Costa & Riccio, LLP

For many years, the power to naturalize was delegated by Congress to the Judicial Branch of the government: the State and Federal Courts. Citizenship was granted by the authority of the Court; for this reason it was referred to as “judicial naturalization”.

The Executive Branch (i.e. the Attorney General and the INS) was responsible for processing applications, investigating the qualifications of applicants for naturalization, and making a recommendation to the Court in each case. Of course, the recommendation carried a great deal of weight and for most applicants the recommendation of INS was for all intents and purposes final.

An “Application to file a Petition for Naturalization” was submitted to INS. The applicant was interviewed by an INS Examiner to assess his eligibility. This was referred to as the “preliminary investigation”. At the time of the interview, which was generally conducted in the offices of the State or Federal Court, the applicant filed a “Petition for Naturalization” with the Court.

If the applicant met all legal requirements, the Examiner so endorsed the Petition with a favorable recommendation and the applicant was instructed to wait for notice of the “Final Hearing”, or swearing-in ceremony. At this time the oath of allegiance was administered by a Judge, citizenship was officially granted, and the applicant was issued a Certificate of Naturalization.

If the Examiner deemed there were any “correctable” deficiencies at the interview, the Petition would be filed in the Court, the case would be continued, and the applicant would be given an opportunity to overcome the deficiencies.

If the Examiner believed the applicant was ineligible to citizenship, the deficiencies would be pointed out to the applicant. If he agreed, no Petition would be lodged in the Court and the matter would be closed.

If the applicant disagreed, he was entitled to file the Petition with the Court notwithstanding the unfavorable decision of the Examiner. Then, he would have an opportunity to persuade INS to further consider a favorable recommendation, and failing that would have the right to a full “de novo” hearing before the Judge.

Very few cases actually reached this stage. Most applicants either convinced INS to make a favorable recommendation, or elected to withdraw or discontinue their Petitions voluntarily. In most cases, it was simply a matter of waiting for an additional period of time to elapse before eligibility was established.

The Immigration Act of 1990 dramatically changed these procedures and implemented what is known as Administrative Naturalization. Now, authority to naturalize is vested directly in the Attorney General and delegated to the INS. This is intended to expedite and streamline the process, and to reduce backlogs throughout the country.

At the outset the procedure is similar to the old system, an Application for Naturalization is filed with INS. The applicant is called for an interview with an INS Examiner. If eligible in all respects, the Application is approved. The applicant is then scheduled for a ceremony to take the required oath of allegiance to the U.S. and to be issued the Certificate.

The role of the State and Federal Courts is now limited to administering the oath of allegiance, but only if the Court chooses to exercise this option and agrees to do so within forty-five days. Otherwise, the oath is administered directly by the INS in ceremony it conducts.

Where previously INS could only recommend a denial to the Court, it can now issue a formal denial of an application. There is a new procedure for an administrative appeal of a denied application. Eventually, a persistent applicant can still have the matter heard in Court.

The basic eligibility requirements for naturalization have been in place for many years and remain unchanged by the Immigration Act of 1990. The “general requirements” for naturalization are as follows:

• Admission to the U.S. as a Lawful Permanent Resident;
• Eighteen years of age;
• Continuous residence in the U.S. for at least five years immediately preceding the filing of the application and after admission for permanent residence (the “statutory period”);
• Physical presence in the U.S. for at least fifty percent of the time during the statutory period (i.e. thirty months);
• At least three months residence in the state or INS district where the application is filed;
• Good moral character during the statutory period;
• Ability to read, write, speak, and understand the English language (unless exempt from this requirement);
• Knowledge and understanding of the fundamentals of U.S. government and history (the “civics” requirement);
• Attachment to the principles of the Constitution and “well disposed to the good order and happiness of the U.S.”;
• Willingness to take the oath of allegiance to the U.S. without mental reservation;
• Intention to reside permanently in the U.S.

There are “special requirements” for naturalization of certain classes of persons, such as members of the armed forces, U.S. government employees, and Filipino war veterans. The most important special class are the spouses of U.S. citizens.

A spouse of a U.S. citizen is eligible for naturalization if he/she meets all the above requirements except that:

• the required length of continuous residence is shortened to three years;
• the minimum physical presence requirement consequently becomes eighteen months rather than thirty.

This special treatment is accorded since Congress believed that such persons, living in close proximity to a U.S. citizen, are ordinarily assimilated into our society more quickly.

In order to qualify for this special treatment the following conditions must be satisfied:

• the marriage must have occurred more than three years ago;
• the spouse must have been a U.S. citizen for the entire three years;
• the parties must have been living in “marital union” throughout.

It is not necessary that the applicant have acquired LPR status on the basis of the marriage. He/she may have been granted LPR status based upon an employment-based visa petition, and later married a U.S. citizen. Three years after the marriage, or five years after becoming an LPR, whichever comes first, he/she may apply for citizenship.

One of the most generous provisions of the naturalization laws benefits the spouse of a citizen of the U.S. where the U.S. citizen is temporarily employed abroad with a qualifying organization. The citizen spouse must be:

• An employee of the U.S. government, an American institution of research, a public international organization of which the U.S. is a member, or an American company: or he/she must be engaged as a missionary or religious worker;
• The applicant must have been admitted to the U.S. as a Lawful Permanent Resident;
• There is no required period of continuous residence or physical presence in the U.S. subsequent to admission as an LPR.

In other words, a qualified applicant can seek naturalization immediately upon obtaining LPR status!

The other general requirements of the law (English language, moral character, etc) must still be satisfied.

Since Lawful Permanent Resident status is the foundation for naturalization, it is crucial to remember two related concepts:

• As part of the naturalization process, the INS Examiner is trained to review the circumstances under which LPR status was obtained, no matter how long ago it occurred. If subsequent events as reflected in the application reveal that the applicant may not have been entitled to LPR status, the matter may be referred for investigation and possible deportation proceedings;
• Even if LPR status was clearly obtained properly, the Examiner will look for evidence of subsequent abandonment of status; once again this could result in deportation proceedings.

Consequently, all applicants should carefully consider whether coming forward with a naturalization application will set in motion a process to revoke or terminate LPR status.

A fundamental concept in naturalization law is that a prospective applicant interrupts the “continuity” of his residence for naturalization purposes in the following circumstances:

• By remaining abroad for a continuous period in excess of twelve months (unless “extended absence” benefits are sought and granted). Such an absence conclusively interrupts continuity, regardless of extenuating circumstances-even if the applicant has a valid Reentry Permit.

By remaining abroad for a continuous period in excess of six months, unless he/she convinces the INS examiner that the absence was indeed temporary in nature. Evidence that the applicant did not disrupt the continuity of residence in this situation might include proof that:

• the applicant did not terminate employment in the U.S.;
• the applicant’s immediate family remained in the U.S.;
• the applicant retained full access to his “abode” in the U.S.;
• the applicant did not obtain employment abroad.

Other relevant documents and information can be also considered. The fact that the applicant is not deemed to have abandoned LPR status and is still considered a lawful resident DOES NOT necessarily mean that continuity of residence for naturalization purposes is maintained.

Certain LPR’s who are to be employed abroad for an extended period of time may obtain special permission to remain abroad for a continuous period in excess of twelve months without interrupting the continuity of residence. Such a person must:

• Be a Lawful Permanent Resident;
• Be an employee of the U.S. government, an American institution of research, a public international organization of which the U.S. is a member, or an American company: or he/she must be engaged as a missionary or religious worker;
• Have at least one year continuous residence and physical presence in the U.S. subsequent to admission as an LPR;

The application is made on Form N-470 accompanied by a letter from the employer and a filing fee. The application should be filed before departing from the U.S., but can be filed after departure providing the one year has not yet lapsed.

Approval of the application protects only the continuity of residence; it does not preserve physical presence, except in the case of government employees and missionaries.

Thus, an employee of a U.S. company temporarily posted abroad, who will return to the U.S. at least once per year, may not clearly benefit from this application, though it still may be prudent to file one.

An applicant submits Form N-400, a copy of the “green card”, three color photographs, a $320.00 filing fee, along with a $70.00 fingerprinting fee to the INS Service Center having jurisdiction over the applicant’s place ’of residence by mail. Generally, no supporting documents need be furnished. Please note that these fees often change, and should be confirmed by the applicant prior to submitting an application.

The application may be submitted as much as three months (but no more than three months!) before the five-year or three year residence period is satisfied.

Within one or two months INS will issue a receipt. At some point thereafter (the timing is impossible to predict) INS will issue an appointment notice for the required fingerprinting. Then an interview notice will follow.

The statutory period will be calculated backwards from the date of filing of the Application, except that if the Application is filed during the three month “window” before eligibility is reached, it will be calculated backwards from the date of the interview. This is a crucial distinction for applicants who have been outside the U.S. for extended periods of time.

All interviews for residents of Massachusetts take place at the INS office in Boston. New Hampshire residents are interviewed at the INS office in Manchester, NH.

Applicants are free to travel abroad between the interview and the swearing-in ceremony so long as they do not abandon their residence in the U.S.

The U.S. District Court in Boston has elected to retain jurisdiction over the oath-taking ceremony. Several hundred applicants at a time are called to Faneuil Hall, or similar locations, where the oath of allegiance is administered by a Federal Judge. In addition, the Boston INS office conducts frequent administrative oath-taking ceremonies in the JFK Federal Building. While these ceremonies are conducted in a dignified manner, some feel they lack the pomp and circumstance of a Federal Court proceeding.

In New Hampshire, most ceremonies are held in the U.S. District Court in Concord, though one or two State Courts may still be involved in the process.