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U.S. Citizenship Acquired Through Naturalization

Written by Henry J. Chang

General

Section 316(a) of the Immigration and Nationality Act ("INA") discusses the requirements for naturalization. INA §316(a) provides that no person, except as otherwise provided in this title, shall be naturalized, unless such applicant,

  1. Immediately preceding the date of filing of his or her application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of his or her application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Immigration and Naturalization Services (hereinafter INS or Service) of the United States in which the applicant filed the application for at least three months;

  2. Has resided continuously within the United States from the date of the application up to the time of admission for citizenship; and

  3. During all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

In addition to the above, applicants for naturalization must be literate and have knowledge of the history and government of the United States.

Requirement of Lawful Admission for Permanent Residence

Under INA §101(a)(20), the term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. The requirement is therefore that the alien be a lawful permanent resident and that the alien be entitled to such status.

An exception to this requirement appears in INA §329(a). Under this section, a person is eligible for naturalization even if he or she is not lawfully admitted for permanent residence provided:

  1. He or she has served honorably in the U.S. Armed Forces in times of war or other declared hostilities, and

  2. Enlisted or was inducted while in the United States, the Canal Zone, American Samoa or Swains Islands.
By executive order, the President may designate periods of armed conflict for the purpose of INA §329(a) purposes. In 1990, INA §329A was enacted. INA §329A provides for the award of posthumous citizenship to persons who served in the armed forces during a period of hostility designated in INA §329(a) and whose family members had filed a petition within two years of death. However, the surviving family members, however, cannot receive any immigration benefits from the posthumous grant citizenship.

Requirement that the Applicant be 18 Years of Age or Older at the Time of Filing

In general, the applicant for citizenship must be 18 or older at the time that he or she files for naturalization. However, there are two exceptions to this requirement:

  1. Persons who served honorably in the U.S. Armed Forces during designated periods of hostility may naturalize pursuant to INA §329(a) regardless of their age; and

  2. Minor children having at least one U.S. citizen parent may be naturalized based on the application of the parent pursuant to INA §322.

Residence and Physicial Presence Requirements

Residence is not the same thing as physical presence. The term "residence" is defined under INA §101(a)(33) as the place of general abode which means one's principal actual dwelling place in fact, without regard to intent.

The period of continuous residence in the United States must be subsequent to lawful admission as a permanent resident and must be for a period of at least five years (or three years where the applicant's permanent residence was derived from marriage to a U.S. citizen) preceding the filing of the application for naturalization. Residency in the United States must also be maintained from the time of filing of the application until the time that the alien acquires U.S. citizenship.

In the case of absences from the United States of six months or less, there is no break in the continuity of residence for naturalization purposes. An absence of more than six months but less than one year raises a rebuttable presumption that the continuity of residence has been broken for naturalization purposes. An absence of one year conclusively breaks the continuity of residence. However, under INA §316(b), §316(c) and §317, there is an exception for persons serving abroad in the United States Armed Forces, certain U.S. government agencies and U.S. companies, religious workers and international groups of which the United States is a member, provided that:

  1. The alien has at least one year of physical presence in the United States as a lawful permanent resident; and

  2. The individual files an application to preserve residence before he or she has spent one year abroad.

A person must be physically present in the United States for at least half of the required residence time preceding the date of filing the application (30 months out of the five years, or 18 months out of three years if permanent residence was derived from marriage to a U.S. citizen).

Requirement of Good Moral Character

There is no specific definition of good moral character. However, good moral character has been interpreted as character which measures up to the standards of average citizens of the community in which the applicant resides and thus does not necessarily require the highest degree of moral excellence. In general the Naturalization Examiner will base his or her recommendation regarding good moral character on the applicant's conduct during the five years immediately preceding the filing of the application. However, the INS may consider all of the applicant's prior conduct.

INA §101(f) provides a non-exhaustive list of who is not a person of good moral character. The list includes a person who:

  1. Was convicted of murder;

  2. Was convicted of an aggravated felony within the meaning of INA §101(a)(43);

  3. During the period of permanent residence:

    1. Has committed one or more crimes of moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in INA 212(a)(2)(ii)(II);

    2. Has committed two or more offences for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely policital offence;

    3. Has violated any law of the United States, any state, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;

    4. Has admitted to committing any criminal act mentioned above for which there was never a formal charge, indictment, arrest or conviction, whether committed in the United States or any other country;

    5. Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not due to a conviction outside the United States for a purely policital offense);

    6. Has given false testimony to obtain any benefit under the INA, where the testimony was made under oath or affirmation and with the intent to obtain an immigration benefit;

    7. Is or was involved in prostitution or commercialized vice as described in INA §212(a)(2)(D);

    8. Has practiced or is practicing polygamy;

    9. Earns his or her income principally from illegal gambling activities; or

    10. Is or was a habitual drunkard.
Attachment to the Principles of the Constitution and Favorable Disposition to the Good Order and Happiness of the United States

The applicant must be well disposed to the good order and happiness of the United States. The term "well disposed" means not hostile. It will include dissenters but not persons who advocate change through the use of violence. The applicant must also be attached to the principles of the Constitution. The term "attachment" implies a depth of conviction that would lead to the active support of the constitution. An applicant having the required attachment and favorable disposition must take an oath or affirmation of allegiance to the United States without mental reservation.

Literacy in the English Language

Applicants will be tested on their ability to read, write and speak words in ordinary usage using the English language. Several exemptions from the literacy requirement appear at §312.1(b) of Title 8 of the Code of Federal Regulations ("8 CFR"):

  1. Applicants who are physicially unable to comply due to permanent disability are exempt;

  2. Applicants who are more than 50 years of age and who have resided in the United States for 20 years as permanent resident aliens as of the date of filing the application may be examined in their native language; and

  3. Applicants who are more than 55 years of age and who have resided in the United States for 15 years as permanent resident aliens as of the date of filing the application may be examined in their native language.

Knowledge of History and Government

Under INA §312(2), applicants are required to pass an oral history and government examination, even if they are exempt from the requirement of speaking English. However, there are exemptions from this requirement also:

  1. An alien who is physicially unable to comply with the requirement due to permanent disability is exempt; abd

  2. An alien who is over 65 and who has been a permanent resident for over 20 years can receive "special consideration" concerning the civics requirement.

Barred Classes of Aliens

The following classes of persons are barred from naturalization:

  1. Subversives - INA §313

    1. Anarchists;

    2. Individuals who advocate or teach opposition to all organized government, or are members of or affiliated with any organization that so advocates;

    3. Individuals who are members of or affiliated with the Communist Party of the United States or of any foreign country, or any front organization (membership must be meaningful);

    4. Members of any other totalitarian party of the United States;

    5. Persons who, although not members of or affiliates with the Communist Party, personally advocate the economic, international and governmental doctrines of world communism or the establishment of a totalitarian dictatorship in the United States;

    6. Persons who advocate or teach the overthrow of the United States government by force or violence;

    7. Saboteurs; and

    8. Persons who write or publish subversive material or cause such to be published or are members of any organization that publishes any of the foregoing.

  2. Deserters - INA §314

    Persons who deserted the U.S. armed forces or fled U.S. jurisdiction to avoid the draft, while the U.S. was at war, is barred from naturalization. The person must be convicted by a court martial or by a civil court of competent jurisdiction. However, all persons who may have violated the selective service laws between August 4, 1964 and March 28, 1973 were pardoned and are therefore not barred. All persons who deserted between November 11, 1918 and July 21, 1921 or between August 14, 1945 and June 24, 1950 received Presendential amnesty and are therefore not barred. A person who received an individual pardon from the President will also not be barred.

  3. Persons Under Order of Deportation - INA §318

    No application for naturalization will be heard if deportation proceedings are pending or if the applicant has an outstanding final finding of deportability pursuant to a warrant of arrest. Exceptions exist for persons who served honorably in the U.S. military during times of war and for persons who have honorable military service aggregating three years.

  4. Aliens Relieved from Military Service - INA §315

    Aliens who received an exemption or discharge from training or service in the U.S. armed forces are permanently barred from naturalization. However, aliens who served in the armed forces of his or her country prior to claiming an exemption from service in the U.S. armed forces are not barred. Similarly, an alien who was not eligible for military service is not barred from naturalization.

Special Situations

Spouses of U.S. Citizens

Spouses of U.S. citizens may naturalize after three years instead of the normal five years. Pursuant to INA §319(a) and the related regulations, the following requirements will apply:

  1. The spouse of the applicant must have been a U.S. citizen during the entire three year period;

  2. The alien and U.S. citizen spouse must be living in marital union during the entire three year period;

  3. The alien must be physically present in the United States for at least eighteen months during the three year period and have resided within the state or district of the INS where the application is filed for at least three months;

  4. Good moral character need only need only be established during the three year period; and

  5. Permanent residence status and marriage to the United States citizen must coincide for the entire three year period.

Spouses of U.S. Citizens Stationed Abroad

Aliens whose U.S. citizen spouses are stationed abroad as employees of the U.S. government or cerain other designated organizations and who, by reason of this absence from the United States cannot otherwise meet the normal residence requirements are permitted to naturalize notwithstanding this fact. Under INA §319(b) the following requirements will apply:

  1. The applicant must have been lawfully admitted for permanent residence;

  2. The applicant must be married to a U.S. citizen;

  3. The U.S. citizen spouse must be employed abroad by or in one of the following categories:

    1. The U.S. Government;

    2. A U.S. research institution recognized by the Attorney General (a list appears at 8 CFR §316.20);

    3. A U.S. firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States or a subsidiary in which a majority of the stock is owned by a U.S. firm or corporation;

    4. Public international organizations in which the U.S. participates by treaty or statute; or

    5. A minister, priest or missionary performing duties abroad;

  4. The applicant must intend to join or accompany the spouse abroad;

  5. The applicant must intend to return immediately to the United States upon termination of such employment abroad by the U.S. citizen spouse; and

  6. The spouse must be regularly stationed abroad in employment.

No specified period of residence or physical presence is required. The applicant must only be physicially present in the United States at the time of naturalization. No state residence is required so the applicant may file an application for naturalization anywhere in the United States. There is no particular period of time during which good moral character or attachment to the U.S. government must be established.

Children Born Outside the United States

Definition of Child for Naturalization Purposes

According to INA §101(c)(1), for the purposes of nationality and naturalization, the term "child" is defined as an unmarried person under 21 years of age and includes:

  1. A child legitimated under the laws of the child's or father's residence or domicile; and
  2. An adopted child, if the legitimation or adoption takes place before the child reaches the age of 16; and

the child resides in the legal custody of the legitimating or adopting parent at the time.

The Former Law

Under the former INA §322, a child born outside the United States, who has at least one U.S. citizen parent could be naturalized according to the following rules:

  1. The child must have been lawfully admitted into the United States;

  2. The child must have been under 18 at the time of naturalization and in the custody of the citizen parent;

  3. The child must have been residing with the citizen parent (the citizen parent and child must be residing in the state or district of the INS office where the application is filed) and the citizen parent must have been been physically present in the U.S. for five years, at least two after the age of 14;

  4. Good moral character and attachment were presumed if the child was under 14 years of age;

  5. The child could not be otherwise be barred by INA §313 (subversives), §314 (deserters), §315 (claiming exemption from military service) and §318 (deportees); and

  6. There were no literacy or civics requirements.

In addition, if the citizen parent could not meet the physical presence requirements, the physicial presence of a citizen grandparent (the citizen mother or father of the citizen parent) could be used to satisfy this requirement. The physical presence requirement is waived if the child is permanently residing in the United States with the citizen parent pursuant to lawful admission.

The Current Law

On October 30, 2000, President Clinton signed the Child Citizenship Act of 2000 ("CCA") into law. It significantly altered the provisions relating to naturalization for non-citizen children. The CCA became effective on February 27, 2001.

According to the current INA §320(a), a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

  1. At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
  2. The child is under the age of eighteen years.
  3. The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
In other words, once the child acquires lawful permanent residence, they will automatically acquire United States citizenship as well. This provision also applies to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under INA §101(b)(1).

According to the current INA §322(a), a parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under INA §320. The following conditions must be fulfilled:

  1. At least one parent (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization.
  2. The United States citizen parent:
    1. Has (or, at the time of his or her death, had) been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or
    2. Has (or, at the time of his or her death, had) a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

  3. The child is under the age of eighteen years.
  4. The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).
  5. The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.

Upon approval of the application (which may be filed from abroad) and upon taking and subscribing to the oath of allegiance required of an applicant for naturalization, the child shall become a citizen of the United States. The child is not required to first obtain lawful permanent residence. This provision also applies to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under INA §101(b)(1).

Members of the United States Armed Forces

An applicant who has an aggregate of three years of honorable service in the United States armed forces is eligible for naturalization under INA §328. The applicant:

  1. Must be lawfully admitted to the United States for permanent residence before the application is filed;

  2. Must never have been discharged from military service under other than honorable conditions;

  3. No actual residence or physical presence in the United States is required;

  4. May file in any INS office;

  5. No specific period of good moral character is required; and

  6. The applicant must apply serving in the U.S. armed forces or within six months of discharge therefrom.

If the applicant does not apply while still serving in the U.S. armed forces or within six months of discharge, the applicant must comply with the normal residence requirements. However, military service within five years immediately preceding the date of filing of the application will be counted towards the residence and physical presence requirement.

Service in the U.S. armed forces during designated periods of military hostilities permit even more liberal naturalization procedures under INA §329. Designated periods of military hostilities include: World War I (04/06/17-11/11/18), World War II (09/01/39 - 12/31/46), Korea (06/25/50 - 07/01/55), Vietnam (02/28/61 - 10/15/78), Grenada (10/25/83 - 11/02/83), and Desert Storm (08/02/90 - 04/11/91).

In order to naturalize under this provision, the applicant:

  1. May be either an alien or national during the time of active service;

  2. Must have been separated from the U.S. armed forces under honorable conditions;

  3. Must have enlisted or been inducted or re-enlisted in the United States, Canal Zone, American Samoa or Swains Island; or be lawfully admitted to the United States for permanent residence before the application is filed;

  4. Does not require an actual residence or physical presence in the U.S.;

  5. May file in any INS office;

  6. Must have good moral character for a "reasonable period of time";

Seamen

Under INA §330, Seamen who are lawful permanent residents and are serving on U.S. vessels, other than as a member of the armed forces, may count the time honorably served during the five year period immediately prior to filing toward the residence and physical presence requirements. The U.S. vessels must:

  1. Be operated by the U.S. government; or

  2. Have a United States port as its home port and:

    1. Be owned and titled in the name of a United States citizen or corporation; or

    2. Be registered under the laws of the United States.
The applicant must prove that he or she continues to be a person of good moral character, is attached to the principles of the Constitution and is favorably disposed toward the happiness of the United States.

Other Special Groups

Other special naturalization privileges apply to the following groups:

  1. Previously Expatriated Persons

    People who expatriated themselves by:

    1. Serving in the armed forces of a country with which the U.S. was at war during World War II - INA §327(a);

    2. Marrying a foreign national if the U.S. citizen was female (repealed in 1934) - INA §324;

  2. Surviving Spouses

    Surviving spouses of U.S. citizens who died during a period of honorable service in the United States armed forces during designated periods of hostility - INA §319(d).

  3. Employees of U.S. Nonprofit Information Corporations

    Employees of U.S. nonprofit corporations disseminating information overseas which promote the interests of the United States - INA §319(c).

  4. World War II Filipino Veterans

    Natives of the Philippines who served honorably in the Far East, in the United States armed forces or the Philippine Army, the Philippine Scouts or recognized Guerilla units between September 1, 1939 and December 31, 1946 - Immigration Act of 1990, §405.

  5. National Security

    Individuals who have been determined by the Director of the CIA, Attorney General or the Commissioner of the INS to have made an extraordinary contribution to the national security of the United States or to the conduct of U.S. intelligence activities - INA §316(f).


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