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The 14th Amendment of the US Constitution confers citizenship to “all persons born…” in the United States. But the issue of who is a citizen and how one becomes or even loses their citizenship is often a complicated maze of Constitutional and regulatory structures.

Most United States citizens take for granted that if you are born in the United States, you are automatically a citizen. This method of bestowing citizenship is known as “Birthright Citizenship”. However, many are surprised to learn that while the United Nations recognizes 193 countries, only around 30 countries extend this privilege in this straightforward manner. 24 countries that previously granted this right have abolished it, including New Zealand in 2006.

The same 14th Amendment also confers citizenship to those who have “Naturalized”. Naturalization is the way that an alien not born in the United States voluntarily becomes a U.S. citizen. The most common path to U.S. citizenship through naturalization is being a lawful permanent resident (LPR) for at least five years, and then applying for citizenship.

Requirements for Obtaining United States Citizenship

Rear view of father and son holding hands.

What are the requirements for obtaining United States Citizenship through Naturalization? While there are many intricacies involved with each of these steps, essentially you need the following;

  • You must be 18 years of age or older.
  • You must have authorization to live and work in the U.S. on a permanent basis (informally known as a green card) for at least five years (or three years, if married to a United States citizen).
  • You must have continuous residence in the U.S. for at least five years (or three years, if married to a United States citizen) and be physically present in the U.S. for at least half that time.
  • Must be able to read, write and speak basic English.
  • Must have a knowledge and understanding of the fundamentals of U.S. history and government.
  • You must be a person of “good moral character.”
  • You must take a loyalty oath to the United States and support the Constitution and form of government of the United States.

Issues Impacting on Good Moral Character

There are many issues that arise when attempting to meet these criteria. “Good Moral Character” is often a basis used as a bar to obtaining your citizenship. good moral character for naturalization purposes is defined as character which measures up to the standards of average citizens of the community in which the applicant resides. The U.S. Citizenship and Immigration Services (UCIS) guidance on this issue states;

“An applicant who has committed, was convicted of, or was imprisoned for an unlawful act during the applicable statutory period may be found to lack GMC if the act adversely reflects on his or her moral character, unless the applicant can demonstrate extenuating circumstances.”

The U.S. Citizenship and Immigration Services (UCIS) usually looks back five years. Issues impacting on Good Moral Character include;

  • Unlawfully registering to vote or unlawful voting;
  • Making a false claim to U.S. citizenship;
  • Social Security fraud;
  • Insurance fraud;
  • Failure to file or pay taxes;
  • Falsification of records;
  • Forgery;
  • Conspiracy to distribute a controlled substance;
  • Insurance fraud;
  • Sexual assault;
  • Unlawful harassment;
  • Obstruction of justice;
  • Bail jumping;
  • Bank fraud.

Even if you have an issue such as listed above, there are actions that a competent immigration attorney can do to assist. In Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) Mr. Pinho was in the U.S. with no legal status. However, he was married to a U.S. citizen and so applied for a green card. He was denie because years earlier he had been convicted of possession of CDS, a charge where there was no waiver available. He was able to go back to state court and have his conviction vacated based on the fact that he had ineffective counsel in the underlying criminal case.

Even with his conviction now vacated, he was still denied a green card. The Court found that the vacated conviction could not be a bar to him receiving a green card. There is an important distinction the Court drew. They found that while for immigration purposes, entry into Pre-Trial Intervention will not protect a person from being denied relief, if the conviction is vacated because a flaw in the underlying criminal action, it cannot serve as a bar to a person receiving legal status.

The result here was rather unique because his post-conviction relief was based on his original attorney not realizing that Mr. Pinho was improperly denied entry into the Pre-trial intervention program. However, if he had been permitted to participate in Pre-Trial Intervention, he would have not been eligible for a green card or citizenship. However, now that the conviction was simply vacated and the charge dismissed, he could not be denied a green card. This is the sort of creative, aggressive advocacy you can expect from Epstein Ostrove. Because the officers at UCIS have wide discretion when determining a person’s good moral character, if you are applying to become a U.S. citizen, and you are concerned that these issues may affect you it’s important to have an experienced immigration attorney to advocate your position.

Becoming a Permanent Resident (Green Card)

Having a Green Card (officially known as a Permanent Resident Card, allows you to live and work permanently in the United States. The steps you must take to apply for a Green Card will vary depending on your individual situation.

Marriage: A marriage green card allows the spouse of a U.S. citizen or green card holder to live and work anywhere in the United States. A green card holder will have permanent resident status until they decide to apply for U.S. Citizenship, which they are eligible to obtain after three years.

So an immediate family member is the following.

  • Spouse of a U.S. citizen
  • Unmarried child under the age of 21 of a U.S. citizen
  • Parent of a U.S. citizen who is at least 21 years old

Other family members;

  • Family member of a U.S. citizen, meaning you are the:
    • Unmarried son or daughter of a U.S. citizen and you are 21 years old or older
    • Married son or daughter of a U.S. citizen
    • Brother or sister of a U.S. citizen who is at least 21 years old
  • Family member of a lawful permanent resident, meaning you are the:
    • Spouse of a lawful permanent resident
    • Unmarried child under the age of 21 of a lawful permanent resident
    • Unmarried son or daughter of a lawful permanent resident 21 years old or older

Green Card For Victims of Abuse;

  • The abused spouse of a U.S. citizen or lawful permanent resident
  • The abused child (unmarried and under 21 years old) of a U.S. citizen or lawful permanent resident
  • The abused parent of a U.S. citizen

Fiancé Petitions;

  • Person admitted to the U.S. as a fiancé(e) of a U.S. citizen (K-1 nonimmigrant)
  • Person admitted to the U.S. as the child of a fiancé(e) of a U.S. citizen (K-2 nonimmigrant)

How Epstein Ostrove Can Help

An immigration document being stamped

To be granted a Fiancé petition and obtain a “K1” visa, you must show that you have met the beneficiary ( the person being brought to the U.S.) in person within the last two years, that both parties have a bono fide intention to marry within 90 days and are legally able to get married.

The petition will be scrutinized. For example, in a recent decision upholding the denial of a visa, The Administrative Office of Appeals, found there was no proof the parties had a bona fide intent to marry in 90 days. While the U.S. citizen said he would, there was absolutely nothing from his foreign fiancé where she indicated that she intended to marry the U.S. Citizen. In Re 125338118 Non-Precedent Decision.

You want the guidance of experienced immigration attorneys to ensure your submission meets all of the requirements. We can accomplish that.

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