Goulder Immigration Law Firm

Citizenship

U.S. Citizenship and Naturalization

A Legal Permanent Resident, ("Green Card" holder) of the United States may apply for Naturalization and become a United States Citizen. Permanent Residents may apply for Citizenship if they have met the following:

1. must be a Lawful Permanent Resident for five years and have spent at least half of that time in the U.S.; absence for longer than one year restarts the counting period;
2. if Permanent Residency was attained through marriage to a United States Citizen then an application can be submitted in three years. However, the U.S. Citizen spouse must have been a U.S. Citizen for that three year period, at least half of the three year period must have been spent within the U.S.; absence for longer than a year restarts the counting period;
3. be 18 years old and be able to read, write, and speak simple English and have a basic understanding of U.S. history & civics( exceptions apply);
4. has been physically present in the U.S. for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that her or she did not abandon his or her residence during that period; and
5. during the required time period of residence, have been and still be a person of good moral character.

The Following Persons cannot have Good Moral Character if during the last five years he or she:

1. has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana;
2. has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more;
3. has been confined to a penal institution during the statutory period as a result of a conviction for an aggregate period of 180 days or more;
4. has committed and been convicted of two or more gambling offenses;
5. is or has earned his or her principle income from illegal gambling;
6. is or has been involved in prostitution or commercialized vice;
7. is or has been involved in smuggling illegal aliens into the United States;
8. is or has been a habitual drunkard;
9. is or has practiced polygamy;
10. has willfully failed to support dependents or refuses to support dependents;
11. has given false testimony, under oath, in order to receive a benefit under the Immigration laws;
12. is or has been a member of the Nazi Party;
13. has been convicted of committing an aggravated felony (crime of violence involving a term of actual imprisonment exceeding one year) after November 20th, 1990;
14. has not registered for the selective service;
15. committed one or more crimes involving moral turpitude.

Criminal Convictions for a serious crime as noted above can prevent an alien from becoming a U.S. Citizen and can actually act to initiate Removal Proceedings. Convictions for Crimes of Moral Turpitude ("CMT") can subject one to removal if the crime was committed within five years after the date of last entry into the U.S. for which a sentence of a year or more could have been imposed regardless what was actually imposed. There is a Petty Offense Exception for one CMT as long as the sentence of imprisonment was six months or less and the offense has a maximum possible sentence of one year or less.

Convictions can include deferred judgments and adjudications, such as pre-trial intervention where a finding of guilty is deferred, pending the completion of a period of probation. USCIS will request that the aliens obtain a Certified Court Copy of any convictions and they will request a CIA fingerprint check. Therefore all convictions no matter how minor must be disclosed and carefully reviewed prior to filing an application for citizenship.

After the application is filed, an interview will be scheduled. There are two steps to the interview: the oral test and the written test. During the oral test the Bureau of Citizenship and Immigration Service Officer will ask questions about American History. The written test concerns the ability to read, speak, write, and understand English. Lawful Permanent Resident who have been residing in the U.S. for at least 15 years and who are over the age of 55, or, who have been residing in the United States for over 20 years and who are over the age of 50 may be examined in their native language. Applicants who can medically show a mental or physical disability are also exempt.

Dual Citizenship (and Canadians as an example)

U.S. Law on Dual Citizenship
The Supreme Court of the United States has stated that dual nationality is "a status long recognized in the law" and that "a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other", Kawakita v. U.S. , 343 U.S. 717 (1952).

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth.  U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship.

However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.  Intent can be shown by the person's statements or conduct.  The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause.

Dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries.  Either country has the right to enforce its laws, particularly if the person later travels there. Most U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States . Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship. Most countries permit a person to renounce or otherwise lose citizenship.

Section 215 of the Immigration and Nationality Act (8 U.S.C. 1185) requires U.S. citizens to use U.S. passports when entering or leaving the United States unless one of the exceptions listed in Section 53.2 of Title 22 of the Code of Federal Regulations applies. (One of these exceptions permits a child under the age of 12, who is included in the foreign passport of a parent who has no claim to U.S. citizenship, to enter the United States without a U.S. passport, provided the child presents evidence of his/her U.S. citizenship when entering the United States.) Dual nationals may be required by the other country of which they are citizens to enter or leave that country using its passport, but do not endanger their U.S. citizenship by complying with such a requirement.

The U.S. does not require a person to choose one citizenship over another and allows dual citizenship. However, a person who thereafter acquires foreign citizenship who voluntarily, by free choice, renounces his U.S. Citizenship, will lose it. Dual nationals must use their U.S. passports to enter the U.S. and they may use their foreign passport to enter and leave that country. Use of a foreign passport will not endanger U.S. Citizenship.

Canadian Dual Citizenship
What is meant by dual citizenship?
Every independent nation makes its own decision as to who its citizens will be. You possess dual or multiple citizenship when more than one country recognizes you as its citizen.

Unlike the law in effect in Canada up to 1977, the current Citizenship Act allows Canadian citizens to acquire a foreign nationality without automatically losing their Canadian citizenship. Since February 15, 1977, a Canadian citizen who acquires another nationality may retain Canadian citizenship, unless he or she voluntarily applies to renounce it and the application is approved by a citizenship judge. The current act thus makes it possible to have two or more citizenships and allegiances at the same time for an indefinite period.

Consequently, you may have the rights and obligations conferred by each of these countries on its citizens. Whenever you are in a country that recognizes you as a citizen, its laws take priority over the laws of any other country of which you may be a citizen. International treaties may, however, allow exceptions to this rule.

A person may have several citizenships at the same time. For example, a person who was born in a country other than Canada , who applies for citizenship and is naturalized in Canada , and then naturalized in a third country may be a citizen of all three countries. However, cases of dual citizenship are more common. Although this pamphlet deals primarily with dual citizenship, the information contained in it applies equally to people who are citizens of more than two countries. The terms "dual citizenship" and "dual nationality" are now used interchangeably.

How does dual citizenship occur?
If you, your parents, your grandparents and your spouse, if you are married, were all born in Canada , and you have not become the citizen of any other country, then you most likely possess only one citizenship: Canadian.

However, if one or more of these people were born outside Canada or acquired another citizenship, this might result in your having dual citizenship, depending on the laws of the countries concerned. For example, if you were born in Canada and one of your parents or your spouse was born outside Canada, you might be considered a citizen of your parents' or your spouse's former homeland, even if you never asked to be one. Dual citizenship occurs because citizenship can be obtained in more than one way: through country of birth, naturalization, parents, grandparents or, in rare cases, marriage.

Citizenship is a complex matter because of the great variety of citizenship laws throughout the world. Some countries allow dual citizenship while others take away the citizenship of a person who acquires another citizenship. Some do not recognize a person¿s new citizenship. The laws that apply to your case are generally the ones in force at the time of the event that affects your citizenship (your birth or marriage, or your parents¿ birth or marriage, for instance). This is why determining your present citizenship status can be a difficult and lengthy process.

Before the Citizenship Act of February 15, 1977, Canadian law limited dual citizenship. It also provided more ways to gain or lose citizenship than does our current law. Canadians who became citizens of another country before that date should check to see if they are still Canadians. Since that date, Canadian law, like the laws of several other countries, has allowed dual citizenship.

Are you a citizen of more than one country?
To find out whether you are or might become a dual citizen, you must contact the officials of each country in question. You will have to provide some information about yourself, such as the place and date of birth, the citizenship of your parents, and certain immigration details. You may also have to provide similar information about your parents, and possibly your spouse and grandparents.

If you are in Canada and you want to find out if you are a citizen of another country, you should contact that foreign country's embassy or consulate. To obtain the correct names, addresses and telephone numbers, you can consult the Consular Affairs Web site at www.voyage.gc.ca/alt/representatives.asp, or call the Enquiries Service of the Department of Foreign Affairs and International Trade at 1 800 267-8376 (toll-free, from anywhere in Canada) or (613) 944-4000 (in Ottawa).

If you have questions about Canadian citizenship, you should contact the Call Centre at 1 888 242-2100 from anywhere in Canada, or any Canadian embassy, high commission or consulate outside Canada. You may also write to the Registrar of Canadian Citizenship, Citizenship and Immigration Canada, Ottawa  K1A 1L1.

Dual citizenship: An important issue
Dual citizenship may carry with it certain benefits, but it may also bring unexpected difficulties: legal proceedings, taxation and financial responsibilities, military service, denial of emigration, even imprisonment for failure to comply with obligations in one of your countries of citizenship. Accordingly, you should ask yourself the following questions:

• Am I now a dual citizen?
• Can I acquire dual citizenship, either by marriage or by naturalization in Canada or in another country?
• Is dual citizenship an advantage or a disadvantage for me?
• If dual citizenship is a disadvantage, what can I do about it?

Dual citizenship: Advantage or Disadvantage?
Suppose you learn that you have, or a member of your family has, dual citizenship or that you might acquire it. Would dual citizenship be good for you? Would it have more advantages than disadvantages?

For some people, dual citizenship offers practical advantages (for example, social security or employment). It may also enhance the feeling of belonging because they have strong personal ties to more than one country.

However, it is important to realize that there can be difficulties and disadvantages as well. The following paragraphs suggest some of the consequences of having dual citizenship. In general, the laws that apply to you at any time are the laws of the country in which you are physically present at that time. The laws of a country may provide, for example, that people residing in the country of their second citizenship may travel only on the passport of their country of residence. Possession of a second passport could result in its being confiscated, or even in a fine.

If a Canadian has legal or other difficulties outside the country, Canadian diplomatic and consular representatives in that country can try to help. However, if the Canadian in difficulty in another country is also a citizen of that country, Canadian officials may be entirely unable to help. That country will be dealing with one of its own citizens and probably will not welcome "outside interference."  Indeed, foreign authorities will definitely consider you as one of their citizens, especially if you choose to travel under their passport.

Travelling with a Canadian passport and another country¿s passport simultaneously might also lead to certain difficulties in a third country. Where permitted by the laws of the country in question, the Government of Canada encourages Canadians to use their Canadian passport when travelling abroad and to present themselves as Canadians to foreign authorities.

There may be laws in a country to which a foreign traveller is not subject, but which apply to you as a citizen of that country. For example, there may be restrictions on exit, compulsory military service, and special taxes or financial compensation for services received in the past, including educational costs. There might even be special circumstances that apply to you in particular. For example, friends or relatives may be affected by your visiting that country, or there may be legal proceedings pending against you that could begin again if you return.

You might be affected if the countries of which you are a citizen are involved in political upheavals or military conflicts.

Even while in Canada , you might be approached with demands that you fullfil certain obligations to another country of which you are legally a citizen.

These are some of the possible drawbacks to dual or multiple citizenship. They might not apply in your case, but it is important for you to be aware of them.

Loss of Canadian Nationality
Under U.S. law a person who takes the renunciatory oath of allegiance is supposed to be precluded from retaining dual allegiances. However, as stated above, whether or not foreign nationality is lost is determined by the laws of the country of foreign nationality, not the laws of the United States.

Prohibitions against dual nationality do not appear in the current Citizenship Act.
Pursuant to Section 7 of the Citizenship Act, R.S.C. 1985, c. C-29, Canadian citizenship can be lost only for specific reasons listed in the statute. There are currently only three ways that Canadian citizenship may be lost:

• failure of second-generation citizens holding citizenship on the basis of birth to Canadians themselves born outside the United States to apply to retain citizenship before reaching age 28 (inapplicable to dual nationality);
• renunciation of citizenship; and
• revocation of citizenship which was obtained by fraud (inapplicable to dual nationality).

One might think that taking the renunciatory oath required for U.S. naturalization would constitute a sufficient renunciation to result in a loss of Canadian citizenship. However, this is not the case. Subsection 9(1) of the Citizenship Act requires a person to formally apply to renounce Canadian citizenship. Where an application to renounce is approved, a certificate of renunciation is issued and the applicant ceases to be a citizen after the expiration of the day on which the certificate is issued or such later date as the certificate may specify.

In other words, taking the U.S. oath of allegiance will not result in a loss of Canadian citizenship. A formal application must be filed and approved before renunciation will be effective. If no formal application is made, a Canadian citizen who subsequently naturalizes in the United States will continue to be a citizen of Canada.

If you have a question about a U.S. Citizenship or Naturalization matters, please call Immigration lawyer Gerald Goulder toll-free at 866-878-4727 or email Attorney Goulder.