Basic Eligibility Requirements for Naturalization
Posted 15.Feb.2002; updated 19.Nov.2010

From time to time, the MurthyBulletin carries updated versions of articles first published years prior, on topics that continue to be relevant. Some of the advantages of becoming a U.S. citizen were discussed for readers in our recently-updated article, Benefits of Becoming a U.S. Citizen (08.Feb.2002; updated 22.Oct.2010). What follows is an explanation of the basic requirements for becoming a U.S. citizen by naturalization and some issues that may arise in the context of a naturalization case.

A number of criteria must be reviewed to determine if a person is eligible to apply for 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. The basic rule, however, is LPR and eighteen years of age. There are also limited exceptions to some of the other basic naturalization requirements. These exceptions are outside of the scope of this article.

Continuous Residence Requirement

In order to be eligible for naturalization, after LPR status has been obtained, one must be able to establish "continuous residence" in the United States 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 on marriage but were battered or abused by their spouses. With the exception of cases involving abuse, in order to be eligible for the three-year period based on marriage to a U.S. citizen, the applicant must be married and living in marital union with the U.S. spouse for the past three years and the spouse must have been a U.S. citizen for the past three years. (The marital union requirement generally means living together.) The three- or five-year period is referred to as the statutory period. The applicant must maintain a continuous residence in the United States from the time of filing the application through the oath ceremony.

Physical Presence

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

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

The second 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 requirement. 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 United States to apply for naturalization. Certain exemptions from this requirement include: military service abroad, certain employees working abroad who obtain approval to preserve their residency, and spouses of U.S. citizens working abroad. This requirement applies not only at the time of filing, but also through the interview and until the swearing in ceremony.

Third, trips that are longer than six months but shorter than one year in duration are presumed to break the continuity of residence. This legal presumption can be rebutted with evidence that the applicant did not abandon residence. The inquiry into whether residence was abandoned includes whether U.S. tax returns have been filed, whether the individual has maintained a permanent home in the United States, whether the individual has worked abroad, the reason for the absence, and family ties to the United States. This is in no way an exhaustive list and each case must be documented and argued on its own facts. The safest route is to limit trips outside the U.S. to less than six months in duration, if at all possible. This precaution eliminates the issue entirely. This requirement also is applicable until the swearing in ceremony.

Residence in the State

An applicant must establish residency in a specific state in the United States for a three-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 one is unable to establish residence in particular jurisdiction for the required period prior to filing the application, the USCIS will generally 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, which continues until the applicant is sworn in as a U.S. citizen. However, the USCIS 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 USCIS 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, the USCIS 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 document the disposition of those matters. Additionally, the applicant is subjected to fingerprinting for a background check to locate any criminal record. Conviction of certain serious crimes, such as murder or any other aggravated felony, 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 immigration law and crimes can be complex. An individual with a criminal record should 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/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/ren, evidence of provision of gifts / support in kind, documentation of provision of health insurance, evidence of the child/ren's visiting the applicant for extended periods, and affidavits from the individual 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. The parent of a child (or children) who does not reside with her/him should keep detailed records regarding support. Any support paid in cash, without receipts or proof of some type, is likely to 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 USCIS 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. Males who enter the United States after turning 26 years old are not required to register with the Selective Service.

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 him/her from filing. Bars include subversion and/or anarchism, meaningful membership in a communist party, certain desertion during a time of war, a person in removal proceedings or with an outstanding order of deportation, and a foreign national who applied for a waiver of selective service requirements based on not being a U.S. citizen.

Timeframes

It is necessary to meet all the above requirements at the time of filing the application and, for most, 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 USCIS officer's ordinary questioning.

Reading and writing ability is determined by a list of sample sentences that the USCIS has predetermined to meet the basic English requirement. The applicant must read and write one out of three sentences correctly. While the USCIS 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 USCIS made significant changes in the test content and procedures, effective October 1, 2008. See, New Naturalization Test and Eligibility for Waivers (05.Oct.2007). The USCIS has a list of one hundred test questions. MurthyDotCom also provides this list of sample study questions. The applicant will be tested in English on ten questions out of the list of one hundred. Generally, these questions are selected at random. Six out of ten questions must be answered correctly in order to pass the test. Study materials for the English and civics tests are available on the USCIS WebSite.

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 reapplying for naturalization. Certain applicants may be excused from the English test based on age and length of time as a U.S. permanent resident. Other applicants may be excused from the English and civics tests, based on a qualifying disability.

Conclusion

For many LPRs, U.S. citizenship is an attainable goal. For some, the naturalization process can be fairly straightforward; for others, meeting the requirements can be quite complex. If there are questions of eligibility for naturalization, and other considerations, it is best to consult with a qualified, experienced immigration attorney.