Chapter 27 - § 27.2 • NATURALIZATION: ADMINISTRATIVE GRANT OF U.S. CITIZENSHIP
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If a person is not a U.S. citizen by operation of law, naturalization is the avenue for obtaining U.S. citizenship. The statute defines naturalization as the "conferring of nationality of a state upon a person after birth, by any means whatsoever."28 The U.S. Constitution, as interpreted in legal precedent, defines naturalization even more broadly to include any form of citizenship other than that conferred at birth inside the United States.29 For 200 years, between 1790 and 1990, courts had exclusive jurisdiction to naturalize non-citizens. In the Immigration Act of 1990,30 Congress established the current administrative naturalization process and vested authority with the attorney general, but courts retain jurisdiction to review naturalization applications that have been delayed31 and to review naturalization denials following administrative rehearing. This chapter distinguishes naturalization as the administrative process prescribed in the INA statute and regulations.32
Section 27.2.1 of this chapter first introduces eligibility standards and the administrative process that a U.S. citizen parent may use to apply for a certificate of citizenship for his or her child who did not derive citizenship otherwise at birth or after birth. Then, §§ 27.2.2 through 27.2.7 outline the benefits and risks of naturalization and provide an overview of the eligibility requirements for a prospective applicant. Section 27.2.8 identifies strategic considerations to ensure that a prospective applicant makes a well-informed decision in choosing to file or not to file for naturalization. Section 27.3 and its subsections focus on procedures in the application process, summarizing what to expect and plan for at each stage, from preparation and filing of the application to the administration of the oath.
§ 27.2.1—Application For Certificate Of Citizenship For Child Residing Abroad: INA § 322 (8 U.S.C. § 1433)
Before 1994, a U.S. citizen parent whose child had not derived U.S. citizenship could apply for naturalization for that child. Since INA § 322 was revised in 1994, a U.S. citizen parent now files for a certificate of citizenship for a child who has not derived citizenship otherwise. The procedures under INA § 322 are technically a naturalization process because U.S. citizenship is granted through approval of an administrative application and not through automatic vesting, i.e., derivation. However, children under the age of 18 do not apply for naturalization using Form N-400, rather the U.S. citizen parent applies for a certificate of citizenship on the child's behalf using Form N-600K, Application for Citizenship and Issuance of Certificate under Section 322.33
A child of a U.S. citizen who did not acquire citizenship at birth abroad or derive it through his or her parent(s) may obtain a certificate of citizenship upon application of the U.S. citizen parent if:
• One parent is a USC
◦ Who has previously been in the United States five years, two of which were after that parent's 14th birthday; and• The child34 is
◦ Who has legal and physical custody of the child; and
◦ Temporarily physically present in the United States pursuant to lawful admission35 and is maintaining status;
◦ Under 18; and
◦ Residing outside the United States.36
The certificate of citizenship is also available for people whose U.S. citizenship vested by any means other than by birth in the United States,37 including:
• U.S. citizens born in outlying possessions of the United States;
• U.S. citizens born in Panama;
• Persons who derived U.S. citizenship when either one or both parents naturalized; and
• Women who derived citizenship through their spouses.
For these persons who are already U.S. citizens by operation of law, Form N-600 is filed with USCIS with evidence of U.S. citizenship attached.
A child may obtain a certificate of citizenship under INA § 322, even if his or her parent is no longer alive, if the citizen parent died within five years of filing the application and there is a citizen grandparent or legal guardian. An adopted child may obtain a certificate if he or she was adopted prior to age 16, unless he or she is the natural sibling of an adopted child and was adopted before turning 18, and he or she meets all of the requirements for an adopted child or orphan.38 For a child born out of wedlock, rules regarding legitimation may have to be considered, or for children whose parents have divorced, the terms of custody will be a consideration.39
Both the administrative naturalization process for children under INA § 322 and the process of requesting documentary proof of vested U.S. citizenship in the form of a certificate of citizenship include an examination of the applicant(s) by an immigration service officer at a scheduled interview, at which time the applicant may be represented by counsel. If the applicant child is outside the United States, the U.S. consulate should issue a B-2 visa to allow the child to come to the United States to be sworn in as a USC.40 In cases of a child who is too young or a person who cannot understand the contents of the oath due to advanced age, sickness, or disability, the oath may be waived.41 If the application is approved, the applicant must be inside the United States and take the oath of citizenship to receive the certificate, whether in person or by certified mail. The certificate will not be delivered outside the United States.42 If the application is denied, administrative appeal to the Administrative Appeals Office (AAO) is available.
§ 27.2.2—U.S. Citizenship Rather Than Permanent Residence: Knowing The Implications For The Rest Of A Person's Life
United States laws differentiate the rights and protections of U.S. citizens and those rights and protections afforded lawful permanent residents (LPRs). A naturalized U.S. citizen has the right to:
• Vote in U.S. federal, state, and local elections;
• Hold public office;
• Apply for certain U.S. government jobs;
• Have recognition of certain additional family relationships for the immigrant petition process: parents, married adult children, siblings;
• Have recognition of spouses, minor children, and parents as immediate relatives for the immigrant petition process; immediate relatives are not subject to years-long waits under the back-logged family priority visa categories;
• Have advantages in qualifying for government benefits;43
• No longer be subject to U.S. immigration laws, including:
◦ Travel without restrictions on the amount of time spent outside the United States for fear of potentially abandoning his or her lawful permanent residence status;
◦ Protection from deportation or removal from the United States.
A person considering naturalization has much to gain, but must understand and consider potential consequences of obtaining U.S. citizenship, including:
• Possibly having to give up citizenship from another country;44 and
• Possibly facing restrictions on property ownership in his or her native country.
The applicant must understand and accept the cost and effort required for the process, including:
• Cost of the application process; and
• Preparation and study time for the English language and history and government components of the application process.
The applicant must be well informed of the risks before submitting the application, including:
• Eligibility issues and potential bars to naturalization;
• Denial of the application;
• Commencement of removal proceedings, including cost of defense;45 and ultimately,
• Potential removal/deportation.46
Lawful permanent residents have been afforded more rights and greater protections, such as the right to due process of law, than other foreign nationals, such as nonimmigrants.47 However, a permanent resident can lose his or her residence status as a result of the abandonment of residency; inadmissibility/exclusion following return from travel abroad; and removal/deportation, which can be instituted as a result of certain criminal conduct, including but not limited to firearms or drug-related offenses, among many others.48 A lawful permanent resident remains vulnerable to changing and increasingly restrictive and punitive immigration laws. Immigration practitioners have seen an erosion of immigrant rights over recent years in the application and interpretation of immigration reform laws of 1986, 1990, and 1996.49 There is no constitutional prohibition on the application of ex post facto laws, nor is there a statute of limitations on the immigration consequences of inadmissible or deportable acts. What might not have been inadmissible or deportable conduct in the past may be made so by Congress changing the immigration laws. Even the application of existing laws may become tougher, stricter, and less favorable to immigrants through their execution and interpretation by the agencies in administrative application processes and proceedings, and by subsequent decisions rendered in administrative appeals and litigation in the federal courts.
§ 27.2.3—Overview Of Naturalization Eligibility: A Checklist50
An applicant must demonstrate eligibility for naturalization by a preponderance of the evidence.51 The general requirements for naturalization include:
• Be 18 years of age;...
• Be a lawful permanent resident for at least the statutorily required period of time, generally five years unless a special rule applies;
• Be physically present in the United States for half of the statutorily required period of time as a permanent resident;
• Have maintained lawful permanent residence continuously for the required time;
• Have resided for at least three months in the USCIS jurisdiction where the naturalization will be filed;
• Be able to understand and speak English and write and read basic English, including familiarity with vocabulary related to U.S. history and government and ability to understand and communicate about the contents
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