Who Qualifies for Naturalization?

Naturalization is the admittance of a foreigner to citizenship after birth.   Many aliens seek to naturalize because of the benefits that come with U.S. citizenship, such as the ability to sponsor your relatives for Green Card status.  In the United States, you might qualify to naturalize if you fulfill one of the following categories:

  • You have been a permanent resident for at least five (5) years;
  • You have been a permanent resident for three (3) years or more through marriage to a U.S. citizen;
  • You served in the U.S. armed forces and meet all other eligibility requirements for this category.

Keep in mind that the five year permanent residency option is counted differently if you are in an asylum or refugee status.  Refugees can count their date of entry to the U.S. as the start of their five year permanent residence requirement to naturalize, if and when they are eventually approved as Permanent Residents.  Asylees can count up to one year of their time in asylee status towards the five year permanent residence requirement to naturalize.

 

Citizenship for the Children:

Children less than 18 years of age do not qualify to file an N-400 and naturalize, but they automatically become citizens with their parents as long as three conditions are met:

  • One or both of their parents are U.S. citizens by birth or naturalization;
  • The child is in legal Green Card status, and;
  • The child is in the U.S. in the legal and physical custody of the U.S. citizen parent.

If the above conditions are met then the child is automatically bestowed citizenship without any affirmative action required.  However, it is advised that you apply for passports in order to have firm documentation of the new citizenship.

If the child is not in the United States then a different set of rules apply to determine eligibility and procedure.  Also, if the father is the U.S. citizen through whom eligibility is to be based then the child must be legitimated under the law.  The simplest way to demonstrate this is with a birth certificate, just as with the mother.  If the birth certificate doesn’t reflect the father’s name then contact your immigration attorney to discuss other ways to demonstrate legitimacy.

 

 

Physical Presence and Continuous Residence:

To file the N-400 and go from Permanent Resident to U.S. Citizen, the USCIS requires you to be an adult of good moral character who is actually living in the United States.  A lot of Green Card holders like to travel frequently and may even own houses or property in other countries, but there are minimum requirements for Physical Presence and Continuous Residence in order to maintain eligibility for citizenship, deriving from section 316.2 of the Immigration and Nationality Act.

The first requirement is that you cannot even file the N-400 unless you’ve been in the United States for at least 90 days at the time of filing.  This means that if you go for a weekend trip to Canada (or anywhere else) then you cannot apply for citizenship until three months after returning from your trip.

The second requirement is that you must have lived in the United States for at least five years (60 months) as a Green Card holder.  This is shown with your Green Card showing an issue date of at least five years ago (or 5 years minus 90 days if using “early filing procedures”).

The third requirement is that you must have been physically present in the United States for 30 months out of the five years leading up to your N-400 filing date.  In other words, you must have been a Green Card holder for five years who spent at least half of that time in the United States.  This is shown with your passport stamps, and a chart in the N-400 where you will indicate each entry to and departure from the U.S. and calculate your eligibility.

The fourth requirement is that your 5 years of physical presence was continuous, which means uninterrupted by extended foreign travel above six months in duration.  This is another reason why extended travel as a Green Card holder is dangerous.  Not only can long trips to your home country put in question your permanent resident status, but they can also derail you from the citizenship path.  For this reason, it is important to take proactive measures and confer with your immigration attorney before embarking on extended trips or vacations.

The fifth requirement is that you must not only be eligible at the time of filing the N-400, but you must maintain your eligibility throughout the process until you are admitted to citizenship.  This means you cannot file your N-400 and then depart for a trip over lasting a year or more.

If you plan on extended travel, your attorney can help you preserve your status and citizenship eligibility.  This situation calls for a reentry permit to ensure the Green Card holder will be able to return to the U.S. as a Permanent Resident.  Further, your attorney can file an N-470 to preserve your residence for naturalization purposes.  You must apply for the reentry permit before leaving for your trip, but once you attend your biometrics and fingerprint appointment you may depart the U.S. without abandoning it.  However, it still may be denied in which case you should contact your immigration attorney and change your travel plans accordingly.  Note that even an approved reentry permit will have different effects on your continuity of residence depending on the length of your foreign travel.  For example, trips lasting longer than a year will cause a gap in your continuous residence and cause you to restart, with some time recouped if you return within two years.  See the chart below:

Length of Trip Reentry Permit required? Disrupt continuous residence? Time recouped if you have to restart your five year residence count
0- 6 months N No N/A
6 months –

1 year

Y Not with reentry permit N/A
Over 1 year

Less than 2 years

Y Even reentry permit will result in disruption. The last 364 days of your time outside of U.S. will count towards your continuous residency with a reentry permit.
2 years or more Y Even reentry permit will result in disruption. No time recouped if time abroad extends two years or more.

 

What about traveling for extended trips just short of six months then briefly returning to the U.S. on your Green Card before taking another extended trip?  Some clients want to use their Green Cards in this manner to game the system, however the border officials will catch on to this conduct and you risk one of them questioning your permanent residence during an attempted reentry.  Further, this type of travel pattern will delay your eligibility for naturalization.

Filing for the reentry permit and preserving your residence for naturalization along with proper payment of U.S. taxes and other evidence of continued U.S. residence will give you your best bet at success.  But even a reentry permit doesn’t 100% guarantee a hassle free admission at the border.  Also, these types of trips will make the evidentiary burden very high once you are at the N-400 stage.  As such, the safest advice is to refrain from extended travel until you are a U.S. Citizen, at which point you can travel on your U.S. passport and remain abroad as long as you wish without effecting your U.S. citizenship.

The USCIS has carved out some exceptions for certain workers who must spend large periods of time outside of the U.S., and for whom it would be unfair not to toll their continuous residence statuses.  This group includes those who work for the U.S. government, the U.S. Military, U.S. government contractors, and certain research institutions, international organizations, and other designated entities under the International Immunities Act.

 

When Can I Apply for Naturalization?

A Green Card holder can apply for naturalization 90 days before eligible under all the requirements including the five year continuous residence and physical presence requirements.  This means the person has been in the U.S. for at least three months and has spent two and a half of the last five years as a Green Card holder inside the United States.

The USCIS offers an early filing procedure under which you can submit your N-400 90 days before becoming eligible.  This benefit only applies if your naturalization is based on five years of permanent residence or three years of permanent residence if married to a U.S. Citizen.  The USCIS also offers a simple calculator to determine when your 90 day early filing date falls.

 

How long does the Naturalization Process take?

The naturalization process starts with the filing of the N-400 along with the required evidence.  The overall duration of the Naturalization process is currently lasting between 1-2 years.  The delayed processing makes use of the 90-day early filing period highly advised.

The first expected correspondence is a receipt notice confirming that the USCIS has received your N-400.  Receipt notices are issued within 2-4 weeks of the USCIS receiving your application.  Next will come the biometrics appointment, inviting you to a specific USCIS field office on a certain date and time to take your fingerprints and photos and fill out basic forms.  Appear at the biometrics appointment as scheduled with the listed items to keep your case moving forward.  If you cannot attend the interview on that date, or if it was scheduled at a bad location (happens frequently) then your immigration attorney can help you reschedule or relocate.  As far as rescheduling, you can request a specific date or time but that won’t guarantee that the USCIS will grant you that slot.  Rather, a reschedule request will result in a later date and if you cannot make that revised date then you must submit a second reschedule request.  This process delays your case processing so only use it if necessary.

After the biometrics appointment the USCIS will process the case for a number of months before you are send an appointment notice for your naturalization interview and civics and English test.  The interviewer will ask you questions about your background and your application.  You will also have to take a civics test and English test unless you qualify for an exemption based on age or disability.  The civics test is comprised of ten questions from a bank of one hundred (100) questions, which are available online for you to study.   The last step in the process is the Oath of Allegiance and your naturalization ceremony, for which you should receive the invitation shortly after passing the interview and civic/English tests.

 

Accommodations and Exemptions:

The USCIS offers certain exemptions from the civics and English testing requirements for Naturalization applicants of sufficient age and time in Green Card status.  Applicants can skip the English language test and invite an interpreter to translate the civics test if they fall into one of the following categories:

  • At least 50 years old with at least 20 years of Green Card status (50/20 exception), or;
  • At least 55 years old with at least 15 years of Green Card status (55/15 exception).

Further, applicants above 65 with at least 20 years of Green Card status are given “special considerations” regarding the civics exam.  This is not a waiver or exemption of the civics exam, but rather they allow the civics exam in the language of their choice and are only required to study 20 of the 100 available civics questions for the naturalization exam.

For those with disabilities that prevent them from fully complying with the civics and English language requirements.  Some common accommodation examples include extending exam time, proving sign language interpreters or other aids for the deaf or hearing-impaired, allowing relatives or representatives to attend with the applicant, allowing non-verbal communication, or performing an off-site examination.  If you qualify and need one of these accommodations your immigration attorney will fill the proper forms on your behalf to request them.

Call Pilehvar Law today to discuss the best strategy to transition from Permanent Resident to United States Citizen.

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