About the Author

  

Nisha V. Fontaine

Attorney-at-Law

Serotte Reich Wilson, LLP

300 Delaware Avenue

Buffalo, New York 14202

Ph: 716-854-7525

Email: Nfontaine@srwlawyers.com

 

 

 

 

Applying for Naturalization

If a lawful permanent resident meets certain eligibility requirements and wishes to become a U.S. citizen, they may apply for naturalization under INA §316.  The lawful permanent resident, if approved, will then enjoy all the benefits and privileges of being a U.S. citizen.  If the lawful permanent resident has served in the military in the past, or is currently serving, they may be eligible to apply for naturalization under INA §329.

What are the benefits of being a U.S. citizen?

There are numerous benefits to becoming a U.S. Citizen, including but not limited to, the following:   

  • Voting Privileges
    • If you are making the U.S. your permanent home and want to fully participate in American democracy, becoming a citizen is vital, since only U.S. citizens can vote in federal elections. 
    • As a reminder, voting as a permanent resident is considered a serious offense under U.S. immigration law.
  • Secure U.S. Residency
    • The only way to guarantee you will always have the right to remain in the U.S. is to naturalize.  Permanent residents are always at risk of losing their green cards for spending too much time outside the U.S., whether for family or employment reasons.  (See Re-Entry Permits for a way to temporarily preserve your permanent resident status while residing outside of the U.S.)
  • Deportation
    • If a permanent resident is ever convicted of any crime, they may face the risk of being deported, among other immigration consequences.  A foreign national who has naturalized, will be able to retain their U.S. citizenship (with rare exceptions), despite the criminal issues.
  •  Government benefits
    • Lawful permanent residents generally can not receive the same public benefits as U.S. citizens.  One way to ensure that this will not be a problem is to naturalize and become a U.S. citizen.
    • As a reminder, being the recipient of certain public benefits may subject a foreign national to being deported.
  • Immigration for family members
    • U.S. citizens generally receive priority treatment to petition their family members for lawful permanent resident status.  For some family members, U.S. citizens can petition for their family members as immediate relatives and thereby avoid priority-date backlogs. 
    • On the other hand, lawful permanent residents cannot sponsor parents or siblings, and have a longer wait than U.S. citizens to have their spouses and/or children join them in the United States. 
  • Federal Jobs
    • Various employment opportunities with government agencies, federal contractors, etc., particularly in the energy and defense sectors, typically require U.S. citizenship. 
  • Running for office
    • Many elected positions in the U.S. require the officeholder to be a U.S. citizen.
  • Tax consequences
    • U.S. citizens and permanent residents are not always treated the same for tax purposes.  This is particularly true for estate taxes.
  • Federal grants
    • Many federal grants are available only to U.S. citizen applicants.
  • Political contributions
    • While green card holders can legally donate money to campaigns if they are residing in the U.S., it is not clear whether green card holders residing abroad, even temporarily, can do so.

Caution: Before Filing for Naturalization

If an LPR applicant has any concerns regarding their eligibility, it is critical that the applicant determine, prior to filing the application for naturalization, whether they would trigger further USCIS inquiry or investigation, such as the initiation of deportation proceedings.  Since the potential immigration consequences can be significant, a consultation and advice from an experienced Immigration Attorney is highly recommended.

Can I be a dual citizen of the U.S. and my country of birth or my current third-country citizenship?

While the U.S. does not prohibit dual citizenship, some other countries do not allow for dual citizenship.  Please check with your home country’s citizenship requirements regarding your eligibility to become a dual citizen.  Some countries, such as India, require you to denounce your Indian citizenship after acquiring another country’s citizenship. 

What are the requirements to filing for naturalization?

The general requirements, with certain exceptions, to filing for naturalization are as follows:

  • Must be a lawful permanent resident (LPR) of the U.S. (conditional permanent residents can apply in certain situations)
  • Be age 18 or older
  • Meeting Continuous Residence & Physical Presence Requirements, as applicable
  • Be of Good Moral Character
  • Pass English Language & Civics Test

Must be a lawful permanent resident (LPR) of the U.S. (conditional permanent residents can apply in certain situations)

An applicant for naturalization must be a lawful permanent resident of the United States.  This includes both lawful permanent residents and conditional permanent residents.   See INA §318.

Be age 18 or older

A general requirement for naturalization is that the applicant be age 18 or older at the time of application.  See INA §334(b). 

Lawful permanent residents under age 18 may already be eligible for a Certificate of Citizenship (under INA §301, INA §320 or INA §322) if their parent(s) are already U.S. citizens (either by birth or naturalization). 

Additionally, this general age requirement is waived if an applicant is applying for naturalization due to military service pursuant to INA § 329. See Naturalization Through Military Service.

Meeting Continuous Residence & Physical Presence Requirements, as applicable

Perhaps one of the most difficult requirements for naturalization applicants to satisfy are the continuous residence and physical presence requirements. 

Continuous Residence – Defined, Length Requirement

Under the INA, residence is defined as a place of abode, which means the actual dwelling place in fact, without regard to intent. The concept of domicile, which considers intent rather than where the applicant actually lives, is not relevant for naturalization purposes. See INA §101(a)(33). 

Continuous residence does not mean that an applicant cannot be absent whatsoever from the United States.  Therefore, brief vacations, employment trips abroad, etc. would normally not interrupt the applicant’s continuous residence. 

Nevertheless, a continuous absence of more than six months and less than a year shall raise a rebuttable presumption that the applicant has abandoned their continuous residence in the United States.  The naturalization applicant can rebut the presumption by establishing that he/she did not terminate his/her employment, the applicant’s immediate family remained in the U.S., the applicant retained full access to his or her U.S. residence, and/or the applicant did not obtain employment while abroad.  See 8 C.F.R. § 316.5(c)(1)(i). 

However, a continuous absence of one year or more shall disrupt the applicant’s continuous residence and they must restart their continuous residence after they re-establish their residence in the United States. See 8 C.F.R. § 316.5(c)(1)(ii). 

In addition, if the naturalization applicant did not previously obtain a reentry permit to remain outside the U.S. for more than one year, it is likely that they may not be able to use their green card to reenter the United States.  However, while the reentry permit will help the lawful permanent resident establish their intention to not abandon their lawful permanent resident status, it does not preserve their continuous residence for naturalization purposes.  In certain situations, a lawful permanent resident may also be able to file an Form N-470, Application to Preserve Residence for Naturalization Purposes while they are residing abroad, if they meet the necessary qualifications. 

For most naturalization applicants, they must have continuously resided in the United States (or its outlying possessions) for five years immediately preceding the date of filing the application.  See INA §316(a).  For naturalization applicant’s married to U.S. citizens, the continuous residency requirement is reduced to three years, if the U.S. citizen spouse has been a U.S. citizen and the parties have been living in “marital union” for the three years immediately preceding filing of the naturalization application.  See INA §319(a).  Therefore, divorce, legal separation, expatriation or death would break the “marital union” requirement. See 8 C.F.R. § 319.1(b)(2)(i).

If a naturalization applicant has interrupted their period of continuous residence, they may only apply for naturalization after four years and one day following the date they have reestablished their residence in the United States (if subject to the five year continuous residence requirement).  For those applicants subject to the three year continuous residence requirement, they may apply for naturalization after two years and one day after they reestablish their residence in the United States.  

Continuous Residence – Jurisdiction Requirement

In addition to continuously residing in the United States for the requisite time period, the naturalization applicant is further required to have resided at least three months within the state in which the application is being filed. See INA §§ 316(a)(1), 319(a).  This avoids having naturalization applicants engage in forum shopping among the different USCIS offices.

Physical Presence Requirement – Defined, Length

Physical presence means actual physical time spent in the United States (and/or its outlying possessions).  Naturalization applicants must be physically present in the United States for at least half the amount of time that they are required to have continuously resided in the United States.  Therefore, for those naturalization applicants requiring five years of continuous residence, they must also establish two and a half years of physical presence in the United States.  For those naturalization applicants requiring three years of continuous residence, they must also establish one and a half years of physical presence in the United States. 

Classes of Naturalization Applicants Exempt From Continuous Residence and/or Physical Presence Requirement

Certain classes of naturalization applicants are exempt from the continuous residence and/or physical presence requirements or may constructively establish their continuous residence and/or physical presence requirements.  Some examples are:

Lawful Permanent Resident Spouse of a U.S. Citizen in the (1) Employment of the U.S. Government; (2) Employment of an American Institution of Research; or (3) Employment of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof

Under INA §319(b), the Lawful Permanent Resident (LPR) spouse of a United States Citizen (USC) working abroad can have the physical presence and residence requirements waived if the USC spouse is employed abroad by: U.S. Government, American Institution of Research, or American corporation engaged in the development of foreign trade and U.S. commerce.  Additionally, the USC employee must have at least one year left at the overseas post at the time the naturalization process will be completed (which can take 4-6 months to complete depending on the adjudicating office).  The LPR must, however, declare a good faith intention to take up residence in the United States upon the termination of the U.S. citizen spouse’s employment abroad.

Service on Certain U.S. Vessels

Under INA §330, any time a lawful permanent resident spends in qualifying service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … continuous residence within the United States within the meaning of section 316(a) of this title.”  

Be of Good Moral Character

An applicant for naturalization must be a person of good moral character for the same amount of time period that they must establish their continuous residence.  For most applicants, this is a five year time period, with lesser time periods for spouses of U.S. citizens, those individuals who obtained their lawful permanent resident status as a result of abuse/battery, etc.  The applicant must maintain the good moral character for the past requisite period, at the time of application, while the application is pending, and until they are sworn in and admitted to U.S. citizenship.  See INA §§ 316(a)(3), 319(a)(1).

An obvious issue that would raise good moral character issues are any criminal and/or immigration violations after the applicant became a lawful permanent resident.  Other non-obvious issues relating to good moral character include, but are not limited to, non-payment of taxes (federal or state), non-payment of child support, failure to register for Selective Service  (if required to do so), voting in an election or falsely claiming to be a U.S. citizen, engaging in bigamy, and having affiliations or providing financial support to certain designated organizations.

Attached to the Principles of the U.S. Constitution

The naturalization applicant must be attached to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the U.S. See INA §316(a)(3).

The applicant must be willing to “(A) bear arms on behalf of the U.S. when required by law, or B) to perform noncombat service in the Armed Forces of the United States when required by law, or C) to perform work of national importance under civilian direction when required by the law.” See INA § 337(a)(5)(A)-(C).  However, a person may oppose to bear arms based on “religious training and belief.” This term means “an individual’s belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.”  See INA §337(a)(c).

The applicant must not be a subversive (INA § 313,§ 316(f)); member of the communist party (INA § 313(a)), unless it was involuntary or otherwise excusable under INA § 313(d)); convicted deserter (INA § 314); an alien who has removal proceedings pending or an outstanding order of deportation, (INA § 318); or an alien who has applied for and received relief from the Selective Service System based on his alienage (INA § 315(a)).

Pass English Language & Civics Test

The naturalization applicant must demonstrate an elementary level of reading, writing and understanding of the English language. See INA § 312(a)(1).  However, the English language requirement shall not apply to (1) persons who are over 50 and living in the U.S. for 20 years subsequent to LPR status; or (2) persons who are over 55 years of age and living in U.S. for 15 years subsequent to LPR status.  See INA § 312(b)(2)(A) & (B).

The naturalization applicant must also demonstrate a knowledge and understanding of the fundamentals of the history and government of the U.S. See INA § 312(a)(2).  However, USCIS will give special consideration to persons over 65 with 20 years as an LPR with respect to their knowledge of history and government. See INA § 212(b)(3).

For those naturalization applicants possessing a physical/developmental disability or mental impairment, the English language and history/government requirements are waived completely.  See INA § 312(a)(2).

What is involved in applying for naturalization?

Applying for naturalization requires submitting a comprehensive package to USCIS emphasizing the lawful permanent resident’s eligibility for naturalization.  The main form is: § N-400 – Application for Naturalization.

What form and supporting documents are necessary to apply for naturalization?

The N-400 is the form that the lawful permanent resident must file to apply for naturalization.  The N-400 form inquires about basic biographic information, the applicant’s employment and residential history for the past five years, a log of the applicant’s travel outside the United States for the past five years, information on their spouse and previous spouses, children, and questions to establish the applicant’s good moral character (criminal and immigration history questions, amongst others). 

Additionally, if the applicant is applying for naturalization based on a waiver of some of the general requirements (age, length of continuous residence/physical presence, constructive continuous residence/physical presence, spouse’s employment abroad, etc.), then the packet should be submitted with additional documentation to support the applicant’s eligibility for the applicable statutory provisions. 

 For example, an applicant applying for naturalization with only three years of continuous residence as the spouse of a U.S. citizen, should submit documentation establishing that the couple remains married, some evidence of the bona fides of their marriage, and that their spouse continues to be a U.S. citizen.  An applicant applying for naturalization as the spouse of a U.S. citizen employed abroad by an American corporation engaged in foreign trade and commerce should not only submit evidence of the continuing marital relationship, but also evidence to document that the U.S. citizen is employed abroad (paystubs, employment confirmation letter), by an American corporation (incorporated in the U.S., listed on U.S. stock exchange), engaged in foreign trade and commerce (evidence that the corporation does business internationally). 

What to expect after filing the petition packet?

Receipt Notice

After the application packet is filed, the lawful permanent resident will receive a Receipt Notice within 2-3 weeks.  The Receipt Notice serves as proof that the lawful permanent has a pending application for naturalization.  The Receipt Notice is important for following up with USCIS in the future on this matter and checking the case status online. 

Biometrics Notice

Approximately 2-3 weeks after the Receipt Notice is generated, USCIS will schedule the lawful permanent resident for a Biometrics Appointment at a local USCIS Field Office or an Application Support Center that has jurisdiction over the applicant’s residence.  At that appointment, the lawful permanent resident will have their picture and fingerprints taken so that the necessary security background checks can be completed. 

Request for Evidence

If USCIS determines that the information/documentation submitted is inadequate to satisfy the application requirements and further information is needed, they will issue a Request for Evidence (RFE).  The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time).  Failing to respond to the RFE may result in the denial of the application.  An RFE also will result in a longer processing time for the application. 

Interview Notice

Approximately 2-3 weeks after the Biometrics Appointment, USCIS will schedule an interview on the pending naturalization application.  The interview notice will list documents that need to be brought to the interview.

The Naturalization Interview

Purpose of the Interview

The purpose of the naturalization interview is to ensure that the applicant is eligible for naturalization (i.e. meets statutory requirements) and to complete the English language and civics test. 

What to Bring to the Interview

The applicant should minimally bring the following documents as applicable to the foreign national’s situation:

  1. Original Interview Notice
  2. Passport of Foreign National
  3. State Issued Identification/Driver’s License of Foreign National Applicant
  4. Copy of the Naturalization Packet filed with USCIS
  5. Any prior U.S. immigration documents (green card, reentry permits, etc.)

During the Interview

When the LPR first arrives for the interview, the adjudicating officer is likely to begin by swearing them in.  Next, the adjudicating officer will likely review the application with the LPR to ensure that all the information is accurate and current (i.e. residential address, current employment, any travel outside the U.S. from the date of filing to the interview).  If they have any concerns about any criminal or good moral character issues, they are likely to ask questions about those at this time also.  The adjudicating officer will also administer the English language and Civics Test, unless the LPR meets an exception.

The English language test consists of reading a sentence in English and writing a sentence in English.  The Civics Test is an oral examination where the adjudicating officer will ask up to 10 of the 100 questions provided in the USCIS Study Guide for Naturalization.  If the LPR answers the first 6 correctly, the adjudicating officer will not ask the remaining questions.  The adjudicating officer will inform the LPR if they have passed the English and Civics test. 

Possible Outcomes of the Interview

The interview usually concludes with one of three possibilities:

  • Approval
    • Ideally, the officer will end the interview by letting the LPR know that they have been approved for naturalization.
    • At this time, the adjudicating officer may let the LPR know when the next Oath Ceremony is or tell them to expect the Oath Ceremony Notice in the mail in the upcoming weeks.
    • Note: The LPR is not yet a U.S. citizen.  The LPR becomes a U.S. citizen after taking the Oath at the Oath Ceremony. 
  • Need Supervisory Review/Background Checks Not Cleared
    • In some cases, the adjudicating officer might state that while everything looks good, the file needs supervisory review before approval and/or that they are still awaiting for background checks to clear. 
    • USCIS is likely to provide an update within 30-60 days after the interview.  Ideally, this will be in the form of an Oath Ceremony Notice.
  • Issue w/Case
    • In some cases, the adjudicating officer might feel that there is an issue with the case. They will not provide a decision at that time and will follow up within 30-60 days. 
    • This may result in USCIS issuing an Request for Evidence (see above) or could result in an Oath Ceremony Notice in the upcoming weeks.

Oath Ceremony

The Oath Ceremony Notice instructs the LPR to appear, with their green card, at a scheduled time and place for their Oath Ceremony.  The Oath Ceremony Notice also comes with a questionnaire to determine the LPR’s continuing eligibility for naturalization (i.e. any criminal issues that may have arisen, or travel abroad after the interview, etc.)  An LPR who has travelled outside the U.S. after their interview should carry a detailed log of their travel(s), including their date(s) of departure, corresponding date(s) of arrival and the countries they visited. 

At the Oath Ceremony, the LPR, with several other LPR’s who are also being naturalized, will take the Oath swearing their allegiance to the United States, surrender their green card and walk out with their Certificate of Naturalization.

The LPR should then immediately apply for their U.S. passport since they will need it to travel abroad in the future and then re-enter the U.S.