Over the years, we have handled many green card applications for clients. As part of that process, if there are no significant issues with their cases, we generally recommend that clients eventually becomes U.S. citizens or “naturalize.” With the Trump administration’s crackdown on both illegal and legal immigration, we have understandably received numerous inquiries from people interested in naturalizing. Some of those inquiring have been permanent residents for a few years, while some have been permanent residents for over 30 years. The below sets forth some basic considerations about becoming a U.S. citizen. USCIS publishes guidance on naturalization, and the below is designed to highlight some basics and some common issues.
The difference between a permanent resident and U.S. citizen
First, some people are under the mistaken impression that they become a citizen when they get a green card, or they use the terms interchangeably. That is not accurate, and there are significant differences between U.S. permanent residents and U.S. citizens. Lawful Permanent Residents (“LPRs”), or green card holders, possess many of the rights of a U.S. citizen, with some of the important exceptions being: 1) the right to vote; 2) possible deportation; and 3) the amount of time they can spend outside of the U.S. U.S. citizens can generally vote, they cannot be deported unless their citizenship is rescinded for some reason, and they can spend as much time outside of the U.S. as they choose. By contrast, permanent residents cannot vote, they remain subject to possible deportation if they commit certain serious crimes, and they must reside in the U.S. the majority of the time (or otherwise take steps to preserve their permanent resident status). Permanent residents also must renew their green cards, which are typically issued in 2-year or 10-year increments. There are other differences, including whether and when a person is eligible to sponsor a family member for permanent resident status, and some employment opportunities that may be limited to U.S. citizens. Most recently, the current administration has focused on receipt by permanent residents of any means tested public benefits (i.e., welfare). That is a new development, but is also something that should be considered before applying to become a U.S. citizen.
Eligibility for naturalization
To naturalize, permanent residents must meet a number of eligibility requirements, not all of which are covered in this bulletin. First, they must have been permanent residents for the requisite period. For most applicants, they are not eligible to naturalize until 5 years have passed from the date they became a permanent resident, and that date is generally reflected on the green card itself. For those applicants who gained their permanent resident status through marriage to a U.S. citizen with whom they continue to reside, the 5-year wait is shortened to 3 years. Significant time spent outside of the U.S. during the eligibility period can essentially prolong the eligibility period.
Other requirements include being of good moral character, spending the requisite time in the U.S. while a permanent resident, paying taxes, etc. A review of the N-400 application gives a good idea of the eligibility requirements, as its questions tend to mirror those requirements to a large degree. See N-400 Application https://www.uscis.gov/n-400. Generally speaking, during the 3-year or 5-year eligibility period, applicants must have spent at least one half of their time physically present in the U.S. As discussed below, for folks who regularly travel outside of the U.S., that can be an issue that trips them up during the process.
The naturalization process
Assuming permanent residents have clean records and have otherwise satisfied the basic eligibility requirements, the process is fairly straightforward, at least as compared to other immigration processes.
• File Form N-400 and appropriate fee with USCIS;
• Attend biometrics appointment scheduled by USCIS;
• Attend N-400 interview/examination as scheduled by USCIS; and
• Assuming a successful interview, attend an oath ceremony as scheduled by USCIS.
USCIS provides study guides for the civics test, and to my recollection all of our clients have studied and passed the civics exam, many with flying colors. Although processing times vary widely from year to year and state to state, in Maine, the process is currently taking approximately 5 to 7 months from start to finish. A fair number of applicants are fine going about this process on their own, but we do recommend that they at least consult with someone before filing their applications.
Some other factors prospective applicants should consider include any tax consequences naturalizing may have for them, and what becomes of their current citizenship. Many countries permit their nationals to hold what is known as dual nationality, meaning they can be a citizen of their home country and the U.S. at the same time. Not all countries permit this however. Some countries, such as Germany for example, have a special process to retain citizenship while naturalizing in the U.S. That is something that must be considered before applying for naturalization. Other considerations include whether any condition on permanent resident status has been successfully removed before naturalization.
Over the years, aside from typical mistakes on the application itself, we have seen a number of fairly common mistakes from people who applied on their own, including:
• Applying too early. Applicants are often anxious to file, but USCIS will deny the application if filed too soon;
• Not satisfying the residency or physical presence requirements;
• Not having paid taxes as required;
• Claiming non-resident alien status on tax returns; and
• Thinking a “minor crime” will not be an issue.
We have been to naturalization interviews where the USCIS officer and the applicant were literally counting the days spent in the U.S. on a piece of paper to make sure that eligibility requirement was met. Thankfully, we had already done the counting and it was accurate, but the interview is not the stage where you want to figure that out. The two italicized issues above can present significant issues for applicants beyond possible denial of their applications, including possibly affecting their permanent resident status. For example, if an applicant files an N-400 but has spent years outside of the U.S. without having taken steps to preserve permanent resident status, they could actually abandon that permanent resident status. Needless to say, that could present a significant issue for them.
Also, don’t let the liberalization of marijuana laws at the state level fool you. Possession of marijuana is still a crime under federal law and – guess what – USCIS still goes by federal law and there is and always has been little to no tolerance for drug offenses. Remember, applicants need to disclose any criminal offenses, no matter how minor they may perceive them to be or when they occurred, and USCIS runs a background check on all applicants.
Enough of the doom and gloom. As noted above, if you successfully make it to the end of the process, you will attend one of the oath ceremonies conducted by USCIS in federal court or elsewhere. Those ceremonies are one of the few bright lights in the current immigration environment, and memorable experiences for the new citizens and those in attendance.
Please contact Matt Raynes at our Bangor, Maine office with questions.
This paper is provided as general information, and is not a substitute
for legal or other professional advice.