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Myths and Realities - SBOT Oral Remarks

by Gary Endelman

Few areas of immigration law have as many myths surrounding them as naturalization and citizenship. This brief talk will examine some of the major ones and try to provide realistic answers. I should preface these remarks by saying that the views expressed are entirely personal and reflect only my understanding of the law.

1. Marrying an American automatically qualifies you to apply for US citizenship- Myth

2. Reality: Not true. Marriage to USC creates the basis for LPR status and shortens the period before you can apply for naturalization from 5 to 3 years but nothing is automatic.

3. Myth: Eligibility for naturalization starts from the time a nonimmigrant first arrives in the USA

4. Reality: Not true. Period spent as NIV has no effect on qualifying for naturalization. No matter how long an NIV has been here, the person still has to wait 4 years and 9 months after getting LPR before applying for naturalization ( 2 years and 9 months if married to USC )

5. Myth: If married to USC, you never have to have the green card for 5 years before applying for naturalization; you can always file early.

6. Reality: It is true, as noted above, that an LPR who is married to USC only has to wait 2 years and 9 months before filing the N400 BUT this is true ONLY if the marriage is 3 years or longer. Someone married to USC for less than 3 years cannot file early but has to wait the normal time.

7. Myth: You always have to know how to read and write English to become a USC.

8. Reality: Not true If over 55 and LPR for at least 15 years.

9. Myth: You always have to have a fundamental understanding of US history and government to apply for naturalization.

10. Reality: Not true if over 65 and LPR for at least 20 years

11. Myth: Failure to register for Selective Service while an NIV disqualifies you for naturalization

12. Reality: NIV not obliged to register. Obligation for LPR between 18-26.

13. Myth: Getting re-entry permit helps preserve continuity of residence for naturalization

14. Reality: It has no such effect. Serves as an insurance policy to guard against unintentional abandonment of LPR but otherwise has no effect on naturalization. For that, you need to file an N 470 which requires an uninterrupted one year period AFTER LPR when you were always in USA. Most people cannot qualify to file N 470 for this reason.

15. Myth: There is no connection between tax returns and eligibility for naturalization

16. Reality: Not true. Filing a non-resident tax return on 1040 NR is viewed as an abandonment of LPR. Taking advantage of foreign earned income exclusion will also make it difficult to satisfy the 50% physical presence requirement and/or can jeopardize continued retention of LPR status.

17. Myth: If you disrupt the continuity of residence for naturalization, there is no required waiting period before you can file the N 400.

18. Reality: If you disrupt continuity of residence for naturalization, you must wait 4 years and 1 day before filing N 400 after you return to USA . This is 2 years and 1 day if married to USC.

19. Myth: Working for an American company abroad excuses compliance with physical presence requirements

20. Reality: Not true. It might enable you to apply for N 470 extended absence benefits if you have a post -LPR one year period of uninterrupted physical presence in USA but no impact on satisfying the 50% physical presence requirement. If your spouse works for such a US Company, this could enable you to bypass both residence and physical presence requirements by filing under INA 319(b).

21. Myth: You can never leave the USA once you file the N 400

22. Reality: INA 316(b) says that you must "reside continuously" in USA from time of submitting the N 400 until time you become USC. This does not mean continuous physical presence

23. Myth: For naturalization purposes, "residence" and "domicile" mean the same thing.. INA (a)(33) defines "residence" to mean "principal , actual dwelling place in fact without regard to intent". By contrast, "domicile" means living someplace with the intent to make it your permanent home. 9 FAM 40.41 N6.1 defines "domicile" as a place of principal residence "with the intention to maintain that residence for the forseeable future". If you leave the USA and stay away for less than 12 months, you are deemed to remain a resident of the state where you lived at time of departure.

24. Myth: You must be in the USA to file N 400.

25. Reality: Not true. N 400 is not re-entry permit where this is required. You can be anywhere and file N 400.

26. Myth: You cannot be an American citizen at birth unless you are born in USA

27. Reality: Not true. Derivative citizenship attaches to those born outside USA where at least one parent is USC. Typically, if both parents are USC at time of birth, then the child becomes USC if one parent had a residence in USA before birth of child. If only one parent was USC, then the USC parent has to physical presence in the USA before birth of child for specified periods of time depending on when the child was born. Since Nov 14, 1986, this is 5 years physical presence, not residence, 2 after age 14. From 1952 until then, it was 10 years and 5 after age 14.

28. Myth: The child of a USC born outside the USA is automatically a USC

29. Reality: Being USC does not give the USC parent the right to transmit that citizenship to his or her children unless they meet the physical presence requirement in USA prior to birth of child.

30. Myth: Only physical presence as a USC counts towards transmission of USC status to child born abroad

31. Reality: Not true. Physical presence regardless of status counts. But it must be before child is born.

32. Myth: Anyone born in USA is automatically a citizen

33. Reality: Not if a parent had diplomatic immunity and was not subject to US law.

34. Myth: American law does not allow dual citizenship

35. Reality: A child born in the USA to parent(s) who are citizens of another country may legitimately acquire foreign citizenship if the law of that country follows jus sanguinis. US law does not allow the acquisition of foreign citizenship AFTER birth- this is the definition of naturalization- but it does allow acquisition of foreign citizenship AT time of birth. There is never a need for an election.

36. Myth: A US passport is always proof of USC status

37. Reality: Only when it is valid. An expired US passport is NOT proof of citizenship. This is why it is a good idea if possible for a derivative USC to also get Certificate of Citizenship since this never expires.

38. Myth: Step children count as children for purposes of deriving citizenship

39. Reality: Step children come within the definition of child for visa purposes but they have never counted for citizenship purposes, unlike adopted children for example, and the Child Citizenship Act did not change that.

40. Myth: Naturalized citizens have to live in the US

41. Reality: Not true. Once someone becomes a USC, they can leave the next day. Used to be they had to stay here for 5 years, then reduced to one and then requirement not to leave after naturalization eliminated entirely.

42. Myth: There is no way to stop being a USC once you are one

43. Reality: You can voluntarily relinquish USC status either through execution of an affidavit of renunciation or through performance of an expatriating act done with the intent to give up USC. INA 349 is controlling statute.

44. Myth: Transmission of USC is gender neutral

45. Reality: It is easier for unmarried women to pass on USC to children born abroad than for men. Compare INA 309- woman only has to be in the USA for 1 year before child is born to INA 309(a)- clear and convincing evidence of blood relationship with child and father; written parental promise to provide financial support until age 18 and , while child is under 18, child is legitimated or father acknowledges paternity in writing or paternity established by court decree.

46. Myth: All USC mothers have the same right to pass on USC to children born abroad 47. Reality: If born out of wedlock, mother only has to have one year of prior physical presence before child is born compared to ( since Nov 14, 1986) 5 years, 2 after age 14.

48. Myth: Physical presence of USC parents AFTER child is born never counts to pass on USC

49. Reality: This is true for acquisition of citizenship at birth per INA 301. It is not true for certificate of citizenship under iNA 322 where it does count.

50. If USC parent dies, there is no way for child under age 18 born outside USA to derive USC status

51. Reality: Under INA 322, physical presence of USC grandparents can be substituted for that of USC parent if the USC parent has died during preceding 5 years. Child must be under age 18, in legal and physical custody of USC parent ( if deceased, in legal and physical custody of individual who does not object) and 5 years physical presence, 2 after 14. Conditions have to be satisfied at time of N 600 application even if child is older at time of adjudication.

Gary Endelman Copyright 2012 by Gary Endelman. All rights reserved.

About The Author

Gary Endelman is a Senior Counsel at Foster Quan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.