Non Immigrants vs. Immigrants
We have two groups of aliens. An alien is someone who is not a United States Citizen or simply put, someone from another country. The difference between an Immigrant and a Non Immigrant has to do with the temporary nature of a non immigrant’s stay.
Obtaining a Visa
An alien coming into the United States from outside the United States must have a visa or come from a country subject to visa waiver. A visa is a document issued by the Department of State to an alien seeking to come into the United States. The fact that a person holds a visa is not an automatic guarantee of admission into the United States. He or she must go before an Immigration officer at the port of entry. Once that individual is before the officer, the Officer inspects him or her to determine if he/she is eligible to be admitted into the United States. Once the alien is inspected, he/she is issued an I-94 Arrival Departure record. The I-94 is evidence that the alien has been inspected and admitted. Admission is the lawful entry of an alien into the United States after inspection and authorization from an Immigration Officer. The I-94, not the visa, dictates the time within which the alien is authorized to remain in the United States. An alien who stays in the United States beyond the date stamped on the I-94 will be considered out of status.
Inadmissibility
Even with a valid visa, an alien who is found to be inadmissible by the Immigration Officer at the port of entry will be denied admission into the United States. There are six basic grounds of inadmissibility into the United States:
1. Economic Grounds
2. Political Grounds
- Health Related Grounds
- Quasi Criminal Ground
- Miscellaneous “Catch All” Category
Economic Grounds – An alien will be denied admission into the United States if he would become a “public charge” once he is admitted. Public charge basically means being a burden on the government and the taxpayers to take care of you. An alien who intends to depend on the government or means tested income benefits will not be admitted into the United States.
Political Grounds of Inadmissibility – Certain groups of people are not admissible into the United States. For example, Communists, Nazis, Terrorists, etc, are not admissible into the United States.
Health Grounds of Inadmissibility – Aliens with communicable disease and drug addicts are not admissible into the United States. HIV is no longer a ground for inadmissibility.
Criminal Grounds of Inadmissibility – The Immigration and Nationality Act does not allow criminals into the United States. Examples include drug trafficking, crimes of moral turpitude, violation of controlled substance laws, multiple criminal convictions, and trafficking in persons. The alien has to keep in mind that the way immigration defines conviction is not the way that conviction is defined under state laws. What is considered a misdemeanor under state law may actually be a removable offense for the purpose of immigration. As a result of that, an alien it is advisable for an alien to stay away from trouble at all costs. If an alien has the misfortune of being charged with a crime, it is advisable that the alien discusses with a lawyer that understands the immigration consequences of a criminal conviction before he pleads a deal. Contacting such a lawyer will save the alien a lot of heart ache later.
Quasi Criminal Grounds of Inadmissibility: Examples are prostitution, polygamy, and international abduction.
Miscellaneous Grounds of Inadmissibility – Examples include situations where the alien does not have entry documents; illegal presence in the United States; failure to attend a removal hearing; document fraud, etc.
Unlawful Presence
Once an alien stays beyond their authorized stay the “clock” starts to tick and this is known as unlawful presence. With the exception of immediate relatives of United States citizens, unlawful presence precludes an alien from being able to adjust their status in the United States.
3 Year Bar: An alien that has been present in the United States for more than 179 days and up to one year, is subject to a 3 year bar.
10 Year Bar: An alien that has been present in the United States for more than 1 year is subject to a 10 year bar when he leaves the United States.
Adjustment of Status
Adjustment of Status is a process by which an alien that is already in the United States Changes his status from that of a non immigrant status to an Immigrant status. Not every non immigrant that are present in the United States can adjust their status. Certain requirements must be met in order to be able to adjust status. A non immigrant alien who is out of status or who has worked without authorization may not adjust his status within the United States. Except in the case of immediate relatives of United States Citizens.
Sex Offenders and Immigration
Can you petition for a family member if you have been convicted of a sex offense?
Under the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) which was signed into law by President George W. Bush, a United States Citizen or Permanent Resident who has been convicted of a specified offense against a minor is prohibitted from bringing any petition for a family based immigration petition on behalf of any beneficiary unless the Secretary of the Department of Homeland Security (DHS) at its own discretion makes a determination that the petitioner does not pose any risk to the beneficiary. The discretion whether to grant the waiver is entirely up to DHS. If DHS makes a determination that the petitioner is a risk to the benficiary, that determination is not reviewable.
What are specified offenses against a minor?
A specified offense against a minor includes the following:
- Kidnapping
- False Imprisonment
- Solicitation to engage in sexual conduct
- Using a minor in a sexual performance
- Solicitation to practice prostitution
- Video Voyeourism
- Possesion, production, or distribution of child pornography.
- Criminal Sexual Conduct involving a minor or the use of the internet to facilitate such conduct.
- Any conduct that is by its nature a sex offense against a minor.
More Immigration Related Information
The following articles have been reprinted by permission from the publisher, Nolo, Copyright 2009, http://www.nolo.com
Who Qualifies for a Green Card (Permanent Residence)
Sponsoring a Fiancé or Spouse for a Green Card
Sponsoring a Family Member for a Green Card
The Visa Petition: The First Step for Family and Employment Green Cards
Sponsoring a Worker for a Green Card: Employer's Tasks
U.S. Citizenship by Birth or Through Parents
Applying for U.S. Citizenship
Obtaining Proof of U.S. Citizenship
Keeping Your Green Card After You Get It
Who Qualifies for a Green Card (Permanent Residence)
Categories of people who can apply for a green card, to make their home in the U.S.
A green card identifies its holder as a U.S. permanent resident, with rights to enter, exit, work, and live here for their entire life. But before you think about applying, make sure you're eligible under one of the following categories.
1. Immediate Relatives of U.S. Citizens
Immediate relatives include:
- spouses of U.S. citizens, including recent widows and widowers
- unmarried people under age 21 with at least one U.S. citizen parent
- parents of U.S. citizens, if the U.S. citizen child is at least age 21
- stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child's 18th birthday, and
- adopted children of U.S, if the adoption took place before the child reached age 16.
An unlimited number of green cards are available for immediate relatives whose U.S. citizen relatives petition for them -- applicants can get a green card as soon as they get through the paperwork and application process.
2. Other Family Members
Certain family members of U.S. citizens or permanent residents are also eligible for green cards -- but not right away. They fall into the "preference categories" listed below, meaning that only a certain number of them will receive green cards each year (480,000). The system is first come, first served -- the earlier the U.S. citizen or permanent resident turns in a visa petition, the sooner the immigrant can apply for a green card. The waits range from approximately three to 24 years in the family preference categories, which include:
- Family First Preference. Unmarried adults, age 21 or older, who have at least one U.S. citizen parent.
- Family Second Preference. Section 2A: Spouses and unmarried children of a green card holder, so long as the children are younger than age 21. Section 2B: Unmarried children age 21 or older of a green card holder.
- Family Third Preference. Married people, any age, who have at least one U.S. citizen parent.
- Family Fourth Preference. Sisters and brothers of U.S. citizens, where the citizen is age 21 or older.
3. Preferred Employees and Workers
A total of 140,000 green cards are offered each year to people whose job skills are needed in the U.S. market. In most cases, a job offer is also required, and the employer must prove that it has recruited for the job and not found any willing, able, qualified U.S. citizens or residents to hire instead of the immigrant. Because of annual limits, this is a "preference category," and applicants often wait years for an available green card. Here are the subcategories:
Employment First Preference. Priority workers, including:
- persons of extraordinary ability in the arts, the sciences, education, business, or athletics
- outstanding professors and researchers, and
- managers and executives of multinational companies.
Employment Second Preference. Professionals with advanced degrees or exceptional ability.
Employment Third Preference. Professionals and skilled or unskilled workers.
Employment Fourth Preference. Religious workers and miscellaneous categories of workers and other "special immigrants" (described below)
Employment Fifth Preference. Investors willing to put $1 million into a U.S. business -- or $500,000 if the business is in an economically depressed area. The business must employ at least ten workers.
4. Green Card Lotteries: Ethnic Diversity
A certain number of green cards (currently 50,000) are made available to people from countries that in recent years have sent the fewest immigrants to the United States. Also see the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).
5. Special Immigrants
Occasionally, laws are passed making green cards available to people in special situations. The current special immigrant categories are:
- clergy and other religious workers for legitimate religious organizations
- foreign medical graduates who have been in the United States since 1978
- former employees of the Panama Canal Zone
- foreign workers who were longtime employees of the U.S. government
- retired officers or employees of certain international organizations who have lived in the United States for a certain time
- foreign workers who were employees of the U.S. consulate in Hong Kong for at least three years
- foreign children who have been declared dependent in juvenile courts in the United States
- international broadcasting employees, and
- certain members of the U.S. Armed Forces who enlisted overseas and served 12 years.
6. Refuge and Political Asylum
The U.S. government offers refuge to people who fear, or have experienced, persecution in their home country. A person still outside the United States would apply to be a refugee; a person already here would apply for asylum.
The persecution must be based on the person's race, religion, nationality, political opinion, or membership in a particular social group. If you are fleeing only poverty or random violence, you do not qualify in either category.
7. Amnesty and Special Agricultural Worker Status
Years ago, a green card based on "amnesty" was offered to people who had been living in the United States illegally since January 1, 1982. There was a similar amnesty for laborers who worked in the fields for at least 90 days between May 1, 1985 and May 1, 1986. Although the application deadlines have long passed, certain class action lawsuits mean that some applications haven't yet been decided on. See an attorney if you should have qualified.
In 1997, Congress added an amnesty for Nicaraguans and Cubans, called the Nicaraguan Adjustment and Central American Relief Act (NACARA). Some provisions also benefit Salvadorans, Guatemalans, and Eastern Europeans. The deadline for filing applications has passed.
8. Long-Time Residents
The law allows certain people who have lived illegally in the United States for more than ten years to request permanent residence, usually as a defense in immigration court proceedings. You must also show that your spouse, parent, or children -- who must be U.S. citizens or permanent residents -- would face "extraordinary and exceptionally unusual hardship" if you were forced to leave. Consult a lawyer if you think you qualify. Do not go straight to USCIS -- you could cause your own deportation.
Another remedy called "registry" allows people who have lived in the United States continuously since January 1, 1972 to apply for a green card. You'll need to show that you have good moral character and are not inadmissible. Your stay in the United States need not have been illegal -- time spent on a visa counts.
9. Special Cases
Individual members of the U.S. Congress have, on occasion, intervened for humanitarian reasons in extraordinary cases, helping someone get permanent residence even if the law would not allow it.
© 2010 Nolo
Sponsoring a Fiancé or Spouse for a Green Card
by Ilona Bray
Planning your immigration strategy is as important as planning your wedding.
If you are a U.S. citizen or permanent resident, and you are engaged or already married to a citizen of another country, that person may be eligible for a green card. However, many people believe, wrongly, that they can just bring their fiancé or spouse to the United States and the immigrant will be given an instant green card or even U.S. citizenship -- a belief that has led to sad cases of people being sent right home again.
Your fiancé or spouse will have to go through a multi-step application process. It's your job to start the process, by submitting either a fiancé visa petition (only available if you're a U.S. citizen, but can be used whether you are already married or just engaged) or an immigrant visa petition. Your fiancé or spouse can't enter the U.S. until both the petition and subsequent applications have been approved.
Note: If you're not yet a U.S. citizen, but have U.S. permanent residence (a "green card"), you cannot bring your fiancé to the United States until you're married -- and even then, you can bring your spouse only after he or she spends some years on a waiting list.
No matter what, be prepared for a long wait. Every type of visa application involves several stages, including application forms, a medical examination, fingerprinting, and various approvals.
Don't misuse a tourist visa or other temporary visa. If the immigrant used a tourist or other visa to get to the U.S. for the primary purpose of getting married or applying for a green card, see an attorney. The immigrant could be found liable for visa fraud, and denied the green card as a result.
Eligibility for Various Visas
The requirements for the fiancé visa and the marriage visa are different.
Fiancé Visas
To qualify for a fiancé visa, the immigrant must:
- intend to marry a U.S. citizen
- have met the citizen in person within the last two years, and
- be legally able to marry.
Also, the immigrant must be coming from another country -- a fiancé visa won't be given to someone who is already in the United States.
As part of the fiancé visa application process, you'll have to prove your intention to marry, by providing documents such as copies of your love letters, phone bills, and wedding ceremony contracts. You'll also have to prove that you've met within the last two years, by submitting copies of plane tickets, hotel bills, and more.
This meeting requirement causes problems for many couples. If you simply can't afford to meet, the immigration authorities will say, "Tough luck." If, however, you haven't met because of proven cultural customs or extreme hardship to the U.S. citizen spouse, they may be willing to lift the meeting requirement in for you.
Marriage-Based Visas (Green Cards)
To be eligible for an immigrant visa, or green card, based on marriage, the immigrant must be:
- legally married (it doesn't matter in what country) to a U.S. citizen or permanent resident
- not married to someone else at the same time, and
- not married to someone who has another wife or husband.
Also, the marriage must be the real thing, not just a sham to get a green card.
Within the application process, you'll have to prove all of the above things. Legal marriage is usually the easiest to prove, by simply providing a copy of your marriage certificate -- though people who get married outside the United States sometimes have a little trouble, because USCIS usually demands that the certificate come from a government office, rather than a church, a ship's captain, or other nongovernmental place.
To show that the marriage is the real thing, you'll have to provide copies of documents such as joint bank statements, children's birth certificates, photos of the wedding and afterwards, love letters, and more.
Inadmissibility
To qualify for any type of visa, every immigrant must show that he or she is not "inadmissible" (for instance, has a long criminal record or a communicable disease like tuberculosis).
Overview of Application Process
How and where the immigrant applies for a green card depends on a number of factors, including who he or she is marrying, where the immigrant is now, and, if he or she is in the United States, whether he or she got there legally. © 2010 Nolo
Sponsoring a Family Member for a Green Card
by Ilona Bray
Can relatives come to the U.S.? It depends on how the family member is related.
Many people in the United States have family members living in other countries, and wonder whether they can bring them here. It's a myth that if one immigrant settles in the United States, that one can bring in the whole extended family, and so on. The truth is both more limited and more complex.
Who You Can Help Immigrate
You can petition to bring family members to the United States only if you are a U.S. citizen or a permanent resident (green card holder). Even then, you can bring in only those family members listed on the chart below. Before reading the chart, click the links explaining the meanings of "immediate relative" and "preference relative."
Who Can Sponsor Who Who You Are | Immigrants You Can Petition | The Immigrant's Category | U.S. citizen | Parents | Immediate relative | U.S. citizen | Spouse | Immediate relative | U.S. citizen | Minor, unmarried children | Immediate relative | U.S. citizen | Married children or adult children | Preference relative | U.S. citizen | Brothers and sisters | Preference relative | U.S. permanent resident | Unmarried children | Preference relative | U.S. permanent resident | Spouse | Preference relative |
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Notice who is not on this list: grandparents, cousins, aunts, uncles, parents-in-law, and other extended family members.
However, if allowed to immigrate to the United States, most of the people on the above list will be permitted to bring their own spouses and children with them. And it is true that once someone has a green card, they can sponsor other people on the list.
How Long Must Relatives Wait?
Immediate relatives can get green cards without worrying about waiting periods or numerical limits. Preference relatives may have to wait between approximately one and 23 years before being allowed to apply for their visa or green card.
Also, only a certain percentage of the green cards go to any one country each year. That means if a particularly high number of people from certain countries submit petitions -- as is often the case with India, Mexico, China, and the Philippines -- their family members end up waiting even longer than others.
Because of the annual limits on how many green cards (immigrant visas) are given out, and the unpredictability of how many people submit petitions each year, no one can say exactly how long each applicant will wait.
As a general rule, applicants in higher preference categories wait less time. The average wait these days from most countries (excluding India, Mexico, China, and the Philippines) is as follows:
Current Average Waiting Period Type of Preference Relative | Preference Category | Average Wait | Adult, unmarried children of U.S. citizens | First preference | Six years | Spouses or children of permanent residents | Second preference | Five years for spouses and for minor children; nine years for adult children | Married children of U.S. citizens | Third preference | Nine years | Brothers and sisters of U.S. citizens | Fourth preference | Eleven years |
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The longest waits are endured by siblings of U.S. citizens from the Philippines -- currently a staggering 23 years.
How to Start the Application Process
The family member who you will sponsor will have to go through a multi-step application process. It's your job as a U.S. citizen or green card holder to start the process, by submitting a visa petition. Your family member can't enter the U.S. until both the petition and subsequent applications have been approved.
Sponsor vs. Petitioner | Although the term commonly used to describe a U.S. citizen or resident who helps someone immigrate is "sponsor," this isn't the technical term. You "petition" for your family member, so you're a "petitioner." Your incoming family member is called a "beneficiary." |
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Strategies for Success
There are some important steps you can take to speed up your family member's progress toward a green card.
Apply for U.S. Citizenship
If you are a U.S. permanent resident, not a citizen, you can help by applying for citizenship as soon as you're eligible. That's usually five years after getting your green card.
As soon as you're a citizen, your family members can move to a speedier immigration category. For example, your spouse would become an "immediate relative," and could apply for a green card right away. Your parents would go from having no immigration rights to being immediate relatives, and your children would become immediate relatives or move to higher preference categories, depending on their age and whether they are married.
Warn Your Waiting Children Not to Marry
Children who marry have it tough when it comes to immigrating. If you're a permanent resident and you have petitioned for an unmarried child, that child's marriage will destroy the right to immigrate under your petition. If you're a U.S. citizen and your child marries, that will drop the child down into the third preference category, meaning a long wait.
Make sure your children know these risks before they marry. It won't matter that they were unmarried when you started the immigration process for them; they have to be unmarried when they pick up their immigrant visa or green card.
Have Multiple U.S. Family Members Sponsor the Same Immigrant
Hopeful immigrants (beneficiaries) shouldn't pin all of their hopes on one petitioner. If something goes wrong -- for example, the petitioner dies or divorces the beneficiary before the beneficiary gets a green card -- the opportunity is, in most cases, lost.
There is no harm in having more than one U.S. citizen or resident file visa petitions for a waiting immigrant. For instance, both parents could file for a child, to insure against the death of one parent. Or a person married to a permanent resident could have both the resident and their U.S. citizen parent file a visa petition for them.
© 2010 Nolo
The Visa Petition: The First Step for Family and Employment Green Cards
by Ilona Bray
Family members and workers need an "invitation" from the U.S. before they can start their green card application.
A visa petition is the first step in applying for a green card. Let's say you qualify to immigrate through either a family member or a company that wants to hire you. Perhaps, for example, your father is a U.S. citizen or permanent resident. Or perhaps you've been offered a high-level job, and the employer has already recruited for American employees and found none who are qualified, willing, and able.
Can you apply for your green card yet? No, not quite. It’s up to your family member or employer to start the process for you. They must do that by filing a form called a "visa petition" -- at which time they become your "petitioner," and you become a "beneficiary."
The Visa Petition
The idea of the visa petition is to prove your petitioner's interest in helping you immigrate, and that the petitioner has the right and ability to do so, based on your relationship. If, for example, your mother, who is a U.S. permanent resident, filed a visa petition for you, she would need to include a copy of your birth certificate showing that she is really your mother, and of her green card, showing that she is really a permanent resident.
Or, for example, if an employer filed a visa petition for you, it would need to attach proof that a labor certification was granted, proof that it can actually pay the wages it’s offering you (such as its tax returns or annual reports), copies of your college degrees if the job requires a certain level of education, and more.
The visa petition also takes care of some other details, like informing USCIS whether you will be continuing with your application through a consulate outside of the U.S. or through a U.S.-based USCIS office.
The Waiting List
Once your visa petition has been approved, it serves another important function: It establishes your place on the waiting list, if you're applying in a category where only limited numbers of green cards (immigrant visas) are given out each year. (That applies to almost everyone except the immediate relatives of U.S. citizens and certain highly qualified workers.)
The date your family member or employer sent in the visa petition becomes your "priority date," which is like your number in line at a bakery counter. By checking the monthly Visa Bulletin on the State Department's website, you can see which priority dates are currently being served -- that is, who is being allowed to move forward with How to File a Green Card Application.
Shortcut for Immediate Relatives
Immediate relatives, such as the parents, spouse, or minor, unmarried children of a U.S. citizen, not only don't have to worry about priority dates, they have an important advantage if they are living in the United States. If they qualify for what's known as "adjustment of status," a procedure in which the entire green card application is done without leaving the United States, they can submit the adjustment of status application to USCIS together with the visa petition. That can save several months of waiting for USCIS to decide on the visa petition. However, this option is not available to everyone -- in particular, immigrants who entered the U.S. illegally normally can't use this option.
© 2010 Nolo
Sponsoring a Worker for a Green Card: Employer's Tasks
Obtain U.S. residency for foreign workers by getting a labor certification.
Foreign workers may obtain green cards to come to the United States only if their potential U.S. employer can prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification." (The requirements are much less for foreign workers seeking to enter the U.S. on temporary, nonimmigrant visas, such as H-1Bs and H-2Bs, which are not covered here.)
Step-by-Step Procedures for Labor Certification
The procedures for obtaining labor certification were radically changed in 2005, in an effort to streamline and shorten the application process.
1. Employer Requests Prevailing Wage Determination
Under the new procedures, the first step is for the employer to approach the state workforce agency (SWA) serving the state where its office is located. The employer must request what's called a "prevailing wage determination" (PWD), which will indicate how much is normally paid to people in jobs equivalent to the one being offered. This information is important because the employer must offer the immigrating worker 100% or more of the prevailing wage.
2. Employer Recruits in the U.S.
Next, the employer can begin recruiting for the job in the United States. (Actually, the employer can start recruiting before this, but must make sure to offer a salary that’s at least as high as the prevailing wage.)
The Department of Labor (DOL) regulations spell out strict rules for recruiting. For starters, the employer must announce the job in a statewide computer databank and in newspapers or other journals of general circulation, with ads appearing on two different Sundays. If the application is for a professional, the employer must conduct three additional steps chosen from a list published in the DOL regulations.
3. Employer Files Labor Certification Application Form
If, after the recruiting is done, the employer has not found a qualified, willing, available, and able American to take the job, it can submit the labor certification application to the U.S. Department of Labor (DOL). The application involves completing a ten-page DOL form (ETA-9089), available on the DOL website at www.foreignlaborcert.doleta.gov. No supporting documents need be submitted, though they must be available in case DOL requests them.
The DOL is supposed to make a decision on the labor certification within 45 to 60 days, but often fails to meet this deadline.
Further Resources | For detailed information on applying for the labor certification and employment-based green cards, as well as nonimmigrant work visas, such as the H-1B visa, see U.S. Immigration Made Easy, by Ilona Bray (Nolo). |
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Next Steps Toward a Green Card
Only after the labor certification is approved can the employer and immigrant proceed forward. First, the employer must file a visa petition on USCIS Form I-140. After the visa petition has been approved, the immigrant must apply for a green card, either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas). For more information, see How to File a Green Card Application.
Exceptions to Labor Certification Requirement
For workers in the following categories, no labor certification needs to be filed before the worker applies for a green card. These exceptions include:
- workers in what is called the "employment first preference" category, including persons of extraordinary ability in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies
- millionaire entrepreneur immigrants ("employment fifth preference")
- religious workers coming as "special immigrants" ("employment fourth preference"), and
- people whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes there is a shortage of such workers.
© 2010 Nolo
U.S. Citizenship by Birth or Through Parents
You may already be a U.S. citizen by birth or naturalization and not know it.
U.S. citizenship can be obtained in one of four ways:
- birth in the United States or its territories
- birth to U.S. citizen parents (called "acquisition" of citizenship)
- naturalization (obtaining citizenship after an application and exam), or
- naturalization of one's parents (called "derivation" of citizenship).
Some people are already U.S. citizens and don't know it. Most of these people fall into one of three groups:
People born in the United States who have lived most of their lives in other countries. If you fall into this category, you may mistakenly believe that your long absence from the country, plus voting or military activities elsewhere, have stripped you of U.S. citizenship. This is not the case.
People who have U.S. citizens in their direct line of ancestry. If your parents or grandparents were U.S. citizens, you may not realize that U.S. citizenship has been passed down the line, even if you were born elsewhere and your parents or grandparents haven't lived in the United States for a long time.
Children of naturalized U.S. citizens. When parents become naturalized U.S. citizens, their minor children with green cards gain U.S. citizenship automatically. (Children under the age of 18 cannot normally apply to become naturalized U.S. citizens.)
You will, however, need to do some research to establish your rights. Here, we'll explore each of the above three possibilities in turn.
Birth in the United States
A child born on American soil automatically gets U.S. citizenship, unless the child is born to a foreign government official who is in the United States as a recognized diplomat. Children born in certain U.S. territories -- Puerto Rico, the Virgin Islands, and Guam -- may also acquire U.S. citizenship. For details, see Title 8 of the U.S. Code, available at www.law.cornell.edu/uscode/html/uscode08.
Anyone born with U.S. citizenship retains it for life unless he or she deliberately gives it up -- for example, by filing an oath of renunciation.
Birth to U.S. Citizen Parents ("Acquisition")
In many circumstances, even though a child is born outside the United States, if at least one parent was a U.S. citizen at the time of the child's birth, the child automatically "acquires" citizenship. When this child marries and has children, those children may also acquire U.S. citizenship at birth.
The laws governing whether or not a child born outside of the United States acquires U.S. citizenship from parents have changed several times. You'll need to look at the law that was in effect on the date of the child's birth (and the parents' birth, if grandparents were U.S. citizens) for guidance. These laws differ for the following time periods:
- prior to May 24, 1934
- May 25, 1934 to January 12, 1941
- January 13, 1941 to December 23, 1952
- December 24, 1952 to November 13, 1986, and
- November 14, 1986 to present.
Naturalization of Parents ("Derivation")
When a parent naturalizes, his or her children may "derive" U.S. citizenship automatically, provided they have green cards and are under age 18 and living with the parent at the time. Becoming a U.S. citizen in this way has a special benefit: A child who gets U.S. citizenship through the naturalization of either or both parents does not have to participate in a naturalization ceremony.
The laws on the automatic naturalization of children have varied over the years. Whether or not you are a U.S. citizen is determined by the laws that existed when your parent's naturalization took place. These laws differ for the following time periods:
- parents who naturalized before May 24, 1934
- parents who naturalized between May 24, 1934 and January 12, 1941
- parents who naturalized between January 13, 1941 and December 23, 1952
- parents who naturalized between December 24, 1952 and October 4, 1978
- parents who naturalized between October 5, 1978 and February 26, 2001, and
- parents who naturalized between February 27, 2001 and the present.
Proving Your U.S. Citizenship
If you have a claim to U.S. citizenship based on one of the laws discussed in this article, you should acquire a passport or other document to prove it.
© 2010 Nolo
Applying for U.S. Citizenship
Find out who is eligible for U.S. citizenship and how to apply.
U.S. citizenship gives a person as many rights as the U.S. has to offer; for example, the right to vote, petition for family members to immigrate, and live abroad without losing your right to return. For these reasons, citizenship is not easily obtained.
To become a U.S. citizen, you must first have a green card (permanent residence) and then meet other requirements, listed below. There are only a few rare exceptions in which a person goes straight from having no U.S. status to getting U.S. citizenship; some are
The Eligibility Criteria
If you are interested in applying for U.S. citizenship, first make sure that all of the following apply to you:
- you have lived in the United States as a lawful permanent resident for at least five years (with exceptions for refugees, people who get their green card through political asylum, spouses of U.S. citizens, and U.S. military personnel)
- you have been physically present in the United States for at least half of the last five years
- you have lived in the district or state where you are filing your application for at least three months
- you have not spent more than a year outside the United States
- you have not made your primary home in another country
- you are at least 18 years old
- you have good moral character
- you are able to speak, read, and write in English
- you are able to pass a test covering U.S. history and government, and
- you are willing to swear that you believe in the principles of the U.S. Constitution and will be loyal to the United States.
Applying for citizenship opens your whole immigration history to review. U.S. Citizenship and Immigration Services (USCIS) will carefully investigate your background. If it discovers something wrong -- for example, that you used fraud to get your green card or abandoned your residency by making your home outside the United States -- it can strip you of your green card and send you out of the country.
Further Resources | For more on the eligibility and application requirements for citizenship, including important exceptions, the rights of disabled persons, and the details of how to apply, see Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview, by Attorney Ilona Bray. |
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The Application Process
You'll need to complete a citizenship application and send it in with a copy of your green card, the required photos, and the appropriate fee. After filing your application, you will probably wait for many months, depending on your local USCIS office. Then you will be called in for a fingerprint appointment, and later an interview appointment.
At the interview, a USCIS officer will test your English language ability (unless you are over 50 and fit within an exception) and your knowledge of U.S. history and government. Applicants who are disabled can ask for accommodations at the interview, such as a sign language interpreter or wheelchair accessibility.
If all goes well at the interview, you'll receive an appointment for your swearing-in ceremony. At that time, you actually become a citizen, and receive a certificate of naturalization to prove it. As a citizen, you can petition to have close family members join you in the United States.
© 2010 Nolo
Obtaining Proof of U.S. Citizenship
If you have a right to U.S. citizenship, what's next?
If you believe you are a U.S. citizen, you'll want a document to prove it.
If you were born on U.S. soil and there is a record of your birth, a standard U.S. birth certificate issued by a state government is your primary proof of U.S. citizenship. (Birth certificates issued by hospitals are not official records and do not serve as proof of citizenship.)
If you were naturalized in the United States, you will have a naturalization certificate.
However, if your birth took place outside the territorial United States and you have a right to U.S. citizenship through your parents, you will not have either of these documents. () In this case, you will have to apply for either a U.S. passport or a certificate of citizenship.
U.S. Passports
If you were born abroad to U.S. citizen parents, you can apply for a U.S. passport in the same way as someone born in the United States. However, you will have the added requirement of establishing your citizenship claim. The evidence you'll need to have on hand may include:
- proof of your parents' U.S. citizenship
- evidence that your parents complied with any applicable U.S. residency requirements, and
- evidence that you fulfilled any necessary residency requirements, or that you were excused from doing so because you didn't know about the law.
Evidence may take the form of birth or citizenship records, work or tax records, or affidavits from you (and perhaps even from your parents or grandparents), for example, explaining why you were unaware of your claim to U.S. citizenship.
Passports are available from passport offices in the United States or at U.S. consulates abroad, but experience shows that you have a better chance of succeeding by applying to a U.S. consulate.
Certificates of Citizenship
You can also get proof of your citizenship by applying for a certificate of citizenship from U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). Anyone with a claim to U.S. citizenship can apply for a certificate of citizenship. Citizenship certificates are issued only by offices of USCIS located inside the United States.
In most cases it is more difficult to prove your citizenship through a certificate of citizenship application than by applying for a U.S. passport, mostly because it takes more time. (In some of the busier USCIS offices, it can take over a year to obtain a certificate of citizenship.) However, if your U.S. citizenship was obtained automatically through the naturalization of a parent, a certificate of citizenship application is your easiest and best choice, because the evidence needed to prove your claim is usually obvious and easy to acquire.
Evidence of your claim to U.S. citizenship should include your parents' birth certificates, marriage certificates, and naturalization certificates. You will also need your birth certificate, marriage certificate, or divorce decree to prove what your name is and to document any changes to your name.
Certificates of Consular Registration of Birth
If you were born outside the United States and your parents were U.S. citizens at the time, they may have registered your birth with a U.S. consulate. If they did so within five years of your birth, they would have been issued what is called a Consular Registration of Birth Abroad. The consular registration is conclusive proof of U.S. citizenship.
But, if your parents did not take the steps to register your birth with the consulate before you turned five years of age, there is no way of obtaining one now. Also, there is no way to obtain duplicates if your parents lost the original and any copies they received at the time of your birth. You will have to apply for a passport or certificate of citizenship using the procedures outlined above.
© 2010 Nolo
Keeping Your Green Card After You Get It
Follow these rules and you won't lose your status as a permanent resident of the U.S.
Once you receive a green card, you must meet a few conditions if you want to keep it for life. For one thing, you must not violate certain criminal or immigration laws -- including one law that requires you to advise the immigration authorities within ten days if you change addresses. For another, you must not abandon the United States as your permanent residence.
If You Violate the Law
The most common way that people lose their right to a green card is by committing a crime. Unlike what is commonly believed, it doesn’t have to be a major crime or a felony. For example, a person can be deported for helping someone enter the United States illegally, for committing domestic violence, for possessing even a small amount of drugs, or for any crime that’s considered morally wrong (such as fraud, theft, a crime with the intent of doing great bodily harm, or a sex offense). Some of these crimes are misdemeanors that may not be punishable with time in jail.
However, there is no set list that tells you which crimes make you deportable. If you are arrested for anything at all, consult not only a criminal lawyer, but also an immigration lawyer to find out whether and how you can avoid deportation. Very few criminal lawyers understand the immigration laws -- and many of them encourage you to plead guilty to something as a way of avoiding jail time, not realizing that your guilty plea may get you deported.
In addition, a person can be deported for certain violations that don’t fall under the criminal laws. For example, if U.S. Citizenship and Immigration Services (USCIS) discovers that you got your green card through a fraudulent (sham) marriage, or any other type of fraud, you can be deported.
An immigrant can even be deported for failing to advise USCIS of a change of address within ten days of moving. In the past, USCIS almost never did anything about this. However, with increased security concerns, USCIS has begun using this rule against people it wishes to remove from the United States. You can now use USCIS's online service to notify it of your change of address.
If You Live Outside the U.S.
Many people wrongly believe that to keep your green card all you need to do is enter the U.S. at least once a year. The fact is that if you ever leave the U.S. with the intention of making some other country your permanent home, you give up your U.S. residency when you go. The border officials will look at your behavior for signals that your real place of residence is not the United States.
As a general rule, if you have a green card and leave the United States for more than one year, you may have difficulty reentering the country. That is because the U.S. government feels that an absence of longer than one year indicates a possible abandonment of U.S. residence. Even if you do return before one year, you may run into trouble. To avoid a full-scale inspection, return within six months.
On the other hand, remaining outside the U.S. for more than one year does not mean you automatically lose your green card. If your absence was intended from the start to be only temporary -- for example, you left for vacation, but had a head injury and forget who you were for a year -- you may be able to argue to keep your permanent resident status. However, you may no longer use your green card as a U.S. entry document. You must have what is known as a reentry permit, or you must apply at a U.S. consulate for a special immigrant visa as a returning resident.
The Commuter Exception | Green card holders who commute to work in the U.S. from Canada or Mexico on a daily or seasonal basis may keep their cards even while actually living outside the country. USCIS will grant you commuter status if you advise them of your intention to live on the other side of the U.S. border. |
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Returning Resident Visas
If you stay outside the United States for more than one year and do not get a reentry permit (described below) before leaving, you must apply at a U.S. consulate abroad for a special immigrant visa as a returning resident. You must convince the consular officer that your absence was temporary and you never planned to abandon your U.S. residence.
You will have to show evidence that you were kept away longer than one year due to unforeseen circumstances. Such evidence might be a letter from a doctor showing that you or a family member had a medical problem.
Reentry Permits
If you hold a green card and know in advance that you must be outside the United States for more than one year, it's worth applying to USCIS for a reentry permit. This lets you to stay away for up to two years.
You should send in your application before leaving. Use Form I-131, available on the USCIS website (www.uscis.gov). Your reentry permit will serve as an entry document when you are ready to return. Reentry permits cannot be renewed and can be applied for only inside the United States. If you want to stay away for more than two years, you must return briefly and apply for another reentry permit.
File for Citizenship to Avoid These Problems
You can lower the chances of losing your residence in the United States by applying for citizenship as soon as you are eligible. The waiting time for eligibility is usually five years after you get a green card, but there are exceptions: For example, the wait essentially drops to four years if you received political asylum (because your first year as an asylee counts), and to three years if, at the time you got your green card, you were married to a U.S. citizen and you're still married and living together.
© 2010 Nolo