Citizenship and Naturalization

Transcription

1 Citizenship and Naturalization Generally any permanent resident may apply for citizenship after residing and being physically present in the United States for certain periods of time. Applicants who gained residence through a spouse or stepparent must be a resident for three years and physically present for 18 months before being eligible for naturalization. 8 USC Those who obtained residence through an avenue other than marriage must reside in the United States for five years and be physically present for three. 8 USC An applicant may file an application for naturalization up to 90 days before completing the required period of residence. 8 CFR 334.2(b). The Benefits of Citizenship USCIS lists the benefits of citizenship in its "Naturalization Handbook" but that handbook overlooks the most important benefit of citizenship: durability. Countless long time permanent residents lose their permanent residence due to long or frequent absences from the United States, or unexpected criminal convictions. Read our article on How Not to Lose Permanent Residence. Defending a deportation or removal action in the immigration court may cost $10,000 or more and if the permanent resident loses, he may be deported and under some circumstances, unable to return to the United States for life. Other benefits of citizenship include: The right to vote The ability to bring family members to the United States quickly and to cure unlawful presence and other status problems of immediate relatives The ability to obtain citizenship for children born abroad The right to a US passport Eligibility for federal jobs Eligibility to become an elected official The right to collect social security benefits outside of the United States, for example if you retire to Costa Rica, you may still collect social security Eligibility for Naturalization To be eligibile for naturalization you must: Be at least 18 years old Have been a permanent resident for five years, or three years if you are married to and living with a US citizen who has been a citizen for at least three years Have been physically present in the United States for at least 30 months, or 18 months if married to and living with a US citizen Page 1

2 Have lived at least three months in the same "district" Have not committed, been arrested for or convicted of certain crimes Be able to speak and write English and pass a US civics test Exemption from the English and Citizenship Exam There are age-based exemptions from both the English and civics exams. The English language requirement does not apply to persons who are: Over age 50 and have lived in the US as permanent residents for 20 years or longer, or Over age 55 and have lived in the US as permanent residents for 15 years or longer. INA 312(b)(2). While it is not possible to receive a complete exemption from the civics exam based on age, USCIS does offer "special consideration." Where an applicant is over age 65 and has lived in the United States for 20 years or longer as a permanent resident, USCIS is to give "special consideration" to the applicant with regard to the civics exam. INA 312(b)(3). USCIS determined "special consideration" to be a civics exam with 10 out of 25 questions in the applicant's native language and the applicant need only answer six correctly to pass. Crocetti Memo, CO 70/33.2-P (Dec. 22, 1995), reprinted in 73 No. 3 Interpreter Releases 66, 86 (Jan. 16, 1996). Applicants who are physically or developmentally disabled or who have a mental impairment are generally exempt from the English language and civics requirements. INA 312(b)(1), 8 CFR 312.1(b)(3). Such applicants apply for a medical disability waiver using form N-648. Conditions that may support a waiver include Alzheimer's, Parkinson's, senile dementia and similar conditions. Finally, the Rehabilitation Act of 1973 Section 504 requires USCIS to make reasonable accommodations for physicially or developmentally disabled applicants taking the examination just as this law requires any public or private institution receiving federal financial assistance to provide accommodations for physically and developmentally disabled people, which of course includes the entire federal government. Bars to Naturalization There are certain permanent bars to naturalization that include a conviction for an aggravated felony on or after November 29, There are other temporary bars to naturalizationthat include: Any crime against a person with intent to harm Any crime against property or the government involving fraud or evil intent Page 2

3 Two or more crimes for which the aggregate sentence was five years or more Violating any controlled substance law of the United States, any State or foreign country Habitual drunkenness Illegal gambling Prostitution Polygamy Lying to gain immigration benefits Failing to pay court-ordered child support or alimony payments Confinement in jail, prison, or a similar institution for which the total confinement was 180 days or more during the past five years, or during the past three years if you are applying based on marriage to a US citizen Failing to complete any probation, parole, or suspended sentence before applying for naturalization Terrorist acts Persecution of anyone because of their race, religion, national origin, political opinion or social group One problem we see often is naturalization applicants who applied while on summary probation for a minor offense and who are seeking to appeal a denial of their naturalization application. It's simply not possible to do that. The law states that an applicant is ineligible to apply for naturalization while on probation no matter what and regardless of the offense or circumstances of probation. We have successfully moved superior courts to terminate probation early and upon winning an early termination, it is possible to apply for naturalization. This type of action is called a motion to terminate probation early. Depending on the probationer's criminal record, the nature of the offense, evidence of volunteerism, charity and other positive counterweights to the bad conduct that caused the conviction, it may be possible to obtain this benefit. After obtaining an order of early termination of probation, it is possible to apply for naturalization and not before. Mandamus: Asking a Federal Court to Order USCIS to Adjudicate Your Application Mandamus is an important tool when USCIS delays action for long periods on an application for any benefit. Mandamus is a remedy available in federal court under the All Writs Act, 28 USC 1651, et. sec. Mandamus is available for delayed naturalization and permanent residence applications, as well as I-140 and H-1B petitions. Mandamus does not allow a plaintiff to complain about the substance or merits of a decision, only a government official's refusal to issue a decision. Mandamus is a right to Page 3

4 seek an order from a federal judge compelling an agent of the federal government to do something that the law requires them to do, for example to adjudicate your naturalization application that has been sitting on a shelf for two years. Mandamus does not compel the officer to approve the case. The remote possibility of mischief suggests that mandamus suits are best when the plaintiff is almost certain to receive a favorable decision from USCIS. It is probably riskier to use mandamus when the government's discretion plays a large role in whether the application or petition will be approved. This is for the same reason that it is unwise to shout at or insult an immigration officer before asking for a discretionary benefit. Right to Hearing on Denial of Naturalization Applicants for naturalization have more due process and statutory rights than applicants for other types of immigration benefits. If USCIS denies the the naturalization application, the applicant has a right to a hearing before an immigration officer. 8 USC 1447(a). If the immigration officer fails to make a determination on the application within 120 days of the hearing, the applicant may apply to the United States district court to hear the matter. 8 USC 1447(b). For applicants who require citizenship to petition for family members, to cure the unlawful presence of a spouse, or other important reasons, these procedural rules may mean the difference between a loved one gaining permanent residence, or being deported. Citizenship by Birth Outside of the United States Interestingly, there are many persons who are unaware that they are US citizens or are immediately eligible for US citizenship. The rules covering citizenship of legitimate children born outside of the US are complex, but an INS chart is included below to simplify this otherwise burdensome analysis. The factors that influence citizenship can be divided into four categories: (1) the date the child was born, (2) the citizenship of the child's parents (e.g. one citizen parent, two citizen parents, one citizen and one national, one citizen and one alien, etc.), (3) whether the citizen parent or the citizen parent of the citizen parent was required to and did reside in the US for a specified period of time, and (4) whether the child was required to and did reside in the US for a specified period of time. Chart for Determining Whether Legitimate Children Born Outside the US Acquired US Citizenship at Birth [ Altered This Chart to Reflect Changes in the Law Effective Pub.L. No Stat (Oct. 25, 1994)] Page 4

5 PERIOD Step 1: Select the period in which the child was born. PARENTS Step 2: Select the applicable parentage US CITIZEN PARENT Step 3: Measure the citizen parent's residence against the requirements for the period in which the child was born. The child acquired US citizenship at birth if, at the time of the child's birth, the citizen parent had met applicable residence requirements. CHILD Step 4: Determine whether the child has since lost US citizenship; the child lost citizenship on the date it became impossible to meet the necessary presence requirements, but never before reaching age 26 Anytime before 1/13/41 Both s Citizens One had resided in the US On or after 1/13/41 and before 12/24/52 Citizen had resided in the US Citizen had resided in US or its outlying possessions 10 years at least 5 of which were after age 16, or (1)* between 12/7/41 and 12/31/46, 5 of the required 10 years must have been after age 12; or (2)* between 12/31/46 and 12/24/52, 5 of the required 10 years must have been after age Years residence in the US or its possessions between ages 13 and 21 or two years continuous presence in the US between ages 14 and 28; none is required if the citizen parent was employed by a specified US organization. This exemption is not applicable if the parent transmitted under (1)* or (2)* opposite. Both s Citizens One had resided in the US or its outlying possessions On or after 12/24/52 and before 11/14/86 Both s Citizens One had resided in the US or its outlying possessions Citizen had been physically present in the US or its outlying possessions 10 years, at least 5 of which were after age 14. On or after 11/14/86 Both s Citizens One had resided in the US or its possessions. Citizen parent had been physically present in the US or it outlying possessions 5 years, at least 2 of which were after age 14. This problem becomes more complex when trying to discover whether a US citizen parent passed citizenship to his or her child, who then passed it on through another generation to that child's children. There is a remedy for adults who are citizens, but who failed to meet the minimum requirements for physical presence. That remedy is to petition under 8 USC That section provides that the US citizen parent of a child born outside of the US may apply for a certificate of citizenship on behalf of the child if (1) at least one parent is a US citizen, (2) the child is physically present in the US pursuant to lawful admission, (3) the child is under age 18 and in the legal custody of the citizen parent, (4) if the citizen Page 5

6 parent is an adoptive parent, the child was adopted before reaching age 16, and (5) if the citizen parent has not been physically present in the US or its outlying possessions for five years, two of which were after attaining age 14, or a citizen parent of the citizen parent has been physically present in the US for periods totaling not less than five years at least two of which were after attaining age 14. Page 6