Basic Eligibility Requirements for Naturalization
Posted Feb 15, 2002

Last week, the MurthyBulletin discussed some of the advantages of becoming a U.S. citizen in Benefits of Becoming a U.S. Citizen, available on MurthyDotCom. As promised, we will now explain the basic eligibility requirements for citizenship and some issues that may arise in the context of a naturalization case.

There are a number of criteria that must be reviewed to determine if a person is eligible to apply for United States (U.S.) citizenship. As a starting point, the applicant must be a Legal Permanent Resident (LPR), and at least eighteen years old. There are limited exceptions to this rule, including honorable service in the U.S. military during a time of war or declared hostility. However, the basic rule is LPR and eighteen years of age.

CONTINUOUS RESIDENCE REQUIREMENT

In order to be eligible for naturalization, after LPR status has been obtained, the individual must be able to establish "continuous residence" in the U.S. for a period of five years before filing the application. This period is reduced to three years for individuals who are married to U.S. citizens or who obtained LPR status based upon marriage but were battered or abused by their spouses. With the exception of abuse in order to be eligible for the three-year period based upon marriage, the applicant must be "living in marital union" with the U.S. citizen spouse. The five- or three-year period is referred to as the "statutory period."

PHYSICAL PRESENCE

Continuous residence does not mean that the applicant must physically remain in the U.S. for the entire statutory period. There are essentially three requirements.

The first of these requirements is that the applicant must be physically present in the U.S. for at least half the statutory five- or three-year period in order to be eligible for naturalization. To determine eligibility, the applicant needs to review the appropriate five- or three-year period immediately preceding his or her application and count the number of days s/he was physically in the U.S. The number of days spent in the U.S. must equal at least one half of the total days in the five- or three-year period in order to be eligible to naturalize.

The next requirement is that no individual trip outside of the U.S. can be of one year's duration or greater. Trips of this duration are considered to automatically break the physical presence requirement. A reentry permit does not overcome this problem. In the event that the applicant was outside of the U.S. for one year or more, s/he would have to wait at least four years and one day from the time of return to the U.S. to apply for naturalization.

Third, trips that are over 6 months in duration are presumed to break the continuity of residence. This legal presumption can be rebutted with evidence that the applicant did not abandon his or her residence. The inquiry into whether residence was abandoned will include whether U.S. tax returns were filed, whether the individual maintained a permanent home in the U.S., whether the individual worked abroad, the reason for the absence, and family ties to the U.S. This is in no way an exhaustive list and each case must be argued on its own facts. The safest route is to limit trips outside the U.S. to less than six months, if at all possible. This precaution will eliminate the issue entirely.

RESIDENCE IN THE STATE

The applicant must establish residency in a specific state in the U.S. for a 3-month period in order to file an 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. If a person is unable to establish physical presence in a state for a period of 3 months prior to the filing of an application the INS can deny the case.

GOOD MORAL CHARACTER

Each applicant for naturalization must establish that s/he is a person of good moral character during the statutory period. However, the INS is not limited to reviewing only the statutory period to determine the individual's character. If the person has a criminal record or any other character problem that precedes the statutory period, the INS will determine whether there has been rehabilitation or if the prior acts should be considered relevant to the current moral character of the applicant. Good moral character evaluations are made on a case-by-case basis. In its regulations INS states that it will take into account "the standards of the average citizen in the community of residence."

The most obvious moral character issue is a criminal record. The naturalization form requires that the applicant reveal all arrests and charges and the disposition of those matters. Additionally, the applicant is subjected to fingerprinting for an FBI background check to locate any criminal record. Conviction of certain serious crimes, such as murder, bars naturalization permanently. Other crimes and terms of imprisonment preclude naturalization only if they occur during the statutory period. In those cases, it may be possible to naturalize if one can establish rehabilitation and good moral character. The issues regarding crimes can be complex. An individual with a criminal record may wish to seek competent legal advice prior to making an application for naturalization.

Another issue with respect to good moral character is willful failure to support dependents. If an applicant has a minor child (or children) who does not live with him or her, it is necessary to prove that s/he is providing adequate financial support. Proof may be in the form of a court order for child support and documentation of required payment, cancelled checks or money orders for support of the child, evidence of provision of gifts / support in kind, documentation of provision of health insurance, evidence of the child's visiting the applicant for extended periods, and affidavits from the person with whom the child lives, attesting to receipt of adequate support. The adequacy of the proof is subject to the discretion of the officer reviewing the case. An individual with a child (or children) who does not reside with her or him should keep detailed records regarding support. Support paid in cash, without receipts or proof of any type, will cause problems when applying for naturalization.

An applicant subject to the Selective Service (military draft registration) requirements must provide his/her registration number. Knowing and willful violation of the registration requirements during the statutory period establishes lack of good moral character. Permanent resident and U.S. citizen men between 18 and 26 years of age are required to register for the draft. If an individual fails to register, he will have to convince the INS that he did not know of the requirement. If he is still within the eligible age limit he will need to register immediately and, hopefully, prior to the naturalization interview. If the failure to register was outside the statutory period, the INS has stated that the person "should ordinarily be found eligible for naturalization."

STATUTORY BARS

Once it is established that a person is eligible to file for naturalization based on the above, the next question is whether any statutory bars prevent the person from filing. Bars include subversion / anarchism, meaningful membership in a communist party, certain deserters during a time of war, persons in removal proceedings or with an outstanding order of deportation and an alien who applied for a waiver of selective service requirements based on not being a U.S. citizen.

TIME FRAMES

It is necessary to meet all the above requirements at the time of filing the application and during the process, through to the oath ceremony. The oath ceremony can occur the same day as the naturalization interview or several months later. Therefore, the applicant needs to be conscious of travel and other requirements until s/he is actually sworn in as a U.S. citizen.

REQUIREMENTS AT THE INTERVIEW – ENGLISH LANGUAGE

The applicant must be able to demonstrate an understanding of basic English at the time of the interview. A basic understanding includes reading, writing, and speaking in English. Speaking is determined during the interview process through responses to the INS officer's ordinary questioning.

Reading and writing ability is determined by a list of sample sentences that the INS has predetermined to meet the "basic English" requirement. The sentences are presented to the applicant in the form of an oral statement. The applicant responds by writing the information on a form provided. While the INS officer has discretion in this matter, usually every word must be spelled correctly in at least one sentence.
 
REQUIREMENTS AT THE INTERVIEW – CIVICS / HISTORY
 
The applicant must be able to demonstrate knowledge of U.S. history / civics. The INS has a list of one hundred test questions. The applicant will be tested in English on ten questions out of the one hundred. Generally, these questions are selected at random. Seven out of ten questions must be answered correctly in order to pass the test.

An applicant who fails the English or U.S. history / civics requirement may take the test a second time within ninety days of the first interview without re-applying for naturalization.

Our next MurthyBulletin article in the series will be on exceptions to the English and Civics requirements for naturalization.