Citizenship & Naturalization

Often times, our office receives inquiries about traveling documents and renewal for Green Cards. What is interesting is that many of these inquiries involve applicants that have been Permanent Residents for well over five (5) years. Many of these applicants are eligible for naturalization; yet they still do not pursue citizenship. Citizenship is not a burden nor is it a requirement. It is a privilege allowed upon immigrants to no longer be residents of this country but to belong to the United States once naturalized. It grants us the right to say that although we may have been born elsewhere, we are now American.

The Department of Homeland Security’s Citizenship Manual describes most accurately this important benefit and personal achievement:

The United States has a long history of welcoming immigrants from all parts of the world. The United States values the contributions of immigrants who continue to enrich this country and preserve its legacy as a land of freedom and opportunity. USCIS is proud of its role in maintaining our country’s tradition as a nation of immigrants and will administer immigration and naturalization benefits with integrity.

United States citizenship is a unique bond that unites people around civic ideals and a belief in the rights and freedoms guaranteed by the U.S. Constitution. The promise of citizenship is grounded in the fundamental value that all persons are created equal and serves as a unifying identity to allow persons of all backgrounds, whether native or foreign-born, to have an equal stake in the future of the United States.

Hiring a lawyer for citizenship can very likely be the difference in an approved application or one that is denied.

How to Get Naturalized in the United States

“Naturalization” is the term in immigration law that refers to the process of becoming a U.S. citizen. Commencing naturalization proceedings is a major step in making the United States one’s home. However, not every person physically present in the United States is eligible to apply for naturalization. In order to apply for naturalization, one must first become a lawful permanent resident (LPR) and then meet many other extensive eligibility requirements. Furthermore, there are many cases where one may already be a U.S. citizen and not realize it.

Dual Citizenship

Why is dual citizenship is discussed? Can I retain dual nationality? Will I lose U.S. citizenship if I acquire other nationality? Can I become a U.S. citizen without losing nationality of my country of origin? Will the law penalize me for becoming national of another country while remaining U.S. national? This and many other similar questions relating to dual citizenship arise in several important contexts and keep popping up in question-posts on legal blogs like AVVO, Law QA and here on MyAttorneyUSA.

Deriving Citizenship Through Parents at Birth

In most scenarios in which a child is born abroad and one or both of his or her parents are U.S. citizens (USC), citizenship will be transmitted to the child at birth by effect of the law. This article will examine various scenarios involving USC parent(s) giving birth abroad and in which scenarios citizenship is transmitted to the child and the process for obtaining documentation of the child's citizenship.

Deriving Citizenship Through Parents After Birth

There are certain scenarios in which a child born abroad without U.S. citizenship at birth may become a U.S. citizen through the naturalization of one or both parents. The current law on this subject derives principally from the Child Citizenship Act of 2000 (CCA). For children who were 18 years of age before the effective date of the CCA on February 27, 2001, previous laws under the old INA § 320 guide the acquisition of citizenship. There are provisions for both children residing in the United States (INA § 320) and children residing outside of the United States (INA § 322). This article will explain the rules for the acquisition of citizenship by a child on account of the naturalization of one or both parents.

The Selective Service Requirement and Immigration Law

Male U.S. citizens (USCs) and lawful permanent residents (LPRs) are required to register for selective service between the ages of 18 and 25. In the immigration context, if an alien who was required to do so fails to register for selective service, there may be adverse immigration consequences, including a non-permanent bar to naturalization if such failure was proved to be willful. This article will explain the selective service requirement in the immigration context and the consequences for failing to register with selective service if required to do so.

The Citizenship Clause and Jus Soli Citizenship (Citizenship by Birth in the United States)

This article will explain the rules for jus soli citizenship, or citizenship by virtue of the place of birth, in the United States. With a limited exception for children of certain diplomatic officials, any person who is born in the United States gains citizenship at birth. Because this applies regardless of the immigration status of the parents, the United States has extremely generous citizenship acquisition laws in this regard. In this article, we will look at the United States Constitution, important case law, statutes, and regulations to examine how jus soli citizenship in the United States works.

Immigration Issues for Noncitizen Nationals

As defined by section 308 of the Immigration and Nationality Act (INA), certain persons born in American Samoa or Swains Island may be U.S. nationals, but not U.S. citizens, at birth. There is also a limited class of persons from the Commonwealth of the Northern Mariana Islands (CNMI) who had the opportunity to opt for nationality without full citizenship. In this article, we will discuss immigration considerations for noncitizen nationals under the INA. Among these are filing family-based petitions for alien relatives, acquiring proof of status, and naturalization.

Understanding Citizenship, Nationality, and Nationality without Citizenship

Under the Immigration and Nationality Act (INA), it is impossible to be a U.S. citizen without being a U.S. national. Furthermore, it is impossible for a noncitizen to apply for U.S. nationality but not U.S. citizenship. However, persons born in American Samoa, certain persons in the Northern Mariana Islands who opted to remain U.S. nationals rather than to become U.S. citizens, and those born to one or two noncitizen national parents, there are U.S. nationals who lack U.S. citizenship. In this article, we will explain the meaning of the terms “national” and “citizen” and examine when a person can be a noncitizen national.

Family-Based Immigrant Visa Petitions Filed by Noncitizen Nationals (Usually American Samoans)

The Immigration and Nationality Act (INA) contains provisions that allow U.S. citizens and lawful permanent residents (LPRs) to file immigrant visa petitions on behalf of certain alien relatives. However, there are no provisions in the INA covering immigrant visa petitions filed by noncitizen nationals (generally a person from American Samoa). There are two major Board of Immigration Appeals (BIA) precedent decisions that set forth the rules for noncitizen nationals filing family-based immigrant visa petitions. In this article, we will examine those two decisions and explain the rules for filing an immigrant visa petition as a noncitizen national of the United States.

Matter of Gomez-Beltran: Good Moral Character Bar for Giving False Testimony in Immigration Proceedings

On June 27, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision titled the Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016). The Board held that if an alien, during the period for which he or she is required to establish good moral character, gives false testimony under oath in proceedings before an immigration judge with the subjective intent of obtaining immigration benefits, the alien is barred from establishing good moral character under section 101(f)(6) of the Immigration and Nationality Act (INA). In this article, we will discuss the facts of the case, the Board’s reasoning in reaching its decision, and the effects of the decision going forward.

Supreme Court to Review Gender-Based Distinctions in Derivation of Citizenship Rules

On July 8, 2015, the Second Circuit Court of Appeals issued a decision titled Morales-Santana v. Lynch, 804 F.3d 520 (Jul. 8, 2015), wherein it held that gender-based distinctions for deriving citizenship from one unmarried U.S. citizen parent under the pre-1986 immigration laws guiding derivation of citizenship unconstitutional. On June 28, 2016, the Supreme Court granted the government’s petition for certiorari (review) of Lynch v. Morales-Santana, Docket No. 15-1191. In this article, we will examine the Second Circuit’s decision in Morales-Santana v. Lynch and the issues that the Supreme Court will review in Lynch v. Morales-Santana.

Recap of Oral Argument in Lynch v. Morales-Santana (Derivation of Citizenship Case)

On November 9, 2016, the United States Supreme Court head oral arguments in Lynch v. Morales-Santana, No. 15-1191. Morales-Santana v. Lynch is a case before the Supreme Court on appeal from a decision of the United States Court of Appeals for the Second Circuit titled Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir. 2015). The litigation concerns whether the Immigration and Nationality Act, having previously contained different physical presence requirements for the foreign-born children of unwed U.S. citizen mothers for the purpose of derivation of U.S. citizenship than it had provided on for the foreign-born children of unwed U.S. citizen fathers, violates the U.S. Constitution’s guarantee of equal protection. In this article, we will examine the oral argument conducted in Lynch v. Morales-Santana, and the clues that may be gleaned with regard to the thinking of the Justices regarding this very important case.

Continuity of Residence Requirement for Naturalization

In order to be eligible for naturalization, most applicants must generally have resided continuously in the United States for a period of five years prior to the naturalization application and subsequent to becoming a permanent resident unless he or she falls under certain exceptions. The applicant must also reside in the United States continuously from the date on which he or she applies for naturalization to the date on which he or she is naturalized. Certain absences from the United States during that five-year period may lead to a finding that the LPR’s period of continuous residence was “interrupted.” A finding of interruption of continuous residence would make the LPR ineligible for naturalization until he or she could satisfy all of the naturalization requirements. In this article, we will use the relevant statutes, regulations, agency guidance, and administrative and judicial precedent to explore issues regarding the interruption of permanent residency with regard to eligibility for naturalization.

Cases Where Absence of One Year or More Do Not Disrupt Continuity of Residence

If an applicant for naturalization was absent for a continuous period of one year or more, that will lead to a finding that the applicant’s continuous residence was interrupted, regardless of the applicant’s professed intent. The question of “intent” for absences of one year or more is only relevant in determining whether an applicant has abandoned his or her LPR status; it is not relevant to continuous residence for naturalization purposes. However, there are certain situations in which an applicant may remain abroad for one year or more and it will not be considered an interruption of his or her continuous residence. Some of these scenarios also exempt the applicant from the corresponding physical presence requirements to naturalization, although not all. In this article, we will review the situations in which an absence from the United States of one year or more will not lead to the interruption of continuous residence for naturalization purposes.

Physical Presence Requirement for Naturalization

In order to procure naturalization, an LPR must meet both a continuous residence requirement and a physical presence requirement for a statutory period subsequent to his or her admission as a lawful permanent resident (LPR) and immediately preceding his or her application for naturalization. In most cases, the continuous residence requirement is five years and the physical presence requirement is at least one-half of those five years. In this article, we will discuss the physical presence requirement for naturalization.

Expedited Naturalization for the Surviving Spouse or Child of an Alien Who Died While Engaged in U.S. Intelligence Activities

Under very limited circumstances, the surviving spouse or child of a deceased alien who died while engaged in U.S. intelligence activities is eligible for naturalization under special rules. This provision is noted in the United States Citizenship and Immigration Service’s (USCIS’s) Policy Manual (PM) at 12 USCIS-PM D.5. However, the PM does not describe the provision, and no details about it are found in the Immigration and Nationality Act (INA) or the Department of Homeland Security (DHS) regulations. Rather, the rules regarding this naturalization provision are in section 305 of the Intelligence Authorization Act of 1997, Pub. L. 204-293 (October 11, 1996). In this article, we will reproduce section 305 of Pub. L. 204-293 and explain the rules regarding naturalization contained therein.

Situations where Continuous Residence/Physical Presence Requirements are Modified or Inapplicable

In this article, we will examine situations in which the continuous residence and/or physical presence requirements for naturalization are either modified or inapplicable. Such situations include modified continuous residence and the physical presence requirements for spouses of U.S. citizens, surviving spouses or children of U.S. citizens who died in military service, and persons seeking naturalization based on service in the U.S. Armed Forces.

Overview of Form I-942, Request for a Reduced Fee

On December 23, 2016, the United States Citizenship and Immigration Services (USCIS) introduced the Form I-942, Request for Reduced Fee. The current version’s edition date is December 23, 2016. The Form I-942 will allow qualifying applicants for naturalization to seek a reduced filing fee. In this article, we will examine the eligibility and filing requirements for the Form I-942.

Rules for Whether Individual Must Have Been an LPR Before Turning 18 to Derive Citizenship Under Old Section 321

From December 24, 1952, to February 27, 2001, the derivation of citizenship after birth for alien children born abroad to alien parents, or to an alien parent who subsequently lost U.S. citizenship, was addressed in the old section 321 of the Immigration and Nationality Act (INA). The old section 321 still applies to cases where the child born abroad turned 18 before the effective date of the current section 320 on February 27, 2001. A specific provision of the old section 321 of the INA – section 321(a)(5) – has been a subject of inconsistent decisions issued by various federal circuit courts and the Board of Immigration Appeals (BIA). The question that has led to disparate decisions is whether, in order to derive citizenship, a child had to reside in the United States as a lawful permanent resident (LPR) prior to reaching the age of 18 and after his or her parent(s) were naturalized, or whether the child merely needed to “reside permanently” in the United States but not necessarily as an LPR under the same circumstances. In this article, we will examine the language of the old section 321, the various interpretations of the old section 321(a)(5), and the implications of the standing Board precedent and the circuit split on the issue for individuals who are still affected by the old section 321.

Permanent Bars to Good Moral Character

If an alien is subject to a “permanent bar” to good moral character, he or she will be permanently precluded from establishing good moral character, regardless of whether the action that the alien committed to cause the permanent bar to attach occurred in the relevant statutory period. In this article, we will study statutes, regulations, and administrative guidance to examine the permanent bars to good moral character.