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.
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.
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.
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 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.
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’’.
Related Links:
v
Revised Form N-400 (Application for
Naturalization)
v
Eligibility and Testing for Naturalization
v
General Naturalization Requirements
v
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 The Law Offices of Cyrus S Nallaseth
and the viewer.