Citizenship

By Birth in the U.S. or Certain Incorporated Territories:

Pursuant to the Fourteenth Amendment of the U.S. Constitution “all persons born or naturalized in the United States … are citizens of the United States.” We abide by the doctrine of citizenship based on jus soli–birth in the U.S.

By Acquisition at Birth:

  • A child born outside of the U.S. where one or both parents are US citizens may acquire U.S. citizenship at birth, including those born out-of-wedlock.
  • A chart is required to determine when and under what circumstances a child born in or out-of-wedlock can acquire citizenship based on the different laws passed by Congress over the years.  The congressional acts providing for acquisition of citizenship require the USC parent to reside in the U.S. for certain periods of time prior to the birth of the child to transmit citizenship to the child. Residence has been defined as “the principal dwelling place of a person” without regard to intent.  If the parent is a naturalized US citizen, the time both before and after naturalization can be counted in determining transmission by the parent.
  • A child is no longer required to reside in the US for certain periods of time in order to retain his/her citizenship.

By Derivation Through the Naturalization or U.S. Birth of One Parent:

A child born outside the U.S. may become a USC as a matter of law by virtue of his or her parent or parents birth or naturalization.

  • Old law – a child could be a derivative USC when one parent became naturalized while the child was under 18 and the child was residing in the U.S. after a lawful admission for permanent residence at the time of the parent naturalization or began to reside permanently in the U.S. under the age of 18 and was in the custody of that parent. Under the prior law if the parents were separated, the applicant would need to show that they were previously married and that they were now legally separated or divorced, that the child was in that U.S. citizen parent lawful custody and that all events occurred before the child was 18.
  • Child Citizenship Act–As a result of the Child Citizenship Act of 2000, a child no longer needs to prove that his or her parents were legally separated or divorced if s/he is in the custody of one parent as s/he did under the prior law. Now, as long as: (1) one parent is a citizen by birth or naturalization; (2) the child is under 18; (3) the child is an LPR; and (4) the child is residing in the U.S. in the legal and physical custody of the citizen parent. This includes adopted children. This law means that orphans who were adopted abroad prior to issuance of the IV (IR-3 classification) become U.S. citizens upon their admittance to the U.S. as LPRs1.  A child born out-of-wedlock who has not been legitimated is eligible for derivative citizenship when the mother of such a child becomes a naturalized citizen. Step-children are not covered within the meaning of the Act because they are not deemed to be children for purposes of Title III of the INA.

By NATURALIZATION:

General Naturalization Requirements

Age – You must be at least 18 years old.   Those younger may naturalize automatically with the naturalization of a parent or parents, and those with citizen parents at birth may be considered citizens by acquisition at birth.  NOTE:  Your birth certificate is not required.  Your Alien Card and passport are sufficient to prove age at your interview.

Residency – You must have been lawfully admitted to the United States for permanent residence.  Lawfully admitted for permanent residence means having been legally accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.  You can prove this by providing a copy of the Resident Alien card or foreign passport with an I-551 stamp demonstrating the grant of status on a certain date.   Note:  At the interview the Officer has the right to ensure that you were “lawfully admitted”, so if there is any question as to fraud or misrepresentation in the application process for your permanent residence, then these issues should be discussed with counsel prior to filing or the interview.

Residence and Physical Presence   – You are eligible to file and naturalize if, immediately preceding the filing of the application, you:

  • Have “resided” continuously as a lawful permanent resident in the U.S. for at least 5 years (referred to as the statutory period) prior to filing.  If you have lived, worked, and most of your day-to-day “ties” are in the U.S., claimed the U.S. as your sole residence for tax purposes, AND it has been five years from the date you received your Resident Alien status, then you clearly meet the test.  Residence is defined as ones principal, actual dwelling place in fact, without regard to intent.  Attempting to define two residences similarly may create an obvious conflict, so if you have homes in different countries and you are not employed in the U.S., consultation with Counsel may be required before filing or attending the interview; and
  • Have resided within a state or district for at least three months.  This is not in addition to the five years just mentioned, rather means that you cannot confer Federal Court jurisdiction over your application until you have lived for three months within a particular district.  In reality, even if you just moved to a new home, this must be met by your interview only and you will have met this requirement before BCIS can schedule you for an interview; and I cannot imagine any situation where you will be called for interview before this can be met; and
  • Have been physically present in the United States for a total (aggregate not consecutive) of at least 30 months (two and a half years) out of the previous five years.
  • However, you may meet the residence and physical presence requirements if you have been physically absent from the U.S. more than six months (continuously without interruption) but less than one year during the last five years.  This length of absence is presumed to break the continuity of residence unless you can establish that you did not abandon your residence during such period.
  • Further, you cannot meet the residence and physical presence requirements if you have been physically absent from the U.S. for more than one year, unless one of the few exceptions apply (employed outside the U.S. with certain government agencies, US corporations, and international groups and previously filed an application to preserve residence, or certain religious missionaries, or members of the armed forces).
  • Notwithstanding any of the above, you may file the N-400 three months early, than eligible as long as you can meet each requirement by the date of the interview.

NOTE: presenting copies of all passports held since Resident Alien status was granted, as well as any BCIS travel documents, will allow you (and the BCIS Officer) to track return dates to the U.S. by the BCIS Port of Entry Stamp in red, and arrival dates in other countries by their inspection/admission dates.

Good MoralCharacter – Generally, you must show that you have been a person of “good moral character” for the statutory period; however BCIS is not limited to the statutory period in determining whether you have established good moral character if looking at certain criminal matters, or your conduct during the last five years does not reflect that you have reformed from the earlier period or if those earlier acts appear relevant to a determination of your present moral character. “Good moral character” is not statutorily defined, but regulation does stipulate certain classes of persons ineligible for lack of good moral character, and case law provides some guidelines for other acts that have been ruled on.

Statue (Immigration & Nationality Act) specifically states you do not have good moral character if, at ANY time, you have ever been convicted of:

  • Convicted of murder,
  • Convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990 ; or under Order of Deportation.
  • Convicted of desertion from the U.S. Armed Forces.
  • Received relief from the Military Service.
  • You are found to be a “Subversive,” Anarchist, saboteur, communist, totalitarian and those that do not favor our form of government.  This also relates to your ability to meet item 5 below.
Regulation specifically states you do not hold good moral character if, in the last five years, you:
  • Have committed and been convicted of one or more crimes involving moral turpitude.
  • Have committed and been convicted of 2 or more offenses for which the total sentence imposed   was 5 years or more (if outside the U.S. purely political offenses do not apply).
  • Violated any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana .
  • You admit to committing any Criminal Act above regardless of an arrest or conviction.
  • Have been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more .
  • Have given false testimony, under oath, in order to receive any benefit under the Immigration and Nationality Act.
  • Have committed and been convicted of two or more gambling offenses .
  • Have earned your principle income from illegal gambling .
  • Are or have been involved in prostitution or commercialized vice .
  • Are or have been involved in smuggling illegal aliens into the United States.
  • Are or have been a habitual drunkard .
  • Are practicing or have practiced polygamy.
Case law or BCIS “interpretation,” has provided some guidance on a few topics.  Unless established extenuating circumstances, you may be found to lack good moral character if, during the statutory period, you:
  • Have willfully failed or refused to support dependents .
  • Committed adultery and that adultery destroyed a viable marriage, was “grossly incestuous,”  involved prostitution, was “flaunted openly” and involved public scandal, contributed to the delinquency of minor children who became public charges, or included circumstances indicating disregard for any sexual morality. (8CFR316.10 (g) (2) (viii)).
  • Committed any unlawful acts that adversely reflect upon your moral character, whether or not the actions led to a conviction or imprisonment. (8CFR 316.10(b)(3)(iii))
  • Homosexuality – the general rule is that homosexual activity will not in and of itself preclude a finding of good moral character.  However, where it involves an act involving minors, threat or use of force, the giving and taking of money or other valuables, was solicited or occurred in a public place, or was violative of marital vows.
  • Voting in an election in violation of any U.S. law is a deportable offense under current Law (IIRAIRA 347), so violation of this is clearly lack of good moral character.
  • If currently on parole, probation or suspended sentence.
No application will be approved until after this probation, parole or suspended sentence is complete. An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.
 

Selective Service Registration – This issue only applies to males that have been in any status, other than a valid nonimmigrant status, from age 18 to 26, and must have registered for the selective service.

  • If you are currently between 18 and 26 and have not registered, you will be denied on multiple grounds.  The easy solution is to register before filing.
  • If you are between 26 and 31 and failed to register, you must be prepared to convince the Officer your failure was not knowing and willful. This requires a Selective Service “Status Information Letter” with regard to their records, and I suggest notarized affidavits from you, and anyone that may have knowledge of these facts and your character.
  • If you are over 31, your failure is technically beyond the “statutory period” when good moral character is required, but remember the Officer can question whether you have proven you are reformed.  In other words, there is no real way out, so go to the interview prepared to prove you did not knowingly and willfully register with the Selective Service. 
  • You must declare that you are attached to the principles of the Constitution of the U.S., and willing to support and defend the U.S. and our Constitution.  While direct questions were posed and answered in the N-400 Application you filed, it is pointed out that “well disposed” means not hostile.  It includes dissenters but not advocates of change through violence. “Attachment” is a stronger term and implies a depth of conviction that would lead to the active support of the Constitution, and contemplates denial of applicants who are hostile to the basic form of the U.S government.   As a Citizen, one responsibility is to serve on jury duty when called; therefore, expressing willingness to serve on a jury if asked is imperative.

Language – Applicants for naturalization must be able to read, write, speak, and understand words in ordinary usage in the English language.  Essentially this means you understand enough to read or write to get through the questions in the interview.  You are judged by “using excerpts” written at the elementary literacy level. Applicants exempt from this requirement are those who on the date of filing:

  • Have been residing in the United States subsequent to a lawful admission for permanent residence for at least 15 years and are over 55 years of age;
  • Have been residing in the United States subsequent to a lawful admission for permanent residence for at least 20 years and are over 50 years of age; or
  • Have a medically determinable physical or mental impairment, where the impairment affects the applican’s ability to learn English.

United StatesGovernment and History Knowledge– An applicant for naturalization must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States.

  • Applicants exempt from this requirement are those who, on the date of filing, have a medically determinable physical or mental impairment, where the impairment affects the applicant’s ability to learn U.S. History and Government.
  • Applicants who have been residing in the U.S. subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 65 will be afforded special consideration in satisfying this requirement.
  • The Officer is instructed that in choosing the analysis material, in phasing questions, and in evaluating responses due consideration shall be given to your education, background, age, length of residence in the U.S., opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an approval of the adequacy of your knowledge and understanding.

 

Oath of Allegiance– To become a citizen, one must take the oath of allegiance. By doing so, an applicant swears to:

  • Support the Constitution and obey the laws of the U.S.;
  • Renounce any foreign allegiance and/or foreign title; and
  • Bear arms for the Armed Forces of the U.S. or perform services for the government of the U.S. when required.
  • In certain instances, where the applicant establishes that he or she is opposed to any type of service in armed forces based on religious teaching or belief, INS will permit these applicants to take a modified oath.