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Chapter 11 Citizenship and Naturalization

Born in the U.S. or outlying possessions, INA § 301(a)

Deriving citizenship from a parent after birth, INA § 320

Acquiring citizenship at birth, INA §§ 301 (c)-(h)

Section 322 Citizenship, INA §

Achieving Citizenship in the U.S.

Right to vote

Right to hold office

Eligibility for certain government jobs

Citizens can’t be deported

Sponsor relatives

Eligibility for public benefits

Benefits of Citizenship

Holder of U.S. Passport

Always permitted to return to U.S.

Will transmit citizenship to natural-born children

Denaturalization requires Federal District Court Proceeding

Protection/help from U.S. embassy if abroad

Benefits of Citizenship

U.S Citizenship and Immigration Service (USCIS) will review applicant’s entire immigration record

If there are past immigration violations or criminal history, individual may be at risk of being placed into removal proceedings

Anxiety about studying for the test

Losing benefits from home country, such as pensions or property rights

Disadvantages of Applying for Citizenship

18 years of age

Lawful permanent resident (LPR) for

Five years

Three years if applicant living in marital union with U.S. citizen

Known as the statutory period; special exceptions for members of the military

Be physically and continuously present in the U.S. as required

Be a person of good moral character

Understand English, be able to read and write English, and understand U.S. history and civics

Be willing to sign an Oath of Allegiance to the U.S.

Qualifications for U.S. Citizenship

Individuals who become lawful permanent residents in any capacity and are married to a U.S. citizen can naturalize in three years, if married to the U.S. citizen throughout that period and at the time of the interview.

All other individuals (except for members of the military) can apply after being an LPR for five years.

Applicants can apply 90 days before their three or five year anniversary date.

Member of the military who served honorably for one year (or periods aggregating one year) and apply within six months of honorable discharge, can apply for naturalization after one year. INA § 328

Members who served honorably in active duty for any time period (even one day) during a period of “Active Hostilities,” which includes September 11, 2001, until the present:

Can file for naturalization immediately

no need to be 18 years of age

no need to be a lawful permanent resident

INA § 329

Must Be an LPR for Three or Five Years Unless a Member of the Military

Must be physically present in the U.S. for 50% of the statutory period: either 18 months or 30 months

Must not have disrupted “continuous presence”

Physical and Continuous Presence

Trips outside the U.S. for six months or more raise a rebuttable presumption continuous presence has been disrupted. Applicants may also face issue of “abandonment” of lawful permanent residency.

Showing ties to U.S., emergency nature of stay, and intent to make U.S. applicant’s home can rebut presumption.

Trips of one year or more (with exceptions for those employed by U.S. government) will disrupt residency. Applicants must wait either two years and one day or four years and one day after the date of return to apply.

Physical and Continuous Presence

Drug abuser or addict, if USCIS has reason to believe applicant is a drug trafficker

Engaging in prostitution, commercialized vice

Engaging in illegal gambling

On probation or parole: must successfully complete probation or parole to apply

Violation of a protection from abuse order

Immigration violations: obtaining LPR status through fraud; helping a person enter the U.S. illegally

Good Moral Character and Potential Bars to Citizenship

Payment of taxes

Payment of child support

Males between the age of 18 and 26 registering for Selective Service (also a loyalty issue)

Good Moral Character

Security Concerns: Applicant was associated with a totalitarian or terrorist organization, unless under duress in certain circumstances

Applicant was “habitual drunkard”: DUIs can be used as evidence

Applicant came to U.S. to practice polygamy

Applicant has registered to vote

Applicant voted

Applicant falsely claimed to be a U.S. citizen (job/school application)

Other Issues


Offense	Citation	Description
One or More CIMTs	8 CFR 316.10(b)(2)(i), (iv) INA 101(f)(3)	Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense
Aggregate Sentence of Five Yrs or More	8 CFR 316.10(b)(2)(ii), (iv)8 CFR 316.10(b)(2)(ii), (iv) INA 101(f)(3)	Conviction of two or more offenses with combined sentence of five years or more (other than political offense)
Controlled Substance Violation	8 CFR 316.10(b)(2)(iii), (iv)8 CFR 316.10(b)(2)(iii), (iv) INA 101(f)(3)	Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana
Incarceration for 180 Days	8 CFR 316.10(b)(2)(v) INA 101(f)(7)	Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad
False Testimony under Oath	8 CFR 316.10(b)(2)(vi) INA 101(f)(6)	False testimony for the purpose of obtaining any immigration benefit

Conditional Bars to GMC for Acts Committed in Statutory Period

Prostitution Offenses	8 CFR 316.10(b)(2)(vii) INA 101(f)(3)	Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution
Smuggling of a Person	8 CFR 316.10(b)(2)(viii) INA 101(f)(3)	Involved in smuggling of a person to enter or try to enter the United States in violation of law
Polygamy	8 CFR 316.10(b)(2)(ix) INA 101(f)(3)	Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)
Gambling Offenses	8 CFR 316.10(b)(2)(x)–(xi) INA 101(f)(4)–(5)	Two or more gambling offenses or derives income principally from illegal gambling activities
Habitual Drunkard	8 CFR 316.10(b)(2)(xii) INA 101(f)(1)	Is or was a habitual drunkard
Failure to Support Dependents	8 CFR 316.10(b)(3)(i) INA 101(f)	Willful failure or refusal to support dependents, unless extenuating circumstances are established
Adultery	8 CFR 316.10(b)(3)(ii) INA 101(f)	Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established
Unlawful Acts	8 CFR 316.10(b)(3)(iii)8 CFR 316.10(b)(3)(iii) INA 101(f)	Unlawful act that adversely reflect upon GMC, unless extenuating circumstances are established

Conditional Bars to GMC for Acts Committed in Statutory Period

Applicants who commit two crimes of moral turpitude may be subject to removal if they apply for citizenship. Applicants must obtain court certified records regarding any convictions.

All past interactions with police should be evaluated even if no conviction resulted. Individuals who received sentencing diversion programs should show completion of the program.

Individuals on probation or parole cannot naturalize until their probation or parole is completed. A record showing completion must be submitted.

Special Concern: Past Criminal Acts

Committing murder or being convicted of an aggravated felony is a bar to citizenship. Persons with such histories who apply are likely to be placed in removal proceedings.

Voting

Military deserter

Bars to Citizenship

Comprehension testing during the interview when the Adjudication Officer asks the applicant about their application.

Applicants must read and write one to three sentences in English.

Understanding English and Civics

Applicants must answer six out of ten randomly selected questions concerning U.S. history and civics. The questions are chosen from a USCIS published list of 100 questions.

https://www.uscis.gov/sites/default/files/USCIS/Office%20of%20Citizenship/Citizenship%20Resource%20Center%20Site/Publications/100q.pdf.

Understanding English and Civics

Those who have been LPRs for 20 years and are over 50 can take the civics/history test in their own language.

The same rule applies for those who have been LPRs for 15 years and are over 55.

Waivers and Accommodations

Those over 65 who have been an LPR for 20 years or more need only study 20 of the 100 questions and will must get 6/10 correct.

https://www.uscis.gov/sites/default/files/USCIS/Office of Citizenship/Citizenship Resource Center Site/Publications/PDFs/65-20q.pdf.

ADA accommodations must be available.

Waivers and Accommodations

Individuals with mental or physical disabilities that prevent them from learning English and/or civics can apply for a waiver.

A nexus between the disability and the inability to learn English must be established by a medical doctor or licensed psychologist through completing Form N-648, Medical Certification for Disability Exceptions.

Waiver of the English Language AND Civics/History Exam

The fee to apply for naturalization is available on www.uscis.gov.

Fee waivers are available for those earning 150% of the poverty level or below.

Requested on Form I-912, Request for Fee Waiver.

Supporting documentation is required.

Fee Waivers

Completed Form N-400, Application for Naturalization

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

Two passport photos

Front and back of “green card”

Fee: Money order or Check to Department of Homeland Security

Form I-912, Request for Fee Waiver

N-400 Package

Application is sent to Arizona or Texas Service Center, depending on residence.

Applicant receives receipt and then an appointment notice for biometrics.

After biometrics are taken, applicant will be scheduled for an interview.

If the applicant passes the interview, s/he will be scheduled for a citizenship ceremony.

Applicant can request his/her name be legally changed at the interview and must attend special oath swearing ceremony before District Court Judge.

Applicant is a U.S. citizen after the oath ceremony.

Process

Approved and scheduled for an Oath Ceremony

Rescheduled for English or History Test (2 chances)

Additional Information may be requested

Supervisor review (criminal or immigration issues)

If application is denied, applicant can file Form N-336, Request for Hearing on Decision in Naturalization Proceedings, within 30 days. Often more efficient to refile an N-400 Naturalization application.

Interview Results

Law since 2/27/2001 (Child Citizenship Act)

Child must be under 18 years old

Child must be an LPR

One parent must be a U.S. citizen by birth or naturalization

Child must reside in the physical and legal custody of the U.S.-citizen parent

All requirements must be met

For children born in 1983 (over 18 by 2001), the nationality chart (Fig. 11.2) must be used to determine if child derived citizenship

Derivative Citizenship

PERIOD IN WHICH LAST ACTION TOOK PLACE	CHILD BECAME AN LPR BEFORE STATUTORY AGE OF:	NATURALIZATION OF PARENT(S) PRIOR TO CHILD’S STATUTORY AGE	ADDITIONAL REMARKS
Prior To May 24, 1934	Age 21	At least one parent naturalized	None
On or After May 24, 1934 and Prior To Jan. 13, 1941	Age 21 Age 21	At least one parent naturalized Both Parents Naturalized	U.S. citizenship effective 5 years from date child becomes an LPR None
On or After Jan. 13, 1941 and Prior To Dec. 24, 1952	Age 18	Both Parents Naturalized	Child Born out of Wedlock derived on 12/14/52 if under age 16 and had remained an LPR

Nationality Chart 3: Figure 11.2

PERIOD IN WHICH LAST ACTION TOOK PLACE	CHILD BECAME AN LPR BEFORE STATUTORY AGE OF:	NATURALIZATION OF PARENT(S) PRIOR TO CHILD’S STATUTORY AGE	ADDITIONAL REMARKS
On or after Dec. 24, 1952 and Prior To Oct. 5, 1978	Age 18	Both parents naturalized	Child unmarried
On or After Oct. 5, 1978 and Prior To Feb. 27, 2001	Age 18	Both Parents Naturalized	Child unmarried (includes child adopted before age 16 who is residing with adoptive parent(s) at time of their naturalization
On or After Feb. 27, 2001	Age 18	At least one parent is a USC by birth or naturalization	Child resides in U.S. in legal and physical custody of USC parent (includes adopted child of USC ; must meet INA 101(b)(1) requirements for adopted children)

Nationality Chart 3: Figure 11.2

Form N-600, Application for Certificate of Citizenship

Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

Two passport-style photos

Fee or Form I-912, Request for Fee Waiver

Birth certificate of applicant or other document showing relationship to U.S.-citizen parent(s)

Proof of LPR status of child

Proof of applicant’s parent(s) citizenship

Derivative Citizenship: Compiling the Application

Whether the applicant was born in or out of wedlock

The applicant’s date of birth

Whether one or both parents were U.S. citizens at the time of the applicant’s birth

The length of time the U.S.-citizen parent(s) resided in the U.S.

In certain cases, whether the applicant met certain residency requirements in the U.S. in order to retain citizenship

Acquisition of Citizenship: Five Factors to Consider

There are different standards for children born to mothers, as opposed to fathers, if the parents are not married.

Children can acquire citizenship through the U.S.- citizen mother if the mother lived in the U.S. for the required period of time.

Children can only acquire citizenship through U.S.- citizen fathers if fathers legitimize the child and father has met the U.S. residency requirements

Acquisition of Citizenship

PERIOD IN WHICH CHILD WAS BORN STEP 1: Determine period in which child was born	CITIZENSHIP OF PARENTS AT TIME OF CHILD’S BIRTH STEP 2: Determine parents’ citizenship at time of child’s birth	PARENTS’ RESIDENCE & PHYSICAL PRESENCE PRIOR TO CHILD’S BIRTH STEP 3: Did USC parent meet residence or physical presence requirement prior to birth? (If Yes, child was a USC at birth)	CHILD’S RETENTION REQUIREMENT STEP 4: Did child meet retention requirement (if any)? (Child lost citizenship on date it became impossible to meet requirement)
Prior To May 24, 1934	Either parent a USC	USC parent resided in U.S.	Not Applicable
On or After May 24, 1934 and Prior To Jan. 13, 1941	Both parents USCs One USC parent and one alien parent	At least one USC parent resided in U.S. USC parent resided in U.S.	Not Applicable 5 years residence in U.S. or OLP between ages 13 and 21 (must start before age 16) OR 5 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 23) OR ** 2 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 26) OR Exempt, if at time of child's birth, USC parent was employed by U.S. Government or specified organization (Exemption does not apply if parent used a special provision). See Notes 1, 2, 4

NATIONALITY CHART 1, FIGURE 11.3 CHILDREN BORN OUTSIDE U.S. IN WEDLOCK

PERIOD IN WHICH CHILD WAS BORN STEP 1: Determine period in which child was born	CITIZENSHIP OF PARENTS AT TIME OF CHILD’S BIRTH STEP 2: Determine parents’ citizenship at time of child’s birth	PARENTS’ RESIDENCE & PHYSICAL PRESENCE PRIOR TO CHILD’S BIRTH STEP 3: Did USC parent meet residence or physical presence requirement prior to birth? (If Yes, child was a USC at birth)	CHILD’S RETENTION REQUIREMENT STEP 4: Did child meet retention requirement (if any)? (Child lost citizenship on date it became impossible to meet requirement)
On or After Jan. 13, 1941 and Prior To Dec. 24, 1952	One USC parent and one alien parent	USC parent resided in U.S. or OLP for 10 years, at least 5 after age 16 Special provisions for parents with honorable service in U.S. armed forces: (1) Between 12/7/41 & 12/31/46, 10 years of residence, at least 5 after age 12 (2) Between 1/1/47 & 12/24/52, 10 years of physical presence, at least 5 after age 14. See Note 3	5 years residence in U.S. or OLP between ages 13 and 21 (must start before age 16) OR 5 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 23) OR 2 years continuous physical presence in U.S. between ages of 14 and 28 (must start before age 26) OR Exempt, if at time of child's birth, USC parent was employed by U.S. Government or specified organization (Exemption does not apply if parent used a special provision). See Notes 1, 2, 4
	Both parents USCs	At least one USC parent resided in U.S. or OLP See Note 3	Not Applicable

NATIONALITY CHART 1, FIGURE 11.3 CHILDREN BORN OUTSIDE U.S. IN WEDLOCK





On or After Dec. 24, 1952 and Prior To	Both parents USCs	At least one USC parent resided in U.S. or OLP See Note 3	Not Applicable
Nov. 11, 1986
On or After Dec. 24, 1952 and Prior To Nov. 11, 1986	One USC parent and one alien parent	USC parent physically present in U.S. or OLP 10 years, at least 5 after age 14. See Note 3	Not Applicable
On or After Nov. 11, 1986	Both parents USCs	At least one USC parent resided in U.S. or OLP See Note 3	Not Applicable
On or After Nov. 11, 1986	One USC parent and one alien parent	USC parent physically present in U.S. or OLP 5 years, at least 2 after age 14. See Note 3	Not Applicable

NATIONALITY CHART 1, FIGURE 11.3 CHILDREN BORN OUTSIDE U.S. IN WEDLOCK

PERIOD IN WHICH CHILD WAS BORN	ELIGIBILITY REQUIREMENTS
Prior To May 24, 1934	The child was born an alien. HOWEVER, the child became a U.S. citizen retroactively to birth on 01/13/41 if the child’s mother resided in the U.S. or OLP prior to the child's birth, UNLESS, the child was legitimated by alien father prior to 1/13/41.
On or After May 24, 1934 and Prior To Dec. 24, 1952	Mother resided in U.S. or OLP at any time prior to the child's birth
On or After Dec. 24, 1952	Mother had at least one year of continuous physical presence in U.S. or OLP at any time prior to child's birth

NATIONALITY CHART 2, FIGURE 11.4 CHILDREN BORN OUTSIDE U.S. OUT OF WEDLOCK TO U.S.-CITIZEN MOTHER

PERIOD IN WHICH CHILD WAS BORN	ELIGIBILITY REQUIREMENTS
Prior To May 24, 1934	Child legitimated at any time after birth under laws of father's domicile; USC father resided in U.S. prior to child's birth; and No residence required for child to retain U.S. citizenship. See Nationality Chart 1
On or After May 24, 1934 and Prior To Jan. 13, 1941	Child legitimated at any time after birth under laws of father's domicile; USC father resided in U.S. prior to child's birth; and Child met retention requirements. See Nationality Chart 1
On or After Jan. 13, 1941 and Prior To Dec. 24, 1952	Child legitimated before age 21 under laws of father’s or child’s domicile; USC parent(s) had the required residence at time of child's birth; and Child met retention requirements. See Nationality Chart 1
On or After Dec. 24, 1952 and Prior To Nov. 14, 1986	Child legitimated before age 21 under law of father’s or child’s domicile; Child legitimated PRIOR to 11/14/86; Child must be unmarried; USC parent(s) had the required residence at time of child's birth; No residence required for child to retain U.S. citizenship. See Nationality Chart 1

NATIONALITY CHART 2, FIGURE 11.4 CHILDREN BORN OUTSIDE U.S. OUT OF WEDLOCK TO U.S.-CITIZEN FATHER AND ALIEN MOTHER CHILD LEGITIMATED BY FATHER

DATE RELATIONSHIP ESTABLISHED

ELIGIBILITY REQUIREMENTS

On or After Nov. 14, 1986

Child legitimated OR acknowledged before age 18* (Legitimated under law of child's residence or domicile; or Paternity acknowledged in writing under oath; or Paternity established by court order); Blood relationship established; Father, unless deceased, has agreed in writing under oath to provide financial support until child reaches age 18 if not married to the mother; Child must be unmarried; USC parent(s) had the required residence at time of child's birth (See Nationality Chart 1). *A child 18 or over on 11/14/86 could use the old law. A child at least age 15, but under 18, could use either law (DOB on/after 11/15/68).

NATIONALITY CHART 2, FIGURE 11.4 CHILDREN OUT OF WEDLOCK TO U.S.-CITIZEN FATHER AND ALIEN MOTHER CHILD LEGITIMATED OR ACKNOWLEDGED BY FATHER

Form FS-240, Consular Report of Birth Abroad, of a citizen of the United States of America filed with the U.S. consulate where child is born.

N-600, Application for Certificate of Citizenship, if child is in the United States.

Forms for Children Who Acquire Citizenship at Birth

Available for those who reside in the physical and legal custody of a U.S.-citizen parent abroad.

Applicant can apply from abroad, but must enter the U.S. on a nonimmigrant visa and remain in status for the interview.

INA § 322 Citizenship for Families Living Abroad

Especially helpful for parents who do not reside in the U.S. or who do not meet the residency requirements to transmit citizenship to their child but have parents (child’s grandparents) who are U.S. citizens who do meet those requirements.

Form N-600-K, Application for Citizenship and Issuance of Certificate Under Section 322, is used for INA § 322 citizenship and is filed with USCIS.

INA § 322 Citizenship

CHILD	GENERAL REQUIREMENT	PHYSICAL PRESENCE OF PARENT OR GRANDPARENT
Genetic or Legitimated Child Must meet definition of child in INA 101(c)(1). This means a biological or legitimate child, or a child legitimated before their 16th birthday. Benefits under this law are not available for stepchildren or for illegitimate children. OR Adopted Child Must meet definition of adopted child in INA 101(b)(1). This means the child must either have approved I-600 or be eligible to have an I-130 (which does not have to be filed) approved under INA 101(b)(1)(E).	Child has at least one U.S.-citizen parent by birth or through naturalization, (including an adoptive parent). Adoptive parent must meet requirements of either INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G). Child’s USC parent or USC grandparent meets physical presence requirements. Child is under 18 years of age (adjudication and the taking of the Oath, unless waived because the child is unable to understand its meaning by reason of mental incapacity or young age, must be completed before the child’s 18th birthday).	U.S.-Citizen Parent U.S.-citizen parent was physically present in the U.S. or its outlying possessions for at least 5 years (2 after age 14) If the child’s parent does not meet the physical presence requirement, the child may rely on the physical presence of the child’s U.S.-citizen grandparent (5 yrs, 2 after age 14) OR U.S.-Citizen Grandparent or Legal Guardian If the U.S.-citizen parent has died, the child’s USC grandparent or USC legal guardian may file on the child’s behalf within five years of parent's death. At time of death, the USC parent (or grandparent) must have met physical presence requirements.

NATIONALITY CHART 4, FIGURE 11.5

An act that voluntarily relinquishes U.S. citizenship.

Involves a very high legal standard: must be done knowingly, voluntarily, and with full knowledge of the consequences.

22 C.F.R § 50.40 explains there is a presumption a person DOES NOT relinquish citizenship merely by naturalizing in another country, takes a routine oath of allegiance, and accepts non-policy level employment with a foreign government.

Expatriation

Denaturalization occurs when naturalization has been procured due to concealment or willful misrepresentation of a material fact, i.e., a person who fought with a terrorist group or was a persecutor but denied it on their application.

Those that become members of an organization that call into question their allegiance and loyalty to the U.S. within five years following naturalization are specifically subject to denaturalization proceedings.

Denaturalization

The legal standard is “clear, unequivocal and convincing evidence” that leaves no doubt the applicant is subject to denaturalization.

Denaturalization proceedings are filed by the Department of Justice in federal court having jurisdiction over the accused citizen.

Denaturalization