Business Immigration Insights

 Obtaining US citizenship is the ultimate goal of many foreign nationals in the United States. Naturalization is US citizenship.  It provides security and an end to endless waiting and uncertainty. Or it used to be. The current administration has made denaturalizing individuals who obtained naturalization through fraud a priority. The scope of US Citizenship and Immigration Services’ (USCIS) denaturalization efforts remains to be seen; however, with heightened scrutiny, including revising the citizenship test, it is important to remember the basics of naturalizing in the US to ensure the best outcome for individuals and employers.

What is naturalization?

 Naturalization is the legal process by which an individual becomes a U.S. citizen. Once naturalized, an individual is issued a Certificate of Naturalization and is eligible, amongst other things, to obtain a US passport, avail himself/herself of the protections of the US and vote in US elections, in exchange for pledging allegiance to the US and supporting the US Constitution. It also includes paying taxes on worldwide income.

Naturalization is the culmination of a generally lengthy process that begins through a family or employment relationship. The individual seeking to naturalize must first obtain lawful permanent resident status in the US and must satisfy residency and physical presence requirements before filing for naturalization.

Naturalization is different from derivative citizenship, which applies to individuals who are automatically US citizens, through a US citizen parent, for example, and do not go through the naturalization process but rather receive a Certificate of Citizenship by filing Form N-600, Application for Certificate of Citizenship.

 Who is eligible for naturalization?

 An individual applies for naturalization through Form N-400, Application for Naturalization up to 90 days before meeting the continuous residence requirement of three or five years, depending on the basis for the grant of lawful permanent residence. With very limited exceptions, an individual who is at least 18 years old is eligible to naturalize after continuously residing in the US for at least three or five years as a Lawful Permanent Resident (LPR) of the US. The individual must also meet the physical presence requirements.

The individual also needs to speak, read, write basic English and have an understanding of US history and government (age/disability related exemptions are available), be of good moral character, support the US Constitution and be in a position to pledge allegiance to the US and take an oath. Male applicants are also required to have registered for Selective Service.

What is the difference between physical presence and continuous residence?

 In addition to maintaining a continuous residence in the US for three or five years, the individual must also meet the physical presence requirement.  The physical presence requirement means that an individual must be physically present in the US for at least 30 months (18 months for certain spouses of US citizens), in the three or five years preceding his/her application for naturalization.

Absences from the US of six months and up to one year do not necessarily interrupt an individual’s continuous residence because the individual may show that he or she continued to maintain ties to the US. Absences of one year or more will restart the clock on the continuous residence requirement, with some very limited exceptions. Such a lengthy absence can also affect an individual’s maintenance of LPR status.

It is worth mentioning another, often overlooked, requirement that an individual needs to show that he/she has lived in the state or USCIS District where the individual claims residence for at least three months before applying for naturalization. This requirement is important and discourages “forum shopping” by individuals who claim to reside in a state or a USCIS District where naturalization presumably takes less time to speed-up the processing of their application.

What are some common mistakes?

Some of the common mistakes that can lead to delays or denials of naturalization applications include the following:

• Applying for naturalization before meeting all eligibility requirements, especially those related to physical presence and continuous residence;
• Failing to include the correct filing fee;
• Failing to include copies of relevant documents;
• Failing to properly prepare for the US history and government test;
• Submitting an incomplete application;
• Filing taxes as a nonresident at any time after becoming an LPR;
• Registering to vote or voting in some elections; or
• Misrepresenting or omitting information from the application form.

 What are the current processing times for naturalization applications?

 Naturalization applications are not immune to the processing delays that currently affect all immigration petitions/applications. Some USCIS District offices are now taking over 18 months to process straightforward applications, ones that only took an average of six months to process in previous years. Gone are the days when an individual had his/her application processed quickly with both the naturalization interview and oath completed on the same day. These delays are concerning, especially with the 2020 elections right around the corner, because the ability to vote is a primary benefit of becoming a US citizen. These delays leave individuals in limbo for months on end with little recourse to find a resolution (other than filing a mandamus complaint in Federal Court to prompt actions on unreasonably delayed applications).

Bottom line

In these uncertain times, if you have any doubts regarding your eligibility to naturalize, seek advice from a qualified immigration practitioner before spending time and money on a complex, and anything but straightforward, process.