Naturalization

Acquisition of Citizenship and Naturalization

People born outside the United States may become US citizen through acquisition of citizenship or Naturalization. This article’s main focuses will be on Naturalization with only a quick reference to acquisition of citizenship.

Acquisition of Citizenship

Acqquisition of Citizenship is obtained through U.S. citizen parents either at birth or after birth, but before the age of 18. Persons who were 18 years of age or older on February 27, 2001, do not qualify for citizenship. For such persons, the law in effect at the time the last condition was met before reaching 18 years of age is the relevant law to determine whether they acquired citizenship. In general, these laws require that at least one parent was a U.S. citizen, and the U.S. citizen parent had lived in the United States for a period of time. For more informaion visit: USCIS | Automatic Acquisition of Citizenship after Birth (INA 320).

Naturalization

Naturalization is the process by which U.S. citizenship is granted to a Lawful Permanent Resident (LPR) after meeting certain requirements of the Immigration and Nationality Act (INA). See 8 U.S. Code Chapter 12 – IMMIGRATION AND NATIONALITY. You can apply for Naturalization if you’ve been a Lawful Permanent Resident (LPR) for at least five years, or three years if married to a US citizen. The requirements for both categories are listed below:

Five Year Requirements

– You can apply for Naturalization if

You are at least 18 years old,
You have been a permanent resident for at least five years,
You have lived in the U.S. continuously for five years at the time you file your application. Note: Absence from the United States of more than six months during this period breaks the continuity,
You have been physically present in the U.S. for at least half of the five years before filing your application (30 months),
You must be able to pass the English language test,
You must be able to pass the civics test,
You must have lived in the district or state where you are filing your application for at least three months.
You must be found to have been of Good Moral Character during the five-year period, and
You must be willing to take the oath of allegiance to the United States.

Three Year Requirements

– You can apply for Naturalization on the basis of your marriage if you meet the following criteria:

You are at least 18 years old,
You are LPR at the time of filing the naturalization application,
You’ve been living in marital union with your citizen spouse for at least 3 years preceding the time of filing the naturalization application,
Your citizen spouse must have been a U.S. citizen for those 3 years,
You have continued to be the spouse of the U.S. citizen up until the time you take the Oath of Allegiance,
You have lived in the U.S. continuously for three years at the time you file your application. Note: Absence from the United States of more than six months during this period breaks the continuity.
You have been physically present in the U.S. for at least half of that period prior to filing your application (18 months),
You must be able to pass the English language test,
You must be able to pass the civics test,
You must have lived in the district or state where you are filing your application for at least three months.
You must be found to have been of Good Moral Character during the three-year period, and
You must be willing to take the oath of allegiance to the United States.

Abused Spouse or Child of a U.S. Citizen:

The INA § 319(a) extends the three-year naturalization eligibility to the survivors of domestic violence who obtained lawful permanent residency as the spouse or child of a U.S. citizen who subjected them to battery or extreme mental cruelty.

Word of Caution When Filing on Three-Year Eligibility:

Applying for Naturalization is not a risk-free process especially if you are applying based on three-year eligibility. The U.S. Citizenship and Immigration Services (USCIS) has up to five years to go back, look at your entire immigration file and review the basis of your initial qualification for your green card. If it finds inconsistencies, or hints of misrepresentation in the initial application for green card, it can initiate a recession process. However, in order to rescind a person’s adjustment to lawful permanent resident (LPR) status, USCIS must serve the person through personal service a Notice of Intent to Rescind (NOIR) within 5 years of the date of the adjustment.

Once the NOIR has been served, rescission action may proceed even beyond the 5-year time limit. In other words, the serving of the NOIR “stops the clock.” In cases of rescission of adjustment after Naturalization, first naturalization is revoked before the rescission of adjustment of status begins. INA 246(b) (provides that a person whose adjustment of status has been rescinded is subject to revocation of naturalization under INA 340.). If you are applying for Naturalization, protect your interst by seeking the assistance of an Immigration law attorney.

If there’s any potential problem with your eligibility, a lawyer will be able to spot it before you get started. In some cases this could save you time and money because if you pay a filing fee for the application. You can’t get it back if you are denie because it turns out you weren’t actually eligible for citizenship. An immigration lawyer can save you time. This is true specially if you don’t send the right type or adequate documents with your application and end up receiving a Request for Evidence (FRE), which in itself, could delay your case by a at least a couple of months.