Planning For Your Citizenship

November 2010 - By Shahzad Ahmed with NeJame Law

Becoming a citizen of the United States is a dream for many immigrants. However, achieving this dream requires careful planning since many find their dreams unexpectedly shattered. This article reviews the basic eligibility requirements for naturalization while warning of some common pitfalls.

Already a U.S. citizen

Before filing your application for naturalization, make sure that . . . you are not already a U.S. citizen.

Naturalization, is the process by which our government confers citizenship upon someone, once that person has made an application and fulfilled certain requirements. However, one may become a citizen by the mere operation of law, even before filing an application. Thus, a number of applications are denied each year on grounds that the applicant has already acquired derivative citizenship, either through the naturalization of a parent or via birth to a citizen abroad, without even knowing it. Whether by naturalization of a parent or birth to a citizen abroad, derivative citizenship has its own legal requirements which must be met. If at least one of your parents is a U.S. citizen, be sure to consult with an experienced immigration attorney before filing for naturalization.

Filing too early

Make sure you have accrued 5 years (or 3 years if married to and living with a U.S. citizen, or if another exception applies) of permanent residency. The regulations permit the applicant to file 3 months in advance, but if your application arrives at the USCIS even one day earlier than that, then your application will be denied. Therefore, better to err on the side of caution and not file too early.

Good moral character issues

Beware good moral character issues. Having good moral character is a basic requirement for naturalization and it can show up in different ways. The statute requires the applicant to demonstrate that he or she bears good moral character for the 5 (or 3-year period) of required residency (though the regulations permit the USCIS to look at conduct even preceding this period.) Be prepared to present any evidence of good moral character. For example, USCIS sees evading the IRS as bad moral character. Thus, have copies of your filed tax returns. If you have missed any payments, then be sure to have a settlement letter from the IRS. Similarly, USCIS views evasion of child support obligations as bad moral character. Be prepared to present evidence of any child support payments or settlement, if applicable.

Another example of something that may show a lack of moral character is the willful failure to register for the Selective Service. Males between the age of 18 and 26 (not including those on temporary immigration status) are required to register for Selective Service. If you did not do so, be sure to consult with an experienced immigration attorney about the exceptions to these requirements. You may be able to establish that you did not willfully fail to register or that the failure to register was over 5 years ago, if you are now 31 years of age or above.

Beware deportability Issues

One contradiction in Immigration Law is that one may be eligible for naturalization and yet be deportable. For example, one may not have had any arrests or criminal charges in the last 5 years and thus meet the good moral character criteria, but may still be deportable for an arrest which occurred well over 5 years ago. Or one may be deportable for having falsely claimed to be a citizen or for voting illegally. If you have been arrested or criminally charged or made any type of a false claim, you are encouraged to consult with an experienced immigration attorney. The attorney should analyze your case to see not only whether you are eligible for naturalization, but also what defenses you would have to any deportation proceedings, thereby enabling you to make an informed decision about whether to file for naturalization.

Having said that, the choice of not filing is much more difficult to make nowadays. For example, in states with stricter rules for driver licenses, such as Florida, one may not even be able to renew his or her license if the person does not have citizenship, an unexpired green card or other proof of status. Thus, if you have strong defenses to any deportation charges, then it would be worth the risk to file your naturalization application.

Abandonment of Residency

This is a complex, yet interesting area of the law, to which an entire article can be dedicated (and we will in the near future). However, we are only addressing this issue within the context of eligibility for naturalization for now.

This issue especially, though not exclusively, affects the elderly in the community. Often, the elderly acquire permanent residency via their U.S. citizen sons’ and daughters’ petitions and attempt to live in the U.S. with them. However, the parents often find it difficult to detach from their roots abroad where they spent their entire lives, and thus find themselves remaining mostly abroad.

Unfortunately, however, the U.S. immigration law does not permit dual residency. When applying for naturalization, the applicant must demonstrate that he or she not only has been a U.S. resident for the last 5 years (or 3 years as noted above), but that he or she maintained continuous residency until the time of admission to citizenship.

So what breaks the continuity of this residency? According to the regulations for naturalization, if the applicant has been absent from the U.S. for 6 months, then there is a legal presumption of abandonment. The applicant may rebut this presumption by showing sufficient ties to the U.S. Moreover, if an applicant has been absent from the U.S. continuously for 1 year, then the applicant has abandoned his or her residency. In such case, the person must reestablish residency by waiting 4 years and 1 day (or 2 years and 1 day, if subject to the 3 year residency requirement) after returning to the U.S., before filing for naturalization.

Note: These rules of abandonment are for naturalization purposes. The general rules of abandonment for maintaining residency are separate and are not discussed here.

We hope that this article has acquainted the reader with some of the commonly recurring issues in applying for naturalization. While acquiring citizenship is a dream for many and may seem easy at first glance, avoid problems by having an experienced immigration attorney prepare you adequately.