An individual can become a citizen of the United States in one of two ways: birth or naturalization. The primary method by which a majority of the population attains citizenship is through birth. An individual born within the territorial United States or to U.S. citizen parents outside of the United States is automatically a citizen. The second method by which one may become a citizen is through naturalization. Lawful permanent residents can become citizens of the United States through naturalization provided they meet the criteria discussed below.
The following groups of individuals are eligible to apply for U.S. citizenship through naturalization:
- Lawful permanent residents that have lived continuously in the United States for 5 years and are at least 18 years old;
- Lawful permanent residents age 18 or older (that have been a lawful permanent resident for at least three years), married to and living with the same U.S. citizen for the past three years and their spouse has been a U.S. citizen for at least three years;
- Certain individuals who are nationals of the United States and are at least 18 years old; and
- Certain individuals who have served honorably in the U.S. Armed Forces.
A qualified individual must submit an N-400 Application for Naturalization and have lived in the state where their application is filed for at least 3 months. In addition to the N-400 Application for Naturalization, the applicant must demonstrate:
- They have been lawfully admitted to the United States;
- Physical presence in addition to continuous permanent residence;
- Good moral character;
- Attachment to the U.S. Constitution;
- An ability to read, write, speak, and understand basic English; and
- Knowledge of U.S. civics (history and government) through a civics test.
Once the lawful permanent resident has fulfilled all of the requirements for naturalization, they are invited to take part in a naturalization ceremony. At the naturalization ceremony, the prospective U.S. citizen must take an oath of allegiance to the United States.
Exceptions to the English language requirement exist for applicants who, at the time of filing their N-400 Application for Naturalization, are of a certain age and have been a lawful permanent resident of the United States for a significant period of time. Specifically, individuals age 50 or older who have been a permanent resident for at least 20 years are exempt from the English language requirement and may be able to take the civics test in their native language. Similarly, individuals who are 55 years old and have resided in the United States as a lawful permanent resident for at least 15 years are eligible for the same accommodations. The United States Citizenship and Immigration Services (USCIS) will give special consideration regarding the civics requirement to lawful permanent residents age 65 or older that have lived in the U.S. for a minimum of 20 years.
A lawful permanent resident must be able to prove they have continuously resided in the United States for 5 years preceding their application for citizenship, or 3 years if married to and living with someone who has been a citizen for at least 3 years. Continuous residence means the individual has not left the U.S. for periods greater than 6 months. If the individual applying for citizenship has left the U.S. for more than 6 months they risk disrupting the continuity of their residence. An exception may apply if the foreign national can prove their absence from the U.S. for greater than 6 months, but less than one year, did not disrupt the continuity of their permanent residence. Evidence, such as the following, can be used to prove continuous residence for absences from the U.S. between 6 months and one year:
- Maintenance of employment in the U.S. during the period of absence;
- Immediate family members remained in the United States;
- The lawful permanent resident retained full access to their United States residence; and/or
- The lawful permanent resident did not obtain employment abroad.
For absences from the U.S. greater than one year, the applicant’s continuous residence is presumed to be disrupted and there is no evidence that can rebut this presumption. However, upon returning from abroad, the applicant may apply for naturalization 4 years and one day after returning to the U.S. (if their continuous residence requirement is 5 years) or 2 years and one day after returning to the U.S. (if their continuous residence requirement is 3 years).
Physical presence requires that the lawful permanent resident actually be located in the United States for approximately half of the time required for their continuous residence requirement. Thus, if a lawful permanent has a 5 year continuous residence requirement, they must be physically present in the United States for periods totaling approximately two and a half years. Likewise, if the lawful permanent resident’s continuous residence requirement is 3 years, they must be have actually been in the United States for periods equal to one and a half years.
Judicial appeal to the US Circuit Court is typically the appropriate tribunal upon exhausting all administrative appeal process. It is critical however that in most cases appeal through the administrative appeal process is properly presented and exhausted with critical facts preserved for Circuit Court appeal. The opportunity to present additional facts or evidence at this level is limited. In some circumstance appealing to the federal court directly may be available if there no administrative appeal tribunal with Jurisdiction to address certain grievances, such as pure constitutional questions.
In all cases filing an appeal requires experienced counsel with ability to properly present your case.
Attaining and Maintaining Dual Nationality
Attaining and Maintaining Dual Nationality
Acquisition of Dual Nationality
At Birth. Dual nationality is typically acquired at birth when the principles of jus soli and jus sanguinis both apply simultaneously. Jus soli (Latin for “right of soil”) is the principle that a person is conferred citizenship of a country by virtue of being born within the country’s borders. Jus sanguinis (Latin for “right of blood”) is the principle that a person is conferred citizenship by virtue of being born to parents who are citizens of a particular country. Each country has its own rules pertaining to acquisition of nationality, which are usually some variation of jus soli and/or jus sanguinis. So, for example, a person born in the United States to parents who are citizens of Mexico is automatically a citizen of the United States (by jus soli) and a citizen of Mexico (by jus sanguinis). Likewise, a person born in Mexico to parents who are citizens of the United States would be automatically a citizen of both countries.
By naturalization. A person may also acquire dual nationality by naturalizing in the United States when the person is already a citizen of another country. It is important to note, however, that naturalizing in the United States could lead to expatriation from the other country of citizenship. This is because one requirement of naturalization in the United States is that the petitioner take an oath renouncing citizenship and allegiance to all other countries. Whether this oath is enough to result in expatriation depends on the other country’s expatriation laws. Note that such an oath taken by a U.S. citizen in a foreign country would in fact be sufficient to result in expatriation from the United States. The acquisition of dual nationality in this situation is thus dependent on the expatriation laws of the other country.
Children under the age of eighteen also may become U.S. citizens automatically if their parent becomes a U.S. citizen through naturalization.
Maintaining Dual Nationality: Avoiding Expatriation
U.S. citizens should be careful if they desire to attain dual nationality. In some instances, attaining dual nationality can result in expatriation from the United States. Expatriation is the concept of relinquishing one’s nationality. One manner of effectuating expatriation is to apply for citizenship in a foreign country if you are already a U.S. citizen. Essentially, when a U.S. citizen applies voluntarily for citizenship in a foreign country, with the intent to give up U.S. citizenship, he or she will be subject to expatriation.
It is worth noting, however, that some cases create no problem, such as when a U.S. citizen marries a foreign national and attains naturalization in their spouse’s country automatically because of the marriage.
Expatriation may also occur in other situations in which a person attempts to exercise the benefits of citizenship in a foreign country, such as voting in an election, taking oath of allegiance, or being employed in a policy-level government position. For a more detailed discussion of expatriation and acts which result in expatriation, see the article on expatriation
What is Expatriation?
What is Expatriation?
The commission of any of the acts in Section 349 creates a presumption of having been committed voluntarily, but the presumption is rebuttable upon a showing, by preponderance of the evidence, that the act was not done voluntarily.
The following is a brief overview of the acts which may result it expatriation.
1. Naturalization in a Foreign State
Obtaining naturalization in a foreign state will result in expatriation. The naturalization must be upon the person’s own application or upon the person’s duly authorized agent’s application. It is important to distinguish here that this section does not always preclude dual nationality, for more information on dual nationality, click here [provide link to article on dual nationality].
2. Oath, affirmation, or Other Declaration of Allegiance to a Foreign State
Taking an oath, affirmation, or other formal declaration of allegiance to a foreign state or its political subdivisions will likewise result in expatriation.
3. Joining the Armed Forces of a Foreign State
Anyone who enters or serves in the armed forces of a foreign state as a commissioned or non-commissioned officer will be subject to expatriation. Also, anyone who enters or serves in the armed forces, in any capacity, of a foreign state which is engaged in hostilities with the United States will be subject to expatriation.
4. Employment Under the Government of a Foreign State
The act of accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state is grounds for expatriation if the office, post, or employment is conditioned upon acquiring the nationality of the foreign state or upon taking an oath, affirmation, or declaration of allegiance.
5. Formal Renunciation
In a Foreign State. A person may formally renounce his or her U.S. nationality by making such renunciation before a diplomatic or consular officer of the United States in a foreign state, so long as the renunciation is effected in accordance with the manner prescribed by the Secretary of State (currently this is accomplished by signing an oath of renunciation). Parents cannot renounce U.S. citizenship on behalf of their children.
Renunciation of citizenship is irrevocable, except in the case of a person who renounced their citizenship before they were eighteen years of age, as long as the person, within six months of turning eighteen, makes known their desire to have their citizenship reinstated.
In the United States. A person may also formally renounce his or her citizenship by making the renunciation before an officer designated by the Attorney General, but only when the United States is in a state of war and the Attorney General determines that the renunciation is not contrary to the interests of national defense.
A conviction for an act of treason, attempting to overthrow the U.S. government, bearing arms against the United States, and like offenses against the United States will result in expatriation.
Who Are the Citizens of the United States?
Who Are the Citizens of the United States?
By Birth in the United States (Jus Soli) and its territories
Anyone born in the United States is automatically a U.S. citizen. This is known as the principle of jus soli (or “right of soil”). An exception to the rule of jus soli is in the case of children of foreign diplomats, who do not become citizen because they are not subject to the jurisdiction of the United States.
Birth in a U.S. Territory. Over the course of its history, the United States has acquired several territories and possessions. Most of the territories and possessions have benefited from statutes granting citizenship to anyone born there. A few examples are Guam, the Virgin Islands, and Puerto Rico. However, the outlaying possessions of the United States (which include American Samoa and Swains Island) have not benefited from such legislation, and the people in those places are not U.S. citizens, but instead are U.S. nationals.
By Having a Parent who is a U.S. Citizen (Jus Sanguinis)
A person is also a citizen at birth if he or she is born outside of the United States in the following circumstances:
• Both parents are U.S. citizens and at least one parent had a residence in the United States or its outlaying territories prior to the birth of the person;
• One parent is a U.S. citizen that has been physically present in the United States or one of its outlaying possessions for a continuous period of one year prior to the person’s birth, and the other parent is a national of the United States;
• The person was born in an outlaying possession of the United States (American Samoa or Swains Island), and at least one parent is a citizen of the United States and was physically present in the United States or one of its outlaying possessions for a continuous period of one year at any time prior to the birth of the person; and
All of the circumstances listed above have the common factor that at least one parent must have been a United States citizen. The child becomes a citizen by virtue of the relationship to the citizen parent. This principle is known as jus sanguinis (or “right of blood”).
Children Born Out of Wedlock. A Child born out of wedlock is a U.S. citizen if the mother is a U.S. citizen and had resided in the United States for at least one year prior to the child’s birth. If the father is a U.S. citizen, but the mother is not, then the child is a citizen only if (1) the blood relationship with the child is shown by clear and convincing evidence; (2) the father was a citizen at the time of the child’s birth; (3) the father has agreed in writing to provide financial support to the child until the child is eighteen years of age; and (4) before the child reaches the age of eighteen, he or she is legitimated under the law of the country where the child resides, the father acknowledges paternity in writing and under oath, or paternity is established by court adjudication.
Permanent residents, and certain military personnel who are not permanent residents, may apply for citizenship through a process known as naturalization. To do so, permanent residents must meet several requirements, such as they must be at least eighteen years of age, have resided continuously in the United States for at least five years (three years for spouses of U.S. citizens), be able to show that they are of good moral character, among others. For a more detailed description of naturalization click here [provide link to article on naturalization.]
Naturalization of Parents
A child born outside of the United States automatically gains citizenship if the child is under the age of eighteen years, has at least one parent who is a U.S. citizen, and is resides with the citizen parent (who has legal and physical custody of the child). The child must have entered the United States lawfully.
How to Apply for Naturalization
How to Apply for Naturalization
Becoming a naturalized United States citizen is an important event in the life of an individual. The United States becomes not only your home, but also your country. You can no longer be subject to the numerous grounds for deportation (except in the case of revocation of naturalization). Most importantly, you can vote, hold public office, bring family members to the United States, and travel with a U.S. passport.
Here is a brief guide to help you determine whether you meet the requirements for naturalization and to explain the process of applying for naturalization. It is split into two parts: (I) Eligibility and (II) Procedure. The requirements may be relaxed, as noted below, for certain persons, such as spouses of United States citizens and those who serve in the armed forces.
• You Must Be at Least 18 Years of Age
To file a petition for naturalization you must be at least eighteen years of age. Children under eighteen years of age acquire citizenship automatically if they reside in the United States as lawful permanent residents with a parent who is a citizen by birth or naturalization.
• You must be a Lawful Permanent Resident
Only lawful permanent residents are eligible for citizenship. This requirement may be waived only in some instances if you served in war or in declared hostilities during a period designed through Executive Order by the President. Accordingly, in some instances you could be undocumented and still be eligible for naturalization. Conditional permanent residents qualify even if the condition to residency was never removed, as long as the required residence period has accrued, as discussed below.
• You Must Meet the Residency and Physical Presence Requirements
You must have resided continuously in the United States as a lawful permanent resident for at least five years (three years if you are the spouse of a U.S. citizen) and you must have been physically present in the United States for at least half of the five years immediately prior to your petition for naturalization (again, three years if you are the spouse of a U.S. citizen). Additionally, you must have lived in the district in which you will file your petition for at least three months immediately prior to filing. This requirement is not always applicable for those serving in the armed forces.
Generally, an absence of less than six months from the United States will not affect continuity for the residence requirement, while an absence of more than six months will create a presumption that residency has been abandoned, and an absence of one year or more will automatically break continuity.
• You Must Be Able to Show Good Moral Character
[I think Good Moral Character deserves its own article.] Your eligibility depends upon your ability to show that, during the five-year period (or three years in the case of spouses of U.S. citizens) before filing and up until your final naturalization hearing you have been and still are of good moral character. Good moral character does not have a precise statutory definition. Some examples of behavior that will result in a finding that you are not of good moral character include being a habitual drunkard, having committed a crime of moral turpitude, being involved in prostitution, drug trafficking, given false testimony to obtain immigration benefits, and being convicted of any crime and jailed for at least 180 days.
Although the statute governing this rules suggests that you only need to show good moral character for five years prior to filing, crimes committed before that time can preclude a finding that you have good moral character. Aggravated felonies are an example [provide link to article on aggravated felonies].
• Attached to the Principles of the Constitution
You must show that you are “attached to the principles of the Constitution of the United States” and that you are “well disposed to the good order and happiness of the United States.” The idea behind this section is to make sure that you are not opposed to the theory behind the United States’ system of government and that you are in agreement with the basic principles of the community. In its practical application, this requirement entails that you must reveal information about all of the organizations to which you belong or have belonged. You will also be required to take an oath, discussed below.
• Oath and Willingness to Bear Arms
Before you can be a citizen, you will be required to pledge in open court to support and bear true faith and allegiance to the Constitution of the United States; to renounce all allegiance to any foreign state or sovereign; to support and defend the Constitution and laws of the United States foreign and domestic; and to bear arms on behalf of the United States when required by law, or to perform noncombatant service in the armed forces, or to perform civilian work of national importance. The oath may be waived for certain people, such as children or those who are unable to understand due to physical or mental impairment.
• Must demonstrate knowledge of English language, U.S. History and Government
You must be able to understand, speak, read and write in simple English. You are exempt from this requirement if you are over the age of fifty years and you have lived in the United States as a lawful permanent resident for at least twenty years, or if you are over the age of fifty-five years and you have lived in the United States as a lawful permanent resident for at least fifteen years.
You must also have a knowledge and understanding of the fundamentals of the history, and of the principles and form of government of the United States. There is no exemption for people due to age, but if you are exempt from the literacy requirement, you may use an interpreter for this portion of the test.
The following is a brief overview of the naturalization process:
• Prepare for the Naturalization Test—
As discussed above, one requirement for citizenship is that you must demonstrate knowledge of the English language, U.S. History, and Government. To meet this requirement, you must pass the naturalization test. Once you have determined that you are eligible to naturalize, the first thing you should do, even before submitting the application, is prepare for the examination
File Form N-400, Application for Naturalization—
Form N-400, Application for Naturalization with USCIS is used. USCIS requires that a copy of your permanent resident card, two color photographs, and any other supporting documents. You must also submit the current filing and biometric fees at the time of filing. .
Note that if you are applying based on military service, you will also need to submit Forms N-426, Request for Certification of Military or Naval Service, and G-325B, Biographic Information.
• Have your Fingerprints Taken—
After receiving your application and fees, USCIS will send you a letter containing the time, date, and place for you to have your fingerprints taken. The process is simple and usually takes only a few minutes.
• Appear for the Interview—
Once you have taken the fingerprints, USCIS will schedule your interview. You will receive information regarding the appointment for the interview by mail. You should take your copy of the application for naturalization, as well as your permanent resident card, with you to the interview. During the interview, you will be asked questions about your application and your background. Then you will take the naturalization test, which is usually given orally. At the end of the interview, the immigration officer will inform you of the status of your case. Your application can be granted, continued (if you failed the naturalization test or if the officer needs additional documents), or denied. In case of a denial, there is an appeal process Limited time is provided to file an appeal. You must consult with an experienced attorney in the event you received a denial.
• Take the Oath
If your application is granted, USCIS will send you a Notice of Naturalization Oath Ceremony. At the ceremony, you will return your permanent resident card, you will be asked questions covering the period of time since your interview, you will take the citizenship oath, and you will receive your Certificate of Naturalization.