Whew – your client has finally made it through the lengthy immigrant visa process. Or…
The most important step of the naturalization process is determining whether you are eligible to apply in the first place. It is critical to recognize that the risk is not simply that your N-400 could be denied, and the filing fee wasted. It is possible for a permanent resident to unknowingly lose residency status, or to otherwise become subject to grounds of deportation. For this reason it is critical to assess not only whether a person appears to be eligible to naturalize, but to also ensure that there are no prior issues that could be grounds for deportation.
This Guide looks at some of the most common and most serious issues that come up in N-400 cases. But the issues here are not exhaustive. If you are willing to spend any resources on legal assistance during the naturalization process, now is the time to do it. Even if you want to complete the paperwork and interview by yourself, consider scheduling a consultation with an attorney to analyze your case before you file. If you are active duty U.S. military special rules likely apply to your case and you should contact the legal department in your chain of command for free assistance.
There are seven basic requirements to be eligible to file the N-400. The requirements are:
- Time as a permanent resident (generally 5 years; 3 years if still married to a U.S. spouse who served as your petitioner);
- Continuous residence;
- Physical presence in the United States;
- Time residing in your current U.S. district or state;
- Good moral character;
- English and civics requirement; and
- Attachment to the constitution.
I call these the basic requirements, because you should not necessarily file the N-400 simply because you meet these seven requirements. Additional considerations are discussed below in subsection II, but first let’s look at the basic requirements
a. Time as a Permanent Resident
Almost all permanent residents need to wait for a specified period of time before filing an N-400. As discussed below, the required time is generally three or five years. To figure out the date on which you became a resident, simply look at you I-551 Permanent Resident card (i.e., green card). The date marked “resident since” is the date on which you became a resident.
Most permanent residents – over 90% – need to wait five years before applying for citizenship. Unless you fall into one of the categories discussed next, assume your waiting period is five years.
If you are married to a U.S. citizen, the waiting period may be three years. To fall into this category all three of the following must be true:
- You are currently married to and living with the U.S. citizen spouse;
- You have been married to and living with the spouse for at least three years; and
- Your spouse was a U.S. citizen for at least the past three years.
Almost always a permanent resident falling into this category will have received residency through a marriage-based petition. If your U.S. citizen spouse petitioned for you, carefully assess whether you meet all three requirements.
90-day rule. The immigration laws allow you to get a small jump-start on filing your N-400. Instead of waiting for the three- or five-year anniversary of your resident status, you are allowed to file the N-400 90 days prior to that mark.
Example. Suzan became a resident on December 1, 2010. She is not married to a U.S. resident, so she has to wait 5 years before filing the N-400. Her 5-year anniversary would fall on December 1, 2015. But under the 90-day rule, Suzan is allowed to file her N-400 on September 2, 2015 (90 days prior to December 1, 2015).
There is a helpful (free) online date calculator that can do this math for you: http://www.timeanddate.com/. The 90-day rule comes in handy for residents who want to naturalize as soon as possible. You can prepare the N-400 and supporting packet even before the 90-day mark, then have it ready to go on the first day you are eligible to file.
b. Continuous Residence
It is not enough simply to have had status as a permanent resident for the required period of time. In addition, you are required to have maintained continuous residence in the U.S. for that period. If you have remained in the U.S. for the entire period of time described above (three or five years) then you will meet the continuous residence requirement of the N-400. If you took one or more trips outside the U.S., however, please continue reading. Note: continuous residence requirements do not apply to active duty members of the U.S. Armed Forces during times of conflict.
Trips over one year. An absence from the U.S. of 365 days or more automatically breaks residency. Unlike trips of less than 12 months, there is generally no way to overcome this finding. In other words, residency is broken even if they person was able to maintain employment in the U.S. during the absence, had their family living in the U.S. and owned a house here. There are exceptions available a very limited number of individuals in qualifying forms of employment, typically with the U.S. government or a government contractor. But to fall within this exemption the person is required to file an N-470 form before leaving the U.S., to inform USCIS of her plans. Further details on this very narrow exception can be found at in Volume 12, Part D, Chapter 5 of the USCIS Policy Manual.
Trips between 6 months and one year. An absence of more than 181 days but less than 365 days is presumed to interrupt continuous residence. This means that USCIS will determine that continuous residence has been disrupted, and then ask the N-400 applicant to disprove that finding. How is this done? By providing evidence that the applicant did not change her place of residency even given the length of the trip. Evidence that can be used for this purpose includes:
- Documentation of the applicant’s continued employment in the U.S.
- Proof that the applicant’s immediate family (spouse and/or children) remained in the U.S.
- Proof that the applicant maintained a house or apartment in the U.S. during the trip abroad.
Extreme caution should be taken if you’ve have been outside the U.S. for between 6 and 12 months.
Trips less than 6 months. Many residents incorrectly assume that they maintain continuity of residence so long as avoid trips outside the U.S. of 6 months or longer, but that is not the case. The USCIS Policy Manual specifically tells inspectors that trips of less than 6 months may break continuous residence.
An officer may also review whether an applicant with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. In some cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time (learn more).
What sorts of things could cause problems for a person on a short trip abroad? For immigration law purposes, a person “resides” in the place where she is “domiciled.” In basic terms, your domicile is the place that you live. For most individuals it is easy to determine their actual place of domicile, but the situation is more complex for those who travel. If a person took a job outside the U.S. or, rented or purchased a house or apartment, this behavior can single to the inspector that the individual was setting up residence abroad. It would pose little risk if the applicant had spent a month taking cooking classes in Paris. But if she rented an apartment and took a job as a pastry chef, an inspector could conclude that the applicant abandoned her U.S. residence. The most common short trips abroad are to visit family or take short trips for pleasure, and these are generally not hazardous for an N-400 application.
c. Physical Presence in the United States
Most applicants need to have been physically in the U.S. for at least 30 months prior to filing the N-400. How is this different than continuous presence? As explained above, a person can be considered to have continual residence in the U.S. even if she spends some time outside the U.S. By contrast, physical presence refers to days you were actually physically in the U.S.
Unusual exceptions. There are a few exceptions, where time outside the U.S. can be counted towards physical presence. These include:
- Time serving on a vessel.
- Time working abroad for the U.S. government or qualifying company if you filed an N-470 before departing the U.S.
d. Time Residing in your current USCIS District or State
USCIS divides the United States into 26 different geographic districts. To have an N-400 approved, you must have resided in the same USCIS district for at least 3 months before you apply. A map of the USCIS districts is available online, as well as a list of district offices with the jurisdictions they serve. If you have recently moved, consult the map to see if you are still in the same USCIS district. If not, you will need to wait three months before applying.
e. Good Moral Character
An individual applying for naturalization is required to show that she has good moral character – referred to by immigration attorneys as “GMC.” This is a technical legal term that includes much more than just criminal conduct. Let’s look at how USCIS examines good moral character.
The “look-back” period. Generally, USCIS examines an individual’s conduct for the past three or five years in its assessment of GMC. It is five years for most applicants, or three if you are married to a U.S. citizen as described above. This is referred to as the “look back” period. But it is important to understand that USCIS can – and does – look at conduct prior to the look-back period. The most common example of this is criminal conduct outside the look-back period. In such cases, USCIS will determine whether the person appears to have re-established good character. A variety of factors can be considered, including:
- Family ties and background;
- Absence or presence of other criminal history;
- Employment history;
- Other law-abiding behavior (for example meeting financial obligations, paying taxes);
- Community involvement;
- Credibility of the applicant;
- Compliance with probation; and
- Length of time in United States.
Good moral character (GMC) bars. The following events automatically prevent a person from establishing Good Moral Character if they occurred in the look-back period. If you committed any crime in the look-back period there is a strong possibility it will present a problem with establishing GMC.
- Failure to pay child support/alimony. A person is barred from establishing GMC is he has failed to pay child support or alimony in the lookback period. In fact, an adjudicator has the authority to determine that a person lacks GMC even if there was no court order for child support. This could happen if there were other evidence that the person was failing to support his dependents. The applicant is not barred from showing GMC if he can demonstrate “extenuating circumstances” based on the following factors: unemployment and financial inability to pay support; the cause of the unemployment and financial inability; evidence of a good-faith effort to provide support; whether nonpayment was due mistaken belief that the duty to support had terminated; and whether the nonpayment was due to a miscalculation.
- Adultery. A person is generally barred from establishing GMC if she committed adultery in the lookback period.
- Crime involving moral turpitude (CIMT). The term CIMT is a technical one that refers to certain crimes that show a person to be dishonest, such as theft.
- Aggregate sentence of 5 years or longer. A period is barred from establishing GMC if she had two or more sentences against her, and the total of those sentences was five years or longer.
- Controlled substance violation. Any drug-related conviction is a bar to establishing GMC.
- Incarceration for 180 days. A person is barred from establishing GMC is she spent 180 days or longer incarcerated (i.e., in jail).
- False testimony under oath to get immigration benefit. A person is barred from establishing GMC if she lied under oath for the reason of getting an immigration benefit, such as at a visa interview.
- Prostitution offense. A person is barred from establishing GMC if she was convicted of any crime relating to prostitution.
- A person is barred from establishing GMC if she was convicted of two or more gambling offenses, or if she primarily earns her income from gambling.
- Other unlawful acts. Any other illegal activity can present a GMC bar if it is determined to negatively reflect on the person’s character.
There are also a more limited number of extremely serious crimes that make a person permanently ineligible to naturalize, regardless of when they took place. These crimes are:
- Any aggravated felony; and
- Persecution, Genocide, Torture, or Severe Violations of Religious Freedom.
f. English and Civics
A naturalization applicant is tested for her English language ability and knowledge of U.S. civics. The English language test is short and consists of a spoken, reading and written component – it should not present a problem for anyone capable of reading this guide. The spoken component is assessed during the applicant’s answers to questions about the N-400 application. The applicant is allowed to ask the officer to rephrase questions, but needs to have the ability to understand and respond to questions. For the reading component, the officer will ask the applicant to read a short sentence from testing material, such as “Washington is the capital of the United States.” For the written component, the officer reads a similar sentence and asks the applicant to write it on a testing sheet.
For the civics test, the applicant must be able to answer 6 out of 10 questions. The questions come from a publically-available list of 100 questions, covering U.S. history, geography and political systems. The full list of questions may be found at the following link, along with free study materials: http://www.uscis.gov/citizenship/learners/study-test/study-materials-civics-test. Note that you need to look at the most recent questions, since they ask about current political leaders.
g. Attachment to the constitution
Finally, the applicant must be willing to take an oath of allegiance to the United States, and to endorse the values set forth in the Constitution. Becoming a U.S. citizen is a serious undertaking, and is appropriate only for someone who chooses to be a part of our political community. The oath of allegiance itself is taken at a special ceremony that is scheduled after successful completion of a naturalization interview. But the officer may ask questions about the meaning of the oath at the interview. The applicant should be prepared to discuss why she is choosing to become a U.S. citizen, and what she understands the oath of allegiance to mean.
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