This is the fourth installment of my series of Immigration Primer diaries.
Once again, I want to give some factual background information, and hopefully clear up some misconceptions (of which there are many).
I will try to stay away from commention on how things should be, in favor of how things actually are. Feel free to add any questions as appropriate.
Previous diaries covered general immigration, illegal immigration, and employment-based immigration and H-1B
This fourth installment covers the question of who a citizen is, and how to become one.
Like the employment-based Primer, I have a particular fondness for this topic, since I became a proud US citizen about two years ago, after having worked for twenty years towards that goal.
This series of Primers is in essence a short version of the FAQ from my site; you can find far more details there. Please post comments with any questions, I'll be happy to add clarifications or other interesting information!
A disclaimer: I am not a lawyer, but had to deal with immigration law for the last fifteen+ years, and also operate my own immigration-law Web site based on that experience Also, keep in mind that the actual rules are often very complex. In order to keep the diary simple and understandable, I sometimes omit some details or special cases.
Q: Who is a citizen?
Citizens are defined in the 14th Amendment to the US Constitution as "... All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
The 14th Amendment also addresses a number of other issues that are not relevant here.
It was ratified in 1868, and was designed mostly to resolve many of the issues of the Civil War. The citizenship clause primarily guaranteed US citizenship to blacks.
There are a couple important points here:
- the 14th Amendment requires that the person is born under the jurisdiction of the United States. That means that children of diplomats and foreign royalty are not US citizens (unless one of the parents is a US citizen), because they enjoy diplomatic immunity.
- The 14th Amendment applies to all persons born on US territory, regardless of the citizenship of the parents. This is known as "ius soli", or "law of the soil" and is actually the standard in most countries in the world. A few countries, such as Saudi Arabia, Kuwait and Germany are using the "ius sanguinis" - meaning that citizenship is inherited "by blood" from parents.
In practical terms, a strict ius solis in one country and a strict ius sanguinis in another could lead to many stateless people. As a result, most countries, including the USA, compromise and combine elements of both. Even though the 14th Amendment does not require it, children of US citizens born abroad are sometimes citizens themselves.
One controversial result of the 14th Amendment is that children of illegal immigrants born on US soil are automatically US citizens.
There have been frequent bills in Congress that attempted to deny US citizenship to children of illegal immigrants. Without going into the merits of such a bill, they would be almost certainly unconstitutional. Please do not post comments about the merits or constitutionality of such bills, since this would be ultimately up to the Supreme Court rather than a fruitless debate on dKos.
Q: Can you lose US citizenship?
US citizenship can be revoked only under very limited circumstances:
- The person can declare renunciation of US citizenship. To be effective, the renunciation must be voluntary, and it must be given with the explicit intent to give up US citizenship. For instance, a routine oath of citizenship to another country will not automatically revoke US citizenship.
- The person can lose US citizenship for serving as an officer in a foreign military during a time of war.
- The person can lose US citizenship for serving in a high-level position in a foreign government.
- US citizenship can be revoked for treason. This has, to my knowledge, never actually happened.
- US citizenship can be revoked when you were fraudulently naturalized. This rule is often used to deport (former) US citizens from the German Nazi government; they had to commit fraud by concealing their Nazi past.
Q: Is Yasser Hamdi a US citizen?
Yasser Hamdi, of course, was one of the first Guanatanamo prisoners, and caused considerable legal debates. The US government eventually agreed that he is a US citizen, based on the fact that he was born in Baton Rouge, Louisiana to Saudi Arabian parents.
Eventually, the US government released him on condition that he renounce his US citizenship.
However, this renunciation is almost certainly invalid because it was not freely given. The Supreme Court ruled that the denaturalization of Japanese-American detainees after WW II was invalid, and that these Japanese-Americans continued to be US citizens.
Q: How do you become a US citizen?
There are a few ways:
- You can be born in the USA. This is the most common situation, of course.
- You can be born to US citizen parents. If both parents are US citizens, the child will always inherit US citizenship. If only one parent is a citizen, the child only inherits citizenship if the US citizen parent has resided in the USA for a certain period of time, some of that time as an adult. The exact rules have changed over the decades.
- You can become naturalized. To be naturalized, you have to have been a legal permanent resident (also called "immigrant" or "Green Card holder") for a certain period of time (more below).
- Your parents can get naturalized. When parents get naturalized, generally children under 18 become US citizens automatically.
- Congress can pass a law, known as Private Bill, to make you a citizen. This has happened extremely rarely, according to some sources only four times in US history. It has been proposed for Elian Gonzales, but that situation was resolved differently.
One way you CANNOT become a US citizen is through marriage. This was the case until the 1920s. However, today, marriage to a US citizen will only get you a Green Card, and even that is not guaranteed.
Q: How do you become naturalized?
First, you have to have a Green Card. You can't just apply for citizenship; you have to be an immigrant first, and go through the process (with the exception of military members).
Then you have to fulfill the waiting time requirement. For most persons, that is five years from the date they received the Green Card. A few exceptions:
- if you are married to a US citizen, the requirement is usually three years.
- if you are married to a US citizen diplomate stationed overseas, or certain US citizens working overseas, you can become a US citizen immediately. You still need a Green Card.
- if you are serving in the military, there is no wait. This is actually one reason the military is attractive for illegal immigrants - that, and the fact that the military seems to be not too diligent about checking work authorization. Such naturalizations are said to happen fairly frequently, at a rate of a few hundred per year.
Next, you have to fulfill the physical presence requirement. This means that you must have been actually physically in the US for at least half the required waiting time. You also can't have made trips for more than six months to a year outside the US (depends on circumstances).
The third requirement is that you must have lived in the district where you are applying for at least three months. Originally, this was intended to allow for some background checking. Today, the background check happens differently, but the requirement still stands.
There also is a requirement to be of good moral character during the wait time (which usually means, no criminal convictions, but could also potentially be a problem for naturalization of homosexuals and other situations).
Once you meet the requirement - actually, 90 days before meeting the requirement - you are allowed to file an application for naturalization on form N-400. There is a fee of $330, plus a separate fingerprinting fee of $70 per person (since children are automatically naturalized with their parents, no fee is required. However, the child will need a certificate of citizenship, N-600, $255). Unlike most other immigration cases, USCIS typically processes them very quickly since the beneficiaries are future voters. This has not always been the case; there have been allegations that citizenship applications have been either delayed or accelerated to affect voting patterns.
After filing the naturalization application, USCIS will send you an appointment letter for fingerprinting. This happens at a ASC, or Application Support Center. Many ASCs are at border checkpoints, others are in strip malls or at local USCIS offices. It can be very conveniently located, or in some parts of the country may be hours away. These fingerprints are captured electronically, and then submitted to the FBI for background checking. Once the background check comes back, USCIS will schedule you for an interview.
During that interview with a USCIS officer, your English and civics knowledge will be tested. The officer will also ask you about anything relevant that may have happened since you filed the application - in particular, any DUIs or more serious criminal matters have to be disclosed here. If there is any criminal metter pending, the case will be continued (meaning, USCIS won't make a decision until after the court decided).
In most cases, the officer will make the final decision right then and approve the naturalization application. However, you are not yet a US citizen, and if you claimed that you were, you could still be deported at this point!
Next, USCIS will schedule you for the naturalization oath. The oath is actually not administered by USCIS (which is part of the executive branch), but by a federal judge. This is the least stressful part of the process; it is a wonderful ceremony with some 300 or so fellow citizens-to-be. USCIS holds a few of these citizenship oath ceremonies throughout the year, usually at special days such as 4th of July, or, as mine was, around Citizenship Day (September 17).
The Green Card is collected, and the naturalization certificate is handed out at the ceremony, and you are finally eligible for a US passport.
Q: Do you have to speak English to become a citizen?
Yes. Part of the naturalization process is an interview that is conducted in English, and also includes a reading and writing test (a very simple one - writing one sentence, and reading part of the appication form).
Q: Do you have to know the US Constitution and history to become a citizen?
Yes. The naturalization interview includes a test on 100 questions about history and the Constitution. The questions include such items as "for how long do we elect a Representative?" (two years) "who is mayor of your city?" "Which are the original 13 colonies?" (would you know it?). The full set of questions is available on the USCIS Web site, and is currently being revised.
Q: What is the naturalization oath?
The oath of allegiance is:
"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."
In some cases, USCIS allows the oath to be taken without the clauses:
". . .that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by law. . ."
To be eligible to omit the "bear arms" clause, you have to present a letter from your congregation, or something comparable.
In addition, USCIS will also allow you to omit the clause "so help me God" and substitute "solemnly swear" for "on oath". This is supposed to be permitted just for the asking, but, to my knowledge, USCIS does not advertise it anywhere. The form does not mention this option, nor do the instructions or anywhere on their Web site.
I actually had to fight them to be allowed to avoid the "so help me God" clause, since the interviewing officer didn't know that it was allowed to be omitted (my Web site details that fight, and I want to recognize Americans United for Church and State for their help!)
Q: Can a naturalized citizen become a Representative or Senator?
Yes. However, before somebody can become a Representative, he must have been a citizen for seven years. For Senators, the wait is ten years.
Q: Does the President of the USA have to be born in the USA?
That question is for a future Supreme Court to decide. Oddly enough, it is not actually known. The Constitution merely says "must be natural born" which is not defined anywhere.
On a best-guess basis, though, the answer is: no, any citizen from birth is eligible.
There were several candidates throughout history who could be affected by this question:
- Barry Goldwater was born in Arizona before it became a state.
- George Romney was born in Mexico to Mormon refugee parents.
- John McCain was born in the Panama Canal Zone.
Added: Q: How old do you have to be to apply for naturalization, or to renounce citizenship?
The short, and somewhat misleading, answer is 18 years.
It is somewhat misleading because children can indeed become US citizens when their parents naturalize, as well as in some cases when they are adopted by US citizens. This happens automatically. Children do not have to take a citizenship oath, nor do they have to comply with most of the standard requirements for citizenship (they do need to have a Green Card, though).
Parents cannot apply for citizenship on behalf of their children, nor can they renounce US citizenship on behalf of their children. Thus, it is impossible to lose US citizenship until after you are 18 years old.
This leads to an interesting conundrum for children of Indian parents (and possibly some other parental nationalities):
India uses ius sanguinis, which means that they consider children of Indian citizens as Indian citizens. US uses ius solis, which makes a US-born child of Indian parents automatically a US citizen. The parents do not have a choice about that.
At the same time, India prohibits dual citizenship. So until age 18, the child is stuck with being a dual citizen and thus violating Indian law.
Now when the parents take the child to India to visit, the problem comes to a head. Both India and the US require that their citizens use the respective passports to enter the country. Thus, the child has to carry an Indian passport to enter India, and a US passport to enter the USA. What makes it difficult is that supposedly, Indian authorities at times seize the US passport as being Iillegal" under Indian law.
There is no solution to this problem. The child has no choice about being a US citizen (until he is 18).