Citizenship

 

CITIZENSHIP (NATURALIZATION)

 

It takes many years to attain citizenship of the United States. A person born in a foreign country, who wishes to become a citizen of the U.S., could go about it in one of the following ways:

  1. enter the U.S. as a student, then legally change his/her status to a working visa, then apply for a Green Card through sponsorship by an employer and then wait another five years after getting the Green Card before being eligible to apply for citizenship.
  2. enter the U.S. on a work permit, then apply for a green card through sponsorship by an employer and then wait another five years after getting the Green Card before being eligible to apply for citizenship.
  3. While studying or working in the US, or even while still living in the country of your birth or present nationality, apply for a green card through sponsorship by a family member, and after receiving the green card wait another five years (three years if the Green Card was through marriage to a US Citizen) before being eligible to apply for citizenship.

 

Under U.S. immigration law, a child born abroad is allowed to acquire citizenship at birth if either or both parents are U.S. citizens. The laws regarding the acquisition of citizenship at birth have been significantly modified several times. Before 24th May 1934, only children (who were born abroad), whose fathers were U.S. citizens, were allowed to acquire citizenship at birth. After this date, the law was amended to allow either parent who was a U.S. citizen to transmit the citizenship to the child. However, this amendment was not retroactive and therefore a child born on 23rd May, 1934 whose mother was a U.S. citizen and father was an alien, was not entitled to obtain U.S. citizenship at birth, like his counterpart who was fortunate enough to be born a day later.

 

This was later changed when a person who fell under this category sued the State Department stating that the pre-1934 law denying him citizenship deprived him of equal protection of the law. In 1993, a federal appeals court ruled in his favor.

 

Naturalization for Spouse of U.S. Citizens

The alien spouse of a U.S. citizen is issued a ‘conditional’ green card for a period of two years. At the end of this period, for the conditions to be removed, the marriage must still be ‘alive’. The couple must show that they have been living together in the same place, share their financial assets, travel together and if possible, have had children. These conditions have been placed to avoid ‘fraud’ or ‘sham’ marriages, where people enter into a convenience marriage only for the much desired green card.

Removal of the above condition, must be applied for by jointly filing Form I-751 within a 90 day period before expiration of the two years. USCIS may sometimes take two years or more to approve the I-751. However, after being resident in the U.S. for 3 years, the spouse of a U.S. citizen is eligible to apply for naturalization. He/she may put in his/her papers for naturalization two years nine months after receiving his/her lawful permanent status. USCIS advises that it is permissible for a conditional resident to apply for naturalization while the I-751 application is still pending with it. However, it is likely that USCIS will keep the naturalization application pending until the conditions are removed. Conditional resident spouses can therefore apply for citizenship in a timely manner, and hopefully have their I-751 applications approved before the citizenship interview.

 

Immigration and Nationality Technical Corrections Act (INTCA) of 1994

On October 25, 1994, President Clinton signed into law the Immigration and Nationality Technical Corrections Act of 1994 (INTCA, Public Law No. 103-416). This has brought about the most significant changes to the laws concerning the acquisition of citizenship.

 

Section 101 of INTCA provides that children born abroad prior to May 24, 1934 of citizen mothers (who had resided in the U.S. prior to the child’s birth) and alien fathers are citizens of the U.S. Furthermore, the law treats them as citizens as of the date of their birth. Whether they ever apply for U.S. passports or Certificates of Citizenship is immaterial. Section 103 of INTCA allows persons who lost their U.S. citizenship between 1934 and 1978 due to their failure to satisfy the retention requirement, the opportunity to regain their citizenship by taking an oath of allegiance to the United States.

 

Thousands of persons born abroad and their spouses and children will benefit from these amendments. Many of the persons who will benefit were born in countries bordering the U.S. (i.e., Canada and Mexico) or in countries that were previously territories of the U.S. such as the Philippines. However, the law contains no restrictions regarding the country of birth of the beneficiaries. Anyone who has a U.S. citizen parent, grandparent or in-law, whether living or deceased, should obtain a legal opinion as to the effect of INTCA on their immigration status if they wish to live in the U.S. Instead of a lengthy wait for a green card, they may be immediately eligible for U.S. citizenship.

 

 

CITIZENSHIP THROUGH MILITARY SERVICE

On November 22, 1994, President Clinton signed an executive order granting expedited naturalization to aliens and legal permanent residents who served in active-duty status in the armed Forces of the U.S. during the Persian Gulf Conflict (August 2, 1990 to April 11, 1991). For these veterans, it is not necessary for them to obtain permanent residence status prior to applying for citizenship. (This has been done in the past with regard to World Wars I and II, Korean and Vietnam Wars and the Grenada Conflict.)

 

This order became effective on the date it was issued and has no expiration date. However, the person must be in the U.S. in order to apply for naturalization and must also satisfy other requirements such as good moral character, loyalty to the U.S., knowledge of English and U.S. history and government.

 

Dual Nationality

Dual Nationality means a person is a citizen of two countries at the same time. Each country has is it’s own laws with regard to dual nationality. For instance, India does not allow its citizens to hold dual nationality.

 

Under US laws, it is recognized that a person may acquire a foreign citizenship by marriage or may not lose the citizenship of their country of birth upon being naturalized as a US citizen. Under these circumstances, US laws do not mention dual nationality or require a person to choose only one citizenship. Also a person who is automatically granted a foreign citizenship does not loose his/her US citizenship.

 

While the US government recognizes dual nationality it does not encourage it because of the problems that may arise from a citizen owing allegiance to both the foreign country and the U.S. The dual national would be required to obey the laws of both countries and both countries would have the right to enforce their laws. It is conceivable that claims made by other countries on a dual national may conflict with U.S. laws. Also dual nationality may limit the U.S. government’s ability to help such citizens abroad.

 

While dual nationals would be required to use their American passports to enter and depart from the U.S., the foreign country may also require use of their own passport to enter and depart from that country. However use of such foreign passport does not endanger U.S. citizenship.

 

Either citizenship can be revoked at any time should the dual national wish to. For information on revocation of the foreign citizenship inquiries may be made at that embassy or consulate office in the U.S. For revocation of a US citizenship when living abroad, information may be obtained from the US consulate and embassy situated in the foreign country.

 

Difference Between Citizens and Legal Permanent Residents

A Legal Permanent Resident (LPR or Green Card holder) is an alien who is authorized to live and work permanently in the United States, provided he keeps the U.S. as his/her primary place of residence. An LPR may continue to hold the citizenship of his/her country of origin. An LPR is liable to lose this status if he/she abandons the U.S. as his/her primary place of residence, commits a crime or some other ‘deportable or excludable’ act. An LPR has no right to vote and usually cannot hold Public Office or a job that requires security clearance, such as in defense or aerospace fields.

 

A Citizen of the United States is not bound by any of the above restrictions. He/she is free to live anywhere in the world, may hold any job in any field and has a right to vote in U.S. elections. It is very difficult for a citizenship to be revoked.

 

A citizen is able to petition for permanent residence for his spouse, parents, brother/sister and sons/daughters (whether married or unmarried). An LPR may only petition for their spouses and unmarried sons and daughters.

 

However, there are many similarities also between US citizens as well as LPRs. Some of them are:

  1. both can live anywhere in the U.S.
  2. both can work anywhere in the U.S.
  3. both can own real and personal property in the U.S.
  4. both must file U.S. tax returns on their world income
  5. both must serve in the U.S. military if asked or drafted

 

 

INS InfoLinks :

 

  1. Revised Form N-400 (Application for Naturalization)
  2. Eligibility and Testing for Naturalization
  3. General Naturalization Requirements
  4. Waivers, Exceptions, and Special Cases

 

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.