By Attorneys Steven J. Malm and Nancy E. Miller

Becoming an American citizen is the culmination of the American dream.  A citizen can shape American politics through voting.  Citizens have greater ability to convey immigration benefits to family members.  In fact, in some circumstances, children automatically gain citizenship when their parent naturalizes.  Unforeseen circumstances which cause one to be out of the United States for extended periods of time can result in charges of abandonment of immigrant status – but not of citizenship.  It is also important to remember that non-citizens, even those who have lived here for decades, can be deported for violating American laws.  U.S. citizens cannot be deported unless they lied to get earlier immigration benefits or they give up their citizenship.

To be eligible for naturalization, the immigrant must be a lawful permanent resident; be at least 18 years of age; have continuously resided in the United States as a green card holder for 5 years (3 years if married to and living in marital union with a U.S. citizen spouse or if green card was obtained because of battering or extreme cruelty); be physically present in the U.S. for at least one-half of the residency period; and be a person of good moral character.  The immigrant must also demonstrate an ability to read, write and speak English and knowledge of American history and government (civics).

Absences from the U.S. as a result of military commitments or because of work for the U.S. government may not count against the residency or physical presence requirement.  In addition, waivers are possible for some who are unable to learn English or civics.

Upon taking the oath of allegiance, the new citizen’s lawful permanent resident children under the age of 18 automatically become citizens as well.  Citizens can file petitions for a parent, spouse, or unmarried child under the age of 21 without dealing with visa backlogs.  These immediate relative categories allow the beneficiary to complete their immigration processing in the United States, even if they are currently out of status as long as they entered with inspection.  In addition, citizens can file petitions to immigrate their siblings and their married sons and daughters.  These categories have long been targets of those who would like to narrow immigration benefits.  One who has family members in these categories should file for them while they can.

Some immigrants delay filing for citizenship under the mistaken belief that their unmarried adult children will face a longer visa waiting period as an unmarried son or daughter of a U.S. citizen than if the parent had remained a lawful permanent resident.  This belief is erroneous because the unmarried sons and daughters may elect to “opt-out” of the U.S. citizen category to take advantage of the shorter waiting period.  This “opt-out” benefit is only available where the parent filed the original petition before naturalizing.

Delaying an application for citizenship can have adverse consequences.  A green card is not a permanent benefit.  It can be lost.   A green card holder who has spent more time out of the U.S. than in it can be denied admission for having abandoned their immigration status.  They may have to fight in immigration court to keep their green card.  However, U.S. citizens cannot be accused of abandonment.

Not everyone who has had their green card for 5 years and has lived here for more than half that time should apply for citizenship.

Certain criminal convictions result in a loss of green card and deportation.  An immigrant with a criminal record may invite deportation by filing for naturalization.  However, waivers may be available in some circumstances that would allow the immigrant to either remain a green card holder or even obtain citizenship.  An immigrant who is convicted of an aggravated felony before November 29, 1990 and obtains a waiver may qualify for citizenship.

Someone who misrepresented a material fact to get a green card is not a lawful permanent resident for naturalization purposes.  Continuing the misrepresentation in the naturalization process can result in more serious complications.  Here again, waivers of the misrepresentation are possible.  One granted such a waiver may be able to both keep their green card and become a citizen.

Many questions arise when deciding to file for citizenship.  Is a conditional resident a resident for naturalization purposes?  Does one who has spent much time out of the U.S. on business meet the residency and physical presence requirement?  How do past actions affect the good moral character requirement?  Will applying for citizenship lead to being placed in removal proceedings?  One should consult a knowledgeable and experienced immigration attorney to learn the answer to these questions, and more, before applying for citizenship.

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