U.S. Citizenship

American Citizenship by Naturalization

The process in which a lawful permanent resident becomes a citizen of the United States is called Naturalization. An immigrant that has lived continuously in the U.S. for at least 5 years as a Lawful Permanent Resident (Green Card holder) is eligible to apply for U.S. Citizenship. Those that have gained permanent residency through marriage to a U.S. Citizen can apply after only 3 years.

Among the numerous rights that U.S. Citizenship confers, the following are the most important:

• The right to vote in local, State and Federal elections;
• The right to hold public offices;
• The right to sponsor some family members for lawful permanent residence;
• The right to live abroad without restrictions of time.

Moreover, while a Green Card holder cannot maintain his LPR status if he or she establishes residency in another country, a U.S. Citizen is free to live abroad for an indefinite period of time without restrictions.

Finally, a criminal conviction for a crime of moral turpitude exposes a lawful permanent resident to removal proceedings, while a naturalized citizen can’t be deported from the United States.

Requirements for U.S. Citizenship

The following are the essential requirements to eligibility to apply for naturalization, pursuant to section 316 of the Immigration and Nationality Act (INA), 8 U.S.C. 1427:

1. To be at least 18 years old.

2. To have maintained continuous residence in the U.S. for at least 5 years (or 3 years if you are married to a U.S. citizen).

A lawful permanent resident (LPR) normally may travel outside the United States and return but there are some limitations and a reentry permit can help to establish that he or she did not intend to abandon his or her status. Form I-131, Application for Travel Document, allows the alien to apply for admission to the USA after traveling abroad for up to 2 years without having to obtain a returning resident visa. Reentry permits are normally valid for two years from the date of issuance.

3. To hold a Green Card for 5 years and continuously reside in the U.S.

A green card is valid for 10 years. Individuals with expired green cards are required to submit Green Card, Form I-90 (Application to Replace Permanent Resident Card) as soon as possible. Without a valid green card, it can become difficult to naturalize. It is generally recommended submitting Form i-90 within 180 days of the expiration date (located on the front of the green card), to prevent a delay in receiving the renewed green card. The USCIS processing time to renew or replace a green card is approximately three to four months.

If the alien is adjusting his or her status (to a permanent U.S. resident, or green card holder), he/she will need to complete Form I-485, Application to Register Permanent Residence or Adjust Status. Form I-485 is issued by USCIS and is the primary application form used by immigrants eligible to be LPRs. Only a very limited group of people fit the criteria, most often people who came to the USA on a temporary visa, but married a U.S. citizen, or those who received asylum.

If the alien has served in the U.S. Armed Forces during war, he or she may apply for U.S. citizenship without first obtaining a green card if he or she was in the U.S. upon enlistment into the U.S. military.

4. To be physically present inside the U.S. for at least 30 months before applying (or one and half years if the alien is married to a U.S. citizen).

5. To have lived in the state where the Form N-400 is submitted for at least 3 months.

6. To be reasonably proficient in the English language and familiar with American history, government and society.

The interview includes a test to prove the ability to read, write, and speak English. The alien will also be asked up to 10 questions about U.S. civics. A person who fails either part of the test will be retested on that part 60 to 90 days later. People who can’t take the English or civics test because of physical or mental disabilities can request an exemption by filing Form N-648, (medical certification for disability exceptions).

7. To be a person of good moral character and willing to abide by the principles of the U.S. Constitution.

Under the INA, any alien convicted of a Crime Involving Moral Turpitude (CIMT), or who admits to have committed a CIMT, or the elements of a CIMT, is ineligible to enter the united states and to obtain a visa. If the person is already present in the united states, the acquisition of a green card or the naturalization process can be denied. Most criminal convictions are based on state law. Crimes punished by only fines or even less have still been held to be CIMTs. A criminal conviction, no matter how remote, can be an obstacle to becoming a U.S. Citizen. More importantly, even an old conviction that was not originally detected by the USCIS can trigger removal proceedings against a Green Card holder.

8. To be able to make an Oath of allegiance. There are some exceptions for those whose religion does not allow oaths.

The Oath of Allegiance, 8 C.F.R. Part 337 (2008), is an oath that must be taken by all immigrants who wish to become U.S. citizens. The oath is administered either by the USCIS at an administrative ceremony or by a judge in a judicial ceremony in a federal court. A court has exclusive authority to conduct the ceremonies in certain USCIS districts.

You may be able to participate in a naturalization ceremony on the same day as your interview. If a ceremony is unavailable, USCIS will mail you a notice with the date, time, and location of your scheduled naturalization ceremony on a Form n-445, Notice of Naturalization Oath Ceremony.

Naturalization for Spouses of U.S. Citizens

If the alien is married to a U.S. citizen he or she may apply after three years with a valid green card. A spouse may qualify for naturalization under Section 319(a) of the INA if he or she:

• has been a permanent resident (green card holder) for at least 3 years;
• has been living in marital union with the same U.S. citizen spouse during such time;
• meets all other eligibility requirements for the naturalization process.

In certain cases, spouses of U.S. citizens employed abroad may qualify for naturalization regardless of their time as permanent residents. These spouses may qualify under Section 319(b) of the INA

A LPR status will be considered conditional if it is based on a marriage that was less than 2 years old on the day they were given permanent residence. The LPR must prove that he or she did not intentionally get married to evade the immigration laws of the USA, filing the form I-751 (Petition to Remove Conditions on Residence) within the 90 days just preceding the expiration date on the permanent residence card.

A person is also given conditional resident status on the day he or she is lawfully admitted to the United States on an immigrant visa, having been married less than two years and entering on a CR-1 visa.

U.S. Citizenship by investment

Under U.S. immigration law, wealthy foreigners can obtain permanent residency (Green Card) by investing at least a half-million dollars in a commercial enterprise that creates at least new 10 jobs for U.S. citizens of lawful permanent residents.

The EB-5 visa was created by the U.S. Congress as part of the Immigration Nationality Act (INA) in 1990, to stimulate the U.S. economy through job creation and capital investment by foreign investors.

The EB-5 visa does not require a job offer from an U.S. employer (sponsor). Among all the business visas available, the EB-5 is the most desirable as it leads to a Green Card in the United States for the main investor, spouse and unmarried children under the age of 21.

The EB5 is reserved for foreign nationals who make an investment of $ 1.000.000 in a commercial enterprise that employs at least 10 full-time workers. Workers must be U.S. citizens, Green Card holders (i.e. lawful permanent residents) and other individuals lawfully authorized to work in the United States.

If the investment is made in a rural area (outside an urban area with a population of at least 20.000 people) or an area of ​​high unemployment (150% of the national average), the investment can be of $500.000.

After the financial collapse of 2008, applications for EB-5 visas have risen dramatically, with only 776 applications in 2007 and 6040 applications in 2012. Last year the number reached the 10.000 visas cap. Most of immigrant investors come from China and Russia.

The EB-5 program has an excellent approval rate, which is over 80%. Also, it created 46.810 jobs and more than $2.3 billion in investments since its inception in 1990, according to the U.S. Citizenship and Immigration Services (USCIS). More than 85% of those investors were ultimately granted permanent Green Cards.

The EB-5 program created a direct path to U.S. citizenship by investment. In fact, after 5 years of lawful permanent residency, an investor and his family is eligible to apply for US Citizenship.

There are two ways to make an EB-5 investment: either through an approved Regional Center (indirect) or through direct investment (independent).

A Regional Center is any economic unit, public or private, involved in the economic growth, improving regional productivity, job creation and increasing domestic capital investment. A Regional Center is the easiest and most common way for most foreign investors to go about the process. There are currently 287 Regional Centers throughout the U.S.

Regional Centers are a good solution for immigrants who are not interested in the management and control of a company but are interested in a Green Card and US Citizenship by investment.

A Direct Investment can be done in any legitimate productive activity that creates at least 10 full-time jobs for U.S. workers within 2 years.

The EB-5 Visa program has been growing in recent years, and has been used to fund projects affected by a slow economic recovery.

What Happens After Filing N-400 Application for Naturalization?

After filing the N-400 application for naturalization, the USCIS sends the alien a letter telling him/her when and where he/she has to report to have the biometrics taken. The alien will need to bring the notice letter, the green card, and a second form of identification. The USCIS will also notify him/her of a time and place to be interviewed.

The N-400 Timeline

Because the N-400 process involves several steps, it is always advisable to consult first with an immigration lawyer who can anticipate the road ahead. You will want to ensure that there are no obstacles that will prevent your application from progressing, as there are many steps.

Here is an approximate timeline of the process:

1. Application filing and receipt (approximately 2 to 3 weeks from filing);
2. Your notice of the biometrics appointment time, date, and location (3 to 5 weeks);
3. The biometrics appointment (5 to 8 weeks);
4. Your notice of the naturalization interview (3 to 5 months);
5. The naturalization interview (4 to 6 months);
6. You receive the Notice of Oath ceremony, form n-445, to take the Oath of Allegiance (1 to 4 weeks after the interview);
7. Oath of Allegiance (5 to 8 months from filing).

Denial of U.S. Citizenship

The N-336 Appeal Process

The U.S. Citizenship and Immigration Services (USCIS) grants citizenship if you are able to demonstrate your continuous residence and physical presence, and to be of good moral character. Also, sometimes the government can make a mistake, and your Form N-400 (Application for Naturalization) could be denied.

In a case like this, you have the right to appeal. If you think you have been wrongly denied citizenship, you may still file a request for administrative review, with Form N-336 (Request for a Hearing on a Decision in Naturalization Proceedings), within 30 days of being notified of the denial. Form N-336 should not be filed with the local USCIS district office that denied the N-400 Naturalization application.

The N-336 is a mandatory step in the citizenship appeal process. On the other side, not everyone who has been denied citizenship has a legal basis for filing an appeal.

Denials may occur for a variety of reasons such as:

• The applicant has procured his or her permanent residence through fraud or mistake;
• The applicant has traveled outside for an extended period of time;
• A deficiency in understanding English;
• Lack of knowledge of U.S. history and Government;
• Failure to prove “good moral character” for the statutory period of time immediately preceding the date of filing.

The N-336 hearing

Once you file Form N 336, the administrative re-hearing will be scheduled within 180 days, conducted by a new USCIS immigration officer. The second officer will conduct another interview and examination. The applicant may in fact be subjected to an additional civic test and an English ability exam.

Additional materials to support the request, such as a written summary of where USCIS went wrong should be submitted, too. The legal brief in support is the most important aspect of the appeal. The brief must explain why the application was denied in error. For this reason, the brief has to be well written in order to convince the USCIS officer. The USCIS officer may either affirm the denial or re-determine the initial decision. In that case, you can file an appeal to a Federal District Court under 8 U.S.C. § 1421(c).

N-400 Application delays

In some cases, USCIS neither approves nor denies an applicant’s naturalization application. The case may remain open and inactive for more than a year. The delay can occur either before a citizenship interview is scheduled or after the interview takes place.

In cases of extended N-400 delays, it is possible to file a federal action against USCIS to force adjudication. This action is called Writ of Mandamus and it is generally filed with the Federal District Court of the State where the applicant resides.

What is a False Citizenship Claim?

Claiming to be a United States citizen on false pretenses will bring serious consequences to anyone attempting to enter the country or acquire legal resident status. Anyone deported for falsely claiming to be a citizen will be permanently denied entry into the country–for any reason.

Any false claim to citizenship, whether you intended to state the falsehood or not, will put you into removal proceedings. The United States Citizenship and Immigration Services (USCIS) will see it as an affront to the entire legal system and work hard to see you removed. You should protect yourself from deportation with my legal counsel and unparalleled insight.

Actions that can be seen as a false claim of citizenship include:

• Claim to be a U.S. citizenship when completed a student loan application;
• Illegally register to vote in a local, state, or federal election;
• Stating to be a citizenship to gain any sort of benefit due to citizenship;
• Checking “U.S. Citizen” on an I-9 Employment Eligibility form;
• Attempting to obtain a U.S. passport.

If you realize that you have made a mistake in trying to claim to be a United States citizen, you must speak up about it immediately by first speaking with your attorney. The “timely retraction” defense hinges on you attempting to undo your claim as soon as it was brought to your own attention. Essentially, you will be trying to prove to USCIS and any immigration hearings that you made an honest mistake and wanted to correct it.

Dual Citizenship with the United States

Many Green Card holders wonder whether it is possible to hold dual citizenship. U.S. law does not formally recognize dual citizenship with other countries, but does not prohibit it either. Thus, the question is whether the laws of the other country allow dual citizenship with the United States.

Many countries do: one example is Italy. Italian law allows dual citizenship with the U.S.

As a New York Immigration Attorney, I helped dozens Green Card holders become naturalized American Citizens. Please fill out an evaluation form if you would like for me to review your citizenship eligibility for free.

Contact an Immigration Attorney in New York for more information on American Citizenship.