ABCs of Immigration: Obtaining U.S. Citizenship

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Elissa Taub, The Physician Immigration Handbook.]

In most circumstances, once a person has received his or her green card and therefore become a lawful permanent resident (LPR), the most arduous of immigration challenges have already come to pass. As long as the person does not commit any crimes or forfeit the green card by not spending most of his or her time in the United States, then the only requirements to meet are to notify U.S. Citizenship and Immigration Services (USCIS) in the event of a change of address, which can be achieved by filing a Form AR-11, Change of Address, online or by mail, and to renew the green card every ten years, which can be achieved by simply filing a Form I-90, Application to Replace Permanent Resident Card. Once the person has met the necessary residency period, which is three years if the individual is married to a U.S. citizen, five years otherwise, then naturalization to become a U.S. citizen is a possible consideration.

The Benefits and Costs of Naturalization

Why become a U.S. citizen?

Most of the rights afforded to U.S. citizens are also enjoyed by green card holders, and in everyday life there are few discrepancies between the experience of LPRs and their U.S. citizen counterparts. For example, green card holders can typically stay in the country as long as they like and are permitted to work for virtually every kind of employer. There are, however, benefits to naturalization, 10 of which have been highlighted below:

1. Patriotism and Voting – If an individual wants to make America his or her home and participate in the American democracy, citizenship is integral. With very few exceptions, voting is restricted to citizens of the United States, and voting is the most fundamental manner in which one can make significant change in the way the country.
2. Retaining Residency – The sole method of guaranteeing the right to remain in the United States is to naturalize. Permanent residents can always potentially lose their green cards if they spend long periods of time outside the country. September 11 amplified this problem, and increasing numbers of individuals are losing their residency status because port-of-entry officers deem them as having abandoned their permanent residency in the United States.
3. Deportation – With a criminal conviction comes the risk of deportation, even if the crime is not necessarily very serious. However, citizens retain their citizenship even if they run into criminal problems, with very few exceptions.
4. Government Benefits –  Some LPRs are not permitted to the same public benefits available to citizens, and there has recently been a push to make such benefits available only to citizens. The best way to protect against this problem is naturalization.
5. Immigration for Family Members – With respect to bringing family members to the United States, U.S. citizens are given priority treatment. In fact, citizens over the age of 21 can sponsor family members without having to wait on a queue for a visa to become available. Another benefit awarded to citizens is the ability to sponsor adult children and siblings, though the waiting time for these categories can be quite lengthy, as long as a few months to several years. By contrast, green card holders cannot sponsor parents or siblings, and the wait to bring in children and spouses is much longer than for citizens.
6. Federal Jobs – Certain types of jobs with government agencies, particularly jobs in the energy and defense sectors, necessitate U.S. citizenship.
7. Running for Office – Many types of elected positions have a requirement of U.S. citizenship in order to hold the office.
8. Tax Consequences – U.S. citizens and Legal Permanent Residents are not always treated the same for tax purposes; this inequality is particularly evident for real estate taxes.
9. Federal Grants – Though LPRs can receive many federal grants, many of these grants are being restricted to U.S. citizen applicants.
10. Political Contributions – While green card holders can legally donate money to campaigns while residing in the country, it is not as clear if the donating green card holder is residing abroad, even if the residence is only temporary. This was the central topic of a political scandal involving donations made by wealthy Indonesians to a certain presidential campaign.

 

Why would one not become a U.S. citizen?

There are numerous reasons why an individual might not want to file for U.S. citizenship. They include the following:

1. Loss of home-country citizenship – Most countries recognize dual citizenship, and the United States is recognized as one of the most liberal in the world in terms of allowing dual nationality. However, some countries will remove citizenship of a national, once an individual becomes a U.S. citizen. Losing one’s home country citizenship can lead to the loss of many benefits, such as access to the country’s health-care system, retirement benefits, cheap or free university tuition, property rights, etc. Before initiating the naturalization process, it is a good idea to check to see what the latest rules are.
2. Taxes – U.S. citizens and LPRs are generally taxed similarly, but there are a few differences. There are rare times when naturalizing could potentially cause a negative tax consequence. Furthermore, if a person intends to eventually leave the United States, forfeiting one’s U.S. citizenship with the hopes of avoiding taxes later can be difficult.
3. Ease of travel – Some countries are not amicable with the United States, which could mean that having a U.S. passport could be disadvantageous.
4. Patriotism – Some individuals choose not to become a U.S. citizen out a sense of patriotic duty to his or her home country.
5. Finances – The naturalization process is expensive; the application alone costs upwards of $600, attorney fees notwithstanding.

 

Naturalization Requirements

What is the age requirement for Naturalization?

The most fundamental requirement for naturalization is that the applicant must be at least 18 years old. Children under 18 that have met the requisite residency requirements and whose parents are naturalized automatically obtain U.S. citizenship.

Must an applicant live in the United States prior to naturalizing?

There are a number of residency related requirements in the United States necessary for naturalization. In most cases, five years of continuous residency after becoming an LPR by the applicant is required, unless the applicant is married to a U.S. citizen, in which case the requirement is three years continuous residence. At least half of the permanent residency time must have been spent physically in the United States. Furthermore, the applicant is required to have spent at least three months in the jurisdiction where the application will be filed.

What is meant by “residence” in the naturalization requirements?

A person’s residence is defined as his or her place of general abode. In other words, the place where a person makes “their principle, actual dwelling place in fact, without regard to intent.”

What are the physical requirements for naturalization?

Generally, a naturalization applicant must have been an LPR of the United States for at least five years and also adhere to certain requirements regarding the time spent physically in the United States. During the five years immediately preceding the application, the person must have resided in the United States, and half of that five-year span must have been spent physically in the country. A noteworthy exception is physicians participating in the Military Accessions Vital to the National Interest (MAVNI) program, who are not required to meet the naturalization residency tests.

When applying for naturalization, is an applicant required to physically reside in the United States?

Three months prior to the application, the applicant is required to have resided in the USCIS district in which the application will be filed. During the time between the filing of the application and the granting of citizenship, the applicant must also maintain residence in the United States. This does not prohibit travel, but applicants are not allowed to change their place of residence during this time. Furthermore, the requirement of spending half of one’s time in the United States continues to apply at the time of naturalization, as well as the time of application.

Is there a residence requirement after the applicant has submitted an application for citizenship?

Though absences are allowed, an applicant must continue to reside in the United States after filing the naturalization application.

Will an applicant be denied naturalization if absent for six months to a year from the United States during the five-year period prior to the application?

Merely being absent from the United States during brief periods, even up to six months to a year within the five years prior to a citizenship application does not negate the period of physical presence. Such absences should, however, be managed carefully. Generally, these are understood to break the period of continuous residence, but this is not the case if it can be demonstrated that the applicant did not abandon the U.S. residence. Such evidence could include proving continued U.S. employment, evidence of family in the United States, maintenance of a home within the United States, and evidence showing no employment has been sought abroad.

Will an applicant be denied naturalization if absent for more than one year from the United States during the five-year period prior to the application?

Absences which eclipse one year will terminate continuous residence unless the applicant adheres to specific requirements. First, the applicant must not have any lapses in physical presence in the United States at any point in the year following admission as an LPR. Any absence from the United States, for any duration, is not permitted during this period. The applicant must also be employed by one of the following:

• The U.S. government;
• A U.S. research institution recognized by the attorney general;
• A U.S. business engaged in the development of foreign trade and commerce; or
• A public international organization of which the United States is a member.

Before the culmination of the one-year period outside the United States, the applicant must file an application to preserve residency with USCIS and demonstrate employment by one of the above-mentioned organizations. The applicant is then required to, again, prove that the visit outside of the United States was the result of business obligations. Even after these contingencies are met, the requirement that the applicant spend half of the five years preceding the naturalization application filing is still applicable.

The only avenue of avoidance for this requirement is when a person’s time outside the country is considered “constructive presence” in the United States, the most common instance of which is overseas military service.

In which cases are the residence requirements waived?

Residence requirements can be waived, as long as the applicant is a spouse of a U.S. citizen and meets one of the following classifications:

• A member of the U.S. armed forces;
• An employee or individual under contract of the U.S. government;
• An employee of an American institution of research recognized by the attorney general;
• An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States;
• An employee of a public international organization of which the United States is a member by law or treaty;
• A person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the United States.

If the spouse of the U.S. citizen works overseas for a minimum of one year according to an employment contract or order, then they residence requirements are actually waived.

Additionally, soldiers who are deployed during war times, as is currently the case, are eligible for citizenship without adhering to the normal residence requirements.

Which residence requirements apply when a spouse of a U.S. citizen applies for citizenship?

One of the most beneficial aspects for spouses of U.S. citizens in respect to naturalization is the ability to seek U.S. citizenship after three years as an LPR, compared to the five year requirement which is generally the case. Under the general rule, one half of this time, 18 months, must be spent physically present in the United States. The couple is also required to have been living in marriage for the entirety of the three years, and the citizen member of the couple must have been a citizen for the entire three-year period. In the event that the couple no longer lives together as husband and wife, the residency requirement for naturalization reverts to the normal five years.

If the U.S. citizen spouse of a permanent resident applying for U.S. citizenship is employed abroad, are residence requirements still applicable?

As previously mentioned, under §319(b) of the Immigration and Nationality Act, spouses of U.S. citizens who are employed outside of the U.S. also benefit from the fast track naturalization process. There is a requirement that the U.S. citizen be employed by a qualifying organization, which can be:

• The U.S. government;
• A recognized U.S. research institution;
• A U.S. business engaged in foreign trade;
• An international organization of which the United States is a member or participant; or
• A religious denomination, for the purpose of performing religious work.

Regulations specifically require a citizen spouse’s employment abroad to span at least a year. If this requirement is met, however, the naturalization application can be filed before the employment abroad begins. Furthermore, there is no minimum required residence in the United States, nor is there a minimum period for which the applicant must have been an LPR. The applicant does have to declare his or her intention to permanently reside in the United States upon termination of the spouse’s foreign employment.

Unfortunately, USCIS officials are frequently unfamiliar with this rule and need to be educated about its applicability.

What additional requirements must be met to naturalize?

Applicants need to demonstrate both good moral character and an attachment to the principles embodied in the Constitution of the United States. They must also possess basic English skills and knowledge of the history and government of the United States.

Are there any exceptions to the requirements?

Some groups of people are still not eligible for citizenship even if they demonstrate these requirements. These include people who have held certain ideological beliefs and people who have deserted the U.S. military. Though criminal offences do not exclude a person from naturalization, since 1996, individuals who have aggravated felony convictions are incapable of demonstrating good moral character. There are no longer provisions in U.S. law preventing an individual from naturalizing based on his or her ethnicity.

What is the naturalization application process?

Petitions for naturalization are centrally filed in the United States using Form N-400, Application for Naturalization. Once USCIS has completed data entry, it then sends the file to the local USCIS district office, where it is processed. Applicants are interviewed, and the civics/English test is administered. If USCIS approves them, they are generally scheduled to be sworn in by a federal judge, though in limited instances USCIS officers are also authorized to swear in new citizens.

Do children need to apply separately?

No. Children under the age of 18 who adhere to the residence requirements become citizens automatically once a parent naturalizes. They would then need to apply for a U.S. passport or a certificate of citizenship in order to have documentation of their new nationality. There are also numerous alternative ways for children under 18 to obtain U.S. citizenship other than birth.

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