30 Mar When Not To Naturalize (Part 2)
U.S. citizenship is the dream and goal of almost every immigrant coming to the U.S. Naturalization is the process by which a green card holder (or lawful permanent resident) applies for and is granted U.S. citizenship. There are many benefits to U.S. citizenship, such as the ability to vote in U.S. federal elections, remain outside the U.S. for a lengthy period without worrying about “abandoning” their immigration status (as is the case with permanent residents), and the ability to petition additional family members, such as married children and siblings.
There are many articles and YouTube videos about the requirements for naturalization. But this article will be different. Rather than going through the requirements for naturalization, I will go through when not to naturalize. As an attorney practicing law for over 40 years, I have had many people consult with me after they had applied for naturalization, but it was denied. In many cases, they made a big mistake by filing for naturalization.
Here now is the second part of the other reasons why a person should not file for naturalization, and if any apply to you, consult with an attorney before filing:
- Outside the U.S. too long. Some lawful permanent residents treat their green cards as though, they were tourist or visitor visas. They are outside the U.S. most of the time (possibly to be with family members in their home country or they still had business there) and “visit” the U.S. for a short time with their green card. Eligibility for naturalization requires that a person must be physically present in the U.S. for a certain period before filing their naturalization application, or their naturalization will be denied. A person will be ineligible for naturalization if:
- The person was outside the U.S. for a cumulative total of over 30 months during the five years before filing their naturalization application (or 18 months out of the last three years, if seeking naturalization based on marriage to a U.S. citizen.) In one case, a person’s naturalization application was denied because he was 19 days short of the 30 months of physical presence when he filed.
- The person was outside the U.S. for over six months in a row on a single visit. Being outside the U.S. for over six months on any single trip ordinarily would break or disrupt the five years of continuous residency, and the person would be eligible to apply 4 years and one day from their return from their most recent trip abroad.
- Claims of U.S. citizenship. If a non-citizen (including lawful permanent residents) claims to be a U.S. citizen, this could have devastating effects on their eligibility for naturalization and could jeopardize their green card. Some situations where a person may have claimed to be a U.S. citizen include:
- The person registered to vote or voted in a federal election.
- The person claimed to an employer on their Form I-9 to be a U.S. citizen, to be able to work.
- Did not work for petitioning employer. While many people obtain a green card through a family petition, many others obtain a green card through an employer’s sponsorship (PERM or labor certification), which requires the person to actually work for the employer once they obtain their green card. Some people were petitioned by an employer but never worked for the employer. Or, they quit before their green card was granted. If a person obtained a green card through an employment-based petition and files for naturalization, one of the first questions the officer will ask is “How long did you work for the employer after you got your green card?”. If you never work for the employer, it could be that you were never “lawfully admitted,” or obtained the green card through fraud, because you lacked the intent to work for that employer.
- CSPA eligible child. The Child Status Protection Act (CSPA) protects the children who aged out or turned 21 years of age. It is based on a complex mathematical formula. However, if the child meets the CSPA requirements, but their parent naturalized AFTER the child’s biological 21st birthday, it could ruin that child’s CSPA eligibility. I came across one case where the child had been CSPA eligible, but the parent naturalized after their child’s 21st birthday, destroying the child’s CSPA eligibility.
There are many other reasons or grounds a person should not file for naturalization, which is why I recommend you consult with an attorney before you file. If there are questions or issues, don’t have an attitude of “I’ll just file and see what happens, and if I get denied, then I will go to an attorney.”
Just because you were not discovered when you got your green card, does not mean you will be so lucky when you file for naturalization. By that time it may be too late, and you’ve rocked the boat or woken up USCIS to the fact that you may not have been eligible for your green card.
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