Citizenship and Naturalization

Under the Fourteenth Amendment, "all persons born or naturalized in the United States... are citizens of the United States." The following categories apply:

1. By birth in the U.S.: The U.S. adheres to the doctrine of birth in the U.S. (Jus soli).

2. By Acquisition at Birth: A child born outside of the U.S., where one or both parents are United States Citizens, may acquire citizenship at birth.

3. By Derivation through the Naturalization of Parents: A child born outside of the U.S., may become a United States citizen by matter of law if his or her parents’ become naturalized.

4. By Naturalization: If a person meets certain requirements, including residence, good moral character and legal status, they may file for naturalization with the Immigration & Naturalization Service.

The following are the basic requirements for eligibility:

• Must be a Permanent Resident of the United States.
• Must be 18 years old.
• Must be a resident continuously for five years since becoming a Permanent Resident. If you are married to a United States Citizen, the residency requirement is reduced to three years. Also, you need to have been physically present in the U.S. for at least one-half of the five year period (or one-half of the three year period if the applicant is the spouse of United States Citizen).
• Must have resided in the state where the application is filed for at least 3 months.
• Must be a person of good moral character. You cannot be on probation at any time of the pendency of the application.
• Must uphold the principles of the U.S. Constitution.
• Must be willing to bear arms on behalf of the U.S. when required to do so by law.
• Must not otherwise be barred by being a member of the communist party; deserter during war time or be in deportation proceedings.
• Must be able to demonstrate an elementary level of reading, writing and understanding English and have a knowledge and understanding of the fundamentals of history and government of the U.S. The English language requirement does not apply to applicants who are over the age of 50 and who have been living in the U.S. for 20 years since becoming Permanent Residents. Also, it does not apply to applicants who are over 55 years of age and who have been living in the U.S. for 15 years after becoming Permanent Residents.
• Must have registered for selective service, if applicable.
  

Applications can be filed up to 3 months before you meet the continuous residence requirements.

There are certain special naturalization programs including those for Philippino War Veterans and Gulf War Veterans.

If you would like some further information about becoming a U.S. citizen as well as dual citizenship information, please contact us.

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Determining One’s Citizenship When Born Outside of the US

The only “easy” rule in determining if someone is deemed a US citizen is that all persons born in the U.S. are citizens of the US.  The rules determining whether children born outside of the US are US citizens are more complicated.

Person born abroad before May 24, 1934 to a US citizen father are considered US citizens at birth if the father resided in the US or US territories at any time prior to the birth of the child.  The status of the mother does not matter as long as the child was not born out of wedlock.  In 1994, this law was expanded to include as US citizens from birth, those children born abroad to US citizen women who lived in the US or US territories prior to the birth of the child in question.  There is a case in the Supreme Court that may further this law.  This case is called Nguyen v. INS.

If a child was born between May 24, 1934 and January 13, 1941, and either one or both of his or her parents was a US citizen, the child was deemed a US citizen if one of the parents lived in the US any time prior to the birth of the child.  If one parent was a US citizen, and the other a foreign national, the child would lose his or her citizenship if they did not reside in the US for the five years immediately prior to their eighteenth birthday, or within six months of turning 21, take an oath of allegiance to the US.  Between the years of 1934 and 1940, these rules were significantly relaxed.  Illegitimate children born during this time period became US citizens because the child was considered to have only one parent.  There were no requirements that could result of the child losing citizenship.

Children born to two US citizens between January 14, 1941 and December 23, 1952 and at least one parent resided in the US, the child was deemed a US citizen.  No further actions were required to maintain citizenship. 

If a child was born during this time period to a US citizen and a foreign national, the requirements for US citizenship changed substantially.  In order for the child to be deemed a US citizen, the US citizen parent must have resided in the US for at least 10 years before the birth of the child in question.  Of these 10 years, at least five of those years had to be after the parent turned 16.  In 1946, this requirement was changed to create an exception for parents who served in World War II.  To maintain citizenship, the child had to reside in the US for five years between the ages of 13 and 21.  Children of US citizens who were employed abroad by the US government or US company were exempted from this rule.

Children born during this period out of wedlock to a US citizen mother were considered US citizens if the US citizen mother met the above residency requirements.  If the child was born out of wedlock to a US citizen father, the child was deemed a US citizen if the child was legitimized before the age of 21.

Children born between December 23, 1952 and November 13, 1986 to two US citizens were deemed US citizens if one of the parents resided in the US at some time before the birth of the child. If the child was born to a US citizen and a foreign national, the child was deemed a US citizen if the US parent resided in the US for a total of 10 years prior to the birth of the child and five of those years after the age of 14.  If the US citizen was serving in the military, time spent outside of the US on military duty was deemed time spent in the US.

If a child was born out of wedlock during this time and the mother was a US citizen, the child will be deemed a US citizen if mother resided in the US for a period of one year prior to the birth of the child in question.  If the child was born out of wedlock and the father was a US citizen, the child would be deemed a US citizen if legitimized before the age of 21.

Children with birth dates on or after November 14, 1986 who were born to US citizen parents were deemed US citizens if one of the parents resided in the US prior to the child’s birth.  No further action was required to maintain citizenship.  Children born to one citizen parent and one foreign national will be US citizens from birth if the citizen parent resided in the US for five years before the birth.  Again, the child did not have any affirmative duties to maintain this citizenship.

Children born out of wedlock during this time to a US citizen mother if the mother resided in the US one year before the birth of the child. Children that were born out of wedlock to a US citizen father will be deemed US citizens at birth if there is an established blood line between the child and father; the father was a US citizen at the time of the child’s birth; the father has agreed to financially support the child until he turns 18; and the child is legitimized before the age of 18, or the father acknowledges paternity in a signed document under oath.

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Instant US Citizenship for Internationally Adopted Children

The Child Citizenship Act of 2000 came into effect on February 27, 2001.  This act, which was passed by Congress last year, grants most adopted children born outside of the US instant US citizenship.  The only requirements are that the child is under 18 and at least one parent (or legal guardian) is a US citizen.

This Act significantly simplified the previous process for US citizenship for these adopted children which included FBI, state and local background checks, the application process itself, and the requirement of numerous documents to be submitted to the INS.

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Dual Citizenship Requirements

Dual Citizenship

I am often asked the common question “Can I apply for U.S. citizenship and still keep my South African citizenship?” The basic answer is that with advance planning, this can be achieved. However, the answer is different if one is already a U.S. citizen (after October 6, 1995) and did not apply to retain South African citizenship before acquiring U.S. citizenship.

There have been some changes to the law relatively recently and also some issues with enforcement at the airports in South Africa. This article addresses some general information about the rules of dual citizenship with South Africa and the United States, and also the U.S. citizenship process in the general.

What rules govern this area of the law?

The acquisition, loss, deprivation and resumption of South African citizenship are regulated by the South African Citizenship Act, 1995 (Act 88 of 1995) and the amendments contained in the South African Citizenship Amendment Act, 2004 (Act 17 of 2004).

What is dual citizenship?

Dual citizenship means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy. U.S. law does not mention dual citizenship, or require a person to choose one citizenship over another. Dual citizens owe allegiance to both the U.S. and the foreign country. They are required to obey the laws of both countries. Most U.S. citizens, including dual citizens, must use a U.S. passport to enter and leave the United States. Dual citizens may also be required by the foreign country to use its passport to enter and leave that country. Using a foreign passport does not endanger U.S. citizenship.

Can I retain my South African citizenship, while at the same time pursuing my U.S. citizenship?

Yes, you can apply to retain your South African citizenship, but only if you apply, and are approved, before applying for U.S. citizenship. Once U.S. citizenship has been issued, one must travel into, and out of, South Africa, using a South African passport. It is a criminal offense for an adult South African citizen to enter South Africa or leave, using a foreign passport. Also, while in South Africa, it is a criminal offense to use foreign citizenship to obtain any benefits, or avoid a responsibility or duty.

One can use a foreign passport when traveling to other countries, other than South Africa.

What shall I do if I would like to apply for U.S. citizenship now and still retain my South African citizenship? What does the process involve?

For future applicants, if you wish to retain your South African citizenship, then contact the nearest South African Embassy, Mission, or Department of Homeland Affairs. You will need to complete Form BI-1664 and Form BI 529E and pay a fee of $19.00 and providing supporting documents. This will have to be done before applying for U.S. citizenship. All subsequent trips to and from South Africa will need to be made with a South African passport.

If I have already become a U.S. citizen and I did not apply to retain my South African citizenship, what can I do?

South African citizens, who have lost their South African citizenship, may still be eligible for an exemption and can reapply for their South African citizenship if they lost their citizenship before October 6, 1995. In this case Form BI-529E and Form BI-1666 will need to be filed along with a filing fee of $19.00 and supporting documents.

If you did not file to retain South African citizenship, after October 6, 1995, and you have become a U.S. citizen, you have lost your South African citizenship. If you wish to regain South African citizenship, you must apply at a Home Affairs office in South Africa and be residing permanently in South Africa.

Am I eligible to apply for U.S. citizenship?

If you have had a Green Card for 5 years, and have been physically present in the U.S. for at least 30 months out of the last five years; and have resided within the district for at least three months, then you are eligible to apply. Absences from the U.S. of less than 6 months will not break the continuity. An absence from the United States for a continuous period of one year or more breaks the continuity of such residence. You can file your application up to three months before the date you meet the residence requirement.
In addition, if you have been married to a U.S. citizen for three years and your spouse has been a U.S. citizen for three years, you may apply for citizenship after only three years.
You also have to be a person of good moral character, be able to speak, read and write English and have knowledge of the basics of U.S. history and government.

What is involved in the U.S. citizenship application process?

The process is very streamlined at this time. Form N-400 is required, along with two passport photos, and a copy of your Green Card. The fee is $400.00 ($330.00 for the filing fee and $70.00 for a biometric fee). The application is filed at the USCIS Service Center having jurisdiction over your place of residence.

There are three main parts to the process. Once your application has been filed, you will be called for a biometrics appointment where your fingerprints will be taken electronically for an FBI criminal background check. The next stage is the interview at a local USCIS office. At this interview, the USCIS officer will go over the N-400 application with you; ensuring that all the data is correct. You will be asked some U.S. history and government questions and show that you can speak, read and write English. There will also be questions involving any prior arrests or problems with immigration.

If all goes well at the interview, you will be scheduled for an oath-taking ceremony at a later time. At this ceremony, you be required to take an oath of allegiance to the United States and promise to support the constitution and the laws of the United States. You will hand in your Green Card and receive a naturalization certificate. You will then need to apply for a U.S. passport if you intend to travel abroad, since you no longer will have your Green Card. The Department of State website is very helpful in this regard. See www.travel.state.gov. There is a way to obtain an expedited passport within a few days if you have a travel emergency.

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How to Apply for a U.S. Passport after you have become a U.S. citizen

Applying for a U.S. Passport:

After your oath-taking ceremony, USCIS will take away your Green Card. You will be given a naturalization certificate and you can take that to a passport office and apply for your U.S. passport. You will not be able to travel abroad until you have your U.S. passport. If you need to travel in an emergency, you can apply for an expedited passport, through the U.S. Passport Office, or through a reputable private service.