|MICHAEL BAKER | ATTORNEYS AND COUNSELORS|
A US citizen is a person who owes loyalty to, and is entitled by birth or naturalization to the protection of, the United States. Naturalization means the conferring of the nationality of the United States upon a person after birth. In the following two areas we will discuss how a person can qualify for United States citizenship either by birth or through naturalization.
You can obtain citizenship in the United States through birth in the
The requirements for naturalization (citizenship) include the
There are exceptions to the above listed requirements, including the following:
The ability to read, speak and write English is not required of four classes of applicants:
* Individuals who are physically unable to comply because
of a disability;
The "Child Citizenship Act of 2000", effective February 27, 2001, streamlines the process by which foreign-born children of U.S. citizen parents can become U.S. citizens when they did not acquire citizenship at birth. The child acquires U.S. citizenship automatically without the need to apply for either a passport or a Certificate of Citizenship. The Act, which applies to both adopted and biological children of U.S. citizens, provides for the automatic acquisition of U.S. citizenship when certain conditions have been met.
Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001) ID 3454: (1)
GENERAL OVERVIEW AND REQUIREMENTS TO OBTAIN CITIZENSHIP AND NATURALIZATION:
As mentioned above, there are two ways for a person to become a US citizen. The first is by operation of law where no specific act by the person is needed. This would include birth in the US, or birth abroad to US citizens or nationals. The second way is by naturalization.
The 14th Amendment to the United States Constitution provides that all persons born in the United States and subject to United States jurisdiction shall be citizens at birth. What is important is where the child is born, not the citizenship or residence status of the parents. Thus, a child born in the United States of illegal alien parents, is still a United States citizen at birth. The only exception is that the child must be subject to the jurisdiction of the United States. Therefore, a child born to certain foreign diplomats or sovereigns is not US citizens at birth, since they are born while their parents are not subject to the jurisdiction of the United States since they are in the US as representatives of foreign governments.
There are also many instances when a child born outside the United States is considered a citizen at birth. For instance, if a child is born in an outlying possession of the United States (which includes American Samoa and Swains Island), or in a US territory, such as Puerto Rico, Guam, the US Virgin Islands, etc., they may be considered US citizens at birth.
To confirm whether a child born outside the United States is considered a citizen at birth, you must look to the applicable statute and to the citizenship status of the child's parents at the time of the child's birth. Furthermore, the law on acquisition of United States citizenship at birth has changed repeatedly over the years. Therefore, it is important to learn what the law was at the time of the child's birth. Children born after November 14, 1986, are United States citizens, if at the time of their birth one parent was a US citizen and that parent had resided in the US for five years, at least two of which were after the age of 14. A child born outside the United States of two US citizen parents is considered a citizen at birth as long as at least one of the US citizen parents resided in the United States before the birth of the child.
What about dual citizenship? This arises when a person is considered a citizen of two or more countries simultaneously. The United States does not favor dual citizenship and, in fact, when a person is naturalized in the United States, they are required to renounce other citizenship which they may have. However, there are situations wherein a US citizen can also be a citizen of another country. This usually happens in cases where the foreign country does not call for its nationals to renounce its citizenship when that person is naturalized in the United States, or where a person is born in the United States of parents who are nationals of other countries, which base their citizenship on parentage. Thus, in such a case, the person is a citizen of the United States by birth in this country, and a citizen of the foreign country by virtue of the nationality of the child's parents.
As mentioned above, the second method to obtain US citizenship is through naturalization. To be naturalized, the first requirement is that the applicant is a lawful permanent resident of the United States. An exception exists for those who served honorably in the US armed forces in times of war.
The second requirement is that the applicant must be at least 18 years of age at the time of filing the application for naturalization. Again, there is an exception for the foregoing who served honorably in the US military during times of war, as well as minors who have at least one US citizen parent who petitions for them.
The next requirement is that the applicant must have satisfied certain residency requirements. First, the applicant must have been physically present in the US for at least half of the needed residence time preceding the date of filing the application. The statutory residence time is five years, unless naturalization is based on marriage to a US citizen in which case it is only three years. (In this situation, the alien must have been a resident for at least three years and must have been married to, and living with, the US citizen spouse for at least three years.) A person is permitted to file their application for naturalization three months before meeting the physical presence requirement.
Aside from the above, an applicant must not have abandoned their physical presence in the United States. If a person remains outside the United States for one year or more, thereafter they have broken their continuous residence for naturalization purposes. It is unimportant that the person had permission to be outside the US, such as with a US re-entry permit. The only exceptions are for those serving in the US armed forces, with certain US government agencies, as religious workers, or with certain international groups. In these cases, the applicant must have filed an application to preserve residence for naturalization on immigration form N-470. This application can only be approved if the person had been physically present in the US, as a permanent resident, for at least one year, before filing the application, and it must be filed before the person has spent one year abroad. If the applicant is gone for more than six (6) months, but less than one (1) year, thereafter there is a rebuttable presumption of abandonment of continuous residence for naturalization purposes. The alien would have to show that he or she did not intend to abandon their permanent residence and that there were valid reasons for their extended periods outside the US. If the absence is six months or less, then there is no break in the continuous residence requirement.
Also, the applicant must reside within the state or within the INS district where the application will be filed for at least three months immediately preceding the filing of the application.
Besides the residence requirements, the applicant must also be a person of good moral character during the statutory period (3 or 5 years), and it must continue from the time of filing the application through the swearing-in ceremony. The term "good moral character" is not specifically defined in the Immigration Act; however, the courts have interpreted it to mean behavior that measures up to the standards of the average members of the community. The Immigration Act, in section 101 (f), does list certain offenses that would prevent an applicant from establishing good moral character. These would include such crimes as murder, aggravated felonies (which are more fully described in the section under deportation grounds), certain gambling and drunk- driving offenses, prostitution offenses, etc.
An applicant may also be found not to be a person of good moral character if he or she willfully failed to support dependents, committed adultery, which destroyed a viable marriage, or willfully and knowingly failed to register with the Selective Service, if required to do so. An applicant must also be attached to the principals of the Const itution and is favorably disposed to the good order and happiness of the United States. Therefore, an applicant for naturalization must take the full oath or affirmation of allegiance to the United States, without any mental reservation. A person may take a modified oath provided his or her reason for doing so is because of deeply held religious or moral beliefs, which limit his, or her willingness to bear arms or perform noncombatant services in the US armed forces.
Certain classes of persons are barred from naturalization. These include subversives; deserters from the US armed forces; those with a pending or final order of deportation (an exception exists for those who served honorably in the US armed forces for a period of three years or during times of war); and aliens who applied for and received an exemption or discharge from training or service in the US armed forces.
Applicants for naturalization must also be able to read, write, and speak the English language. Persons who are physically unable to comply because of a permanent physical or developmental disability, or a permanent mental impairment are exempt from the literacy requirements. In addition, applicants who are more than 50 years of age and have been permanent residents of the United States for more than 20 years, or are more than 55 years of age and have been permanent residents of the United States for more than 15 years, on the date of filing the application, may be examined in their native language instead of English.
All applicants are required to pass an oral test on the history and government of the United States. From a standardized list of nearly ninety-five (95) questions, ten (10) questions are asked, and the applicant must answer at least six (6) correctly. (The full list of questions and answers is provided on our web site.) Aliens who are physically unable to comply do not have to take the test, and applicants over the age of 65 who have been permanent residents of the United States for more than 20 years are given a much shorter list of questions and answers to study. (Again, these are included on our web site).
Naturalization applicants are required by law to appear in person before an INS District Adjudications Officer (DAO, formerly called an “Immigration Examiner”) for an "examination under oath."
District Adjudications Officers (DAO) must make a determination whether the applicant possesses the requisite GMC for purposes of naturalization. In making this determination, DAOs will primarily focus on the 5-year statutory period prior to filing of the N-400 application. Part 7 of the N-400, entitled Additional Factors of Eligibility has 15 questions which contain most of the grounds for finding a lack of GMC. In addition, DAOs "should always ask" the applicant the following questions, if applicable:
Have you ever failed to pay, or refused to pay, alimony, or failed to comply
with a court order to pay alimony?
If an applicant admits to having committed or been arrested, sentenced, or convicted for any crimes or offenses in violation of the law, or if the file contains evidence of any crimes or offenses, DAOs will focus on the number and type of offenses to determine whether the applicant lacks GMC based on this evidence.
A person will always lack GMC if, during the 5-year statutory period, he has committed one or more "crimes involving moral turpitude"(CIMT). The most common definition of a CIMT is "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man."
Attached is a checklist of some of the crimes or offenses that fall under
the CIMT category. If the applicant gives an affirmative response to any of
the questions involving GMC in Part 7 (Questions No. 8, 9, 12, and 15) or
if the cases involves CIMTs, DAOs will refer the applicant to a secondary
officer for a traditional interview format.
Crimes Against The Person
Crimes Against Property
Sexual and Family Crimes
Assault w/ Intent to Commit Abortion
Crimes Against the Government
Falsely Issuing a Narcotic Prescription
PROCEDURE FOR FILING & INTERVIEW
To obtain naturalization, an applicant must file immigration form N-400, with supporting documentation, including photographs, and prove of lawful permanent residence, with the immigration regional service center office having jurisdiction over the place of the applicant's residence in the United States. The proper filing fee must accompany the application, with a separate fingerprinting fee. As stated earlier, the application may be filed up to three months before the applicant meets the residency requirements.
The application is thereafter processed by the regional service center. The applicant will be scheduled to have fingerprints taken at an immigration fingerprinting center. The fingerprints are then forwarded to the FBI for background checks, while the immigration service requests the original alien file of the applicant. When the fingerprint checks have cleared and the original file is found, the applicant is scheduled for an interview at the immigration office found closest to his or her place of residence in the United States. The processing time can take anywhere from six months to one year or more depending on the caseload of the individual immigration office.
At the naturalization interview, an immigration examiner will review the application with the applicant for completeness and correctness, and will test the applicant on his or her knowledge of US government and history, as well as their ability to speak, read and write the English language. The examiner will also decide whether the applicant meets all the requirements for physical presence and good moral character, and if they are otherwise, eligible to be naturalized. An applicant who fails the exam may request to be re-tested within 90 days of the first interview.
If the applicant passes the examination, and is otherwise qualified, the application will be approved and the applicant will be scheduled for his or her swearing-in ceremony. If the examiner can't make a decision on the application during the initial interview, the applicant will be scheduled for a follow-up interview, which must be scheduled within 120 days. If the examiner denies the application, either during the initial or second interview, a written decision will be issued and the applicant will have 30 days wherein to file an appeal. Another immigration examiner within the same office will review the case. The immigration service must make a decision on the appeal within 180 days. Usually, the applicant will be re-interviewed and given the opportunity to present any other proof to support his or her case. If the application is again denied, or if no decision is issued within the 180 days, the applicant may seek a review in the federal district court. The immigration service may also deny the applications of those who fail to attend their swearing-in ceremonies.
Persons who are sworn in as US citizens are immediately eligible to enjoy all the benefits of citizenship, including the right to apply for a US passport, the right to vote in federal and state elections, the right to petition for family members to join them in the United States, the right to serve on juries, the right to receive federal aid, and the right to apply for most federal jobs.