is started by filing form N-400 with Citizenship and Immigration Services (CIS) a part of the Department of Homeland Security.

This outline will provide basic information about the process. You may want to discuss naturalization with an experienced attorney who can help you decide if naturalization is right for you, and, if necessary, assist you in successfully navigating the process.

  1. Whether to Naturalize

    As an initial matter, the question of whether to naturalize is an intensely personal one with several important factors to weigh. First, some countries allow for dual citizenship and some do not. You will want to research your home country’s citizenship laws to be sure, and review the section below on dual citizenship.

    Second, you may want to consider whether becoming a citizen of the United States makes sense for your life. All permanent residents are required to pay federal income taxes to the United States, but do not have direct representation in Congress. As a citizen, you may vote for your government officials. Other advantages to becoming a citizen are: the right to sit on a jury, expanded rights to sponsor relatives for permanent residence, the ability to accept certain kinds of employment requiring United States citizenship, more convenient travel, and the full protections of the United States Constitution and laws. In addition, your minor children will normally obtain United States citizenship automatically if you naturalize.

    As a permanent resident, you may still be subject to deportation should you move abroad, or commit certain criminal acts. These criminal acts may be relatively minor, yet still be sufficient to strip you of your residence and require you to leave the country. As a citizen, you would not be subject to deportation or abandonment of status by residing abroad.

  2. Residence Requirements

    In order to apply for naturalization, you will normally need to have been a permanent resident for at least five years. The period is three years if your spouse has been a United States citizen for the last three years, and you lived with your spouse during that time. You may apply up to 90 days before the three or five year mark is reached. The two primary residence requirements can be very complicated and involve analysis of whether you have abandoned your residence, whether you are eligible for citizenship, and what steps you should take to ameliorate any negative impact of your time abroad. The following is a summary of the issues, but can not replace the value of an individualized consultation with an experienced attorney. 

    1. Continuous Residence

      The three-or-five-year residence required begins on the day you were granted permanent resident status (including any period of conditional resident status) and continues as long as you maintain your residence. If you remain outside the United States for excessive periods, or lose your ties to the United States, you may be considered to have not maintained your residence. If you have spent more than six months on any one trip outside the United States, or may absences of shorter length, you may establish you did not abandon your residence with evidence such as: continued employment in the United States, presence of immediate family members in the United States, maintaining full-access to a United States home, and not obtaining permanent employment abroad. If you were outside the United States for one continuous year, you will be considered to have disrupted your residence, with limited exceptions. If you have disrupted your residence, you will not be eligible to apply for naturalization for four years and one day (or two years and one day if based on marriage to a United States citizen) from the date you return to the United States to resume your residence.

    2. Physical Presence

      An often confusing area of naturalization law is the physical presence requirement. This requirement is separate from the residence requirement discussed above. You must have been a permanent resident for the required period of time (generally five or three years), but you must also have been physically present inside the United States for one-half that required time. Here, the exact time you spent outside the United States must be calculated accurately. It is important to review your passports covering the time you have been a permanent resident to carefully construct each trip outside the United States in the five years before your application. You can also use records such as tickets from transportation companies, such as airlines, to establish when you left the United States if you lack stamps in your passport. The total number of days you were outside the United States during the required period will be added, and if you do not demonstrate that you were physically present in the United States for 50% of the days required as of the date you applied for naturalization, you will not be eligible for approval. If you have not yet accrued enough time, you can simply remaining in the United States long enough to meet the eligibility requirement before applying.

  3. Good Moral Character

    All applicants for naturalization must demonstrate their good moral character during the three or five year period of residence required for your application. Good moral character is normally shown by the absence of negative factors. Applications having any criminal convictions, whether or not expunged or pardoned, or who have adverse factors such as engaging in illegal gambling, failing to pay support to dependents, falsely claiming to be a United States citizen, registering to vote or voting in any election, membership in the communist party or other totalitarian organizations, failure to register with selective service, or helping relatives enter the United States illegally, you should contact an experienced attorney to determine whether that activity may impact the applicants immigration status or naturalization application.

  4. Language Requirements

    Applicants for naturalization must be able to speak, read and write the English language with limited exceptions. The naturalization interview is conducted in the English language to test this requirement, and includes writing one sentence in English, and reading one sentence in English. Applicants who are 50 years of age and have been permanent residents for 20 years, or who are 55 years of age and have been permanent residents for 15 years, or who have medical disabilities impacting their ability to complete the interview in English or take the civics test (with a properly completed form N-648 from a doctor), may take the required tests in their native language through the use of an interpreter. Additionally, those with medical disabilities impacting their ability to learn may be allowed to not take the tests at all.

  5. Civics Tests

    All applicants must demonstrate knowledge of the fundamentals of United States civics and history. The applicant must successfully answer 6 of the 10 questions selected from a list available at http://www.uscis.gov/files/nativedocuments/100q.pdf, in order to pass. Should the applicant not pass at the initial interview, the officer will schedule a second interview within 90 days. If the applicant is not able to successfully answer 6 questions at the second interview, the officer will terminate the application.

  6. Support for the Constitution and Laws of the United States

    As part of the application, 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 do any of the last three options, a demonstration must be made that such unwillingness is born from religious training, belief, or other reasons of good conscience. Typically, this is accomplished by a statement from religious officials, the applicant, or other qualified witnesses regarding the applicant’s conscientious objections.

  7. Interview Process

    Once the form N-400 is properly filed, the CIS will generate a receipt notice. Shortly after you receive that notice, you will receive a request to appear at an Application Support Center (ASC) in your area which will process you for your biometrics (fingerprints and photographs). The next step is the scheduling of the interview, which may take between 4 and 12 or more months, depending on your state of residence.

  8. Approvals, Denials, Appeals and Litigation

    If the application is approved, the applicant does not become a citizen until he or she takes the oath of allegiance and receives a naturalization certificate. Most applicants will become citizens at an oath ceremony before a federal district court judge or CIS supervisor. These oath ceremonies can take place anywhere from 1-4 months after approval on the N-400, depending on your location.

    Should the application be denied, for whatever reason, the applicant may request a new hearing by filing form N-336 within 120 days of the adverse decision, and may request court review of a final denial or a failure to receive a decision within 120 days of the interview. If your application is denied, or pending a decision, you should review your options with an attorney as soon as possible.

  9. Travel

    During the time a naturalization application is pending, there are no travel restrictions on a permanent resident (other than the normal rule that prolonged absences may cause questions about maintaining permanent resident status). After approval, a new citizen should obtain a US passport. Except in very limited circumstances, all United States citizens must use a passport issued by the United States Department of State in order to travel out of and return to the United States. Therefore, you should promptly apply for United States passport once you have been sworn in as a United States citizen and issued your naturalization certificate. At most oath ceremonies, there will be a representative providing information on applying for United States passports.

  10. Dual Citizenship

    The Oath of Allegiance contains a provision in which the applicant for naturalization renounces all other nationalities. This renunciation of other nationalities means that for United States law purposes, you will no longer be considered to have any nationality other than United States nationality.

    Whether taking the United States Oath of Allegiance and becoming a United States citizen causes you to lose your current nationality is not a matter covered by United States law. Some countries (e.g. Canada, the United Kingdom) continue to consider their citizens to have their original nationality even after acquiring United States nationality. Some countries (e.g. Brazil) do not, and some countries (e.g. Germany) provide an administrative mechanism to keep the home country citizenship after naturalization in another country. Further guidance on dual citizenship after United States nationality can be obtained from an attorney.

  11. Special Situations

    Some children become citizens of the United States automatically upon the naturalization of one of their parents, or simply residing with at least one United States citizen parent if they entered the United States as Lawful Permanent Residents (LPR), or became a permanent resident after entry. Nationals of the United States have a very different set of requirements to become a citizen of the United States, and should consult with an experienced attorney to determine whether they are eligible.

    Some individuals may want to refrain from filing for naturalization, or withhold filing for an extended period of time depending on their criminal history. When you apply for citizenship, your recent, and potentially entire, criminal history is reviewed. If you have committed, been convicted of, or charged with any crime, even if you think the record has been expunged or erased, you may be denied naturalization, and more importantly, you could face deportation.

    Residents whose spouses are United States citizens who are sent abroad by their employers who are: part of the United States government, an American research firm, or an American business engaged at least in part in the development of foreign trade, may apply immediately for citizenship. In order to file immediately, you must demonstrate that you are going to be stationed abroad for at least one year, are regularly stationed abroad, and need to leave immediately after naturalization.

    Lastly, United States permanent residents serving in the active or reserve military have several methods of obtaining citizenship on an expedited basis depending on the length of service, whether or not you are already a permanent resident, whether or not your service was during one of several designated theatres, etc. There are also naturalization benefits for spouses of United States soldiers who were killed while on honorable active duty provided you resided with them at the time.