Citizenship & Immigration Attorneys in New York City

Naturalization CeremonyNaturalization and immigration issues are complicated and different rules and processes apply to different people. Becoming a United States citizen is a dream for almost every person present in this country who is not already a United States citizen. For many immigrants, naturalization becomes a reality and they go on to enjoy the benefits of US citizenship. For others, however, naturalization is a struggle, due to an inability to pass the English and Civics test. For some, it is an impossibility, due to certain criminal convictions. Whatever the case may be, gaining United States citizenship is a privilege that most foreigners want. Indeed, it is a privilege.

NOTE: If you are not a United States citizen and have a criminal conviction, applying for citizenship may be risky! Not only may you be barred (in some cases, permanently) from becoming a naturalized citizen, but you may also trigger removal proceedings as a result of your conviction, even if you obtained your lawful permanent residency without any problems and your conviction was a long time ago! If you have ANY criminal history (a violation, a misdemeanor, a felony, etc.), it is very important that you consult with an experienced immigration attorney before filing your naturalization application with the USCIS, so that you are made aware of any potential risks and problems in advance. This may be the most important conversation you have with an immigration lawyer!

Immigrants With Criminal Convictions

Before applying for naturalization, consider these questions:

Does your criminal conviction make you removable from the United States?

You cannot always tell if your conviction fits a category of removable offense(s) just by looking at the name of your offense, so it is very important that you consult with an experienced immigration lawyer about your entire criminal history. Convictions for the following offenses may trigger a removal case against you.

Aggravated Felonies:

If you have been convicted of an aggravated felony, you will have very little likelihood of fighting removal, especially if your conviction took place after April 24, 1996.

Some examples of aggravated felony offenses include drug trafficking (and may include some drug possession offenses), crimes of violence [if you received a sentence of one year or longer], theft or burglary [if you received a sentence of one year or longer], certain document fraud offenses, fraud, deceit, or tax evasion [where loss to the victim was more than $10,000], alien smuggling, certain prostitution offenses, murder, rape, and sexual abuse of a minor.

Crimes Involving Moral Turpitude (CIMT):

These offenses are harder to define, but include most offenses that require an intent to steal or defraud, certain assault offenses, and most sex offenses.

You are deportable for a CIMT if you:

(1) committed the CIMT within the first five years after your admission (in any status) to the United States, and this is an offense for which a sentence of one year or more could have been imposed (even if your actual sentence included no jail time); OR

(2) committed two CIMTs not arising out of a single scheme (event) at any time after your admission to the United States, regardless of the potential or actual sentence imposed.

Keep in mind that merely because a conviction may make your removable, it does NOT necessarily mean that it is a bar to your naturalization!

If you believe that you have committed an offense that could be an aggravated felony or a CIMT that may affect your ability to naturalize, call me today to see whether your criminal history makes you ineligible for naturalization!

Does your conviction make you ineligible to become a naturalized U.S. citizen?

Requirements for Naturalization (INA § 316)

To naturalize, you must meet certain basic requirements, which are outlined here:

No person shall be naturalized unless he or she:

  1. Has been a lawful permanent resident for at least 5 years; or
  2. Has been a lawful permanent resident for at least 3 years and
    • has been married to, and living with, the same U.S. citizen spouse for the last 3 years, and
    • spouse has been a U.S. citizen for the last 3 years,
  3. A person who has served in the U.S. Armed Forces and
    • is a lawful permanent resident with at least 3 years of U.S. Armed Forces service, is on active duty, or files within 6 months of receiving an honorable discharge or
    • served during a period of recognized hostilities and enlisted or re-enlisted.
      (In some instances, an applicant does not have to be a lawful permanent resident)
  4. Has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to the filing of the application (3 years if married to a U.S. citizen).
  5. Other basic requirements for naturalization in the United States are:
    1. Physical presence in the United States for at least HALF of the preceding five (or three) years prior to the date of filing for naturalization;
    2. Good Moral Character (as defined in INA § 101(f));
    3. Basic knowledge and understanding of U.S. government and history (must pass the Civics Test);
    4. Ability to read, write, and speak English. Applicants exempt from this requirement are those who on the date of filing:
      • have been lawful permanent residents for 15 years or more and are over 55 years of age;
      • have been lawful permanent residents for 20 years or more and are over 50 years of age; or
      • have a medically determinable physical or mental impairment and the impairment affects the applicant’s ability to learn English.
    5. Must be 18 years of age;
    6. As a minor (under the age of 18), being in the legal custody of at least one parent who became a citizen, which often confers automatic citizenship;
    7. Legal competence to take the citizenship oath; and
    8. Allegiance to the U.S. government.

Bars to Naturalization

An applicant is required to demonstrate good moral character during the statutory period immediately before filing of the application for the citizenship. However, in many instances, an applicant may be unable to show good moral character, and thus will never be able to naturalize.

A.Permanent bars to naturalization

The following aliens are permanently barred from naturalization:

  • convicted of an aggravated felony, as defined in INA § 101(a)(43), on or after November 29, 1990;
  • convicted of murder at any time;
  • an alien who requested exemption from military service on account of alienage; and
  • an alien convicted by court martial of desertion during time of war.

B.Temporary bars to naturalization

The following aliens are temporarily barred from naturalization:

  • an alien who is on probation, parole, or has a suspended sentence during the statutory period will be denied naturalization (8 C.F.R. § 316.10(c));
  • an alien who is in removal or deportation proceedings is temporarily precluded from naturalization (INA §§ 328, 329)

C.Other bars

You also cannot show good moral character if during the 5-year (or 3-year) statutory period you:

  • have been convicted of one or more crimes involving moral turpitude;
  • have been convicted of two or more offenses for which the total sentence imposed was 5 years or more;
  • have been convicted of any controlled substance violation, except for a single offense of simple possession of 30 grams or less of marijuana;
  • have been confined to a penal institution for an aggregate of 180 days or more as a result of a conviction;
  • have been convicted of two or more gambling offenses;
  • have earned your principal income from illegal gambling;
  • have been involved in prostitution or commercialized vice;
  • are involved, or have been involved, in smuggling illegal aliens into the United States;
  • are, or have been, a habitual drunkard;
  • are practicing, or have practiced, polygamy;
  • have willfully failed or refused to support dependents;
  • have given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act;
  • are an individual involved in subversive activities;
  • are, or have been, a member of the Communist Party;
  • are, or have been a deserter during war time, unless you received a pardon or general amnesty;
  • are an alien who has removal proceedings pending against you or are subject to an outstanding order of deportation or removal, unless you are eligible for citizenship due to military service;
  • have failed to register with the selective service; or
  • have any other criminal history.

TIP: The USCIS is prohibited from looking into your past, especially criminal past, beyond the statutory period, UNLESS there is something during the statutory period that triggers an inquiry beyond that time. In many cases, regardless of how old a conviction, the USCIS continues to deny citizenship for lack of good moral character. This finding by the USCIS can often be challenged successfully in federal court.

U.S. Citizenship Can be Acquired by Operation of Law or by Naturalization

By operation of law, a person becomes a citizen either by birth in the United States or by birth abroad to U.S. citizens parents or nationals.

Naturalization requires an affirmative application, Form N-400.

Derivative Citizenship

There is also derivative citizenship for certain aliens, whose parent or parents naturalize, for whom citizenship is automatically conferred as a matter of law. If you believe you derived citizenship from either or both of your parents, you should file Form N-600.

Issues regarding derivation and acquisition of citizenship become especially important if you have no other form of relief from deportation, for example, if you are a long-time green card holder with an “aggravated felony” conviction or another serious criminal conviction. Often times, it is worthwhile to investigate whether you acquired citizenship at birth or derived citizenship through the naturalization of one or both of your parents. This, however, is complex and you should consult an immigration attorney to determine whether you acquired or derived citizenship. In certain situations, this may be your only hope against being deported.

Waivers, Exceptions, and Special Naturalization Cases

Family Members of U.S. citizens

Spouses of U.S. citizens

Generally, certain lawful permanent residents married to a U.S. citizen may file for naturalization after residing continuously in the United States for three years if immediately preceding the filing of the application:

  • the applicant has been married to and living in a valid marital union with the same U.S. citizen spouse for all three years;
    • the U.S. spouse has been a citizen for all three years and the applicant meets all physical presence and residence requirements; and
    • the applicant meets all other naturalization requirements.

There are also exceptions for lawful permanent residents married to U.S. citizens stationed or employed abroad. Some lawful permanent residents may not have to comply with the residence or physical presence requirements when the U.S. citizen spouse is employed by one of the following:

  • the U.S. Government (including the U.S. Armed Forces);
  • American research institutes recognized by the Attorney General;
  • recognized U.S. religious organizations;
  • U.S. research institutions;
  • an American firm engaged in the development of foreign trade and commerce of the United States; or
  • certain public international organizations involving the United States.

See also INA § 319, INA § 316

Foreign-Born Children of U.S. Citizens

There are several ways foreign-born children of U.S. citizens may obtain evidence of citizenship:

Generally, U.S. citizen parents of children born abroad may file Form N-600, Application for Certificate of Citizenship. This form should be completed in accordance with the instructions provided and should be accompanied by 2 photographs of the child, copies of any documents that verify eligibility, and the required filing fee to be considered complete and ready to process.

Important note: Children born abroad of U.S. citizen parents derive citizenship from their parents. The Certificate of Citizenship is merely a record of citizenship – it does not confer citizenship on an applicant.

Some adopted children of citizen parents may acquire citizenship. For adopted children, adoptive parents must file Form N-643 instead of an N-600. However, adopted children over 18 must file Form N-400.

Naturalization Based upon Military Service

If you are a member of the U.S. Armed Forces and are interested in becoming a U.S. citizen, you may be eligible to apply for citizenship under special provisions provided for in the Immigration and Nationality Act (INA). Generally, service in the U.S. Armed Forces means service in one of the following branches:

  • Army
  • Navy
  • Marine Corps
  • Air Force
  • Coast Guard
  • Certain Reserve components of the National Guard
  • Selected Reserve of the Ready Reserve

Recent changes in the relevant sections of the INA (Sections 328 and 329) make it easier for qualified military personnel to become U.S. citizens if they choose to file a naturalization application.

U.S. Citizenship and Immigration Services (USCIS) has created a streamlined process specifically for military personnel serving in active-duty status or who have recently been discharged.

Click here to visit the USCIS’ page on eligibility requirements and the process to apply for naturalization based upon military service.

Read the latest USCIS Fact Sheet on Naturalization Process for the Military.

Lawful Permanent Residents with Three Years U.S. Military Service

If you have served for three years in the U.S. military and if you are a a lawful permanent resident, you are excused from any specific period of required residence, period of residence in any specific place, or physical presence within the United States if an application for naturalization is filed while the applicant is still serving or within six months of an honorable discharge.

To be eligible for these exemptions, you must:

  • have served honorably or separated under honorable conditions;
  • have completed three years or more of military service;
  • be a legal permanent resident at the time of your examination on the application; or
  • establish good moral character if service was discontinuous or not honorable.

If you file for naturalization more than six months after termination of three years of service in the U.S. military, you may count any periods of honorable service as residence and physical presence in the United States.

If you file for naturalization more than six months after termination of three years of service in the U.S. military, you may count any periods of honorable service as residence and physical presence in the United States.

This is the only section of the Immigration and Naturalization Act that allows persons who have not been lawfully admitted for permanent residence (non green card holders) to file their own application for naturalization.

Any person who has served honorably during a qualifying time may file an application at any time in his or her life if, at the time of enlistment, reenlistment, extension of enlistment or induction, such person shall have been in the United States, the Canal Zone, American Samoa, or Swains Island, or on board a public vessel owned or operated by the United States for noncommercial service, whether or not he has been lawfully admitted to the United States for permanent residence.

An applicant who has served honorably during any of the following periods of conflict is entitled to certain considerations:

  • World War I – 4/16/1917 to 11/11/1918;
  • World War II – 9/1/1939 to 12/31/1946;
  • Korean Conflict – 6/25/1950 to 7/1/1955;
  • Vietnam Conflict – 2/28/1961 to 10/15/1978;
  • Operation Desert Shield/ Desert Storm – 8/29/1990 to 4/11/1991
  • Operation Enduring Freedom – 9/11/01 to (open); or
  • any other period which the President, by Executive Order, has designated as a period in which the Armed Forces of the United States are or were engaged in military operations involving armed conflict with hostile foreign forces.

Applicants who have served honorably during any of the aforementioned conflicts may apply for naturalization based on military service and no period of residence or specified period of physical presence within the United States or any State is required.

Do you think you are ready to become a U.S. citizen?

Click here to take the naturalization self-test!

Contact me if you wish to consult with me about your eligibility for naturalization, or if you or your loved one needs assistance in becoming a citizen.

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