Citizenship and Residency
Author: Ranchod Law Group
Work Permit, Green Card, and Citizenship
Naturalization: The Basics
The most basic requirement for naturalization is that the applicant must be at least 18 years old. Children younger than 18 years whose parents are naturalized automatically obtain United States citizenship as long as the children have also met the requisite residency requirements. There are a number of requirements related to residency in the U.S. that must be satisfied for naturalization. In most cases, the applicant must: have continuously resided in the U.S. for five years after becoming a permanent resident (three years if married to a U.S. citizen); have spent at least half of the permanent residency time physically in the U.S.; and have lived for at least three months in the jurisdiction where the application will be filed.
The applicant must demonstrate good moral character and an attachment to the principles embodied in the U.S. Constitution. Finally, he or she must possess basic English skills and knowledge of the history and government of the U.S.
There are some groups of people who, even if they could demonstrate these requirements, are still not eligible to become citizens. These include people who have held certain ideological beliefs and people who have deserted the U.S. military. While criminal offenses do not of themselves preclude a person from being naturalized, since 1996 people convicted of aggravated felonies are considered unable to show good moral character. U.S. law no longer contains provisions that prevent a person from naturalizing because of ethnicity.
Citizenship Rules for People Born Outside the United States
All persons born in the United States are citizens of the U.S. (with the minor exception of certain children of diplomatic personnel). This is perhaps the only simple rule of U.S. citizenship.
Persons born abroad before May 24, 1934, to a U.S. citizen father who had resided in the U.S. at any point before the birth are considered U.S. citizens at birth. The status of the mother did not matter unless the child was born out of wedlock.
In 1940, Congress passed a law making illegitimate children born abroad to U.S. citizen women citizens if the mother had resided in the U.S. However, under this law, if the child was legitimated by the foreign national father before his or her eighteenth birthday, the child would not be considered a citizen. The U.S. citizen parent must have resided in the U.S. prior to the birth. This residence could have been in the U.S. itself, or in certain U.S. territories.
The rules changed for people born between May 24, 1934, and January 13, 1941. In 1934, Congress passed a law allowing U.S. citizen parents, regardless of their gender, to pass citizenship to their children born abroad. If both parents were citizens, only one was required to have resided in the U.S., and as with the previous law, there was no required length of time that the parent must have resided in the U.S. Illegitimate children born aboard between 1934 and 1941 became citizens under the general provision.
The rules changed again for people born between January 14, 1941, and December 23, 1952. When one parent was a citizen and the other a foreign national, the rules changed substantially. To pass on citizenship, the citizen parent must have resided in the U.S. for at least 10 years before the birth of the child, and at least five of those years had to be after the parent turned 16. Children born out of wedlock to a U.S. citizen mother who met the residence requirements were automatically citizens. For a child born out of wedlock to a U.S. citizen father, to obtain U.S. citizenship the child must have been legitimated before the age of 21.
The rules changed again for people born between December 23, 1952, and November 13, 1986. When one parent was a U.S. citizen and the other a foreign national, the U.S. citizen parent must have resided in the U.S. for a total of 10 years prior to the birth of the child, with five of the years after the age of 14. Children born out of wedlock to a U.S. citizen mother were U.S. citizens if the mother was a resident in the U.S. for a period of one year prior to the birth of the child. Children born out of wedlock to a U.S. citizen father acquired U.S. citizenship only if legitimated before turning 21.
For those born on or after November 14, 1986, children born to one citizen parent and one foreign national obtain citizenship at birth if the citizen parent resided in the U.S. for five years before the birth, with two of those years after the age of 14. Children born out of wedlock to a U.S. citizen mother will be U.S. citizens if the mother resided in the U.S. for one year prior to the birth of the child. Children born out of wedlock to a U.S. citizen father will acquire U.S. citizenship if the following conditions are met: There is an established blood relationship between the father and the child. The father was a U.S. citizen at the time of the birth. The father has agreed to financially support the child until he or she is 18. Before the child is 18 he or she is legitimated, or the father acknowledges paternity in a document signed under oath. While these are general rules, Congress has continually amended and revised many laws relating to citizenship, particularly those dealing with the requirements for retention of citizenship. If a person believes that he or she has a claim to U.S. citizenship, the person should consult with an attorney for a full examination of that possibility.
Residency Requirements for Naturalization
As a general rule, an applicant for naturalization must have been a permanent resident of the United States for at least five years and also meet certain requirements dealing with the time actually physically spent in the U.S. During the five years immediately preceding the application, the person must have resided in the U.S., with half of that time physically spent in the U.S.
A legal permanent resident whose spouse is a U.S. citizen may seek U.S. citizenship after only three years as a permanent resident, rather than five years. The couple must have been married for the entire three years and the spouse must have been a U.S. citizen for the entire three-year period.
During the three months preceding the application, the person must have resided in the U.S. Citizenship and Immigration Services (USCIS) district where the application will be filed. Between the filing of the application and the granting of citizenship, the applicant must continue to reside in the U.S. While travel is not forbidden, one must not change his or her place of residence during this time, and the requirement of spending half of one’s time in the U.S. continues to apply at the time of naturalization as well as the time of application.
Absences of more than one year will terminate continuous residence unless the applicant complies with certain requirements. First, the applicant must have been physically present in the U.S. for one continuous year following admission as a permanent resident. Any absence from the U.S., however brief, is not allowed during this period. Additionally, the applicant must be employed by one of the following:
the U.S. government; a U.S. research institution recognized by the Attorney General; a U.S. business engaged in the development of foreign trade and commerce; or a public international organization of which the U.S. is a member. Before the one-year period outside the U.S. is up, the applicant must file an application with the USCIS to preserve residency and must demonstrate employment by one of the organizations listed above. The applicant must then prove again that the absence from the U.S. was because of employment. Even when these requirements are met, it is important to remember that the requirement that half of the five years prior to filing the naturalization application be spent in the U.S. still applies.
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