Toll-Free: (800) 242-2151

Legal Representation That You Can Trust!

Citizenship & Naturalization

SpanishPara Español Haga Clic Aqui

The history of immigration law is one which is discriminatory in nature. One of the first of such legislations was the Chinese Exclusion Act of 1882. This Act prohibited the coming of Chinese laborers into the United States for 10 years. It was the first major restriction on immigration to the United States. It specifically discriminated against immigrants from mainland China to immigrate to the United States. Subsequent legislations and legal holdings by the Supreme Court further erode the rights of immigrants from coming to the United States freely in a way that European immigrants have enjoyed for over 400 years (from the first continuous settlement by Spain in 1559 at St. Augustine, Florida).

Today, the attitude toward immigrants remains the same. Recent legislation seeks to punish immigrants by making it harder for them to enter and remain in the United States. The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA of 1996) allows The Department of Homeland Security to remove aliens that committed crimes in which it deems an "aggravated felony" in the past, regardless of when the alleged crime was committed, whether such crime is considered a felony under State law, or what the person has done since then. Even worse, one of the most controversial legislation is the U.S. Patriot Act. The Act employs racial profiling and restricts aliens' right to due process, afforded by the U.S. Constitution. The United States Citizenship and Immigration Services (hereinafter "USCIS" or "the Service") continues to provide regulations that are more difficult for aliens to be naturalized. The best example of such is the revised naturalization examination (which take effect as of January 1, 2008), which not only ask factual questions, but requires permanent resident aliens to explain and to reason about U.S. history, the U.S. Constitution, and its principles. This is a task that the majority of the native born Americans can not answer themselves.

Nevertheless, only when aliens obtain naturalization are they are free from laws and regulations that erode their due process rights, provided by the Constitution. Until such date, they are always in danger of the fear the general American public has against aliens. As the U.S. Supreme Court stated over 55 years ago:

"So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders."

Carlson v. Landon, 342 U.S. 524, 531 (1952)

How Can A Person Obtain U.S. Citizenship?

There are basically three ways one obtains citizenship (hereinafter "USC"). The first and most obvious way to be a USC is if a person is born within the United States and territories within its jurisdiction, regardless of his or her parents' statuses (even if the parents are undocumented), except for those born in Indian reservations (Jus Soli). A person that is born on an Indian reservation must first take the oath of allegiance before he/she are able to obtain citizenship. The second way that a person obtains U.S. citizenship is if he/she is derivative through his/her parents' citizenship (Jus Sanguinis). A person that was born outside the U.S. by a USC parent, or adopted by USC parents is a derivative citizen. The Child Citizenship Act of 2000 allows certain foreign-born, biological, and adopted children of USC to acquire citizenship automatically. These children do not acquire American citizenship at birth, but they are granted citizenship when they enter the United States as lawful permanent residents (LPRs). Optionally, if the alien parent allows, the USC parent may also obtain a passport for the foreign born child at the Consular Office where the child resides. Lastly, a permanent residence alien may be naturalized to become a U.S. citizen if all requirements are met, either to be naturalized or through expedited naturalization.

What are the requirements for naturalization?

Naturalization is the process where an alien becomes a US citizen. In order for an alien to go through the naturalization process, the alien must meet the following requirements:

  • 18 years of age - In general, an alien must be admitted to a permanent resident status to be eligible to become a naturalized citizen of the U.S. He must also be 18 years old or older at the time of filing for naturalization. This applies when the alien is filing alone. Certain exceptions apply allowing a minor alien to be naturalization prior to the minor alien's 18th birthday, such as if the child is a derivative of a U.S. Citizen parent.
  • Continuous Residence - An alien must reside in the United States for a continuous period, depending on the status, prior to the filing of the naturalization application. If an alien is not married to an American citizen, he must reside in the U.S. for a continuous period of 5 years after lawful admission to the U.S. as a permanent resident. If an alien is married to a U.S.C, he must reside in the U.S. for a continuous period of 3 years following lawful admission to the U.S. as a permanent resident. The alien must be in "marital union" (residing together) with the spouse citizen for three years before the alien's citizen exam date. A prolonged absence from the U.S. may break the continuous residence. If an alien is outside the U.S. for more than six (6) months, 180 days under USCIS's regulations, the alien will presumed to have broken continuous residency even if this does not affect the rights of the alien to be admitted back into the U.S. Aliens that planned to travel more than 6 months abroad, such as to work or for humanitarian purposes, must take necessary steps, by filing form N-470 and obtained an approval prior to departure. In addition, residency for at least three (3) months in the State is required prior to filing an application for naturalization.
  • Physical Presence Requirement - Even if the alien obtained an N-470 prior to traveling abroad, to be naturalized, the alien must demonstrate that he/she has been physically presence in the U.S. for at least 30 months out of the 60 months (5 years) required under continuous residency. Thus, if the alien makes only 2 trips outside the U.S., but that the total amount spent out side the U.S. is 31 months during the last 60 months, the alien is not qualified to be naturalized.
  • Good Moral Character and Attachment to The U.S. Constitution Requirement - To be naturalized, the permanent resident must have good moral character and attachment to principles of the U.S. Constitution. An alien can fail to meet this requirement in the following circumstances:
    • Involvement in vice acts, such as prostitution, alien smuggling, human trafficking, and most criminal activities, particularly those that involve imprisonment for six months or more;
    • Aliens who committed polygamy and/or committed adultery in a notorious and open manner as in a case where the adultery has led to the destruction of the marriage;
    • Failure to properly comply with IRS laws regarding taxes. Clients need to be aware that under the Internal Revenue Code, all persons who reside in the U.S. (legally or unlawfully) is required to pay taxes. The person has the obligation to file income tax returns even if the person makes no money or operates as a loss. Undocumented aliens may obtain a "Tax I.D.," which is a 9-digit number similar to a Social Security Number, to pay taxes.
    • Failure to register with the Selective Service when the alien is required to do so;
    • Aliens who have committed and have been convicted of one or more crimes involving moral turpitude, as defined under INA Section 101(f);
    • Aliens who have committed and have been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more;
    • Aliens who have committed and have been convicted an "aggravated felony," as defined under INA Section 101(a)(43);
    • Aliens who have been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more;
    • Aliens who have committed and have been convicted of two or more gambling offenses or who have earned his or her principal income from illegal gambling;
    • Aliens who have been habitual drunkards;
    • Aliens who have practiced polygamy;
    • Aliens who have willfully failed or refused to support dependents;
    • Aliens who have given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.
  • Knowledge and Understanding of The Fundamentals of U.S. History and Government - The applicant must possess knowledge and understanding of the fundamentals of U.S. history and government. Previously, this is determined by the administration of a multiple choice test. USCIS current practice is that these questions will be asked and a specific answer must be provided by the alien. In general, those exempt from the English requirement must still meet this requirement. Exceptions are those who are mentally and physically impaired and special considerations can be given to those who are exempt from the English requirement based on age and length of stay. Those special considerations are usually a test in modified form.
  • Language Requirement - The applicant must have an ability to read, write, and speak ordinary (simple) English. This is determined by testing by an immigration officer. The portion of the English language requirement dealing with understanding and the ability to speak the language is determined by the alien's responses to questions asked by the immigration officer in the alien's interview. The alien's reading and writing proficiency is tested by written examination. The language requirement does not apply to those that are qualified for Medical Disability Waiver under INA section 312. Also, the English requirement is also waived for those who are at least 50 years old at the time of filing and lived in the U.S. as a permanent resident for at least 20 years; or those who are at least fifty-five years old and lived in the U.S. as a permanent resident for at least 15 years.

Applicants for naturalization must be utmost careful before filing their applications. Applicants should consult a seasoned naturalization attorney to find out about their qualifications and applications requirements, especially those with past criminal convictions. Certain past criminal convictions, though seemingly minor to an ordinary person, under immigration and naturalization law would make the alien removable (deportable) or barred from applying for naturalization. However, under certain circumstances, the alien may be able to naturalize and become a U.S. citizen with a carefully drafted application by their attorney.

Mr. Steven Tuan Pham, the author, had previously provided N-648 application (Medical Disability Waiver) seminar and sensitivity training to USCIS naturalization officers in April of 2007. Mr. Pham is an experienced naturalization attorney that is respected by the Vietnamese and South Asian communities and the Houston USCIS District Office. Mr. Pham will be able to help in filing your applications. Please contact one of our immigration attorneys for more information and assistance in filing your N-400 or other immigration applications.

If you or someone you know is need of family law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.