How to Become a U.S. Citizen? The Naturalization Process
The first citizens of the United States were granted citizenship retroactively after the adoption of the U.S. Constitution in 1787. No application for citizenship or Oath of Allegiance was required. The only requirements were that the individual remain in the United States at the end of the war and who allegiance to the new government and fall under its protection.[1] Naturalization is the conferring of U.S. citizenship after birth. Under the constitution Congress has the duty to “establish a uniform Rule of Naturalization.” “Art. I, § 8, cl.4.
In general, an applicant for naturalization must be:
· At least 18 years old;
· Must establish that he or she has been lawfully admitted to the United States for permanent residence at the time of filing the naturalization application;
· Must meet the continuous residence and physical residence requirements;
· Must meet the good moral character requirements;
· Must be attached to principles of Constitution and well-disposed to good order and happiness of the United States;
· Must be willing to bear arms, perform noncombatant service or work of national importance;
· Must not otherwise be barred;
· Must demonstrate knowledge of English language, U.S. history, Government.
A. Continuous and Physical Presence Requirements
An applicant for naturalization must have continuously resided in the United States after his or her LPR admission for at least five years prior to filing the naturalization application and up to the time of naturalization. An applicant must also establish that he or she has resided in the State or Service District having jurisdiction over the application for three months prior to filing. If the applicant is married to a United States citizen then the residency requirement is 3 years. The United States citizen spouse must be a citizen for three years; and the individuals must have been living “living in marital union” for the three years.[2] There is no requirement that the marriage be the basis for the LPR status. A spouse or child who obtain LPR status due to battery or extreme cruelty may also apply within the three year period.[3]
An absence of six months to one year raises a rebuttable presumption that the period of continuous residence was interrupted.[4] An absence of more than one year will break the continuous residence. However, exceptions exist for military service abroad (INA § 328), spouses of U.S. military members, children of U.S. military members, employees of the U.S. government, American research institute, or certain U.S. firms (INA § 316(b)-(c), LPR spouses of United States citizens working abroad for certain U.S. companies or international organization (INA § 319(b)), spouse, child or parent of a Untied States citizen who died in combat or spouse of person granted United States citizenship posthumously (INA § 319(d)), and translators in Iraq or Afghanistan. Continuous residence and physical presence in the Northern Mariana Islands prior to the Consolidated Natural Resources Act of 2008 did not count for naturalization purposes.
Some applicants may file a form N-470 to preserve residence for naturalization purposes even if employed outside of the United States. This include employees with or under contract with the U.S. Government or an American institution of research recognized as such by the Attorney General; Employees of an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof if more than 50 percent of its stock is owned by an American firm or corporation; or employees of a public international organization of which the United States is a member by a treaty or statute and by which the applicant was not employed until after becoming an LPR. A person whose continuous residence has been broken may apply 4 years and one day following the return to the United States if filing under the five year requirement. If filing under the three year requirement then the applicant must wait to apply 2 years and one following their return to the United States.[5]
Physical presence refers to the number of days the applicant must physically be present in the United States up to the date of filing for naturalization. The applicant for naturalization must be physically present in the United States for a least one half of the 5 years or one half of the 3 year period (if spouse is a United States citizen).[6]
B. Good Moral Character Requirements
An applicant for naturalization must be a person of good moral character for the five or three year period (or one year for members of the military) prior to filing and up to the date of the citizenship.[7] The statutory ground for good moral character are found in INA § 101(f), but non-statutory grounds have been used to find an absence of good moral character as a matter of discretion. These non-statutory ground include, but are not limited to: non-payment of child support, adultery that destroys a marriage, and commission of unlawful acts (arrests that do not result in a conviction), and non-payment of taxes. Inquiry may be made into period beyond the three or five year period to determine how the conduct reflects on the statutory period.[8]
A knowing and willful failure to register for the Selective Service for males between the ages of 18 and 26 years of age during the statutory good moral character period may result in an adverse finding. A person is not ineligible if the person failed to register and he was not between the ages of 18 and 26, he was in a lawful non-immigrant status, or he was born before March 29, 1957 and before December 31, 1959. If the person is over 31 years of age and the failure falls outside of the five year statutory period then the person may be able to establish good moral character.
C. Must Demonstrate Knowledge of the English Language, U.S. History, and Government
Naturalization requires an elementary-level understanding in reading and writing of the English language.[9] The applicant must also have a knowledge and understanding of the fundamental of U.S. history and government.[10] The test may be given to an individual in their native language if the person is exempt from the English language requirement. An individual who fails the English or civic portion of the test will be given a second opportunity within 90 days.[11]
An exception to the English language requirement exists for persons 1) who are over 50 years of age and have lived in the United States as a LPR for 20 years; or 2) persons who are over 55 years of age and have lived in the United States as a LPR for 15 years.[12] Special considerations for the civics portion of the exam will be given to individuals over 65 years of age with 20 years as a lawful permanent resident.
Persons who are physically or developmentally disabled or have a mental impairment are exempt from the English and civic exam.[13] Age alone is not sufficient, but may include elderly individuals who suffer from Alzheimer’s, Parkinsons’, senile dementia or similar diagnosis. In addition, illiteracy alone is not a valid basis for the exception.
The form for filing the medical disability waiver is a N-648 and must be certified by a physician or psychologist. The inability to comply must be due to a “medically determinable” physical or developmental disability or mental impairment that has lasted, or is expected to last, at least 12 months. The regulations define “medically determinable” as a determination made by acceptable clinical or laboratory techniques.[14] The form may be filed at any time during the naturalization process, including at re-examination.
The medical professional must conduct an in-person examination of the applicant;
explain the nature and extent of the medical condition; explain how the medical condition relates to the applicant’s inability to comply with the English and civics requirements; attest that the medical condition has lasted or is expected to last at least 12 months; and
attest that the cause of the medical condition is not related to the illegal use of drugs.
D. Must Not Be Otherwise Barred
There are some categories of individuals who are barred from naturalization. These categories include subversives (INA 313-16(f)), deserter during war time who was convicted (INA 314), person in removal proceedings or has an outstanding order of removal unless eligible due to military service (INA 318), person who applied for a received relief from the Selective Service due to alienage (INA 315(a)), members of the communist party where the membership is meaningful and not voluntary or excusable (INA 313(a)).
E. Other Naturalization Programs
Military Service
An applicant who is a lawful permanent resident and served in the U.S. military for an aggregate of one year, and the application is filed during time of service or six months after an honorable discharge is eligible for natrualization.[15]
Military Service During Hostilities
The physical and continuous residency requirements are inapplicable to an applicant who served in the U.S. military during hostilities and continues to serve or was honorably discharged.[16] The recognized period of hostilities are[17]:
Designated Periods of Hostilities
World War I
April 6, 1917 → November 11, 1918
World War II
September 1, 1939 → December 31, 1946
Korea
June 25, 1950 → July 1, 1955
Vietnam
February 28, 1961 → October 15, 1978
Persian Gulf
August 2, 1990 → April 11, 1991
Enduring Freedom
September 11, 2001 → Present
Applicants for naturalization under the military provisions must provide Form N-426, which states that they served and stating that their service was honorable. The form must be certified by the U.S. Armed Forces.
Posthumous Citizenship through Death while on Active Duty
Posthumous citizenship is available for persons who 1) served honorably in active duty during a time of hostility; 2) died as a result of injury or disease incurred in duty; 3) and were either a) in the U.S or its territories at the time of enlistment, reenlistment or induction, or b) became LPRS at any time subsequent to enlistment or induction. Citizenship will be granted if a family member petitions within 2 years of the death.[18]
Surviving Family Members
Surviving spouses, children, and parents of United States citizen service members who died while honorably serving in active duty status are exempt from the prior physical presence and continuous residence requirements.[19]
Filipino War Veterans
Filipino World War II veterans may naturalize if they served in recognized guerilla units that appeared on the final roster prepared by the Guerilla Affairs Division of the U.S. Army.[20]
Extraordinary Contribution to National Security
A person otherwise eligible for naturalization who has made an extraordinary contribution to U.S. national security may is exempt for the continuous residence and physical presence requirements.[21]
Expedited Naturalization
USCIS is required by law to adjudicate naturalization applications for current members of the armed forces, the spouses of such members under 319(b) or the surviving spouse and children of such members under 319(b) with six months or provide an explanation of why it is unable to do so.[22]
G. Application and Evidence
The applicant for naturalization submits the form N-400, a photocopy of the lawful permanent resident card, two color passport-style photos, and any supporting documents. A fee waiver is available if the applicant is unable to pay the filing fee.
An application may be filed up to 90 days before the continuous residence requirements are met.[23] Examination of an applicant may only occur after the FBI has completed a full criminal background check. If USCIS fails to make a decision within 120 days then an applicant may file for relief with the U.S. District Court.
USCIS will prioritize N-400 applications for individuals receiving SSI if their benefits will be terminated within one year from the date listed on their SSI notice and the application has been pending for more than four months.
At an interview the immigration officer may question the applicant on all requirements for naturalization. The officer should provide the applicant with suitable opportunities to respond to questions in all instances. In most cases, the officer conducting the naturalization interview administers the required tests relating to the applicant’s ability to read and write English, and his or her knowledge of U.S. history and government (civics), unless the applicant is exempt.
[1] Franklin, F. (1906). The Legislative History of Naturalization in the United States; From the Revolutionary War to 1861. Chicago: The University of Chicago Press.
[2] 8 CFR § 319.1(a)(3)
[3] INA § 319(a)
[4] INA § 316(b)
[5] 8 CFR § 316.5(c)(1)(ii)
[6] INA § 316(a)
[7] INA § 316(a)(3); 319(a)(1)
[8] INA § 316(e)
[9] INA § 312(a)(1)
[10] Id.
[11] 8 CFR § 312.5
[12] INA § 312(b)(2)
[13] INA § 312(b)(1)
[14] INA § 312(b)
[15] INA § 328
[16] INA § 329
[17] USCIS Policy Manual, Volume 12, Part I, Chapter 3, “Special Provisions for the Naturalization of Children” [last accessed July 21, 2015]
[18] INA § 329A
[19] INA § 319(d)
[20] INA § 329
[21] INA § 316(f)
[22] INA § 329(a)
[23] INA § 334(a)