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Copyright 2003, Boyd F. Campbell, All Rights Reserved
How to become a U.S. citizen
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By BOYD F.
CAMPBELL
Attorney
at Law and Civil Law Notary
Whether you will
find it easy or hard to become a U.S. citizen will depend on too many factors
to discuss in this short article, but I will discuss eligibility requirements,
age, disability, and relatively new laws governing children of U.S. citizen
parents born overseas.
There are only
two ways to become a U.S. citizen: either by law, or by birth.
If you are a
citizen by birth, no action on your part is generally required (for example,
if you were born in a state or territory of the United States), unless
you were born to a U.S. citizen parent overseas, and your birth was not
recorded as a U.S. citizen birth at a U.S. consulate overseas.
If you are not,
then you will probably seek to become one by naturalization, an administrative
process that requires you to take some action and which is strictly governed
by the Immigration and Nationality Act (INA).
Generally --
very generally -- you may not be naturalized unless you:
1. Are
at least 18 years old and a lawful permanent resident ("green card" holder);
2. Have
resided continuously in the United States, having been lawfully admitted
for permanent residence, for five years immediately preceding the date
you filed your application for naturalization, or
3. Have,
after having been removed from conditional permanent resident status, based
upon your marriage to a U.S. citizen, having resided in the United States
for one year after the date the condition was removed;
4. Have
resided continuously in the United States at all times after your application
to the time and date of your admission for citizenship;
5. Have,
during all periods of time referred to above, been and still are a person
of good moral character;
6. Have
no outstanding deportation or removal order and no pending deportation
or removal proceeding;
7. Have
the ability to read, write, speak, and understand simple words and phrases
in English;
8. Have
knowledge and understanding of the fundamentals of U.S. history and government;
9. Are
attached to, and can support, the principles of the U.S. Constitution and
can swear allegiance to the United States.
You can maintain
"continuous presence" in the United States and preserve your permanent
resident status by not remaining outside the United States for more
than one year, or by obtaining advance approval from the INS for your absence
by filing Form N-470 with the INS before leaving. A break in residence
of more than one year, without advance approval of Form N-470, means you
must start your five-year term of physical presence in the United States
again.
Minors with
at least one U.S. citizen parent may be naturalized upon the application
of the U.S. citizen parent. INA § 322, 8 U.S.C. § 1433.
This includes adopted children.
You may file
your application for citizenship (INS Form N-400, please see our "Forms
Download" page on our main web site page near the bottom) up to three months
before you meet the residence eligibility requirements referred to above.
You may be found
not to possess “good moral character” if you were convicted of murder,
an “aggravated felony,” as defined by federal immigration law, a crime
of “moral turpitude,” a controlled substance crime (but not for simple
possession of 30 grams or less of marijuana), if you gave false testimony
to obtain immigration benefits, failed to provide child support, committed
adultery or were involved in prostitution, or failed to register for Selective
Service if you are between the ages of 18 and 25. The INS has paid
greater attention to the offense of driving under the influence of alcohol
or other substances, particularly to multiple offense by the same applicant
where the latest offense is considered a felony by state law. This
is certainly not meant to be an exhaustive list of things that can cause
problems with the naturalization processes of the Immigration and Naturalizatioin
Service (INS).
You will be
required to take a literacy test to assess your knowledge of the English
language, unless you are:
1. Unable
to comply due to a documented disability;
2. Are
more than 50 years old and have lived in the United States for 20 years
or more as a permanent resident alien;
3. Are
more than 55 years old and have lived in the United States for 15 years
or more as a permanent resident alien.
You will be required to take a test of your knowledge of U.S. history and government unless you are:
1.
Unable to comply due to a documented disability;
2. Are
65 years old or older and have been a permanent resident alien for more
than 20 years.
If you fail the
tests, you will be given a second opportunity to pass the tests within
90 days.
INS examiners
are required to make a decision concerning your naturalization within 120
days after your interview, or the examiner may ask you to sign a waiver
of this requirement. Most will. If you application is denied,
you may appeal to another INS examiner within the same district office.
The new INS examiner will have 180 days from the date of the filing of
your appeal to make a decision. If you application is again denied,
or if there is no decision within the 180 days, you may seek review of
the examiner’s decision in U.S. district court where you live. You
may also seek review in federal court if you did not waive the 120-day
rule, and INS does not make a decision within 120 days.
Members of the
U.S. armed forces may apply for naturalization upon completion of three
years of honorable service and must be lawful permanent residents of the
United States before they may file an application. Neither residence
nor physical presence in the United States are required. All naturalization
applications (INS Form N-400) involving a member of the armed services
should be filed with the Nebraska Service Center until further notice by
the INS.
Special naturalization
procedures apply to those who served on active duty on behalf of the U.S.
armed forces during certain military hostilities defined by law.
Surviving spouse of U.S. citizens who died during periods of honorable
service on active duty are also eligible.
In 1994, Congress
provided for the expeditious naturalization of children and for restoration
of U.S. citizenship for those who did not fulfil retention requirements.
These new laws became effective on March 1, 1995.
Naturalization of children on application of citizen parent
The naturalization
of children in the United States is administered by the Immigration and
Naturalization Service (INS). A U.S. citizen parent who is unable
to transmit U.S. citizenship to a child born aboard as a result of an inability
to satisfy the transmission period requirement, may apply for the expeditious
naturalization of that child. One of two prerequisites must be satisfied:
Either 1) the child must be residing permanently in the U.S. with the citizen
parent pursuant to a lawful admission, or 2) for a child residing abroad,
a citizen parent or the child's U.S. citizen grandparent must have been
physically present in the United States or in its outlying possessions
for a period or periods totaling not less than five years, at least two
of which periods were after the child attained the age of 14 years.
The U.S. citizen grandparent's physical presence in the U.S. allows for
the expeditious naturalization of a child without permanent resident ("green
card") status.
INS's procedure
should be as follows:
1. The
applicant forwards the N-600 application for certificate of citizenship,
along with supporting documents, to INS field office in the United States
that has jurisdiction over the U.S. citizen parent's or U.S. citizen grandparent's
residence.
2. The
INS determines whether the applicant is eligible, approves application,
and then forwards a letter and naturalization appointment date to applicant.
3. The
applicant presents the INS approval and appointment letter to U.S. consular
post in his or her home country.
4. The
U.S. consular post issues a B-2 visitor visa to the applicant.
This process will allow parents to make a one- stop visit to the United States for purposes of naturalizing their child as a U.S. citizen. The law also provides that the illegitimate child of a U.S. citizen parent may be naturalized. An illegitimate child is considered eligible to become a U.S. citizen if:
1. The
child was born after December 23, 1952, and the mother was a U.S. citizen
at the time of the child’s birth and had been physically present in the
United States for a continuous period of one year prior to the child’s
birth, or
2. The
father is a U.S. citizen and:
a. The
child was born on or after November 15, 1968;
b. A parent-child
relationship was established on or after November 14, 1986;
c. Blood
relationship is established by clear and convincing evidence;
d. The
father was a U.S. citizen at the time of the child’s birth; the father,
unless deceased, agrees in writing to support the child until he or she
reaches the age of 18;
e. Before
the child reaches 18, the child is legitimized under the law of the child’s
residence or domicile, the father acknowledges paternity of the child in
writing under oath, or the child’s paternity is established by adjudication
of a competent court.
Former citizens of the United States regaining United States citizenship
U.S. citizenship
may be restored to former U.S. citizens who lost their nationality because
they failed to comply with the former retention requirements of the Immigration
and Nationality Act (INA). American citizens born abroad to one U.S.
citizen parent and one alien parent between May 24, 1934, and October 10,
1952, were subject to varying retention requirements in order to keep their
U.S. citizenship.
They were required
to reside or be physically present in the United States for specific periods
in order to keep U.S. citizenship acquired at birth. Those who failed
to comply with the requirements ceased to be U.S. citizens. Although
the retention requirements were repealed on October 10, 1978, the repeal
was prospective, not retroactive, and American citizens born during this
period me fell victim to the residency-physical presence requirements,
unless affirmative defenses to failing to retain (unawareness, impossibility
of performance, or official misinformation) were present to support a conclusion
that constructive compliance had occurred.
Today, someone
who lost U.S. citizenship because of failure to meet the retention requirements,
may regain his citizenship upon application and upon taking the oath of
allegiance, provided he is not excluded because he advocates totalitarian
forms of government. This amendment does not restore citizenship
retroactively; therefore, these persons would be unable to transmit citizenship
to their children born during the period between their loss of and restoration
to U.S. citizenship.
Upon presentation
of documentation supporting a claim to U.S. citizenship, the applicant
should fill out and sign a statement in the presence of a U.S. consular
officer.
Intent to reside permanently in the U.S. after naturalization
An immigration
law section that provided a means for a court to revoke a naturalized person's
U.S. citizenship, if it were determined that the individual had taken up
permanent residence abroad within one year of the date of naturalization,
has been repealed.
The new amendments
remove the following language from naturalization certificates: "intends
to reside permanently in the United States." Those judicially denaturalized
will not be affected. Denaturalization is a judicial procedure and
loss of citizenship is an administrative action.
Dual citizenship
A bit too complicated for this article, dual citizenship, generally, wherein a person may be a citizen of two countries, is not favored by U.S. law. Although U.S. law does not require a dual national to elect one nationality over another, the oath of allegiance that every U.S. citizen must take upon naturalization may expatriate the dual national, depending upon the other country’s nationality law. Dual nationality usually arises as a matter of law and does not require action on the part of the dual citizen.
HERE IS OUR WARNING AGAIN: Your future in the United States is too important to trust to just anyone. Naturalization does not normally require the help of an immigration lawyer, but many other immigration procedures could better be handled by a lawyer trained in immigration and nationality law and procedures. If you need help, you should find and hire a qualified immigration lawyer to guide you and help you with a change in visa status, an immigrant visa application, or an application for naturalization if there is any question about federal law as it is applicable to your situation or that of a loved one. If you do not know an immigration lawyer, call the American Immigration Lawyers Association (AILA) toll-free at 1-800-954-0254. AILA has a lawyer referral service and will put you in touch with a qualified immigration lawyer in your area.
Boyd F. Campbell practices immigration and nationality law in Montgomery, Alabama, and is a member of the American Immigration Lawyers Association. He is a past Chair of the Immigration Law Committee of the American Bar Association’s General Practice, Solo and Small Firm Lawyers Section, and serves as Chair of the International Law Section of the Alabama State Bar. From 1994 to 1998, he served on the ABA's Coordinating Committee on Immigration Law. Mr. Campbell is listed by Best Lawyers in America: CLICK HERE. and in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. He is a civil law notary, having been appointed by the Alabama Secretary of State to this official position in August, 2001. For more information about Mr. Campbell, CLICK HERE.
Questions and comments about this
article may be directed to:
Immigration
Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032
U.S.A.
Telephone: (334) 832-9090
E-mail: usvisa@visaus.com
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