WHAT IS NATURALIZATION AND WHY IS IT IMPORTANT?
When a non-citizen wants to become a United States citizen, that person must undergo a process known as naturalization. There are many benefits in becoming a U.S. citizen. A U.S. citizen can travel more freely; he can vote; and he can apply for more jobs, including government positions. Citizens are more eligible to apply for public benefits such as full Social Security, Supplemental Security Income, food stamps, and have access to certain loans, mortgages and scholarships. Finally, U.S. citizens would not be subject to deportation or removal proceedings.
WHAT IS REQUIRED FOR SOMEONE TO BECOME NATURALIZED?
An immigrant must be older than 18, be a permanent resident for 5 years (or 3 years for those who have gained permanent residency through a U.S. spouse), demonstrate good moral character, prove continuous residence and physical presence in the U.S., and be able to read, write and speak basic English (this last requirement may be waived in certain cases such as if the person has a permanent impairment that prevents them from being able to learn and understand English). In addition, the permanent resident must file an N-400 Form (Application for Naturalization), undergo an interview, pass the English language and civics exam, and take the Oath of Allegiance to the United States.
Starting April 2024, an applicant can now qualify for a 50% discount on the USCIS naturalization filing fees if they make less than 400% of the published poverty guidelines. Qualified applicants who are low-income may further qualify for a fee waiver by filing Form I-912 with the U.S. Citizenship and Immigration Services (USCIS).
MAINTAINING CONTINUOUS RESIDENCE AND PHYSICAL PRESENCE IN THE U.S.
A permanent resident who files for naturalization must show that he has maintained residence in the U.S. for 5 years before applying for naturalization, or for 3 years if he is the spouse of a U.S. citizen. He must also show that he was physically present for half that time. Finally, the immigrant cannot have interrupted their continued residence with an unapproved stay abroad of more than a year, even if they were otherwise present for more than half the statutory period. Some immigrants may qualify for an exception to these requirements, such as applicants who are employed abroad in the U.S. military or for a public international organization.
If an immigrant has not maintained residence or been physically present for the required amount of time, he generally would not face removal unless he has been shown to have abandoned his permanent residency. For example, this can be shown if the immigrant has left the country for over a year during the statutory period.
WHAT ARE SOME SPECIFIC DETAILS AND EXCEPTIONS TO THE ENGLISH AND CIVICS TEST?
For the English and Civics test, a list of 100 study questions is posted on the US Citizenship and Immigration services website and applicants must answer at least 6 out of 10 possible questions correctly to pass. However, this last requirement may be waived in certain cases such as if the person has a permanent impairment that prevents them from being able to learn and understand English. This would be considered as a medical waiver form, or Form N-648, which would require an evaluation made by a licensed medical professional to identify and explain the mental or physical impairment. If applicants file for N-648 medical waiver, they need to be prepared with a credible medical evaluation, signatures from medical professionals, and a thorough explanation. An interpreter can also be provided, and significantly fewer questions need to be studied for the exams if applicants are at least 50 years of age and have been permanently residing in the US for at least 20 years.
WHEN IS NATURALIZATION NOT THE BEST OPTION?
Since the naturalization application is usually the last time immigration officials review the immigrant’s case and determine whether they are eligible to both naturalize and stay in the US, sometimes naturalization should be postponed in cases involving issues such as ones affecting the immigrant’s Good Moral Character (GMC).
HOW IS GOOD MORAL CHARACTER (GMC) DEFINED AND EVALUATED?
GMC is defined by USCIS as “character that measures up to the standards of average citizens of the community in which the applicant resides.” GMC must be shown 5 years prior to filing for naturalization and must continue to be shown during the application process until the Oath of Allegiance is taken. When evaluating one’s GMC, USCIS considers what is known as “conduct within the statutory period” (includes the GMC, or lack thereof, shown in 5 years prior to filling) or “conduct outside statutory period” (behavior shown before the 5 years). Sometimes officials consider conduct outside the statutory period if present conduct does not reflect a “reformation of character;” however, looking solely at conduct outside of the statutory period cannot lead to a denial in naturalization.
COMMON CONSIDERATIONS BY OFFICIALS WHEN DETERMINING GMC
One of the key questions officials analyze is whether applicants have any overdue taxes. If an applicant does owe taxes, they can still apply if they provide proof of their payment plan with the IRS. In addition, if an applicant is responsible for child or spousal support, they must demonstrate child support and/or spousal support payments. If applicants are currently in removal proceedings, they cannot naturalize while this order still exists, along with having committed other crimes such as fraud to obtain a green card, gambling, having issued a false claim to US citizenship, not registering for selective service if they are males, and assisting anyone to enter the US illegally— all of which introduce the concepts of conditional and permanent bars to GMC.
When evaluating the requirement of GMC, officials can place conditional or permanent bars based on an immigrant’s criminal record. Any conditional bars placed based on specific acts, offenses, activities, circumstances, or convictions of the immigrant indicates that it is not a good time to naturalize now. More specifically, applications for naturalization will not be approved until after probation, parole, or suspended sentence has been completed to ensure that no criminal matters are pending in an applicant’s case. Permanent bars to GMC, such as the result of aggravated felonies (illicit trafficking, money laundering, theft offense, alien smuggling, tax evasion, document fraud, or offenses involving more than one year in prison) would prohibit the applicant from ever proving good moral character, thereby prohibiting their application from being approved. Any inconsistencies in the naturalization application, such as evidence of immigration violations, criminal conduct, or abandonment of their permanent residence status, may subject the immigrant to removal proceedings.
WHAT ACTS MAY BE SEEN AS VIOLATIONS OF IMMIGRATION LAW?
One of the most serious violations include immigration fraud, which may take many forms. Generally, if an immigrant has ever made a material misrepresentation on a form or to an immigration official, that may constitute fraud. This also includes nondisclosure of facts such as prior convictions or prior removal proceedings. In addition, immigration fraud could occur if the immigrant gained his permanent residency through fraudulent means. This could occur if the immigrant engaged in a fraudulent marriage in order to gain citizenship, for example.
In addition, an immigrant cannot make a false claim to U.S. citizenship (and derive a public benefit from that false claim). This can occur when an immigrant applies for a job, or seeks a loan/mortgage, or if the immigrant mistakenly registers to vote. In some cases, depending on the facts and the timing of the case, the immigrant can file for a waiver of his false claim, explaining the situation and why he made that claim. However, in other cases, particularly if the false claim to citizenship resulted in some financial loss to a victim, that act could be considered both immigration fraud and an aggravated felony. Some cases of immigration fraud may result in a mere denial of the N-400, if the fraud does not seem too severe. In other cases, however, removal proceedings may be issued, particularly if the facts suggest that the immigrant gained his permanent residency fraudulently or if the false claim to citizenship also results in an aggravated felony categorization.
WHAT CRIMES MAY LEAD TO REMOVAL?
Serious crimes such as murder, rape, drug trafficking, domestic violence, or acts involving moral turpitude (“bad character”) are likely to lead to removal proceedings. The analysis of whether a criminal record or the admission of a criminal act may lead to immigration consequences is often complicated, and an immigrant should consult an experienced immigration attorney to help assess whether naturalization is a viable option for him.
Generally, committing a criminal offense is especially likely to result in removal if the offense occurred during statutory period (5 years for most applicants, less for spousal applications and those in the military) before the application for naturalization is filed. However, immigration officials are allowed to look past the statutory period and may even consider crimes committed before the immigrant ever arrived in the United States. Thus, in cases where the immigrant has been convicted of a crime, regardless of when the crime occurred, it would be wise to consult an immigration attorney before filing for an N-400.
Immigrants must keep in mind that even if they have complied with all the sentencing requirements from their crimes, they are still subject to immigration consequences up to and including removal. Even if a prior conviction has been expunged, USCIS will still be able to find records of it and are allowed to consider it. In addition, the immigrant may have had a sentence suspended, but it still counts towards the length requirement of a year’s imprisonment or more. If an immigrant has committed multiple offenses, even if they are all minor offenses, they may still find themselves subject to removal.
WHAT CAN AN IMMIGRANT WITH A TROUBLESOME HISTORY DO TO PROTECT THEMSELVES DURING THE NATURALIZATION PROCESS?
An immigrant facing potentially disqualifying issues as described above in the naturalization process should consult an attorney. The immigrant should be honest and thorough in discussing their history with their attorney, so that the attorney can give an accurate assessment of the case and prepare their client for the possibility of any unintended consequences of filing for a naturalization application.
WHAT CAN AN IMMIGRANT EXPECT IF THEY DO GET PLACED INTO DEPORTATION PROCEEDINGS DURING THE NATURALIZATION PROCESS?
In some cases, facts that come out during the naturalization application can result in removal and detention, but the immigrant may be eligible for a cancellation of removal hearing, which allows the immigrant to present reasons he feels he should not be removed. An immigrant who wants to file for cancellation of removal has to show that 1. he has been lawfully admitted for permanent residence for five years; 2. he has resided in the United States continuously for seven years after having been admitted in any status (including admission as a nonimmigrant); 3. he has not been convicted of an aggravated felony; and 4. he warrants a favorable exercise of discretion by the Attorney General. The seven-year period must be continuous and would end when the foreign national is either served with a Notice to Appear or when he has committed an offense that results in his inadmissibility or removability. To find out whether this form of relief from removal is a possible remedy for someone, it would be advisable to seek the help of an experienced immigration attorney.