A Basic Primer On Naturalization Issues

Posted on October 25th, 2012, by Jennifer Varughese in Immigration Law. Comments Off on A Basic Primer On Naturalization Issues

CitizenshipThe naturalization of a newly-minted U.S. citizen is cause for much celebration. The road to naturalization, however, can be fraught with problems, some of which can even result in revocation of one’s underlying green card status. Below, I have highlighted three areas that all applicants should carefully consider.

Filing Date

If you obtained a green card through marriage to a U.S. citizen, to be eligible for naturalization you must have been a lawful permanent resident for at least 3 years. You must also reside with your spouse in a bona fide marital relationship during that time, and that spouse must have been a U.S. citizen during that time as well. The naturalization form can be submitted after 2 years, 9 months.

In all other cases, to be eligible for naturalization you must have been a lawful permanent resident for at least 5 years. In these cases, the naturalization form can be submitted after 4 years, 9 months. Processing times at various field offices vary, however, so if your naturalization interview is scheduled prior to completion of 5 years as a Resident, you will not be permitted to complete the process.

If you obtained a green card through Asylum, you also have to wait 5 years to be eligible for naturalization. The one year in Asylee status prior to the green card, however, counts towards the 5-year period.

Criminal Convictions

A naturalization applicant must demonstrate good moral character during the statutory period (3 or 5 years, as discussed above). This does not mean, however, that a USCIS officer cannot and will not look beyond the statutory period. If you have “ever been arrested, cited, or detained by any law enforcement officer… for any reason,” you must disclose this on the naturalization form. This applies even if you did not disclose the incident on your previous green card application. Failure to disclose may be grounds to deny the naturalization application and start deportation proceedings.

For any criminal convictions, both before and during the statutory period, a determination must be made as to whether the offense is a Crime Involving Moral Turpitude (CIMT) and/or an Aggravated Felony. Either a CIMT or an Aggravated Felony could have implications for not just the naturalization application but for the underlying green card as well.

Continuous Physical Presence

To be eligible for naturalization, you must have spent at least half of your 3 or 5 years as a lawful permanent resident physically in the United States.

In addition, the duration of any single trip abroad must be taken into account. With limited exceptions, an absence of over 1 year will disrupt the continuous residency period– creating an automatic presumption that you “abandoned” your green card status. An applicant who would have to satisfy the 5-year statutory residence period would have to wait 4 years plus 1 day after returning from such a trip (of 1 year or more) in order to file an application for naturalization. An applicant who would have to satisfy the 3-year statutory residence period would have to wait 2 years plus 1 day after returning from such a trip in order to file an application for naturalization.

An absence from the United States of between 6 months and 1 year, on the other hand, would create a “rebuttable” presumption that you abandoned your green card status. Meaning, a USCIS officer would place the burden on you to show that you did not disrupt the continuity of permanent residence. Factors taken into account in that evaluation include: (a) termination of employment in the U.S., (b) where immediate family members resided, (c) whether the person maintained full access to a home in the U.S. and (d) whether the person obtained employment abroad.

Finally, it is important to note that the continuous residency requirement must be met as of the date of filing, not as of the date of the naturalization interview.

The above is not a substitute for legal counsel on these and other issues that may arise during the naturalization process. The immigration lawyers at Livesay & Myers, P.C. have extensive experience with naturalization cases, and stand ready to assist you with the process. We represent clients in Manassas, Fairfax and throughout Northern Virginia, Maryland and the District of Columbia. For a specific analysis of your case, contact us to schedule your initial consultation with an experienced immigration attorney today.

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Jennifer S. Varughese is the lead immigration attorney at Livesay & Myers, P.C. Her immigration law practice covers both family-based and employment-based green cards, temporary visas, adjustment of status for those already present in the country, citizenship, and deportation cases. Ms. Varughese has been recognized for her work in the area of the immigration consequences of criminal convictions.

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