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., must
go about it in one of the following ways:
1) enter the U.S. as either a student
or tourist, then legally change
his/her status to a working visa, then apply for
a Green Card through
sponsorship by a family member or employer and then
wait another five years 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 a family member or employer and then wait another
five years before being eligible to apply for citizenship.
3) may apply for a green card through sponsorship
by a family member, while still living in the country
of your birth or present nationality, enter the
U.S. after receiving the green card status, and
then wait another five years 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 in1934, 1940,
1952, 1978, 1986 and 1994.
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.
Also, between 1934 and 1978, the law imposed a
‘retention’ requirement upon children
born abroad who had only one parent who was a U.S.
citizen. Not only was the U.S. citizen parent required
to reside in the U.S. for a fixed period of time
before the child’s birth, but the child was
also required to be present in the U.S. for a specific
period of time during his youth. If a child failed
to meet this requirement, he automatically lost
his U.S. citizenship.
In the 1970s, the Supreme Court held that only
Congress has the authority to impose or remove this
requirement. However, in 1978, after the Court’s
decision, Congress amended the law to eliminate
the retention requirement, but not with retrospective
effect.
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 filing Form I-751 within a 90 day period
before expiration of the two years. The Immigration
and Naturalization Service 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. The INS advises that it is permissible
for a conditional resident to apply for naturalization
while the I-751 application is still pending with
the INS. However, it is likely that the INS 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. However, the law specifically makes
persons who participated in Nazi persecutions or
who have engaged in genocide ineligible for this
benefit. Section 101 became effective on October
25th 1994.
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. Section
103 became effective on March 1, 1995.
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
BUT if the person were to apply for a foreign citizenship
then he/she would loose their US citizenship. In
other words the US law requires that if a person
voluntarily and by free choice applies for foreign
citizenship with the intent of giving up the US
citizenship then they would loose their US citizenship.
Intent could be shown by a person’s conduct
or statements.
Loss of nationality, also known as expatriation,
means the loss of citizenship status properly acquired,
whether by birth in the United States, through birth
abroad to U.S. citizen parents, or by naturalization.
As a result of several constitutional decisions,
§349(a) of the current Immigration and Nationality
Act (INA) provides that U.S. nationality is lost
only when the U.S. citizen does one of the specified
acts described in INA §349, voluntarily and
with the intent to give up that nationality. If
any one of these requirements is lacking, nationality
is not lost.
Acts not specified in INA §349 do not result
in expatriation. (For example, acquisition of foreign
nationality at birth will not result in expatriation.)
However, two expatriating acts contained in INA
§349 are relevant to the issue of dual nationality.
They are:
1. obtaining naturalization in a foreign state
upon the citizen's own application or upon an application
filed by a duly authorized agent, after having attained
the age of eighteen years; and
2. taking an oath or making an affirmation or other
formal declaration of allegiance to a foreign state
or a political subdivision thereof after having
attained the age of eighteen years.
Thus a U.S. citizen performing an expatriating
act must, under the law, be 18 years of age, must
perform such an act voluntarily and must intend
to relinquish citizenship by such a voluntary act.
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.
However, certain regulations apply to both citizens
as well as LPRs. Some of them are:
i) both can live anywhere in the U.S.
ii) both can work anywhere in the U.S.
iii) both can own real and personal property in
the U.S.
iv) both must file U.S. tax returns
v) both must serve in the U.S. military if asked
or drafted
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.
Read the changes applicable to Naturalization in
the ‘‘21st
Century Department of Justice Appropriations Authorization
Act’’.
