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Topics in Citizenship: Naturalization (Becoming a U.S. Citizen)

Naturalization is the process by which a foreign national becomes a citizen of another country (literally, “naturalizes”). There are a number of pathways by which a person can naturalize under U.S. law:

  1. The three-year and five-year pathways for lawful permanent residents;
  2. The special pathways for certain children of U.S. citizens; and
  3. The special pathways for certain veterans of the U.S. armed forces.

For children under the age of 18, there are different procedures. There are also instances where a foreign-born individual may acquire citizenship without naturalizing (see, for example, my post on “automatic citizenship”).

In this post, I am only going to outline the “standard” five-year pathway for permanent residents and the three-year pathway for spouses of U.S. citizens, because these are by far the most commonly used.

The Three and Five-Year Pathways

These are the standard routes by which lawful permanent residents (green card holders) acquire citizenship. A person who is the spouse of a U.S. citizen can naturalize three years after acquiring U.S. citizenship, so long as she can demonstrate that her marriage is bona fide (genuine). Alternatively, this same spouse could choose to wait five years before naturalizing based on her status as a permanent resident, in which case she need not prove a genuine marriage to a U.S. citizen. A permanent resident who is not the spouse of a U.S. citizen can only naturalize after holding resident status for five years. The basic requirements for these two pathways are:

  1. Time in Status: three or five years, depending on the path;
  2. Good moral character:a complicated legal concept;
  3. Continuous residence: No continuous absences longer than 6 months (180 days) during the prior three or five year period;
  4. Physical presence: In addition to continuous residence, the person must have been in the U.S. for at least 18 months out of the prior three years or 30 months out of the prior five years, respectively;
  5. Knowledge tests: The person must pass English language and U.S. civics tests (unless exempted on account of age and time spent in the U.S. as a resident); and
  6. Loyalty test: The person must demonstrate that she is attached to the U.S. Constitution.

Like almost everything else in immigration law, each requirement above presents its own pitfalls and complications, depending on the specific facts that each applicant brings with her.

Time in Status

Before a permanent resident is eligible to apply for naturalization, at least three or five years must have passed since he received resident status. However, he may file his naturalization application 90 days prior to this three or five year anniversary. This three or five-year period is also known as the “look back” period, because it frames the government’s inquiry into good moral character.

Good Moral Character

The applicant for naturalization must maintain “good moral character” (GMC) during the entirety of the “look back” period. GMC is a legal term of art defined by the Immigration and Nationality Act as follows:


(f) For the purposes of this chapter—
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was—
(1) a habitual drunkard;
(2) Repealed. Pub. L. 97–116, § 2(c)(1),Dec. 29, 1981, 95 Stat. 1611.
(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) of section 1182 (a) of this title; or subparagraphs (A) and (B) of section 1182 (a)(2) of this title and subparagraph (C) thereof of such section [8] (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
(4) one whose income is derived principally from illegal gambling activities;
(5) one who has been convicted of two or more gambling offenses committed during such period;
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
(7) 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 he has been confined were committed within or without such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section); or
(9) one who at any time has engaged in conduct described in section 1182 (a)(3)(E) of this title (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).
The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. 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.
–INA § 101(f); 8 U.S.C. § 1101(f)

 
The bottom line is that certain activities, such as drug crimes, fraud, illegal voting, and false claims to U.S. citizenship, will absolutely bar a person from showing GMC and therefore prevent her from naturalizing if the activity occurred during the look-back period. However, even if the person does not have any absolute bars, the USCIS officer adjudicating her case still has a great deal of discretion to nevertheless find that she lacked GMC during the look-back period and therefore cannot naturalize. To make matters more complicated, although the applicant only needs to show GMC during the three or five-year measuring period, nothing prevents the USCIS officer from looking back even further if the officer believes that acts before the look-back period reflect on the person’s character during the period. For example, if the person has an old alcohol driving conviction from ten years before and then another conviction during the look-back period, the officer might connect the two dots and conclude that the person has not been reformed and/or has an alcohol problem and therefore deny the naturalization application.

Because the concept of GMC is so complicated, I recommend that before applying, anyone with a criminal history or a history that involves vice (illegal gambling, sex crimes, etc.), security issues with the government, failure to pay child support, certain tax issues, etc. consult an immigration lawyer prior to filing an application for naturalization. The risk is more than just having the application denied: the person could end up in deportation proceedings if USCIS determines that she is deportable.

Continuous Residence

An absence from the U.S. of more than six months (180 days) breaks continuous residence, restarting the three or five year period required. There are exceptions to this rule, particularly if the absence was less than a year but more than six months. To further complicate the calculation, in the event of an extended absence of less than two years, some of time the person was outside the U.S. does count toward meeting the continuous residence requirement. To be exact, if a person was outside the country for more than six months but less than two years, none of the time he was in the country before leaving counts, but up to 364 days of the time he spent outside the U.S. does count toward the required period of residence.

Example: Laura becomes a permanent resident on January 1, 2000 and is eligible to naturalize on January 2, 2005. However, from January 1, 2001 until June 1, 2002, Laura is outside the U.S., a period of 1.5 years. Before returning to the U.S., Laura applies for and receives a reentry period at a U.S. consulate and thereby avoids losing her permanent resident status. She then returns to the U.S. on June 2, 2002. So, when will Laura be eligible to naturalize?

Laura will be eligible to naturalize on June 3, 2006. Why? Although she was outside the U.S. for 1.5 years, because she maintained her permanent resident status, she can count 364 of the days she was absent (one year minus one day) toward her period of continuous residence, and therefore, instead of being eligible to naturalize five years following her return, on June 2, 2007, she is in fact eligible to naturalize on June 3, 2006, four years and one day following her return.

This is not the end of the story, as there are certain circumstances in which an absence of more than six months does not break the period of residence, such as when a person files Form N-470 and preserves U.S. residence even while residing outside the U.S.

Continuous Presence

To determine continuous presence, and applicant must count the number of days she has actually been present in the U.S. during the three or five-year period preceding the date on which she has her naturalization interview. The law requires that the person have spent at least half of the measuring period in the U.S., or, in other words, either 1.5 years (18 months) or 2.5 years (30 months) total in the U.S. The minimum number of days is actually 548 days or 913 days, respectively. Here are some rules for counting up the days a person has spent in the U.S.:

  • USCIS counts the day the person departs and the day she returns.
  • Even short trips of a day or two outside the U.S. must be subtracted from the calculation.
  • Generally speaking, partial days spent outside the U.S. (for example, a half day spent in Canada or Mexico) are not considered absences and do not need to be subtracted.

Again, there are exceptions to the rules above, including for certain government employees, persons employed by certain research organizations, and certain U.S. government contractors.

Knowledge Tests: English Language and Civics

Most applicants must pass tests of English language ability and U.S. civics. These tests are usually administered at the naturalization interview and normally only take a few minutes. There are exceptions to these requirements based on a combination of age and time spent as a permanent resident, as follows:

  • A person over 50 years of age who has spent periods of time totaling 20 years in the U.S. as a permanent resident does not have to pass the English test, but must still pass the civics exam (in a language of his choice).
  • A person over 55 who has spent periods totaling 15 years in the U.S. as a permanent resident gets the same benefits as above.
  • A person over 65 with presence totaling 20 years gets the same benefits; in addition, the question list for the civics test will be shortened for this person.
  • A person with a serious physical or developmental disability, or a mental impairment, may apply for an exemption from the tests.

USCIS has a variety of study materials on its website to help applicants prepare for the two tests:

  • Study materials for the English test; and,
  • Study materials for the civics test.

Attachment to the U.S. Constitution

Applicants will be required to take the oath of citizenship, including swearing to support and defend the U.S. There are certain exceptions available to the standard oath for those with religious objections and certain physical and/or mental impairments. As a relic of history, anyone with a hereditary title must renounce the title at the oath ceremony! In addition to the oath, there are also selective service requirements for male applicants, although these are not insurmountable, even for those who did not timely register.

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