US Citizenship Law Basics

This page was designed to help people understand the different paths to US Citizenship as well as some of the nuances encountered when researching the subject. Whether a person becomes by U.S. Citizen by right of birth or through the process of naturalization, each is entitled to the same rights and privileges in the eyes of the law. Continue reading this page to learn more about the following topics:

  • Types of US Citizenship
  • Who Is Eligible To Become a Citizen?
  • How Does One Become A Naturalized Citizen?
  • Loss of Citizenship
  • Do I Need an Immigration Attorney?

While certain legal concepts are discussed on this page, it is not intended as a substitute for speaking with an experienced immigration lawyer. Whether applying for naturalization, determining eligibility or facing an immigration judge, there are a number of scenarios where a client can benefit from the guidance of an immigration attorney.

Types of US Citizenship

Whether a person comes by US Citizenship through birth or naturalization, each U.S. citizen has the same rights, privileges and duties under the constitution. This includes the right to vote, a duty to serve on a jury when requested  (and in some cases, the military), and permission to live and work in the U.S.

Birthright Citizenship

The Immigration and Nationality Act § 301 (a)-(b) applies to persons who are born inside the U.S. This section of federal law is based on the 14th amendment, which states “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

A child born outside of U.S. soil, to at least one parent who is a U.S. citizen, is also considered a U.S. citizen under INA § 301(c)-(e), (g)-(h). This is known as citizenship by acquisition.

The legal concept used to describe persons born inside the U.S. is “jus soli”, which literally means “of the soil.” This legal concept extends to certain territories of the U.S. such as Guam, American Samoa, Puerto Rico, the Virgin Islands, and in some circumstances, the Panama Canal zone. In general terms, a person born on U.S. soil is a citizen, regardless of whether or not their parents were U.S. citizens.

In 1898, the United States Supreme Court decided on the case of the U.S v. Wong Kim [1], who had been born in San Francisco in 1873 to parents who were both Chinese nationals. In that case, the court considered whether or not the Chinese Exclusion Act could apply to Wong Kim. Couching its argument on legal theories held long before the founding of the United States, the majority court ruled in favor of Wong Kim and found him to be a citizen.

“There is…little doubt at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.”

Naturalization

For persons, not born on U.S. soil or to a citizen parent, Congress has provided foreign nationals the option of naturalization. The path to citizenship through naturalization is lengthy and involves multiple steps including filing an application, passing an FBI background check, and demonstrating knowledge of the English language. But before a person can even apply for naturalization, certain eligibility requirements must be met.

Click this link to view our blog post on the difference between citizenship and naturalization.

US Citizenship Law Basics | Orange County Immigration Lawyer

Who Is Eligible to Become A Naturalized Citizen?

Generally speaking, before applying to become naturalized, a foreign national must first become a lawful permanent resident. A person granted lawful permanent resident status has permission to live and work in the U.S., and is issued a green card.

Unlike a citizen, a lawful permanent resident does not have the same rights and protections under the constitution. For instance, a lawful permanent resident who leaves the country, even temporarily, can be denied reentry if government officials believe the individual has abandoned their permanent resident status. Individuals with permanent resident status also don’t have the right to vote.

Before applying for naturalization, a lawful permanent resident must show that they have lived continuously in the country for five years. In the case of lawful permanent residents married to U.S. citizens, the residency requirement is only three years.

A person seeking to obtain US Citizenship must be willing to take an oath of allegiance to the U.S., which includes the willingness to serve in the military if required. They must also demonstrate knowledge of the English language.

Persons who have served in the military during times of war may be eligible to obtain citizenship without first becoming a lawful permanent resident. The same applies to certain persons who have been granted conditional permanent residence, such as foreign investors participating in the EB-5 program — as long as they have accrued the necessary years of residency.

When it comes to the criteria that can bar an immigrant from becoming naturalized, the list is large. Naturalization applicants must demonstrate good moral character for five years prior to filing for naturalization up to their date of admission.

Permanent disqualifiers of good moral character include intent to deceive the government while obtaining immigration benefits, as well as crimes such as murder. A person convicted of an aggravated felony after November 29, 1990 is also permanently barred from achieving the good moral character requirement.

It is important to remember that the above-mentioned criteria come with various conditions and mitigating factors too numerous to detail in one webpage. Each US Citizenship case is different. If you would like to know more about the eligibility requirements for naturalization, contact our office to see if we can help.

How Does One Apply For Naturalization?

We first recommend that you hire a lawyer. The foreign national who wishes to file for US Citizenship through the naturalization process must first fill out an Application for Naturalization (Form N-400). This form is submitted to U.S. Citizenship and Immigration Services (USCIS). An experienced immigration attorney knows exactly what the USCIS is looking for on this application.

After the FBI performs a background check, an interview is conducted by a USCIS officer and a test is administered. This test will determine if the applicant can read, write and speak basic English, as well as demonstrate knowledge of U.S. history and government.

Should the applicant fail to appear for the examination, he or she could be denied citizenship. If the applicant doesn’t successfully pass the citizenship test, federal law currently allows one reexamination. If the second attempt is unsuccessful, a new Form N-400 must be filed. If, however the applicant passes the test and citizenship is granted, he or she will be sworn in as a U.S. citizen.

Loss of Citizenship

There are a number of different situations in which a naturalized immigrant can lose their citizenship. These relate to subversive activities or omissions made during the application process that are discovered after the fact.

The Immigration and Nationality Act INA § 340(c) provides grounds for stripping a recently naturalized immigrant of their citizenship if evidence is discovered within five years of naturalization that they are members in a communist, anarchist or subversive organization.

INA §340 (a) provides a basis for denaturalization in the event that an applicant presents false information during the process of naturalization. Generally speaking, if an applicant who gained citizenship is later found to have misrepresented material facts about him or herself, and did so willingly, then he or she can face denaturalization.

Example of Lost Citizenship

In 1996 the United States Court of Appeals Third Circuit heard the case of Jonas Stelmokas, who had been a resident of Lithuania during World War II. Stelmokas  came to the U.S. following the war seeking entrance through the U.S. Displaced Persons Commission.

During his application to the commission, Stelmokas presented himself as a school teacher, and a laborer during the war. Based on this information, Stelmokas obtained lawful permanent resident status, and ultimately became a naturalized citizen in the 1950s.

Decades later, it was by discovered U.S. officials that Stelmokas lied about his wartime activities, and had in fact fought alongside the Nazis while participating in the persecution of Jews.

The government sought to strip him of his naturalization based on a number of factors, including illegally procuring naturalization by concealing or misrepresenting certain material facts about himself. While the court discussed various legal theories relating to the concept of materiality, it ultimately decided that a lower court was correct in stripping Stelmokas of his citizenship. [2]

Though an immigration judge order he be deported, Stelmokas died in a nursing home in Pennsylvania while he was appealing the decision in 1998.

Do I Need An Immigration Attorney?

This page was designed to showcase some of the issues associated with the complex subject of US Citizenship. The federal immigration system is vast, complex, and at times, intimidating. A qualified lawyer can help a client navigate the bureaucratic maze in their path to obtaining US Citizenship, and avoid time-consuming mistakes in the process. To find out if an immigration attorney can help you, call our office for more information.

Footnotes:

1 US vs Wong Kim Ark (1898)

2 US v Jonas Stelmoka (1996)