Can You Have Dual Citizenship in the USA?

By Richard T. Herman Esq. on October 6, 2024

Dual citizenship, also known as dual nationality, is when an individual has citizenship in two countries simultaneously. In the U.S. context, it means you are a U.S. citizen and a citizen of another country, possessing all the rights and benefits of both countries at the same time.

Dual citizenship is becoming increasingly common due to globalization, relaxed immigration policies, and people seeking new opportunities abroad.
More than 75 percent of the world’s countries recognize dual citizenship.
Children born to parents from different countries or those born in a foreign country to U.S. citizen parents may automatically acquire dual citizenship.
While some countries allow dual citizenship, others restrict or forbid it altogether. The United States, for example, allows dual citizenship.

Dual Citizenship Key Takeaways

Dual citizenship, or dual nationality, means holding citizenship in two countries simultaneously. It’s increasingly common due to globalization and relaxed immigration policies.
The U.S. allows dual citizenship by default. While the U.S. Constitution does not mention dual citizenship, U.S. law and Supreme Court rulings uphold the right to dual nationality.
Confusion exists because dual citizenship is not addressed in the U.S. Constitution. Key Supreme Court cases have clarified that U.S. citizens can hold dual citizenship unless they voluntarily renounce it.
The Oath of Allegiance for naturalized U.S. citizens signifies primary allegiance to the U.S. but does not require renouncing other citizenships. Primary allegiance involves upholding U.S. laws and defending the country.
Dual citizens must comply with the laws of both countries, including obligations like military service and taxation. They should be aware of potential legal conflicts and seek guidance on managing dual obligations.

Dual Nationality Allowed in the USA

The U.S. allows dual citizenship. According to Section 101(a)(22) of the Immigration and Nationality Act (INA), a “national of the United States” includes U.S. citizens and those who owe permanent allegiance to the U.S.

U.S. immigration law allows for dual citizenship by default and does not prevent its citizens from acquiring foreign citizenship through birth, descent, naturalization, or other means. So, U.S. citizens can be citizens of another country without losing their U.S. citizenship.

Why are Citizens Confused about Dual Citizenship in the U.S.?

Many people are confused about whether U.S. citizens can have dual citizenship because there is no mention of dual citizenship in the U.S. Constitution. The 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” That’s the only part of the Constitution that talks about citizenship.

Dual citizenship laws can be complex and may change, so it’s crucial to consult official sources such as embassies or consulates for the most accurate and current information.

Dual citizenship is not mentioned in the Constitution, so Congress makes the laws, and the Supreme Court interprets them. The Supreme Court has ruled multiple times that Americans can be dual citizens. Here are some of the critical cases:

Vance v. Terrazas: The Court ruled that having another citizenship doesn’t mean you give up U.S. citizenship.
Vance v. Terrazas: The Court ruled that having another citizenship doesn’t mean you give up U.S. citizenship.

So even if you get another citizenship, you still retain your U.S. citizenship unless you give it up. Other countries may require you to renounce your U.S. citizenship, but the U.S. doesn’t.

How Do You Get Dual Citizenship?

You can become a dual national by:

Being born in the U.S. to parents who are nationals of another country.
Being born outside the U.S. to U.S. citizen parents.
Naturalizing as a U.S. citizen while retaining your original nationality.

Oath of Allegiance and Primary Allegiance

The Oath of Allegiance is a part of the U.S. naturalization process. When new citizens take this oath, they promise to be loyal to the United States. This can be confusing for people who already have citizenship in another country. They might wonder if they have to give up their original citizenship or if they must be more loyal to the U.S. Here are the key points:

Giving Up Previous Citizenship: Taking the Oath of Allegiance does not mean you must give up your previous citizenship. The U.S. allows people to have dual citizenship, so you can keep your original nationality while becoming a U.S. citizen.
Primary Allegiance: The Oath of Allegiance means that your main loyalty is now to the United States. You promise to support the U.S. Constitution and laws, defend the country, and be faithful to the U.S. However, how this affects you can depend on your personal situation and the laws of your other country.

What is meant by Primary Allegiance to the U.S.?

The Oath of Allegiance says, “Renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty.” Despite the strong language, it doesn’t mean you must formally give up your other nationalities.

It means your primary allegiance is to the United States. U.S. law allows dual citizenship, so while a naturalized citizen must prioritize U.S. laws and interests, they don’t have to give up their foreign citizenship unless required by the other country.

Real-World Issues and FAQ’s

Many questions arise for all dual citizens in the nation. Here are some helpful answers to all these frequently asked questions considering real-world issues.

Why is there so much dual citizenship confusion?

There’s confusion because the U.S. Constitution doesn’t mention dual citizenship, so it’s up to Congress and the Supreme Court to make the laws. Historical Supreme Court cases have ruled that U.S. citizens can be dual citizens, but public understanding varies. U.S. immigration law does not prohibit dual nationality.

Will I lose my original nationality if I become a U.S. citizen?

Some countries like China and India automatically cancel your original citizenship if you become a U.S. citizen. Check the laws of your home country before applying for U.S. citizenship to know the implications. Additionally, ensure that your home country recognizes dual citizenship with the United States.

Do I have to choose between my U.S. and foreign citizenship?

U.S. law doesn’t require citizens to choose between U.S. citizenship and another nationality. You can have both, but you must obey the laws of both countries and may have conflicting obligations.

What are the benefits of dual citizenship?

The benefits of dual citizenship are:
1. Work Opportunities: Dual citizens can work in both countries without work visas.
2. Unrestricted Travel: They can travel abroad for extended periods without special permits.
3. Family Immigration: Dual citizens can sponsor relatives for U.S. green cards.
4. Voting Rights: They can vote in both countries’ elections depending on the other country’s laws.
5. Educational Access: They can attend schools in both countries without international student fees.
6. Public Benefits: They can access public benefits in both countries if they are eligible. Canadian citizenship offers similar advantages, such as access to social programs and healthcare.

What are the obligations of dual citizens in the U.S.?

The obligations of dual citizens in the U.S. are:
1. Tax Obligations: Dual citizens have obligations in the United States, and their other countries pay U.S. taxes on worldwide income and may face double taxation unless there’s a tax treaty.
2. Legal Disclosures: They must disclose past legal issues when applying for citizenship.
3. Military Service: U.S. male citizens must register with the Selective Service System.
4. Jury Duty: All U.S. citizens, including dual nationals, must serve on juries if called.

How do I manage my tax obligations as a dual citizen?

To avoid double taxation, many countries have tax treaties in place. Dual citizens must manage tax obligations in both the U.S. and the foreign country. Understanding these treaties and being compliant with tax obligations in both countries is critical. For example, a U.S. citizen living and earning income in Canada may benefit from the U.S.-Canada tax treaty to not pay taxes on the same income in both countries.

Real-World Example: John is a dual U.S. and Canadian citizen living in Toronto. He must file taxes in both the U.S. and Canada. However, the U.S.-Canada tax treaty allows him not to pay taxes on the same income.

Can dual citizens own property in both countries?

Yes, dual citizens can own property in both countries. Some countries only allow property ownership to citizens. As a citizen of two countries, you can buy property in either or both countries.

Do dual citizens have to serve in the military in both countries?

Some countries require mandatory military service. Dual citizens must navigate the obligations in both countries to avoid legal issues. For example, U.S. male citizens must register with the Selective Service System. If the other country also requires military service, they should seek legal advice to understand their obligations.

Real-World Example: Anna is a dual U.S. and South Korean citizen and must serve in the military in South Korea. She consults with lawyers in both countries to comply without losing her U.S. citizenship.

What happens if a dual citizen gets in legal trouble in another country?

U.S. dual nationals may not have the same consular protections as others. If detained in the country of their other nationality, U.S. consular officials may be unable to assist. For example, if a U.S. dual citizen is in a country with which the U.S. has poor relations, getting help from the U.S. embassy may be challenging.

Travel Considerations for Dual Nationals

Travelers with dual nationality should be aware of specific requirements and potential challenges when traveling.

Requirements for U.S. Citizens with Dual Nationality

As a dual national, you must:

Enter and leave the U.S. using your U.S. passport.
Obtain a U.S. passport for your U.S. citizen child to enter or depart the U.S.
File U.S. tax returns on your worldwide income, and possibly state tax returns.
Report foreign bank accounts holding over $10,000.

Potential Challenges

Different countries have varying laws on dual nationality, which can affect:

Entry and Exit Requirements: You may need to use the passport or ID of your other nationality when entering or leaving certain countries. Some countries also require exit visas.
Exit Bans: These can prevent you from leaving a country due to legal disputes or investigations.
Limited U.S. Assistance Abroad: If you don’t use your U.S. passport, local authorities may not recognize your U.S. citizenship.
Military Service: Some countries may require you to serve in their military.
Registration: You may need to register your dual national status in some countries.
Prohibition of Dual Nationality: Some countries don’t allow dual nationality and may require you to renounce one.

Research the laws of the countries where you hold nationality or plan to travel to ensure compliance and avoid complications. You can find more information and legal assistance through U.S. embassies and consulates.

Countries That Don’t Allow Dual Citizenship

Some countries don’t allow their citizens to be dual citizens. Below is the list of countries that don’t:

China: Revokes citizenship if another nationality is acquired.
India Does not allow dual citizenship; Indian citizens must renounce Indian citizenship upon acquiring another.
Japan: Requires you to choose one nationality by the age of 22.
Norway: Historically, it didn’t allow dual citizenship, but recent changes allow it under certain circumstances.
Singapore: Citizens must renounce their other citizenships.
Austria: Generally doesn’t allow dual citizenship except in exceptional cases.

These countries prohibit dual nationality and require renunciation of other citizenships.

Countries That Allow Dual Citizenship

Many countries allow dual citizenship, so you can keep your original citizenship and acquire a new one. Below are the countries that allow dual citizenship:

United States: Allows dual citizenship with no renunciation of other nationalities.
Canada: No restrictions.
United Kingdom: Allows dual citizenship, and British citizens can get other nationalities.
Australia: Allows dual citizenship, and Australians can hold multiple nationalities.
Germany: Allows dual citizenship for EU citizens and under certain circumstances.
France: Allows dual citizenship, and individuals can keep their French nationality.
Mexico: Allows dual citizenship for those who acquire other nationalities after birth.
Philippines: Allows dual citizenship for natural-born Filipinos who reacquire Filipino citizenship.
Italy: Allows dual citizenship, and Italians can hold other nationalities.
Ireland: Allows dual citizenship, and Irish nationals can acquire and retain other nationalities.

Individuals can obtain dual citizenship in these countries through various methods, such as naturalization and descent.

Dual Nationality in War

Dual nationality, while offering benefits like broader travel opportunities and cultural connections, presents unique challenges during wartime. Individuals with citizenship in two countries at war can find themselves caught in a precarious situation, facing difficult choices and potential legal ramifications.

Military Obligations: Some countries require mandatory military service from their citizens, regardless of their residence. A dual national from a country at war with their country of residence may face a difficult choice: fulfill their military service obligation or risk legal consequences in their country of residence.
Travel Restrictions: During wartime, travel restrictions may be imposed on citizens of opposing countries. Dual nationals could face limitations on entering or exiting either country.
Confiscation of Assets: In extreme cases, wartime tensions can lead to the confiscation of assets belonging to citizens of the opposing country. Dual nationals may risk losing property or investments in their country of origin.
Detention and Espionage Suspicion: Dual nationals residing in a country at war with their country of origin may be viewed with suspicion and face heightened scrutiny from authorities. Detention or accusations of espionage could become a concern.

Legal and Practical Issues

Dual citizenship can get complicated during times of war or conflict between the countries of a dual national. The individual may be subject to the laws and obligations of both countries, leading to conflicting demands. For example, a dual citizen may be required to serve in the military of both countries. This scenario raises many questions and issues, such as:

What happens if a dual citizen is required to serve in the military of both countries during a war?

U.S. law requires all male citizens to register with the Selective Service System, which can lead to mandatory military service if drafted. If a dual citizen’s other country also requires military service, they are in a tough spot. Consult with lawyers in both countries to navigate this.

Are dual citizens traitors during a conflict?

During the war, a dual citizen may be accused of dual loyalty or even treason. This is a tricky issue that requires legal and personal consideration. The U.S. expects its citizens to owe allegiance to it, but the dual national’s other country may have similar expectations.

How does dual citizenship affect consular protection during conflicts?

U.S. dual nationals may have limited consular protection. If detained in the country of their other nationality, U.S. consular officers may be unable to assist. For example, if a U.S. dual citizen is in a country with which the U.S. has strained relations, getting help from the U.S. embassy may be tricky.

International Law and Dual Nationals

International law offers some protections for dual nationals in wartime. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality aims to prevent individuals from being forced to serve in the armed forces of both countries during wartime. However, the effectiveness of these protections can vary depending on the specific circumstances of the conflict.

How to Manage Dual Citizenship Responsibilities?

Dual citizenship offers a wealth of benefits, but it also comes with responsibilities in both countries. Here’s a guide to help you navigate the complexities of managing those responsibilities:

Taxation

To avoid double taxation, many countries have tax treaties. Understanding these treaties and complying with tax obligations in both countries is crucial. For example, a U.S. citizen living and earning income in Canada may benefit from the U.S.-Canada tax treaty to not pay taxes on the same income in both countries.

Real-World Example: John, a dual U.S. and Canadian citizen, lives in Toronto. He has to file taxes in both the U.S. and Canada. However, the tax treaty between the two countries allows him not to pay taxes on the same income. Additionally, obtaining dual citizenship may have tax implications that must be managed carefully.

Legal Responsibilities

Some countries may require military service. Understanding the obligations of both countries can avoid legal issues.

Real-World Example: Anna, a dual U.S. and South Korean citizen has to do mandatory military service in South Korea. She consults with lawyers in both countries to comply without jeopardizing her U.S. citizenship.

Legal and Financial Guidance for Dual Citizens: Navigating the Complexities

Dual citizenship, the privilege of holding citizenship in two countries, unlocks a world of possibilities: enhanced travel freedom, broader career opportunities, and deeper cultural connections. However, this unique status comes with a layer of legal and financial complexities that require careful navigation.

Legal Considerations

The legal considerations require:

1. Understanding Citizenship Laws

Dive deep into the citizenship laws of both countries. This includes:

Obligations: Unpack tax requirements, military service commitments, voting rights, and potential
restrictions on dual citizenship.

Conflicts: Identify areas where the laws of your two countries might clash, particularly concerning
taxation, military service, and inheritance.

2. Seek Expert Guidance from Professionals

Consult with immigration attorneys in both countries. An immigration lawyer can advise on the naturalization process and dual citizenship rules. A tax advisor can help you file taxes, manage obligations in both countries, and navigate tax treaties. They can provide tailored advice on:

Naturalization Process: If you are acquiring citizenship in a new country, understand the naturalization process and its implications for your existing citizenship.

Dual Citizenship Regulations: Gain clarity on specific rules governing dual citizenship in each country. These may include residency requirements, registration procedures, and potential limitations.

Conflict Resolution: Develop strategies to address potential conflicts arising from your dual status, such as differing tax codes or conflicting military service obligations.

3. Treaties and Agreements

Research any existing treaties or agreements between your two countries. These can offer valuable insights on issues like taxation, military service, and social security benefits.

4. Wartime Considerations

In the unfortunate event of your countries becoming involved in a conflict, understand your legal obligations and limitations based on dual citizenship. International law may offer some protections, but seeking professional guidance from an immigration attorney specializing in such situations is crucial.

1. Understanding Citizenship Laws

Dive deep into the citizenship laws of both countries. This includes:

Obligations: Unpack tax requirements, military service commitments, voting rights, and potential restrictions on dual citizenship.
Conflicts: Identify areas where the laws of your two countries might clash, particularly concerning taxation, military service, and inheritance.

2. Seek Expert Guidance from Professionals

Consult with immigration attorneys in both countries. An immigration lawyer can advise on the naturalization process and dual citizenship rules. A tax advisor can help you file taxes, manage obligations in both countries, and navigate tax treaties. They can provide tailored advice on:

Naturalization Process: If you are acquiring citizenship in a new country, understand the naturalization process and its implications for your existing citizenship.
Dual Citizenship Regulations: Gain clarity on specific rules governing dual citizenship in each country. These may include residency requirements, registration procedures, and potential limitations.
Conflict Resolution: Develop strategies to address potential conflicts arising from your dual status, such as differing tax codes or conflicting military service obligations.

3. Treaties and Agreements

Research any existing treaties or agreements between your two countries. These can offer valuable insights on issues like taxation, military service, and social security benefits.

4. Wartime Considerations

In the unfortunate event of your countries becoming involved in a conflict, understand your legal obligations and limitations based on dual citizenship. International law may offer some protections, but seeking professional guidance from an immigration attorney specializing in such situations is crucial.

Financial Considerations

Financial Considerations include:

1. Tax Planning

Dual citizens are subject to a complex tax landscape.

Tax Treaties: Explore tax treaties between your countries to reduce tax burdens potentially or eliminate double taxation.
Tax Specialists: Consult with a tax specialist versed in dual citizenship taxation. They can develop a compliant and efficient tax filing strategy for both countries. This includes staying informed about any changes in tax laws or relevant treaties.

2. Financial Reporting

Be aware of any financial reporting requirements for foreign assets or income, especially if you are a U.S. citizen. This could involve filing Forms 8938 or FBAR with the IRS.

3. Investment Strategies

Investment opportunities and regulations can differ significantly between countries. Research investment options with an awareness of potential tax implications for dual citizens. Consider seeking advice from a financial advisor familiar with dual citizenship complexities.

4. Estate Planning

Develop a comprehensive estate plan that considers inheritance laws in both countries. This ensures your assets are distributed as intended and minimizes potential tax burdens for your beneficiaries. Consulting with an estate planning attorney specializing in dual citizenship is highly recommended.

Proactive Management, Research, and Resources

Check official government websites regularly for updates on dual citizenship rules and requirements. Join community organizations that support immigrants and dual citizens for help and resources:

1. Government Websites

Both your countries’ government websites are valuable resources for regulations, updates, and resources specifically for dual citizens.

2. Community Organizations

Connect with community organizations that support immigrants and dual citizens. These organizations can offer:

Support Groups: Connect with individuals facing similar challenges and share experiences.
Resource Sharing: Access valuable information on legal requirements, financial services, and navigating cultural differences.
Advocacy: Stay informed about legislative changes impacting dual citizens and participate in advocacy efforts to protect your rights.

Dual citizenship is becoming increasingly common due to globalization, relaxed immigration policies, and people seeking new opportunities abroad.
More than 75 percent of the world’s countries recognize dual citizenship.
Children born to parents from different countries or those born in a foreign country to U.S. citizen parents may automatically acquire dual citizenship.
While some countries allow dual citizenship, others restrict or forbid it altogether. The United States, for example, allows dual citizenship.

Ready to Explore Dual Citizenship?

Dual citizenship offers many benefits, including living and working in two countries, accessing public services, and traveling freely. However, it also comes with responsibilities such as tax obligations and disclosure. It’s crucial to understand the laws in both the U.S. and your other country of nationality before pursuing dual citizenship.

To make informed decisions and fully enjoy the benefits, consult with our experts. For personalized advice and the latest information, reach out to Herman Legal Group at 1-216-696-6170. We’re here to guide you every step of the way.

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Citizenship Can Generally Not Be Granted Where a Green Card is Obtained by Fraud or Government Error

In the journey towards U.S. citizenship, one crucial step is proving that your status as a Lawful Permanent Resident (LPR) was obtained properly and lawfully. This comprehensive guide is designed to help green card holders interested in applying for citizenship understand the eligibility requirements and processes involved in verifying an applicant’s lawful permanent residency status during naturalization proceedings.

Key Takeaways

To become a U.S. citizen, applicants must prove their Lawful Permanent Resident (LPR) status was obtained legally. If the green card was acquired through fraud or government error, the N-400 application for naturalization will be denied.

Applicants must show they were lawfully admitted to the U.S. as per the Immigration and Nationality Act (INA) provisions. This includes verifying initial admission as an LPR, any adjustment of status, and all reentries into the U.S.

LPR status obtained through fraud (e.g., marriage fraud, misrepresentation) or government mistake disqualifies the applicant from naturalization. USCIS will scrutinize how applicants get their green cards, and applicants must prove legal entry and admission.

Applicants who have abandoned their LPR status by showing they no longer intend to reside permanently in the U.S. are not eligible for acquiring U.S. citizenship. Factors considered include time away from the U.S., travel reasons, intent to return, and ties to the U.S.

Several inadmissibility grounds can prevent an applicant from obtaining or retaining LPR status, including health issues, criminal activity, security concerns, public charges, and fraudulent entries.

Certain groups, like non-citizen nationals or specific U.S. armed forces members, may be exempt from typical LPR status requirements under particular conditions.

USCIS will not consider naturalization applications from individuals in removal proceedings, except in specific military service cases.

Discovery of a fraudulent marriage during the naturalization process will result in denial of the application and possibly start removal proceedings.

Frequent or prolonged travel abroad can affect continuous residence requirements for naturalization. Documentation and proof of intent to return to the U.S. are crucial.

Various situations, such as errors in LPR status grants, conditional permanent residency, and extended travel for emergencies, have specific guidelines and requirements for naturalization eligibility.

Applying for Citizenship: Was Green Card Issued Legitimately?

N-400 Will Be Denied if the Green Card Was Obtained by Fraud or Government Mistake

In becoming a U.S. citizen, one key part is showing that your Lawful Permanent Resident (LPR) status was obtained legally. This article is for green card holders to understand the rules and how to prove LPR status during naturalization.

LPR at Time of Filing and Citizenship

This section examines the status of a Lawful Permanent Resident (LPR), also known as a green card holder, when filing for a specific action. It focuses on the requirements for becoming a U.S. citizen through naturalization. Specifically, it will address whether an individual must be an LPR when applying or if some flexibility exists.

Lawful Admission for Permanent Residence

When assessing an applicant for naturalization, it’s important to start by asking how long they have held permanent resident status. If they have possessed their green card for either 3 or 5 years, further investigation is needed to ensure their LPR status was lawfully obtained.

According to Section 318 of the Immigration and Nationality Act (INA), citizenship applicants must demonstrate they were legally admitted to the United States as permanent residents during their initial admission, adjustment of status, and all subsequent reentries into the country.

If LPR status was obtained illegally—whether by fraud, misrepresentation, or otherwise—an applicant is not eligible for naturalization, even if they have a valid Permanent Resident Card (PRC).

Lawfully Admitted for Permanent Residence

“Lawfully admitted for permanent residence” refers to being granted the right to live permanently in the United States as a lawful permanent resident under immigration laws, without any change to that status (INA § 101(a)(20)).

The applicant acquired LPR status through mistake or fraud.
The applicant was not admitted in accordance with the law.

Furthermore, it is also mandatory to know that green card holders cannot sponsor their parents to become permanent residents of the U.S. Furthermore if the applicant satisfies all the requirements, they become eligible to petition for a green card for parents.

LPR Status Through Mistake or Fraud

Here are some examples:

Marriage Fraud

Marriage fraud occurs when someone marries solely to obtain a green card. Extensive investigations are conducted before and after issuing the green card to ensure the marriage is genuine. Even if the individual remains married with the conditions removed, they are not considered to have obtained their green card legally if the marriage was fraudulent, making them ineligible for citizenship.

Married Singles

This is when someone is petitioned by a family member, usually a parent, as an “unmarried son or daughter” when, in fact, they are married. The intention is often to reduce the green card waiting period. This misrepresentation makes the person not have gotten their LPR status legally.

Government Error

USCIS may sometimes issue a green card due to an administrative error or oversight. If the applicant submitted all necessary information, the fault lies with the government. However, some states have restrictions on revoking a green card issued in error.

Abandonment of Lawful Permanent Residence

An applicant who has abandoned their LPR status is not eligible for citizenship. Abandonment is when the applicant shows they no longer intend to reside permanently in the U.S. as an LPR after they leave. Various things are considered: time away, reason for travel, intent to return, and ties to the U.S.

Factors to Consider

USCIS looks at these things to see if the applicant intended to abandon their LPR status:

Time away from the U.S.
Travel reason
Intent to come back as an LPR
Ties to the U.S.

Long or frequent absences, along with other things, can be abandoned even though the applicant is allowed to come back to the U.S. as an LPR.

Change of Law

A non-citizen who was lawfully admitted for permanent residence under the laws in effect at the time of their initial entry is legally admitted for naturalization purposes, even if they would not be eligible under current law unless otherwise provided by the governing law.

Basis of Admission

Applicants must be eligible for one of the immigrant visa categories under the law to adjust to LPR status. Officers must check the underlying immigrant visa petition or basis for immigration that was the basis for the adjustment of status or admission as an immigrant.

Not Eligible for Underlying Petition

Even if admitted as an LPR, the applicant might not be eligible for naturalization if the underlying petition was approved incorrectly or illegally.

K-1 Fiancé(e) Requirements Not Met

For applicants admitted on a K-1 fiancé(e) visa, they must have intended to marry their U.S. citizen fiancé(e) within 90 days of admission and have met each other in person within two years of the petition unless waived. Not meeting these requirements makes them not eligible for citizenship.

Inadmissible at Time of Admission or Adjustment

Applicants admitted as an LPR might be inadmissible if they fell into any of the inadmissible noncitizen classes, including those with refugee status, and therefore not eligible for LPR status. Grounds of inadmissibility include health issues, criminal activity, security concerns, public charges, labor certification requirements, and more.

Inadmissibility Section

The Inadmissibility section delves into why someone might be prohibited from entering or remaining in a particular country. It outlines the various categories of inadmissibility, encompassing factors like criminal history, health concerns, national security risks, and even the potential to become a public burden.

This section will explore the specific criteria for each inadmissibility category and the consequences of being deemed inadmissible. It may also touch upon the possibility of waivers or exemptions for certain inadmissibility grounds.

Inadmissibility Grounds

Certain inadmissibility grounds, including failure to meet physical presence requirements, make the applicant not eligible for admission as an LPR or adjustment of status. With reference to USCIS, these are:

Health-Related Grounds (INA 212(a)(1)): Communicable diseases of public health significance, physical or mental disorders associated with harmful behavior, drug abuse or addiction, and failure to present required vaccinations.
Criminal and Related Grounds (INA 212(a)(2)): Moral turpitude, drug offenses, multiple criminal convictions, and other specific criminal activities.
Security and Related Grounds (INA 212(a)(3)): Espionage, sabotage, terrorism, totalitarian party membership, and genocide.
Public Charge (INA 212(a)(4)): Becoming a public charge.
Labor Certification and Qualifications for Certain Immigrants (INA 212(a)(5)): Not meeting labor certification requirements.
Illegal Entrants and Immigration Violators (INA 212(a)(6)): Those who entered the U.S. without inspection, fraudulently, or through willful misrepresentation.
Documentation Requirements (INA 212(a)(7)): No valid passport, visa, or entry document at the time of admission.
Not Eligible for Citizenship (INA 212(a)(8)): Draft evaders and those not eligible for citizenship.
Aliens Previously Removed (INA 212(a)(9)): Noncitizens previously removed or who unlawfully returned to the U.S. after removal.
Miscellaneous (INA 212(a)(10)): Polygamists, international child abductors, unlawful voters, and tax evaders.

Inadmissibility Examples

Health-Related Issues: A contagious disease applicant must not be a public health risk and may need a medical exam and treatment.
Criminal Activity: A moral turpitude criminal must show rehabilitation and not be LPR-ineligible.
Public Charge: Employment records, tax returns, and affidavits of support.
Fraud and Misrepresentation: Fraudulent LPR applicants must address fraud and seek waivers if available.

Waivers of Inadmissibility

In some cases, applicants can apply for waivers. For example:

Health-Related Grounds: Waiver if communicable disease and receiving treatment are not a public health risk.
Criminal Grounds: Waiver for old criminal convictions or rehabilitation.
Fraud and Misrepresentation: Waiver if extreme hardship to U.S. citizen or LPR family member.

Removal Proceedings

USCIS will not consider a naturalization application for an applicant in removal proceedings, except those based on military service. An applicant with a final order of removal is not eligible for naturalization unless the order is vacated or the applicant meets specific military service requirements.

Final Order of Removal

Deny naturalization application if an applicant has a final order of removal, except for military service.

Pending Removal Proceedings

USCIS cannot naturalize an applicant with removal proceedings pending, except for specific military service cases. An NTA means removal proceedings are pending, and the naturalization application must be denied.

Policy Update: November 18, 2020

As of November 18, 2020, USCIS will deny naturalization applications if the applicant is in removal proceedings initiated by a warrant of arrest. (Volume 12, Part D, Chapter 2)

Exceptions to LPR Status Requirements

This section dives into the limited situations where an individual might be eligible for a benefit typically reserved for Lawful Permanent Residents (LPRs) even without holding current LPR status. It will explore these exceptions in detail, outlining the specific circumstances under which they apply.

Common examples may include non-citizen nationals born in certain U.S. territories seeking naturalization or spouses of U.S. citizens abroad under particular conditions. This section will clarify the requirements and processes for obtaining the benefit despite the lack of traditional LPR status.

Nationals of the United States

Non-citizen nationals of the United States (e.g., born in American Samoa or Swains Island) can naturalize without LPR status if they meet all other naturalization requirements.

Certain Members of the U.S. Armed Forces

Certain members of the U.S. armed forces serving under specific conditions are LPR-exempt for naturalization.

Common Scenario: Fraudulent Marriage Discovered During Naturalization Process

During naturalization, it’s discovered the applicant previously entered into a fraudulent (malicious) marriage, which was the basis for their green card. This is a big problem for naturalization and LPR status.

The Impact of Fraudulent Marriage

If a marriage was entered into to evade U.S. immigration laws, that’s fraud. Since the LPR status was obtained based on that marriage, it’s unlawful, and the applicant is not eligible for naturalization under INA 318.

Procedure for Fraudulent Marriage

Evidence Review: USCIS officers review marriage evidence: timeline, documents, and sufficient evidence to prove the marriage was entered into in good faith.
Notice of Intent to Deny (NOID): If fraud is evident, issue a NOID to the applicant with reasons for denial.
Opportunity to Respond: Applicant responds to NOID with evidence or arguments against fraudulent marriage.
Adjudication: USCIS decides. If fraudulent, deny naturalization application.

Fraudulent Marriage Consequences

Deny Naturalization: Applicant will be denied naturalization because of the fraudulent marriage that led to LPR status.
Start Removal Proceedings: USCIS may start removal proceedings since LPR status was unlawful.
Criminal Charges: Depending on the fraud severity and type, the applicant may face immigration fraud charges.

Frequently Asked Questions (FAQ’s)

How do I show continuous residence if I had to travel abroad for work frequently?

To show continuous residence despite frequent travel for work, keep records of trips: reasons for travel, dates of departure and return, and intent to return to the U.S. Examples: U.S. residence, U.S. taxes, and immediate family members in the U.S.

My Permanent Resident Card (PRC) is lost or stolen before my naturalization interview. What do I do?

File an Application to Replace Permanent Resident Card (Form I-90). You can also request an Alien Documentation, Identification, and Telecommunication (ADIT) stamp as temporary evidence of LPR status while waiting for the new PRC.

Can a conditional permanent resident (CPR) apply for naturalization before the conditions on their residence are removed?

Generally, conditional permanent residents must have the conditions removed by filing Form I-751 before applying for naturalization. However, exceptions exist where the naturalization application can proceed concurrently with removing the conditions under certain circumstances.

How does an extended family emergency affect my naturalization eligibility?

An extended family emergency requiring prolonged travel abroad affects continuous residence. Keep documentation of the emergency, intent to return, and constant ties to the U.S. (property, employment, family).

My LPR status was granted in error, but I didn’t know?

Even if you didn’t know when LPR status was granted, you may still be ineligible for naturalization. Fix the error as soon as you find out by consulting an immigration attorney or USCIS.

Can an applicant with pending removal proceedings apply for naturalization?

Applicants with pending removal proceedings are not eligible for naturalization except for military service. Once removal proceedings are finished, the applicant can reapply for naturalization if otherwise eligible.

I claimed nonresident alien status for tax purposes. How does that affect my naturalization application?

Claiming nonresident alien status for tax purposes creates a presumption of abandonment of LPR status. You must intend to maintain permanent residence in the U.S. (property, family, resident tax returns).

How do changes in the law affect my naturalization eligibility?

Changes in the law can apply retroactively. A new court decision might change a ground of inadmissibility or immigration regulation. Stay informed and consult with immigration attorneys.

I adjusted my status based on a marriage that ended in divorce before the conditions were removed. Can I naturalize?

If the adjustment of status was based on marriage to a U.S. citizen spouse and the marriage ended before conditions were removed, you must show the marriage was entered in good faith. If USCIS says the marriage was bona fide, you may be eligible for naturalization after conditions are removed.

I must travel abroad for an extended period while my naturalization application is pending. What are my options?

If you must travel abroad for an extended period while your naturalization application is pending, apply for a reentry permit (Form I-131) to avoid being presumed to have abandoned LPR status. Notify USCIS and keep records of your travel and intent to return.

Take the Next Step Towards U.S. Citizenship

Proving the lawful acquisition of your green card is a vital part of the naturalization process. Ensuring that your LPR status is legitimate and compliant with U.S. immigration laws can prevent delays or denials in your citizenship journey. If you have any concerns about your status or need expert guidance on your naturalization application, Herman Legal Group is here to help. Contact us today at 1-216-696-6170 to secure your path to U.S. citizenship and protect your future.

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