Citizenship and Naturalization

US citizenship can be acquired either through birth, derivation, or naturalization. Citizenship through birth and derivation is based on the citizenship of the parents, whereas citizenship through naturalization is based on physical presence in U.S. Most citizenship and naturalization applications are straightforward, but in cases that are more complex, advice and guidance from an immigration lawyer experienced in naturalization and citizenship cases is necessary.

Citizenship through birth or acquisition.

A person is a citizen through birth when born in the U.S. or one of its territories, or if born abroad to parents who are U.S. citizens. This (citizenship through birth to US citizen parents) is referred to as citizenship by acquisition. The rules governing this can be quite complicated, especially if the parents were not married at the time of the birth. A person claiming to be a US citizen through birth, acquisition, or derivation can either apply directly for a US passport, or else first apply for a certificate of citizenship. Either is conclusive proof of US citizenship.

A person born abroad to two U.S. citizen parents “in wedlock” (i.e., who were married) acquires U.S. citizenship by birth, provided one of the parents had a residence in the US or one of its territories prior to the person’s birth. An application for a certificate of citizenship under these circumstances is made on Form N-600K.

A person born abroad in wedlock and only one of whose parents is a U.S. citizen at the time of birth acquires US citizenship at birth, provided the U.S. citizen parent was physically present in the US for a specified period of time prior to the person’s birth. That specified period of time changes, depending on the date of birth. For births on or after November 14, 1986, the U.S. citizen parent must have been physically present in the US or one of its territories for at least five years prior to the person’s birth, and at least two of which must have been after the parent was fourteen years old. For births between November 13, 1986 and December 24, 1952, the U.S. citizen parent must have been physically present in the US or one of its territories for at least ten years prior to the person’s birth, and at least five of which must have been after the parent was fourteen years old.

A person born out of wedlock to US citizen father acquires US citizenship at the time of birth, provided the father had agreed in writing to provide support until the child was eighteen years old, and paternity is acknowledged or established by a court while the child was under eighteen.

A person born out of wedlock to a US citizen mother before June 17, 2017, acquires US citizenship at the time of birth, provided the mother was physically present for one year prior to the birth. A person born out of wedlock after June 17, 2017 to a U.S. citizen mother acquires citizenship at birth provided the mother was physically present in the US or one of its territories for at least five years prior to the person’s birth, and at least two of which must have been after the parent was fourteen years old (i.e., the same as for a child born in wedlock with one US citizen parent).

An application for a certificate of citizenship under any of these circumstances (only one US citizen parent) is made on Form N-600.

Citizenship through descent.

Citizenship through descent occurs when one or both parents naturalize as US citizens after the person’s birth but before his or her 18th birthday. As with citizenship by acquisition, the rules governing this can be complex, and vary depending on when the person was born. USCIS has a useful guide to determining eligibility for citizenship through birth.

A person under eighteen or not yet born on February 21, 2001, is automatically a U.S. citizen if at least one parent is a U.S. citizen, and the person is residing in the U.S. in the legal and physical custody of the U.S. citizen parent after having been lawfully admitted as a permanent resident.

A person who was under eighteen at any point between December 24, 1952 and February 26, 2001 is automatically a U.S. citizen if the person was living was living in the U.S. as a permanent resident and:

• both parents naturalized before the person’s18th birthday; or
• one parent died and the surviving parent naturalized before the person’s18th birthday; or
• the parents legally separated, and the parent with legal and physical custody naturalized before the person’s18th birthday; or
• the person was born out of wedlock, paternity was not established by legitimation, and the mother naturalized before the person’s18th birthday.

A person who was adopted by a US citizen parent before his or her 16th or 18th birthday, and who has been living in the US with the adoptive parent for two years before turning eighteen, or who was adopted abroad by a US citizen parent, also automatically becomes a US citizen upon completion of the conditions specified. As with citizenship by acquisition, the person can either apply directly for a US passport, with proof of satisfaction of the conditions for citizenship, or else apply for a certificate of citizenship on Form N-600.

Citizenship through naturalization.

Unlike citizenship by birth, acquisition, or descent, citizenship through naturalization is not acquired automatically. Instead, the person must apply for it, on Form N-400, and satisfy certain very specific residence and physical presence requirements.

In general, a person who has been a permanent resident of the US for at least five years, and who has been physically present in the US for at least half of that time, can apply to be naturalized as a US citizen. There are exceptions to this five-year rule. Persons who gained permanent residence through marriage to a US citizen can apply for naturalization after three instead of five years, provided they are still living with the US citizen spouse “in marital union” through the date of the naturalization interview. It is important to remember that time spent as a conditional permanent resident counts towards this three years. This means that an N-400 can be filed while an I-751, Petition to lift the condition on residence, is pending, and in that case, USCIS will adjudicate both the N-400 and the I-751 together.

People who gained permanent residence through asylum can apply for naturalization after four instead of five years, because the grant of permanent residence for asylees is always backdated by one year. In addition, time spent abroad by certain permanent resident US government employees will not break the physical presence requirements for naturalization, and members of the armed forces and their spouses are eligible to apply for naturalization one year after being granted permanent residence, and the physical presence requirements do not apply to them. Finally, an application for naturalization can be filed ninety days before the applicable time period has run (i.e., four years and nine months, three years and nine months, etc.), but the naturalization interview cannot take place until the full period has run.

In addition to satisfying the physical presence requirements, a naturalization applicant has to show that he or she can speak and understand English, and understands U.S. history and government, and also that he or she has been a person of “good moral character” during the required period of residence, also referred to as the “statutory period”.

Anyone who has been convicted of certain crimes, such as murder, or any “aggravated felony” after November 1990, is ineligible for naturalization. Anyone who has been convicted, or who admits to committing, certain specified offenses and types of offenses, during the statutory period is also unable to show good moral character. Acts and convictions outside of the statutory period are relevant to determine good moral character, and although USCIS is not supposed to base a finding of lack of good moral character solely on acts that have occurred outside the statutory period, it often does.

As a practical matter, anyone applying for naturalization with any criminal history can expect to be questioned extensively about it at a naturalization interview. The more recent and the more serious the conviction, the more likely it is to be the basis for denial of naturalization based on lack of good moral character. Naturalization applicants with a criminal history should be prepared to submit at the naturalization interview proof of completion of sentence, probation reports, payment of restitution, and letters from friends and family attesting to rehabilitation. The Law Office of Paul O’Dwyer, P.C. has successfully represented many individuals with criminal convictions in naturalization applications.

Another frequent issue in naturalization cases is failure to register with the Selective Service. Under US law, every male permanent resident between the age of eighteen and twenty-six is required to register with the selective service, and the naturalization application form asks if the person has done so. If the person has not registered and is now over the age of twenty-six, he should submit with the application, a letter from the Selective Service stating that it is now too late for him to register, along with a simple sworn statement stating that he was unaware of the requirement to register, and that it was therefore not “willful”.

Procedure for naturalization applications.

The procedure on a naturalization application is as follows: Form N-400 is filed with USCIS according to the instructions. After completion of background checks, the applicant is interviewed by a USCIS officer to determine eligibility and to undergo the test of English and US history. If the application is approved, the applicant is scheduled for an oath ceremony, at which the oath of allegiance is recited and the person is sworn in as a US citizen and is given a certificate of naturalization. It is important to remember that you become a US citizen after the oath ceremony, not after the approval of the citizenship application.

If the naturalization application is denied within 120 days of the interview, the applicant can request a re-hearing before a more senior immigration officer, by filing a request for a re-hearing on Form N-336. If there is no decision within that 120 days, or if the application is again denied after a second interview or hearing, the applicant can then file an action in US District Court, for a hearing on whether he or she should be naturalized. The District Court judge can then order USCIS to grant the application, or else declare that the person is eligible to be naturalized and order USCIS to schedule an oath ceremony, or can deny the naturalization application. The Law Office of Paul O’Dwyer, P.C. has successfully sued USCIS in US District Court to issue decisions on delayed and denied naturalization applications.

The most common problems in naturalization cases arise when the applicant has criminal convictions or uncharged criminal acts, or if there is a question of fraud in how permanent residence was obtained. Sometimes, the filing of a naturalization application can actually result in denial of naturalization and the applicant being placed in removal proceedings based on criminal and/or fraud charges. Anyone with criminal convictions, or uncharged criminal acts, or any complicated immigration history, should consult with an experienced immigration attorney before filing for naturalization. The Law Office of Paul O’Dwyer, P.C. has successfully represented many people with both minor and serious criminal convictions in naturalization applications, both before USCIS and the federal courts.

This article is intended to give a general overview of the process and issues involved in naturalization and citizenship, and should not be considered as a guide, or as a substitute for legal advice.