Naturalization and Pitfalls

Published on 30 June 2014 Hits: 999

In average case, preparing an application for naturalization is not difficult. The basic requirements are straightforward.

You may apply for naturalization if you are at least 18 years of age, are a lawfully admitted and continuous permanent resident, and have satisfied the 5-year/30-month (or 3-year/18 month in a USC spouse case) residency requirement. You must also be a person of good moral character and show the examiner your knowledge of U.S. history and government.

Then, when does naturalization become confusing or even dangerous?

There are other important considerations that are less known to the public.

First, USCIS uses naturalization as an opportunity to go over the applicant’s prior immigration history. For example, if you received your green card based on employment (no matter how long ago), you may be required to show that you worked for your sponsor after the grant of permanent residency. As an immigration lawyer, I see many applicants come to us in panic after they were asked at the naturalization interview for such evidence. Similarly, if your green card was based on a marriage to a U.S. citizen and you are no longer married to the same spouse, the circumstances must be explained.

Your application does not get denied just because you did not work for your sponsor company or you divorced your spouse early in your marriage. In both cases, your intent is important, and so the circumstances must be explained, so it would be wise to prepare some evidence to prove your intent.

Also, criminal history is important. There are two questions that are frequently asked regarding this requirement. Some people have expunged criminal records and wonder if they need to disclose their expunged records to the USCIS. Yes, all criminal arrests (even if you were not charged or convicted) and convictions (even if your record was cleared or expunged) must be disclosed.

Other people ask if they need to disclose traffic tickets. Note that unless a traffic incident was alcohol or drug related, you do not need to submit documentation for traffic fines and incidents that did not involve an actual arrest if the only penalty was a fine less than $500 and/or points on your driver’s license.

Please note that some crimes make you permanently ineligible for naturalization. For example, if you have been convicted of murder, at any time, or any other aggravated felony, on or after November 29, 1990, you may not establish good moral character.

Other offenses may be temporary bars to naturalization. Temporary bars prevent an applicant from qualifying for citizenship for a certain period of time after the offense. If you have been arrested or convicted of a crime, you must submit a certified copy of the arrest report, court disposition, sentencing, and any other relevant documents, including any countervailing evidence concerning the circumstances of your arrest and/or conviction. You must complete any probation, parole, or suspended sentence before you apply for naturalization.

Please note that if you have committed certain serious crimes, USCIS may decide to remove you from the United States. Therefore, it is not only futile but also dangerous to make an application for naturalization in this circumstance.

Now let’s move on to more technical issues.

Some people ask if they need to renew their Permanent Resident Card before applying for naturalization. If you apply for naturalization 6 months or more before the expiration date on your Permanent Resident Card (“Green Card”), you do not have to apply for a new card. That is, if you apply for naturalization less than 6 months before the expiration date on your Permanent Resident Card or your card has already expired, then you must renew your card.

Another technical requirement that many applicants are unaware of is a residency requirement in a USCIS District or State. Applicants, with special exceptions, must live in the USCIS district or State in which they are applying for at least 3 months before applying.

As for students, who are financially dependent on their parents, they may apply for naturalization either where they go to school or where their family lives.

Finally, what about having long trips abroad? Even if you meet the 5-year/30-month (or 3-year/18 month) physical residence requirements, you still need to meet continuous residence requirement.

“Continuous residence” means that the applicant has maintained residence within the United States for the required period of time above and extended absences outside of the U.S. may disrupt an applicant’s continuous residence. It means physical presence in the US before these absences do not count towards 5 year (or 3 year) physical residence.

More specifically, if you leave the United States for more than 6 months, but less than 1 year, you have broken or disrupted your continuous residence unless you can prove otherwise. Proving otherwise requires providing evidence that you (and your family) continued to live, work and/or kept ties to the United States, such as: an IRS tax return “transcript” or an IRS-certified tax return listing tax information for the last 5 years (or for the last 3 years if you are applying on the basis of marriage to a U.S. citizen) or rent or mortgage payments and pay stubs.

If you leave the United States for 1 year or more, you have disrupted your continuous residence even if you have a Re-entry Permit. If you leave the country for 1 year or longer, you may be eligible to re-enter as a Permanent Resident if you have a Re-entry Permit. But none of the time you were in the United States before you left the country counts toward your time in continuous residence. If you return within 2 years, some of your time out of the country does count.

In fact, the last 364 days of your time out of the country (1 year minus 1 day) counts toward meeting your continuous residence requirement. That means, upon return, you may become eligible for naturalization in 4 years and 1 day.

In conclusion, naturalization is overall a straight forward process for most permanent residents. However, due to a combination of requirements and technical details, applicants who travel or move around a lot and go through some unusual changes in life may experience find naturalization confusing and even impossible. I hope through this article, some of the questions can be answered and more applicants will be better prepared.

Mario Guevara-MartinezJune 30, 2014