Overview of the Citizenship Process and Disability Waivers
Posted Nov 20, 1999

In this article, The Law Office of Sheela Murthy, P.C. will attempt to provide a broad overview of applying for U.S. citizenship and the waivers available to certain categories of disabled applicants who could be exempt from some of the conditions required for becoming a citizen of the U.S.

Applying Generally :

For those who are required to apply for naturalization, there are many criteria to determine if a person is eligible to apply for U.S. citizenship. The basic requirement is that a person must be a legal permanent resident (LPR), and at least eighteen years old to apply for naturalization in the United States. While there are exceptions to this rule such as honorable service in the US military during a time of war or declared hostility, the basic rule is LPR and eighteen years of age.

In addition to the LPR status and age requirements, there are three types of residency requirements. The first is the requirement that after you have obtained your LPR status you must have been a permanent resident of the US for a period of four years and nine months before filing your application, or two years and nine months if you obtained LPR status by marriage to a US citizen and you remained married for at least that time. This does not mean that you have to be physically present in the U.S. for the entire waiting period. A person is permitted to leave the country on trips of less then six months duration each, as long as s/he is physically present in the U.S. for more than half the time frame mentioned above, prior to filing. When determining what is considered half the waiting time period, calculate as 5 years of residency generally, and three years of residency for those who obtained LPR status through marriage to a US citizen1.

The second type of residency requirement is a requirement to establish residency in a specific jurisdiction in the U.S. for 3 months prior to filing your application in that jurisdiction. Proof of residence can be established through an identification card from the motor vehicle department, copy of a lease agreement, bank accounts, tax returns and similar items.

The third type of residency requirement is related to the length of any trips abroad. As mentioned above, trips that last less then 6 months are generally not a problem. However, trips that are more than 6 months and less than one year can raise a red flag. The Code of Federal Regulations (Regulations) states that a trip longer then 6 months but less then one year, creates a rebuttable presumption of abandonment of LPR status. This does not mean that a person will lose LPR status, rather the trip is assumed to break the continuity of residence in the U.S. and the person would have to start the count toward eligibility for filing for naturalization again. This presumption is "rebuttable"; this means it can be overcome in some instances2.

A trip that is extended to one year or more has the same impact as a trip extended over six months except that the presumption of abandonment is not rebutable. A trip of 1 year or longer, breaks the continuity of residence. This means that one would have to start the count over toward eligibility for filing. The waiting period for counting however would be limited to four years and one day and not the complete four years and nine months, two years and one day if the person obtained LPR status through marriage to a US citizen and remained married and not two years and nine months. It is important to note that the 3 month grace period to file before the requisite time frame does not apply when the person has broken the continuity of residence.

Once it is established that a person is eligible to file based on the above, the next question is if any statutory bars prevent the person from filing. Most of these issues are on the application for naturalization.

Requirement of English and Civics/U.S. History

One of the criteria that needs to be met in order to have an application granted is that a person must be able to demonstrate an understanding of basic English. This includes reading, writing, and speaking in English. The Immigration and Naturalization Service (INS) has established various books or manuals from which they obtain reading and writing samples. These samples are presented to the applicant in the form of an verbal statement in which the applicant must respond by writing the information down on a form provided. An applicant is given three chances to write the sentence correctly. Speaking English is established based on the observations of the officer during the interview.

A second criterion is that the applicant have some knowledge of U.S. history/civics. The INS has a list of 100 questions related to U.S. history/civics. An applicant is required to learn the answers to all one hundred questions but will be asked, in English, only 10 out of the 100 questions. These questions are chosen at the discretion of the officer. In order the pass the "test" an applicant must answer 7 out of the 10 questions correctly.

An applicant that fails the English or U.S. history/ civics requirement may take the test a second time within ninety days of the first interview without submitting a new application. We all know that the INS delays in processing such applications would make this process more difficult, without this second "bite at the apple."

Exceptions:

English Requirements

The following persons need not demonstrate an ability to read, write, and speak words in ordinary usage in the English language:

a. A person who, on the date of filing of his or her application for naturalization, is over fifty years of age and has been living in the U.S. for periods totaling at least twenty years subsequent to a lawful admission for permanent residence;

b. A person who, on the date of filing his or her application for naturalization, is over fifty five years of age and has been living in the U.S. for periods totaling at least fifteen years subsequent to lawful permanent residence; or

c. A person who is unable, because of a medically determinable physical or mental impairment or combination of impairments to demonstrate an understanding of the English language.

U.S. History/Civics Requirements

The requirements of U.S. history/civics do not apply to a person who is unable, because of a medically determinable physical or mental impairment3 to demonstrate an understanding and knowledge of the requirements.

From 1994 to the Present

Prior to 1994, the Regulations provided medical waivers for people with disabilities. The exceptions allowed by the Regulations were disabilities similar to blindness and deafness. No guidance was provided as to how the INS should determine eligibility for these waivers. Many INS officers used their discretion to limit disability waivers to only those cases in which a person was legally blind or clinically deaf.

So, in 1994, Congress passed a Technical Amendment, which specifically provided that people with developmental disabilities, mental and/or physical impairments, may also be eligible for a medical waiver. This Technical Amendment was left dormant until 1996 when the INS published its regulations in the Federal Register.

The first significant change involved the issue of who could certify medical waivers. While prior to 1996 the waivers were written by a medical professional with expertise in the area of disability, a Civil Surgeon (government-approved doctor) had to certify all medical waivers. Civil Surgeons were frequently placed in the position of having to certify disabilities outside of their area of expertise. Now, any medical doctor and clinical psychologist licensed to practice in the U.S. can certify a medical waiver as long as the disability is in his/her area of expertise.

Since that time, multiple internal INS memoranda have been written regarding the manner in which these modified regulations should be interpreted. Included in the memoranda are descriptions for writing the substantive portion of a medical waiver, discussion of the types of proof required to be shown with the waiver request, and comments concerning how a request for a waiver should be viewed by the INS.

The INS provided the recent substantive guidance to its officers regarding adjudication of a medical waiver request on April 7, 1999. This guidance included a method for presenting the substantive portion of the medical waiver in a three-part format.

The first part is the medical professionals exact diagnoses of the disability. If it is a mental disability or impairment, the doctor should include the DSM rating. This "exact diagnosis" should be descriptive. It can also focus on multiple findings if such findings exist, and the findings can show further impairment of the applicant from learning the English or the U.S. history/civics requirements.

The second part is a "relating section" i.e. how does this disability or impairment relate to the applicant's ability to learn. Symptoms of a disability can be used in this portion, as well as the disability itself, if its relation to the applicant's ability to perform is readily apparent.

As an illustration, consider an applicant who has been diagnosed with "Early Onset Alzheimer's" without an explanation of symptoms. This case may be denied, because there are different levels of symptoms in " Early Onset Alzheimer's" disease. However, an individual who is seventy years old, has no documented serious prior history of disability who presents a disability related to learning English as a second language or learning a second language combined with "age-related cognitive decline4" (both permanent but not likely to have been previously diagnosed and both directly related to cognitive memory functioning) would most likely have an approvable waiver with very little description needed by the doctor.

This brings us to the second problem in part two, when is too much not enough? If the diagnosis is described in too much detail or with an abundance of emphasis on memory loss, forgetfulness or general lack of understanding of the applicant's overall situation, the naturalization application can be denied.

The reason for this is the INS determines that the applicant is unable to demonstrate an understanding of the nature of the oath of allegiance. This is a requirement of all persons acquiring U.S. citizenship through naturalization.

Finally, the last part is the doctor's own conclusion as to whether the applicant is able to learn or demonstrate knowledge of the English and or U.S. history/civics requirements.

What Proof is Required to be Shown

Recent INS guidance provides that initially only the government form should be submitted without further documentation or proof of the disability. However, the INS can, and often does, request additional information and proof in the form of medical records, and history of diagnosis.

The Regulations require that the disability be permanent. "Permanent" is defined as either one already existing for twelve months or longer, or one that will exist for twelve months or longer. Medical records may be reviewed to determine how long the disability has existed.

If the INS doubts the veracity of a medical diagnosis, it may request a second opinion. Generally, if a second opinion is requested, an applicant may go to a doctor of his/her own choice for the re-evaluation. Many officers take the position that a medical report that does not meet the criteria when submitted cannot be amended, and a second opinion is always required. In very rare cases, where the INS suspects fraud, the officer reserves the right to direct the applicant to a doctor selected by the INS.

How the INS Receives a Request for a Medical Waiver

According to recent INS guidelines, a medical waiver should be filed with the application for naturalization. If the applicant fails to do so, one may be submitted at the time of the interview or re-interview.

The INS in most jurisdictions requires approval of medical waivers from the supervisors. This means that even in a jurisdiction that conducts swearing-in-ceremonies on the same day as the naturalization interview, the case will be held until the supervisor can review the medical waiver. A case can be held for as long as one hundred and twenty days without action by the INS. After that time the applicant may (at his/her own initiative) file in Federal District Court for Declaratory Judgment or a Mandamus action.

The regulations say that there is no separate process for approval of medical waivers and that it is incorporated into the overall naturalization process. However, if a deficiency exists with a medical waiver the examiner is required to notify the applicant before the process is completed and give him/her an opportunity to amend the waiver. This is especially important in cases where the deficiency is only procedural.

Conclusion

The process for obtaining citizenship for eligible applicants does not have to be a long or arduous task. Careful preparation, including accurate documentation and the distribution of information to doctors, are the keys to a successful naturalization application, even in a seemingly complex area like medical disabilities and waivers. The Law Office of Sheela Murthy, P.C. has an attorney on its staff who has handled complex naturalization applications successfully.