NATURALIZATION

Naturalization is the process by which permanent residents of the United States become citizens. An alien who obtained permanent residency based on an employment-based I-140 petition or an I-360 Religious Worker petition becomes eligible for naturalization once he has maintained permanent resident status for five years. Aliens who obtained permanent residency through marriage to a U.S. citizen may file a naturalization application after maintaining permanent residency for only three years.

Procedure for Naturalizing

Applicants eligible for naturalization must file form N-400 at the USCIS service center having jurisdiction over his place of residence. The N-400 application can be filed up to 90 days prior to the completion of the required three- or five-year period of required residence. Along with the N-400, the applicant must provide photographs of himself, the filing fee and the fingerprinting fee, and a copy of his or her I-551 or “green card”.

The service center will adjudicate the application and then forward it to the USCIS district office having jurisdiction over the applicant’s place of residence. Local district officeprocessing times for N-400 applications are provided on the USCIS website, and are regularly updated. The district office

will send the applicant a fingerprint notice to the applicant. The applicant must go to the USCIS office on the date specified, to have his fingerprints taken.

After the fingerprints have been taken, the district office will call the applicant in for a naturalization interview. At that point the applicant will undergo an English language test, including reading and writing, as well as a U.S. history test.

If there are any potential problems with the naturalization application, they will come up at the interview. Attorney representation is permitted for naturalization applicants, and is recommended where there are any potential problems with the application. (E.g. if the applicant has spent a lot of time outside of the U.S. in the past five years, the issue will arise as to whether he abandoned his permanent residence in the U.S.).

If, in the line of questioning at the interview, the officer determines that she cannot approve or deny the application until additional evidence is furnished, she may require the applicant to return for a second interview, at which the applicant must furnish additional information. The burden of proof is on the applicant to prove eligibility for naturalization.

If the application is approved, the applicant may be informed of its approval. While some offices conduct the naturalization oath ceremony on the same day as the interview, most do not. In most cases, then, USCIS will mail the applicant one final appointment notice after the interview, stating the date on which the applicant must attend the naturalization oath ceremony. The oath ceremony takes place at a U.S. federal court. The applicant must swear an oath of allegiance at which he testifies to his attachment to the principles and government of the United States. After the conclusion of the ceremony, he will be granted a certificate of citizenship, and is considered a citizen from that date forward.

Who Is Eligible to Naturalize?

• English Language and U.S.history Requirements

• The Immigration and Nationality Act does not allow USCIS to naturalize people unless they can read, write, and speak the English language and unless they have knowledge of the fundamentals of the history and principles of the United States government.

  There are certain exceptions to these requirements. First, the requirements can be waived if the applicant is unable to comply because of a physical or developmental disability or mental impairment. For example, if the applicant has suffered a stroke and a physician certifies in writing that the applicant has no ability to acquire new knowledge, the exception would apply. Second, the English language requirement (but not the U.S. history requirement) can be waived for any person who was fifty years old or older upon the filing of the application and has lived in the United States as a Permanent Resident for at least twenty years; or is over age fifty-five and has lived in the U.S. as a Permanent Resident for at least fifteen years.

• Attachment to the Principles of the Constitution

  Before a naturalization applicant can be admitted to citizenship, he must attend a naturalization oath ceremony in a court of law. The applicant must swear an oath to support the Constitution of the United States.

  The officer conducting the naturalization interview prior to the oath ceremony will take into consideration whether the alien will be able to truthfully swear such an oath. The officer may conclude, for example, that applicants who failed to register for Selective Service when required to do so have not shown that they are attached to the principles of the Constitution. He may then determine that the applicant is ineligible to naturalize.

• Residence & Physical Presence Requirements

  An applicant is only eligible for naturalization if he meets the following residence and physical presence criteria:

  • Immediately preceding the filing of his N-400 application, he has resided continually in the U.S. as a Permanent Resident
  • He has been physically present in the U.S. for at least half of that time
  • Has resided in State in which he filed the N-400 application for at least three months
  • Has resided continually in the U.S. from the date of the N-400 filing to the date of the oath ceremony
  • The concepts of “residence” and “physical presence” are separate and distinct from one another. A person’s residence is where his heart lies, the place that he considers home. A person is not always physically present at his residence. Determining one’s residence therefore requires an inquiry into his intentions, which USCIS can only ascertain through analysis of his physical actions.

    Physical Presence, on the other hand, is a concrete concept meaning exactly what it sounds like it means: that the alien is actually physically present in the U.S.
    USCIS starts counting the qualifying period of “residence” on the date that the alien receives his permanent resident status. The alien may travel outside of the U.S. as a permanent resident and still maintain residence which counts toward his eligibility to naturalize. Any trips less than six months in duration do not break the period of required residence. (However, if USCIS notices a pattern in the alien’s history of only coming to the U.S. for brief visits once every six months, it may determine that the only purpose of the alien’s visits was to maintain the illusion of his residence in the U.S. In these situations, the Service has consistently held that the alien has abandoned residence).

    If the applicant spends between six and twelve months outside the United States during the five years (for an employment-based applicant) or three years (for a family-based petition), USCIS will assume that there has been a break in the continuity of his residence unless he can prove otherwise. The service looks at the following factors to determine whether there was a break in the continuity of residence in such situations:

    Whether the applicant terminated employment in the US.
    Whether the applicant's immediate family remained in the US.
    Whether the applicant retained full access to his or her US abode.
    Whether the applicant obtained employment abroad.

    If the applicant spends over a year outside the U.S., then USCIS considers that year to unequivocally break in the continuity of his residence, and does not take into account any of the factors listed above.

    An individual whose qualifying period of residence has been broken may still qualify for naturalization, but his eligibility will be delayed. The break in residence resets the clock for counting the qualifying period of residence. The clock counting the new residence period will begin to tick on the individual's return to the US.

    Once the clock has been re-set, an alien who was initially required to satisfy a five year period of residence may file a naturalization appliation four years and one day following the date of the applicant’s return to the U.S. to resume permanent residence. An applicant originally required to satisfy the three year residence period may file a naturalization appliation two years and one day following the date of the applicant’s return to the Untied States to resume permanent residence.

    Normally an N-400 application can be filed 90 days before the date on which the residency requirement has been fulfilled. However, if the applicant is applying after a break in continuity of residence, the N-400 can only be filed after residence has been maintained for the full four years and one day, or two years and one day, whichever applies.

    In certain special cases, individuals absent from the U.S. for over a year may still preserve residence for naturalization purposes. For example, individuals physically present and residing in the U.S. for at least one year after becoming a lawful permanent resident can preserve residence if they are employed with:

    the US government;
    an American insitution of research recogized by the Attorney General;
    an American firm (or its more than fifty percent owned subsidiary) engaged at least in part in the development of the foreign trade and commerce of the US; or
    a public international organization of which the US is a member by treaty or statute.

    Residence can only be preserved under these circumstances if the alien has first filed Form N-300 to preserve his residence.

• Good Moral Character

  An applicant must show that he has been a person of good moral character for the statutory period (five years or three years if married to a U.S. citizen) prior to filing for naturalization. However, USCIS may review criminal history prior to that period to determine whether the applicant has good moral character. If an applicant was ever convicted of murder, for example, he may never naturalize. USCIS maintains a list of offenses that disqualify an applicant from naturalizing on good moral character grounds.