Whether to file for Naturalization: Considerations and Requirements

Overview

A key element under consideration by Congress as it debates a comprehensive immigration reform bill is whether a “pathway to citizenship” for the estimated 11 million unauthorized immigrants in the US should be included.  However, according to recent Homeland Security data, many immigrants that are already in the US lawfully and eligible to Naturalize, never get around to doing so.  Of the estimated 13.3 million green card holders living in the United States at the beginning of 2012, about 8.8 million were eligible to Naturalize.

Reasons often cited for failing to apply include an inability to meet the English language requirement, a fear/suspicion of putting oneself into the hands of the government, and ambivalence about the importance of Naturalization. For certain residents of the US, an enduring patriotism to their home country is a critical factor. Some countries, including China, Japan and Iran, generally do not permit their citizens to take on a second nationality, forcing a difficult choice.

Whether to seek Naturalization or not is a personal decision on the part of each immigrant, and requires balancing numerous considerations.  I’ve personally witnessed that for many, becoming a US citizen is nothing short of a lifelong dream.  While the US’ public image has been bruised in recent years in the eyes of some,  my experience as a US Diplomat overseas taught me that for a significant portion of the world’s population, the Democratic and Human Rights principles that the US supports are inspirational.

Lawful residents in the US cannot vote, make their home in a foreign country or remain outside the United States for extended periods of time, except under unique circumstances. Residents are ineligible for a US passport, and certain protections afforded to Americans abroad. Residents are ineligible for many government jobs and are eligible to petition for fewer types of family members for visas than can citizens. Residents can be deported for violating any of a wide variety of immigration and criminal laws.

Qualifying for Naturalization requires the following factors to be satisfied:

Before applying for Naturalization, a resident must be certain that all criteria are met, including residency, English and Civics knowledge, a lack of certain crimes in one’s past, and others.  The applicant must be over 18 years of age at the time of filing and must have been a “Green Card” holder for 4 years and 9 months on the date of filing.  If the applicant is living in a marital union with their US citizen spouse, the applicant is eligible to file 2 years and 9 months after becoming a resident. It is important to note that the marital union is not broken where the couple lives apart due to circumstances beyond their control, such as US military service or business or occupational demands, even for a prolonged period.

The applicant must also be able to read, write and speak English and possess knowledge and an understanding of US history and government. Some applicants may qualify for an exception to the English requirement, civics requirement, or both.  Applicants that are over 50 years of age and have resided in the US as a lawful permanent resident for at least 20 years (or over 55 and a resident for 15 years) are exempt from the English requirement but must still undergo the civics test.  An applicant over 65 years of age that has resided in US as an LPR for at least 20 years at time of filing, is accorded the use of special test forms.  Applicants included in all three categories above may take their civics test in their preferred language with the use of an interpreter.

Naturalization’s residency requirements require careful attention to dates of travel. The applicant must meet the following three requirements:

• Residence in the State of filing: for at least 3 months prior to the date of filing the application.

• Continuous residence in the US for at least 5 years immediately preceding the date of filing the application and from the date of filing up to the time of Naturalization. An applicant breaks the continuous residency requirement if he or she stays out of the US for over one year during the residency.  Six months absence from the US raises a rebuttable presumption of abandonment of the application, therefore any extended periods outside of the US should be carefully considered.

• Physical presence in the US for at least 30 months out of the 5 years immediately preceding the date of filing the application.

An exception to the continuous residence requirement exists where the applicant served in the military abroad, for certain employees working abroad who obtained prior permission from USCIS and for certain family members of citizens who died in combat.  An exception to the physical presence requirement exists where the applicant is employed abroad either by the US government or with a public international organization, is engaged in missionary work, or works for certain U.S. companies abroad.

Lastly, a naturalization applicant must prove they are a person of good moral character (GMC) in the five years prior to applying (or three if applying through marriage.) Immigration officers have significant discretion in deciding whether an applicant meets the GMC requirement.  Almost any criminal conviction during the three or five year period can result in a denial of a naturalization application, but officers can look beyond the statutory period in certain instances.  A review of criminal acts prior to the three or five year eligibility period for the purpose of determining whether the applicant has been reformed is typical, and the acts are considered within the context of the entire application.  If there are any arrests, criminal charges or convictions in one’s past, the case should be painstakingly reviewed by an experienced attorney to ensure the offense is not one that would trigger removability.

For some, whether to Naturalize is a carefully considered step, while for others, the decision is simple.  If and after the decision has been made to pursue Naturalization, speak to an experienced Attorney that will give your case the personal attention it deserves.

***

Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience.  His offices are located in Irvine, California.