Few matters in immigration practice are more rewarding than assisting a client to stand before the immigration service or a federal judge and take the oath to become a new citizen of the United States. Becoming naturalized as a citizen of the United States represents the culmination of a multiyear journey to a full membership in our American community for these immigrants.
Naturalization also provides one of the best opportunities to perform a community service and help new Americans become familiar with an attorney’s role in helping clients navigate the American legal system. Many new immigrants do not have a relationship with an attorney, and may not understand how attorneys can help them with many parts of their life, including providing for their families in the event of their deaths; purchasing real estate or a business; or dealing with government benefits, accidental injuries and employment matters. Therefore, organizing opportunities for new immigrants to become naturalized citizens provides not only an immediate benefit, but also brings those new citizens into American society and helps to integrate them in our Philadelphia community.
Naturalization can be one of the most straightforward processes in immigration or one of the most complicated. This article will briefly review the requirements for naturalization so that practitioners know when an application is straightforward and when detailed analyses may be necessary.
The most important requirement for naturalization is that the person seeking to naturalize has been a legal permanent resident of the United States for at least five years (with certain limits and exceptions). It is important to understand that this five-year requirement applies to the period of time spent in the United States as a permanent resident, that is, with a green card. If an individual arrived in the United States with a student visa, completed an undergraduate and graduate degree, and worked in the United States on a temporary visa for a period totaling 10 years, but only obtained permanent residence status recently, that individual will still have to wait until five years have passed since the grant of permanent resident status to apply for naturalization.
Most immigrants come to the United States and are granted permanent resident status upon their entry. They may reside in the United States for many years without making the decision to naturalize, as permanent residence status does not expire. It is not uncommon for a permanent resident to have lived in the United States for significantly more than five years before making the decision to naturalize; in many cases, naturalization in the United States will affect the person’s home country citizenship and may also affect property and inheritance rights in his or her home country.
If a client seeking naturalization is not yet a permanent resident, however, as a general matter an individual must be sponsored by a qualifying member (already a permanent resident or a U.S. citizen themselves); must have an employer who can demonstrate that the individual’s skills are unavailable in the U.S. labor market; or must qualify for one of the very limited number of visas granted on the basis of humanitarian concern or investment in the United States. If a prospective client seeks to become a U.S. citizen but does not qualify to obtain a green card (permanent resident status), naturalization will not be possible.
After establishing that the client does have five years of permanent residence status, the next question is whether they have continually maintained that resident status.
If a person has resided outside the United States for extended periods, he or she may have been deemed to have broken the “continuity of residence” for purposes of applying for naturalization, even though he or she may not have lost permanent residence status. For example, a permanent resident who spends more than six but less than 12 months outside the United States (perhaps because of a work assignment or personal business in the home country) will be presumed to have abandoned his or her residence, but can rebut that presumption by showing the time abroad was for a specific temporary purpose. If a permanent resident has spent a continuous period of more than one year outside of the United States, the rule is more straightforward: the individual will be deemed to have abandoned his or her continuous residence in the United States and will need to wait for another four years and one day after returning in order to apply for naturalization.
It is important to note that the five-year period for analyzing residence is the five years immediately preceding the permanent resident’s application for naturalization. Should the applicant have resided in the United States for more than five years, but have possibly abandoned the continuity of residence only in the most recent year or two, the applicant cannot claim credit for periods of residence occurring prior to the five years. For that reason, clients who plan to reside outside the United States for an extended period of time would do well to assess their eligibility for naturalization before they begin such absences.
Separate from the requirement to maintain a continuous residence for the five year period, an applicant for naturalization must have been physically present in the United States for one half of the days in the five-year period prior to the application. This physical presence is absolute and has only very limited exceptions for certain U.S. government employees and for religious missionaries.
Under this test, an applicant who may not have lost the continuity of residence in spite of significant absence from the United States may still need to reside physically in the United States for some period of time in order accumulate the necessary physical presence. Like the residence test, the physical presence test only looks at the five-year period immediately preceding the application for naturalization, so physical presence outside the five-year period will not help in meeting this test.
English Language Ability
All applicants for naturalization must have a basic ability to speak, read and write the English language. If the applicant has difficulty with English, there are English classes available from local voluntary agencies, such as the Nationalities Service Center (www.nationalitiesservice.org) and many ethnic and community groups.
There are exceptions to the English language requirement for older permanent residence who have resided in the United States for an extended period of time. If the person is at least 50 and has been a permanent resident for at least 20 years, or at least 55 and a permanent resident for 15 years, then he or she can take the naturalization examination in his or her native language. Applicants who are at least 65 and have been permanent residents for at least 20 years may take the naturalization test in their own language, and take a modified version of the test.
Finally, for applicants with a physical or mental disability that prevents them from learning English or otherwise complying with naturalization requirements, a medical waiver may be available. For clients under such disabilities, it is very important to have a detailed assessment of the person’s disability done by a reputable physician according to the instructions in the disability waiver application, Form N-648.
U.S. History, Gov’t. Knowledge
Applicants for naturalization must possess a basic understanding of United States history, as well as of the form and government of the United States, so that they can fulfill their responsibilities as new citizens.
Applicants for citizenship have their knowledge tested through a short exam administered during the course of the naturalization process. As an attorney cannot answer for the applicant, the best assistance is to provide links to resources available to help applicants for naturalization study for the examination. Another important role for the attorney can be to encourage the applicant to look at the questions and review some of the study guides before concluding that they will not be able to pass the test; the test was recently redesigned to make it more user-friendly and test the applicant’s understanding of general concepts rather than specific (and sometimes trivial) facts about U.S. history. Free resources, including sample questions and testing flash cards, are available from the USCIS naturalization page at www.uscis.gov/naturalization.
Support For The Constitution
As part of the application, the applicant must certify support of the Constitution and laws of the United States; must renounce foreign allegiances and titles; and must be willing to either bear arms on behalf of the United States, perform noncombatant services in the military, or perform work of national importance under civilian direction, if required by law. All applicants are asked about their willingness to perform such service; if the applicant is not willing to do any of the last three options, a demonstration must be made that such unwillingness is due to religious training, belief or other reasons of good conscience.
Good Moral Character
The final requirement is that an applicant must demonstrate that he or she has been a person of “good moral character” during the five year period of permanent residence. Good moral character is normally shown by the absence of negative factors; courts have held that the requirement is “good” moral character and not “perfect” moral character, so that negative factors can be outweighed by positive ones (community involvement, for example). The presence of serious adverse factors, however, calls for more detailed analysis.
Applicants who have any of the following negative factors should contact an experienced attorney to determine the impact of these factors on the naturalization application, or even the applicant’s permanent resident status: criminal convictions (whether or not expunged or pardoned); engaging in illegal gambling; failing to pay support to dependents; falsely or incorrectly claiming to be a United States citizen; registering to vote or voting in any election; membership in or support of communist, totalitarian or terrorist organizations; failure to register with Selective Service; or helping relatives enter the United States illegally.
How You Can Help
Several organizations provide legal assistance clinics to prospective naturalization applicants in the Philadelphia area, and the Philadelphia chapter of the American Immigration Lawyers Association is currently planning activities in connection with AILA’s national Citizenship Day, April 17. Attorney volunteers receive training and help applicants apply for citizenship, and help is also needed in identifying communities where outreach is necessary. More information is available at www.aila.org or from the author for those who wish to become involved. •
William A. Stock is a founding partner of Klasko Rulon Stock & Seltzer, a firm devoted exclusively to the practice of immigration and nationality law with offices in Philadelphia and New York. He can be reached at email@example.com.