US Citizenship

US Citizenship Lawyer

US citizenship is the ultimate goal of any U.S. immigrant. At the law office of Alena Shautsova, our NYC Immigration attorneys will help to make sure your process will go as smooth as possible. Remember, that recently, the regulations started to change rapidly, and at times they change while your application is in process. Such a rapid change requires a creative and timely response, which our NYC naturalization attorney is prepared to provide.

Our U.S. citizenship services include:

• Review of the criminal arrest and conviction records to determine any potential obstacles for naturalization
• Reviewing of any potential “unlawful acts” issues related to Good Moral Character criterion
• Researching of applicable laws necessary to address the client’s circumstances
• Identifying and addressing any obstacles to US citizenship related to prior filings, selective service registration or English language abilities
• Reviewing travel records, employment and marriage records to address any potential issues
• Obtaining and reviewing prior Immigration history if necessary

Contact our NYC Citizenship lawyers to help you to go through the process and do not leave your Immigration status to a chance!

The US citizenship may be obtained three different ways. The first way is by birth. One is automatically a citizen if he or she was born in the United States. One is also a citizen if he or she is born outside the US and is the offspring of at least one US citizen and certain conditions apply.

The second way one can obtain US citizenship is by meeting the requirements for US citizenship established by the Child Citizenship Act, which has been in effect since February 27, 2001. If the child meets these requirements, then he is automatically a US citizen even though he was not born a US citizen and did not go through the naturalization process to become a US citizen. In this scenario, one may want to obtain a certificate of citizenship to prove US citizenship.

The third way one can become a US citizen is through a process called naturalization. Naturalization enables a non-US citizen to become a United States citizen. A person must meet certain requirements established by the US law. Among them are age, residence, and physical presence, good moral character, knowledge of the US government and history and English language.

Apart from the US citizenship acquired by birth in the United States and its territories, one can become a US citizen through a naturalization process. The laws of the United States provide an opportunity for US permanent residents to apply for US citizenship under certain conditions. The most important of them are continuance residency requirement and a good moral character of the applicant.

Citizenship Through Naturalization Updates

In the past year, Immigration field has seen many changes, and one specific area of the Immigration has been affected the most was naturalization: proceedings necessary for a green card holder or permanent resident to become a US citizen.

The law of the United States establishes requirements one has to meet to become a US citizen. Some of them are “hard” requirements, something that a person cannot change which are not subject to interpretation, and “soft” requirements, that are subject to interpretation by the government and the applicant, in some cases. While the “hard” requirements were not changed (and they cannot be changed without the act of Congress), the “soft” requirements underwent massive changes, and the “interpretation” portion of the citizenship qualifications expanded to the point it became more important than the “hard” requirements.

Qualifications for Naturalization, US Citizenship (hard requirements)

To qualify for citizenship in the United States, a person who is a green card holder a US permanent resident has to demonstrate that he/she:

Continuous Residence

Has been a green card holder for 3 (if the green card was based on a marriage to a US citizen) or 5 years in the United States ( this time is calculated from the date “resident since” printed on one’s green card. Please keep in mind that for certain green card holders the date will be “rolled back” and maybe actually earlier than the date the person’s application for a green card was approved. For example, a person who was granted asylum or a refugee status will be considered a permanent resident from the date of the admission for a refugee or one year earlier for an asylee).

Interestingly enough, a conditional permeant resident, who is otherwise met all the requirements for naturalization may file for it as well, but the naturalization will not be granted unless the condition was removed! See Stuck I 751 Petition.

Also, certain members of the US Armed forces are exempted from being green card holders first! See Expedited Citizenship.

In addition, a person can file for naturalization only if he/she establishes that he or she has resided in the state or service district having jurisdiction over the application for three months prior to filing the application. It means that if you moved to a different district within the past 3 months, you will need to wait until you reside in the new district for three months before filing your naturalization application.

What about travels outside the United States before filing for citizenship?

There are two types of travels outside the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.

• Travels outside the US of more than 6 months but less than one year; and
• Travels outside the US of one year or more.

In addition, an officer can check the entire travel history and determine if a person with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. The idea is that a person has to establish that the US is really his/her home, dwelling place! Now, a person who does not want to be found to have abandoned his/her green card status in the United States should file a Re-entry permit prior to leaving the United States. See When To Apply For Re-Entry Permit As A Permanent Resident. Even though this is a “hard” requirement, recently, there are cases of adverse findings of residence for those to travel abroad frequently for prolonged periods of time.

What about working abroad before filing for US citizenship?

In certain situations, a person may preserve his/her continuous residence for naturalization purposes even if he/she has to work abroad for a long time. An application has to be filed for it on form N470. In order to qualify, the following criteria must be met according to the USCIS Practice Manual:

• The applicant must have been physically present in the United States as a green card holder for an uninterrupted period of at least 1 year prior to working abroad.
• The application may be filed either before or after the applicant’s employment begins, but before the applicant has been abroad for a continuous period of one year.

In addition, the applicant must have been:

• Employed with or under contract with the US government or an American institution of research   recognized as such by the Attorney General;
• Employed by an American firm or corporation engaged in the development of US foreign trade and commerce, or a subsidiary thereof if more than 50 percent of its stock is owned by an American firm or corporation; or
• Employed by a public international organization of which the United States is a member by a treaty or statute and by which the applicant was not employed until after becoming an LPR.

The person’s dependents such as wife or husband, unmarried dependent sons or daughters will also be afforded the same benefits if they were accompanying and resided abroad with the principal. In fact, the approval notice will list the names of all dependents who were also afforded the benefits.

However, even if approved, N470, does not substitute the requirement of physical presence, that still has to be met, unless the person also qualified for its exemption.

Strangely, according to the USCIS practice manual, N470 approval does not mean that the applicant and his family members will not be found to have abandoned their LPR status: if, for example, a person claimed special tax exemptions as a non-resident, the government may still find him/her to have abandoned the US green card status.

N470 is not a substitute for necessary travel documents. A green cardholder has to obtain a Re-entry permit if he/she is expecting to be outside the US for more than a year.

Please note that an applicant for naturalization has to present documents demonstrating that the United States is in fact his/her common dwelling place: such as copies of mortgage, lease, bank statements, utility bills, tax returns, and any other documents establishing that he/she actually resides in the US.

Physical Presence

A lawful permanent resident has to physically present in the United States for at least half of the time he/she needs to qualify for naturalization. This physical presence requirement has to be met before a person is submitting his/her application, and not on the date of the decision or an interview! Applicants for naturalization under INA 316(a) for example are required to demonstrate physical presence in the United States for at least 30 months (at least 913 days) before filing for naturalization. In certain situations, time spent outside the United States will count towards the time for physical presence. Only applicants who are employed by or under contract with the US government may be exempt from the physical presence requirements. All other applicants who are eligible to preserve their residence remain subject to the physical presence requirement. Again, the qualifying dependents will have the same benefits as the main applicant.

Non-For-Profit Media Employees

The US law also provides exemptions from continuous and physical presence requirements for employees of certain media organizations abroad. To meet this exception, an applicant for naturalization has to be employed by the US incorporated non-for-profit media organization that distributes information significantly promoting US interests abroad, that is so recognized by the Secretary of Homeland Security and

• File the application for naturalization while still employed, or within 6 months of termination of employment;
• Has to have been continuously employed with the organization for at least five years after becoming an LPR;
• Be within the United States at the time of naturalization; and
• Declare a good faith intention to take up residence within the United States immediately upon termination of employment.

Interpreters, Translators, or Security-Related Position (Executives or Managers) Employed By Department of State or by US armed Forces

The law likewise provides exemptions for those who are employed by DOS or US military. In order to count time abroad as continuous residence and physical presence in the United States for purposes of naturalization under the “section 1059(e)” provision, the applicant must meet all of the following requirements during such time abroad.

The applicant must be:

• employed by the Chief of Mission or the US armed forces;
• under contract with the Chief of Mission or the US armed forces; or
• employed by a firm or corporation under contract with the Chief of Mission or the US armed forces;

The applicant must be employed as:

• an interpreter;
• translator; or
• in a security-related position in an executive or managerial capacity; and

The applicant must have spent at least a portion of the time abroad working directly with the Chief of Mission or the US armed forces.

Religious Employees

Those religious employees (nuns, brothers, ministers) who travel outside the US for temporary missions abroad on behalf of a bona fide organization within the United States, also may treat such time abroad as continuous residence and physical presence in the United States for naturalization purposes.

Green cardholders must have been physically present and residing within the United States for an uninterrupted period of at least 1 year in order to use this benefit.

Military Members and Their Family Members

Depending on the type of military envelopment, military members may be exempted or may qualify for modifications of the physical and continuous presence requirements for naturalization (US citizenship):

• One Year of Military Service – INA 328: If a person served for one year and was honorably discharged, and the person does not have to meet the continuous residence and physical presence requirements, if a person is still serving, or was honorably discharged less than 6 months ago. Unfortunately, citizenship granted pursuant to this section may be revoked in accordance with section 1451 of this title if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.
• Service during Hostilities – INA 329: Any service during the time the US President by Executive order designated to be time during which US Armed forces were involved in a conflict with foreign hostility, and the person was honorably discharged. Please note that a person under this provision may be afforded citizenship if, at the time of the enlistment or reenlistment, or extension of enlistment, he/she was in the US or its territories including vessels (without regard that such a person was a green card holder first); or if such a person became a green card holder at any time subsequently. If the person has used this provision to naturalize before, he/she cannot use any periods of service to naturalize under this section again.
• Service in WWII Certain Natives of Philippines – Section 405 of IMMACT90; and
• Members who Enlisted under the Lodge Act – Act of June 30, 1950, 64 Stat. 316.

Importantly, family members (spouses, children, and parents) of the military personnel may also file for citizenship faster than general requirements and be afforded modifications or exemptions to the continuous and physical presence recruitments. They are also eligible for various immigration benefits. See Immigration Benefits For Military Members And Their Families. The following groups qualify for citizenship without meeting all the physical and continuous presence requirements:

• Spouse of US Citizen for 3 Years – INA 319(a);
• Spouse of Military Member Serving Abroad – INA 319(e);
• Surviving Spouse of US Citizen (Widow or Widower) – INA 319(d); and
• Surviving Spouse Person Conducting US Intelligence.
• Child of US Government Employee (Abroad) – INA 320;
• Surviving Child of US Citizen – INA 319(d); and
• Surviving Child of Person Conducting US Intelligence.

Qualifications for Naturalization, US Citizenship (soft requirements)

Knowledge of English Language and US History and Government

One of the US citizenship through naturalization requirements is a person’s ability to write, read and understand the English language, as well as know US history and civics (how to the US government works). A person’s language skills will be tested at the interview by the Immigration officer and the test is usually pretty simple. It means that there is no requirement that a person knowns English perfectly. Recently, however, there have been talks about updating the test and making it potentially, a little harder. See the video blog. The good news, that as of the time of writing this article, every applicant for the citizenship, receives a book that helps them to prepare for the test: it has a list of vocabulary that will be tested and questions for Civics.

But what to do, if a person cannot learn English due to a medical condition or trauma? Then, a person, with a medical waiver, may be exempt from both English test and Civic test requirements. See video. Also, USCIS is making it harder to qualify for the medical test exemption. See New Policy Changes For Citizenship English Requirements Waiver. For those who have been living in the US as green card holders for 10 or 15 years: they may qualify for taking the test in their own language even if they do not have medical conditions. See US Citizenship Without English Language Knowledge.

So, this particular requirement may also be waived, depending on the applicant’s medical conditions and age.

Good Moral Character

And now, we finally reached the most flexible requirement that a person who is applying for US citizenship has to meet: Good Moral Character. The problem is that what is good moral character is not defined by law. It is subject to a broad interpretation, and recently, this is the requirement that has been changing a lot. It started with the prohibition on adjustment for all those who dealt with marijuana in any capacity (even if a person has not been selling it or using it!) See When A State Marijuana-Related Arrest Or Activity Can Become A Citizenship Problem . And recently, USCIS expanded its interpretation of unlawful acts, bars for citizenship. See New Trends In Naturalization Proceedings: Good Moral Character and unlawful acts video blog.

This is how the "good moral character" is explained by the USCIS in its Service Law Books:

Good moral character,[…] has been interpreted as a meaning 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. A good moral character has not been a static term since the standards of a community often change with the passage of time.

Character is not synonymous with reputation since the latter signifies what a person is believed to be, whereas the former refers to what a person actually is in fact. Both reputation and behavior constitute evidence which tends to establish good or bad moral character, but neither is necessarily decisive for the factual issue involved.

Further, one needs to demonstrate a good moral character over a statutory period required by law. Usually, it is five years, but the statutory period depends on the applicant's eligibility criteria for the citizenship application. However, it does not mean that the immigration authorities cannot consider the conduct and subsequent reformation that occurred prior to the statutory period.

In short, the good moral character requirement should be considered by applicants very seriously, and when in doubt, the applicants should seek the help of an experienced immigration attorney.

Finally, there are certain bars for citizenship, things that automatically disqualify one from it. See Legally Speaking: Good Moral Character Under Federal Immigration Law. For example, a conviction of an aggravated felony or failure to register for selective service (see Failure To Register For Selective Service And Citizenship).

As such, when filing for citizenship, it is recommended that you do so with the help of an attorney. US Immigration laws are constantly changing and unfortunately, your eligibility and chances for citizenship may change even after you submit your application, and it will be good to prepare for a backup plan of even an appeal! See Citizenship: Appeal Of Denial.

If you need a consultation regarding US citizenship and naturalization, please call us at 917-885-2261 or book it here.