United States Citizenship Through Naturalization

In the first three modules, we examined immigration into the United States in its nonimmigrant and permanent legal resident forms. In this module, we will cover how lawful permanent residents can become US citizens through the process of naturalization. There is no legal requirement for permanent lawful residents to become US citizens. For many residents, though, US citizenship is a mark of the time and effort they undertook to acquire permanent residency. Each year, hundreds of thousands of people become American Citizens through naturalization.[1]

Advantages of Becoming a US Citizen

United States citizenship confers multiple advantages, some in the forms of legal rights and others that come with citizenship status. Among these advantages are:

·         The right to vote in federal elections. With few exceptions, such as certain alien permanent residents whose parents were US citizens and who believed that they, too, were citizens when they voted, federal law makes it a crime for a noncitizen to vote in elections for federal offices, including President, Vice President, Senators and members of the House of Representatives.[2] Note that this right is subject to restrictions in some states, such as the loss of voting rights because of a felony conviction.

·         The right to enter, leave, live in and work in the United States. Although lawful permanent residents share these rights, citizens have the advantage of fewer restrictions. For example, permanent residents can lose their rights to remain in the United States and be subject to removal, and citizens are not required to maintain their residency in the US. Some federal employment positions also require US citizenship to qualify.

·         The right to run for political office. Naturalized citizens who meet time-based minimum requirements are eligible to be candidates for some federal and state elected positions: seven years of citizenship to become a member of the House of Representatives, and nine years to become a senator.

·         The ability to pass on citizenship to children born in other countries. Depending on whether one or both parents are US citizens, children born overseas to citizen parents are either automatically US citizens (when both parents are married and at least one of them has a residence in the US)[3] or, depending on specific US residency conditions, may be eligible for citizenship if one parent is a citizen and the other parent is either a non-citizen US national[4] (that is, a person born in or having ties to American Samoa or Swains Island[5]) or an alien.[6]

·         Improved ability to sponsor for immigration relatives living overseas. If the sponsoring relative for a family-based immigration petition is a US citizen, the subject is eligible for an immediate relative visa instead of a family second preference visa, if the sponsor was a lawful permanent resident.[7]

·         Consular protection overseas. US citizens and non-citizen US nationals can ask to communicate with a representative from the appropriate US embassy or consulate if they are arrested or otherwise detained in a foreign country.

Pathways to US Citizenship

Section 1 of the Fourteenth Amendment to the US Constitution establishes the two avenues to become a United States citizen: through birth (“birthright citizenship”) or naturalization.[8]

Birth in the United States qualifies a person for citizenship even if the child’s parents are not US citizens. Aside from being born in the United States or its possessions, federal law identifies several ways to qualify for birthright citizenship. For example, members of aboriginal tribes, such as Eskimos, Aleuts, and American Indians, are citizens of the US if they are born in the United States or its possessions.[9] Children of US citizens born outside of the US may be citizens if one or both parents are US citizens or if they have met US residency requirements.[10] The Child Citizenship Act of 2000 provides a way for adopted children to acquire citizenship.[11]

            The federal agency in charge of naturalized citizenship matters is the United States Citizenship and Immigration Service, which is part of the Department of Homeland Security.[12] USCIS implements federal policies on naturalization through the Immigration and Naturalization Act and its enabling regulations. Volume 12 of the USCIS Policy Manual is the working document that USCIS personnel use for guidance when applying these laws and regulations.[13]

Not all lawful permanent residents qualify to become naturalized US citizens. Prospective citizens must first meet all the conditions of eligibility under US law. These include:

·         Being a lawful permanent resident who is at least 18 years old.

·         Continuously residing in the US for at least five years after acquiring lawful permanent resident status.[14] The five-year requirement is not for everyone. For example, spouses of US citizens need only spend three years of continuous residence,[15] and lawful permanent residents who serve honorably in the US armed forces can reduce the duration requirement depending on their duration of service.[16] If, during the continuous residency period, the applicant leaves the United States, the USCIS might consider that to be a break in continuous residency, especially if the absence lasts for six months or more. This can lead to denial of the citizenship application, and if the absence is for over one year, it can also trigger a new continuous residency requirement.

·         Meeting residency requirements. During the continuous residency period, the applicant must also have spent at least 30 months physically present in the United States. For at least three months before submitting the citizenship application, the applicant must live in a state or a USCIS district that has legal jurisdiction over her place of residence.[17]

·         Being able to speak, read and write in the English language. This means being able to use English in ordinary usage, such as reading and writing using simple words and phrases.[18] “Ordinary usage” means communicating in a comprehensible and pertinent way, even if the communication contains spelling or pronunciation mistakes.[19] USCIS might waive the English language ability requirement if the citizenship applicant qualifies for an exception,[20] such as being more than 55 years old and having lived in the US as a lawful permanent resident for at least 15 years, or being 50 years old or older and having a cumulative 20 years of lawful permanent residence, or if the applicant suffers from a medically-certified disability[21] that impairs the ability to learn English.[22]

·         Familiarity with the history of the United States and with its principles and form of government. This requirement, taken together with the English language proficiency requirement above, is the subject of the naturalization test.[23]

·         Personal qualities including good moral character, attachment to the principles of the US Constitution, and being “well-disposed to the good order and happiness of the United States.”[24] These character qualifications apply from at least five years before submitting the citizenship application through the application processing until taking the Oath of Allegiance. Behavior indicating lack of moral character (such as crimes involving illegal drugs or alcohol abuse, prostitution, gambling, adultery, polygamy or perjury) can result in conditional bars to naturalization or permanent bars in cases of more severe violation such as murder, aggravated felonies or participation in persecution, genocide or torture.[25]

Applying for Naturalized Citizenship

If the prospective new citizen meets the eligibility requirements, she should complete the Application for Naturalization, Form N-400.[26] This form, along with accompanying support documents can be submitted either online or by mail. In some situations, particularly if the applicant’s photograph and fingerprints are needed, USCIS may schedule a biometric services appointment to collect them.[27]

If no problems arise during the consideration of the naturalization application, USCIS will schedule an interview under oath and the naturalization test on the English language and civics.  

The naturalization interview gives the USCIS the opportunity to dig deeper into the background and character of the applicant. Failure without good cause to undergo the interview as scheduled, coupled with not notifying USCIS within 30 days of the reason for missing the interview is an abandonment of the application and can lead to closure of the file. If the applicant does not, within one year of the administrative closure, request USCIS to re-open the application, the application is dismissed.[28]

The USCIS officer who conducts the interview can cover the following topics:

·         Biographical information, such as information about the applicant’s places of residence, employment history, marital status and military service.

·         Status as a lawful permanent resident and residence in the US. For example, this can give an applicant who has been absent from the US the opportunity to explain the circumstances of that absence.

·         Matters concerning loyalty to the United States. Questions here relate to the applicant’s adherence to the US Constitution, membership in organizations, and willingness to take the oath of allegiance.  

If the applicant’s English language skills are weak, and the USCIS officer is conversant in the applicant’s native language, the interview can be done in that language. The applicant can also bring an interpreter, who should be a disinterested third party. USCIS can require a subsequent interview to address any concerns that arise during the initial interview, or for additional information in writing in lieu of a follow-up interview.

The applicant takes the naturalization test during the same scheduled appointment for the naturalization interview. The test comes in two parts: the English test, and the civics test.[29]  

The English test evaluates English language ability in three areas: verbal skills, reading comprehension and writing ability. The naturalization interview, aside from its information-gathering, also serves as the verbal skills test as the USCIS interviewer will assess the applicant’s ability to understand and to speak English, including the ability to be placed under oath.  

The reading and writing tests comprise three questions each. The applicant must correctly answer one question for each test to pass. As soon as the USCIS officer receives a correct answer the test stops. In the reading test, the applicant reads a sentence aloud so the officer can listen for omitted or substituted words, long pauses or serious mistakes in pronunciation or intonation. In the writing test, the officer dictates a sentence that the applicant must transcribe. Some errors in transcription are acceptable; failure can occur if the applicant writes a sentence different from the one spoken, writes a sentence fragment, or writes illegibly.

The civics test is an oral test. It consists of 10 questions from a pool of 100 possible questions. The applicant must correctly answer six questions to pass, in which case the test ends. The civics questions are available to study online.[30] Applicants do not need to take the civics test in English as it is offered in many languages.[31] The applicant must bring an interpreter fluent in English and the applicant’s selected language if it is to be taken in another language.

Depending on the applicant’s age, education level and length of US residency, the officer administering the civics test can give special consideration in selecting the questions.

The Next Steps in the Process

Not everyone who takes the naturalization test passes all parts on the first attempt as the tests are not necessarily very easy. According to one 2018 survey, when questions from the civics test are given in multiple-choice format, only one in three Americans is able to pass it.[32] For those who fail one or more parts of the test, USCIS will schedule a re-examination for the failed parts. The window for this re-examination is 60 to 90 days after the initial test failure. The applicant will have a different set of questions in the retest. If the applicant refuses to submit to re-examination or again fails any part of it, this is grounds for denying the application.

After the applicant completes the naturalization examination, including any re-examinations, USCIS will either deny the application, approve it or continue it, if the applicant needs to provide additional information before a final decision.[33] Denied applications may be appealed for reconsideration. The applicant can self-represent during the appeal, or use a representative, such as an attorney. A representative of the applicant should file with USCIS a notice of entry of appearance on the applicant’s behalf.  

To preserve the appeal right, the applicant must file not more than 30 days after receiving the denial notice.[34] USCIS must schedule a hearing on timely appeals not later than 180 days after receiving the appeal. Depending on the circumstances, this hearing may require full reconsideration, or the reviewing officer may consider only part of the denied application. Unlike a judicial appeal, the reviewing USCIS officer can consider new evidence and testimony that can affect the applicant’s naturalization eligibility.

A new officer conducts the appeal hearing. If the denial was based on failure of the English or civics test, the reviewing officer must administer the failed test again, though no retest is available if the applicant fails the test at this hearing. The reviewing officer can affirm the initial decision to deny naturalization or reverse it and approve the application. The officer might reconsider the original grounds for denial, but still uphold the denial based on new information.[35]

If the applicant files the appeal late, USCIS can still consider it to be a motion to reconsider when new evidence or facts are presented.

Ordinarily, USCIS must decide to approve or disapprove an applicant’s naturalization within 120 days after the naturalization interview. If it fails to do so, the applicant can bypass the USCIS appeal process and appeal for judicial review to a federal district court that has jurisdiction over the applicant’s residence location.[36] Another way that a judicial appeal can occur is if the applicant loses the administrative appeal to USCIS and then appeals the application denial. [37]

Once the naturalization application is approved, the final step is to take the Oath of Allegiance to the United States. The applicant can take the Oath of Allegiance on the same day as successful completion of the naturalization interview and test, or USCIS will mail to the applicant a Form N-445, Notice of Naturalization Oath Ceremony [38]with a time and place for the oath-taking ceremony. The back of this form contains eight questions about the applicant’s status and activities since the interview. If the applicant answers “No” to all eight, then the final step is to bring the form to the ceremony location, along with the applicant’s Green Card which must be surrendered at that time.  

After the applicant takes the Oath of Allegiance, USCIS will provide to the newly naturalized US citizen a Certificate of Naturalization documenting citizenship status.  

Others Issues Related to Naturalized Citizenship

In some cases, an applicant can successfully complete all requirements for citizenship yet still be denied citizenship, such as where the USCIS discovers new derogatory information about the applicant or if the applicant twice fails to appear to take the Oath of Allegiance. Either of these requires USCIS to commence a motion to reopen.[39]

The applicant has 15 days to respond to derogatory information. If the applicant successfully refutes that information, the motion to reopen is denied and the naturalization process continues; otherwise, the application can be denied. USCIS treats failure to appear for at least two scheduled Oath of Allegiance ceremonies as the same as unrefuted derogatory information unless the applicant can show a good reason for not appearing.

Completion of the naturalization process through taking the Oath of Allegiance does not preclude the loss of naturalized citizenship.[40] Circumstances that can lead to loss of citizenship include:

·         Citizenship was acquired illegally

·         The applicant failed to comply with naturalization eligibility requirements.

·         Intentional concealment or misrepresentation of “material” facts, which are facts that would have affected the decision.

·         The citizen joins, within five years of naturalization, any of certain designated organizations that are terroristic or totalitarian in nature.[41]

·         Other-than-honorable discharge from the US military, if the citizen became naturalized on the basis of military service and the discharge occurs before completion of at least five cumulative years of service.[42]  

On its face, the Oath of Allegiance appears to preclude citizenship with any other country: it starts with the words, “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.”[43] [44]

According to the Department of State, however, “US law does not mention dual nationality or require a person to choose one nationality or another.”[45] A foreign citizen who becomes a naturalized US citizen does not necessarily lose that foreign citizenship and a US citizen who naturalized in another country does not automatically jeopardize US citizenship, although it is possible to voluntarily renounce US citizenship.

Dual nationality carries with it advantages and disadvantages. Some considerations for dual citizens include:

·         They are subject to laws of more than one country, and this may cause conflicts between the two countries’ legal systems.

·         Dual citizenship may interfere with the ability of US consulates or embassies to provide consular protections.

·         US dual citizens must still use their US passport to enter and leave the United States.

In our last module, we’ll look at the interaction between American immigration law and international law and special situations that invoke immigration law.