Outline on Naturalization
by Cyrus D. Mehta
Although representing a client for naturalization is a relatively simple process, it can also lead to many pitfalls. The attorney must carefully evaluate the client’s eligibility for naturalization. Issues such as long trips outside the US or not registering for Selective Service, at the time of eligibility, could lead to a denial of the application. Even if the client is eligible, one must look out for prior criminal convictions that could not only lead to a denial of the naturalization application, but could place the person in removal proceedings with no recourse for relief.
The Application for Naturalization (Form N-400) must be properly completed and mailed to the INS Service Center having jurisdiction over the applicant’s residence. Two photographs of the applicant and a copy of the applicant’s alien resident card must accompany it. The INS will send notification to the applicant to proceed for fingerprinting in a few months. An interview is normally scheduled within one year after the applicant is filed in New York. At the interview, the applicant tested on his or her basic understanding of English as well as basic knowledge of U.S. history and government. If all is successful, a swearing ceremony is scheduled where the applicant has to take an oath of allegiance to the US and citizenship is granted.
Below are the basis eligibility criteria:
- Must be a Lawful Permanent Resident. INA §318. If a person has honorably served in time of war or declared hostility, LPR status as a precondition is unnecessary. INA §329. Posthumous citizenship may also be granted through death while in active service. INA §329A.
- Must be 18 years old, INA §334(b), unless applicant’s age is waived due to military involvement under INA §329.
- Must be a resident continuously for 5 years immediately preceding the date of filing the application. INA §316(a). During these 5 years, the applicant must have been physically present in the United States for periods totaling at least one half of that time. Id. Furthermore, the applications should have resided continuously within the United States from the date of the application up to the time of admission to citizenship. Id. Part 3 on Form N-400, concerning all dates of entry and exit from the US, must be carefully and accurately completed. At the interview, the INS may require to see previously filed tax returns, verification of trips on the passport and other proof if there is any doubt that the applicant has not met the requirement of "physical presence in the U.S."
- If the applicant is married to a US citizen (USC), the residency requirement is reduced to 3 years if the spouse has been a USC for 3 years. INA §319(a). The parties must be living in marital union at the time of the interview. A divorce, legal separation or even an informal separation would break the marital union requirement. 8 C.F.R. § 319.1(b)(2)(ii)(B). When the residency requirement is only three years, the applicant must have been physically present in the U.S. for periods totaling at least one-half of that time.
- Must have been resided at least three months within the state in which the petition is filed. INA §§ 316(a)(1), 319(A). Please note that part 4 of the application, concerning the applicant’s current address, should be consistent with this requirement. The INS permits applications to be filed 4 years and 9 months after acquiring permanent residency, and 2 years and 9 months in the case of a spouse of a USC.
- Must not be absent from the U.S. for a continuous period of more than one year during the periods for which continuous residence is required. INA § 316. 8 C.F.R. § 316.5(c)(1)(ii). If there has been an absence of one or more years, it would break the continuity of residence and wipe the slate clean. If a person has broken the continuity of residence, he or she could only apply 4 years and 1 day following the date of his or her return to the U.S. to resume residency. If the statutory period is 3 years, then it is 2 years and 1 day following his or her return. 8 C.F.R. § 316.5(c)(1)(ii). An absence for more than six months but less than one year establishes a presumption against compliance with the continuous residency requirement. However, this can be rebutted. INA § 316(b), 8 C.F.R. § 316.5(c)(1)(i).
- There are certain statutory exemptions based on the one year continuous absence as follows:
- Military service abroad. INA § 328.
- Certain employees working abroad who obtain approval to preserve their residency (by filing Form N-470), INA §§ 316(b), and requires one year of physical presence after LPR status. The applicant must be working abroad for the U.S. government; a recognized U.S. institution of research; a U.S. firm or corporation engaged in whole or part in the development of foreign trade and commerce of the U.S. or a subsidiary in which a majority of the stock is owned by the U.S. entity; or a public international organization of which the U.S. is a member by treaty a statute (and employment must have commenced after the applicant’s admission as an LPR).
- Spouses of USCs working abroad can obtain expedited citizenship under limited circumstances. INA § 319(b).
- Must be a person of good moral character for the requisite five years. In the case of a spouse married to a USC, the good moral character is three years. The applicant must maintain good moral character up to the time of admission. INA §§ 316(a)(3), 319(a)(1).
- Statutory ineligibility grounds for good moral character are found at INA § 101(f). These include habitual drunkards, those convicted of crimes under INA § 212(a)(2)(A) and (B) as well as aliens who have been involved in illicit trafficking in controlled substances under §212(a)(2)(C) (except to a single offence of simple possession of 30 grams or less or marihuana). It also includes aliens involved in prostitution and commercialized vice under 212(a)(2)(D), alien smugglers under 212(a)(6)(E) and aliens previously removed under 212(a)(9)(A). Other statutory grounds include one whose income is derived principally from illegal gambling activities; one who has been convicted of two or more gambling offenses committed during such period; one who has given false testimony for the purpose of obtaining any benefits; one who during such 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, regardless of whether the offense, or offenses, for which s/he has been confined were committed within or without such period; and one who at any time has been convicted of an aggravated felony as defined in INA § 101(a)(43).
- Non-statutory grounds include: Non-support of dependents; Homosexuality (but is no longer a per se bar); Adultery; and failure to register with the Selective Service between 18 and 26 years of age, but only if the applicant knowingly and willfully failed to register during the period for which the applicant must establish good moral character.
- Must be attached to the principles of the Constitution and well disposed to the good order and happiness of the US. INA §316(a)(3). Applicant must reveal all organizations s/he has ever been a member of in the past on Part 9 of N-400.
- Must be willing to "(A) bear arms on behalf of the US when required by law, or B) to perform noncombat service in the Armed Forces of the United States when required by law, or C) to perform work of national importance under civilian direction when required by the law. INA §337(a)(5)(A)-(C). A person may oppose to bear arms based on "religious training and belief." This term, according to INA §337(a)(C) means "an individual’s belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code."
- Must not be a subversive (INA §313, 316(f)); member of the communist party (INA §313(a)), unless it was involuntary or otherwise excusable under INA §313(d)); convicted deserter (INA §314); an alien who has removal proceedings pending or an outstanding order of deportation (INA§318); or an alien who has applied for and received relief from the Selective Service System based on his alienage (INA §315(a)).
- The applicant must demonstrate an elementary level of reading, writing and understanding of the English language. INA § 312(a)(1). The applicant must also demonstrate a knowledge and understanding of the fundamentals of the history and government of the U.S. INA §312(a)(2) The English language requirement shall not apply to (1) persons who are over 50 and living in the U.S. for 20 years subsequent to LPR status; or (2) persons who are over 55 years of age and living in U.S. for 15 years subsequent to LPR status. INA §312(b)(2)(A) & (B). The INS will also give special consideration to persons over 65 with 20 years as LPR with respect to their knowledge of history and government. INA §212(b)(3). Furthermore, the English language and history/government requirements are waived for persons who are unable to comply with because they posses a physical or developmental disability or mental impairment. INA §312(a)(2). The oath requirement has recently been waived for people who cannot comprehend it because of a physical or developmental disability or a mental impairment. INA §337(a)(5).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the City Bar of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org