Citizenship Fact Sheet

U.S. Citizenship Fact Sheet: Acquiring Citizenship Through Naturalization

 

I. General
 

Section 316(a) of the Immigration and Nationality Act ("INA") discusses the requirements for naturalization. INA §316(a) provides that no person, except as otherwise provided in this title, shall be naturalized, unless such applicant,
 

1. immediately preceding the date of filing of his or her application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of his or her application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the United States Citizenship and Immigration Services (hereinafter USCIS) of the United States in which the applicant filed the application for at least three months;
    

2. has resided continuously within the United States from the date of the application up to the time of admission for citizenship; and
    

3. during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.
    

In addition to the above, applicants for naturalization must be literate and have knowledge of the history and government of the United States.
 

II. Requirement Of Lawful Admission For Permanent Residence
 

Under INA §101(a)(20), the term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. The requirement is therefore that the foreign national be a lawful permanent resident and that the foreign national be entitled to such status.
 

An exception to this requirement appears in INA §329(a). Under this section, a person is eligible for naturalization even if he or she is not lawfully admitted for permanent residence provided:
 

a.    he or she has served honorably in the U.S. Armed Forces in times of war or other declared hostilities, and
 

b.    enlisted or was inducted while in the United States, the Canal Zone, American Samoa or Swains Islands.

By executive order, the President may designate periods of armed conflict for the purpose of INA §329(a) purposes. In 1990, INA §329A was enacted. INA §329A provides for the award of posthumous citizenship to persons who served in the armed forces during a period of hostility designated in INA §329(a) and whose family members had filed a petition within two years of death. However, the surviving family members, however, cannot receive any immigration benefits from the posthumous grant citizenship.
 

III. Requirement That The Applicant Be 18 Years of Age Or Older At The Time of Filing
 

In general, the applicant for citizenship must be 18 or older at the time that he or she files for naturalization. However, there are two exceptions to this requirement::
 

a.    persons who served honorably in the U.S. Armed Forces during designated periods of hostility may naturalize
       pursuant to INA §329(a) regardless of their age; and
 

b.    minor children having at least one U.S. citizen parent may be naturalized based on the application of the parent
       pursuant to INA §322.
 

IV. Residence and Physical Presence Requirements
 

Residence is not the same thing as physical presence. The term "residence" is defined under INA §101(a)(33) as the place of general abode which means one's principal actual dwelling place in fact, without regard to intent.
 

The period of continuous residence in the United States must be subsequent to lawful admission as a permanent resident and must be for a period of at least five years (or three years where the applicant's permanent residence was derived from marriage to a U.S. citizen) preceding the filing of the application for naturalization. Residency in the United States must also be maintained from the time of filing of the application until the time that the foreign national acquires U.S. citizenship.
 

In the case of absences from the United States of six months or less, there is no break in the continuity of residence for naturalization purposes. An absence of more than six months but less than one year raises a rebuttable presumption that the continuity of residence has been broken for naturalization purposes. An absence of one year conclusively breaks the continuity of residence. However, under INA §316(b), §316(c) and §317, there is an exception for persons serving abroad in the United States Armed Forces, certain U.S. government agencies and U.S. companies, religious workers and international groups of which the United States is a member, provided that:
 

a.     the foreign national has at least one year of physical presence in the United States as a lawful permanent resident;
        and 
 

b.     the individual files an application to preserve residence before he or she has spent one year abroad.
 

A person must be physically present in the United States for at least half of the required residence time preceding the date of filing the application (30 months out of the five years, or 18 months out of three years if permanent residence was derived from marriage to a U.S. citizen).

 

V. Requirement of Good Moral Character

 

There is no specific definition of good moral character. However, good moral character has been interpreted as character which measures up to the standards of average citizens of the community in which the applicant resides and thus does not necessarily require the highest degree of moral excellence. In general, the Naturalization Examiner will base his or her recommendation regarding good moral character on the applicant's conduct during the five years immediately preceding the filing of the application. However, USCIS may consider all of the applicant's prior conduct.

 

VI. Attachment To The Principles Of The Constitution and Favorable Disposition To The Good Order and Happiness Of The United States

 

The applicant must be well disposed to the good order and happiness of the United States. The term "well disposed" means not hostile. It will include dissenters but not persons who advocate change through the use of violence. The applicant must also be attached to the principles of the Constitution. The term "attachment" implies a depth of conviction that would lead to the active support of the constitution. An applicant having the required attachment and favorable disposition must take an oath or affirmation of allegiance to the United States without mental reservation.

 

VII. Literacy In The English Language

 

Applicants will be tested on their ability to read, write and speak words in ordinary usage using the English language. Several exemptions from the literacy requirement appear at §312.1(b) of Title 8 of the Code of Federal Regulations ("8 CFR"):
 

a.     a foreign national who is physically unable to comply with the requirement due to permanent disability is exempt;
        and 
 

b.     applicants who are more than 50 years of age and who have resided in the United States for 20 years as
        permanent resident foreign nationals as of the date of filing the application may be examined in their native
        language; and  
 

c.      applicants who are more than 55 years of age and who have resided in the United States for 15 years as
         permanent resident foreign nationals as of the date of filing the application may be examined in their native
         language.  

 

VIII. Knowledge Of History and Government

 

Under INA §312(2), applicants are required to pass an oral history and government examination, even if they are exempt from the requirement of speaking English. However, there are exemptions from this requirement also:
 

a.     a foreign national who is physically unable to comply with the requirement due to permanent disability is exempt;
        and
 

b.     a foreign national who is over 65 and who has been a permanent resident for over 20 years can receive "special
        consideration" concerning the civics requirement. 
 

IX. Special Situations

 

Spouses of U.S. Citizens

 

Spouses of U.S. citizens may naturalize after three years instead of the normal five years. Pursuant to INA §319(a), the following requirements will apply:
 

a.     the spouse of the applicant must have been a U.S. citizen during the entire three year period;
 

b .    the foreign national and U.S. citizen spouse must be living in marital union during the entire three year period;
 
c.     the foreign national must be physically present in the United States for at least eighteen months during the three-
        year period and have resided within the state or district of USCIS where the application is filed for at least three
        months;
 

d.     good moral character need only be established during the three year period; and

e.     permanent residence status and marriage to the United States citizen must coincide for the entire three-year
        period. 
 

Spouses of U.S. Citizens Stationed Abroad

 

Foreign nationals whose U.S. citizen spouses are stationed abroad as employees of the U.S. government or certain other designated organizations and who, by reason of this absence from the United States cannot otherwise meet the normal residence requirements are permitted to naturalize notwithstanding this fact. Under INA §319(b) the following requirements will apply:
 

a.     the applicant must have been lawfully admitted for permanent residence;
 

b.     the applicant must be married to a U.S. citizen;

c.      the U.S. citizen spouse must be employed abroad by or in one of the following categories:
 

         i.    the U.S. Government;
 

         ii.   a U.S. research institution recognized by the Attorney General (a list appears at 8 CFR §316.20);
 
         iii.  a U.S. firm or corporation engaged in whole or in part in the development of foreign trade and commerce of     
               the United States or a subsidiary in which a majority of the stock is owned by a U.S. firm or corporation;
 

         iv.  public international organizations in which the U.S. participates by treaty or statute; or

         v.   minister, priest or missionary performing duties abroad;
 

d.     the applicant must intend to join or accompany the spouse abroad;
 
e.     the applicant must intend to return immediately to the United States upon termination of such employment
        abroad by the U.S. citizen spouse; and
 

f.      the spouse must be regularly stationed abroad in employment.
 

No specified period of residence or physical presence is required. The applicant must only be physically present in the United States at the time of naturalization. No state residence is required so the applicant may file an application for naturalization anywhere in the United States. There is no particular period of time during which good moral character or attachment to the U.S. government must be established.
 

Children Born Outside the United States Upon Application Filed by Parents
 

Under INA §322, a child born outside the United States, who has at least one U.S. citizen parent may be naturalized. The applicable rules are as follows:
 

1. the child must have been lawfully admitted into the United States;
    

2. the child must be under 18 at the time of naturalization and in the custody of the citizen parent;
    

3. the child must be residing with the citizen parent (the citizen parent and child must be residing in the state or district of the USCIS office where the application is filed) and the citizen parent must have been physically present in the U.S. for five years, at least two after the age of 14;
    

4. good moral character and attachment are presumed if the child is under 14 years of age;
    

5. the child must not otherwise be barred by INA §313 (subversives), §314 (deserters), §315 (claiming exemption from military service) and §318 (deportees); and
    

6. there are no literacy or civics requirements.
    

If the citizen parent cannot meet the physical presence requirements, the physical presence of a citizen grandparent (the citizen mother or father of the citizen parent) may be used to satisfy this requirement. The physical presence requirement is waived if the child is permanently residing in the United States with the citizen parent pursuant to lawful admission.

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For help navigating the process of acquiring citizenship through naturalization, contact the Boston immigration attorneys at Savitz Law Offices today.