Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009


For many immigrants, obtaining United States citizenship cements their emotional and physical attachment to the United States. Others apply for U.S. citizenship as it opens doors to government employment and expedites or allows them to file a petition would allow their spouse, child or parent - in general to become a permanent resident. There are exceptions; most notably, one may apply for citizenship after one year of active U.S. military duty during wartime.

It is crucial to assess a case carefully before filing for naturalization. This article will divide the potential pitfalls to applying for naturalization into two categories; those that could result in a denial of the application but would not adversely affect the applicant’s permanent residency and which in most cases would not prevent the applicant from applying for citizenship later, and those which could, in fact, result not only in the denial of the naturalization application but in the loss of permanent residency and removal from the United States.

In the first instance, the client may not be able to meet the requirement that she maintain good moral character in the five-year period immediately preceding the application for naturalization. Good moral character is a term of art in the immigration field. Certain acts in themselves bar a finding of good moral character. These include providing false testimony with the subjective intent of obtaining an immigration benefit and the commission of certain crimes. The USCIS also retains the right to deny naturalization on good moral character grounds as a matter of discretion for certain acts, such as nonsupport of dependents, knowingly failing to register with the Selective Service, adultery tending to destroy a marriage and DUI.

If you believe that your client does not meet the good moral character standard for the five-year statutory period immediately preceding the application, it is best to advise your client to apply five years after the breach. While generally the USCIS only looks at the statutory period, it does have the right to go beyond that period if the conduct is especially nefarious. If you believe that the USCIS may use its discretion to deny the application, you may choose to present your client with the option of either applying now or waiting for the five-year period. Explain to your client that while the case might be denied for good moral character considerations, he should be able to apply later and that the only thing he would lose is the filing fee and any legal fee.

If your client has poor English skills and you have doubts about whether he can pass the English language or government test, you can recommend that your client wait and take classes. Each applicant for naturalization must write one simple sentence in English and must answer seven out of ten questions about U.S. history and politics. Your client may reapply if s/he fails either the English language or government test, and there are limited circumstances in which the exam may be waived.

The other hindrance to naturalization would occur if your client left the United States beyond the time allotted under the law. This is the most straightforward of the requirements because it is a matter of counting days outside of the country and, if need be, you will know the period your client must wait to have the appropriate number of days in the U.S. to qualify.

Although it might sound unreal that someone applying for citizenship could not only be denied citizenship but also jeopardize his green card as well, it is indeed possible. If your client has committed certain crimes since getting his green card, he may wind up in removal proceedings. So, when analyzing whether your client should apply for citizenship, it is crucial to you make sure that he has not committed a crime that would jeopardize his permanent residency. If you find that your client has committed a crime which you believe falls into that category, in addition to advising against applying for naturalization either within five years of committing the crime (or at all) you should also warn your client about the risks of travel. When a green card-holder re-enters the United States, he is seeking admission each time he comes in. Certain criminal convictions make an individual inadmissible to the United States, but not removable. Thus, your client may be able to stay in the U.S. with no problem, but not be able to come back if he leaves the country.

When assessing your client’s eligibility to naturalize, it is critical to ask your client if she has ever claimed that she was a United States citizen in order to procure any benefit offered by the state or federal government. Some instances in which this occurs include making this claim on an I-9 form in order to qualify for certain jobs reserved for U.S. citizens and on college or university admission applications in order to qualify for lower tuition or financial aid. The punishment for falsely claiming U.S. citizenship is a permanent bar to admission as a permanent resident, and if the charge is successfully prosecuted by the Department of Homeland Security, your client has no waiver of this bar. There is a very limited exception to this provision which rarely applies.

Most people that apply for United States citizenship do so successfully. It is crucial, however, to keep aware that there are potential pitfalls and that there is no rush to apply until you are sure that by doing so you are not harming your client.

Mark J. Shmueli, a frequent lecturer on immigration law, is a solo practitioner in Takoma Park, Maryland. He has served in several positions for the American Immigration Lawyers Association and serves on the Board of the Maryland Immigrant Rights Coalition.

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Publications : Bar Bulletin: July 2009

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