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When Can I Apply for Citizenship?

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When can I apply for a citizenship? Hi, I’m Jim Hacking, immigration lawyer, practicing law throughout the United States at our offices in St. Louis, San Diego, and Washington, DC. Today, we’re going to cover the topic of applying for naturalization and specifically when can people apply, and there are different deadlines for different kinds of cases, and we’re going to go over each of them today. We’re going to talk about who can apply under the five-year rule. We’re going to talk about who can apply after three years, what happens when people get their green cards based on asylum and how that impacts when they can apply for citizenship. We’re also going to talk about trips outside of the United States that take too long. And we’re going to talk finally about having that good moral character and how good moral character can affect when you can apply for citizenship.

So our first topic is going to be on the five-year green card. So the thing that you need to know is that most people are going to have to wait five full years for their citizenship. They’re going to have to wait five years from the start date on that green card. So when you get your green card, you can put a little mark on your calendar that five years later you can apply for a citizenship. That’s for most cases. So if you get your green card based on the diversity visa, or based on employment, or through a family member who is not your spouse, then you’re going to have to wait for five years. So for instance, if you are the father or mother of a US citizen, or if your employer sponsors you for a green card, you’re going to have to wait five years, and it’s the date on your green card. It’s the lawful permanent resident since date. That’s the date that you’re going to use. And that’s going to be the case for most people.

Next up, we’re going to talk about people who are married to a US citizen and have lawful permanent resident status. So of course, the way that most people in that scenario have gotten their green card is by marrying a US citizen or a lawful permanent resident. So, if you go through the adjustment of status process based on marriage, you are going to be able to apply for your citizenship after three years. So again, it’s not three years from the date of your marriage, it’s three years from the start date on your green card. So, if you get married and apply for the green card based on that marriage, and you receive a green card and it is dated August 1st, 2020, then you’re going to be able to apply for citizenship on August 1st, 2023, assuming that you are still married. One interesting aspect of this is that you don’t have to necessarily have received your green card based on marriage in order to take advantage of the three-year rule.

What does that mean? Well, let’s say that you get your green card through employment and you are also married to a US citizen. Sometimes that actually does happen. Sometimes people will start the employment process and then get married after they’ve received their green card. They can also apply under the three-year rule if both things are true. Number one, have you married to a US citizen for three years? And number two, have you been a lawful permanent resident for those three years? So if those two aspects of your case are present, then you can apply for citizenship after three years, even though you didn’t get your green card based on marriage.

Next up, we’re going to talk about people who get their green cards based on asylum. So if you’re in the United States and you fear persecution back in your home country, you can apply for asylum. And if you apply for asylum and it’s granted, then one year later, you can apply for your green card. After you get your green card, then you would typically have to wait five years. But the interesting thing about asylum grantees is that when you get your green card based on asylum, they will backdate it one year. So even though you technically have to wait the full five years, your green card will be dated one year prior from the date of the grant.

So in other words, let’s say you receive asylum. You apply for a green card a year later. Your case is pending for let’s say two years. And let’s say your green card is approved on March 1st, 2022. It’s going to be backdated to March 1st, 2021, which means you only have to wait five years from March 1st, 2021 to apply for citizenship. So that’s almost like a four-year rule for asylum seekers or asylum grantees. So, that’s a good thing. You don’t have to wait the full five years. You can apply technically after four years, but on its face, it will be five years. I know it’s a little confusing, but basically your green card is going to be dated a year earlier. So that just means you could apply for citizenship a little bit faster than other people who got their green cards not through marriage.

Now I need to talk about the rule that says that you can apply 90 days before the five-year or three-year anniversary of your green card. This is not always a good idea. Now it’s certainly a good idea for a lot of people. It’s a great benefit that allows you to apply 90 days early. But I would say that half the time I recommend to my clients that they wait the full five years or the full three years. Well, why in the world would you do that, Jim? Well, the reason we do that is because there are circumstances in the case that make us want to take advantage of the full five years.

The biggest one of those is when the person received a green card, but did not immediately begin residing in the United States. We have seen naturalization cases get denied where even though there’s a start date on the green card, if the person came to the United States, receive their green card, and immediately left and stayed home for another year or for another couple of months, that can throw off that clock. And so we would want to look at the travel history of the individual and when could we fairly argue that they’ve actually begun residing in the United States.

The overall rule would be the five years from the start date on the green card and that’s going to carry a lot of weight. But if USCIS can establish or feels that you didn’t really reside here on the start date, they might want to push back and deny the naturalization. So this is one reason why we might wait the full five years, the full three years, or even beyond if we’re worried that the card did not reflect when the person actually began residing in the United States. I technically don’t know if that’s legal, but when they deny you, it doesn’t really matter if it’s legal or not. So sometimes you just want to take that away from them by waiting a little bit longer to apply.

That brings up another point. You really need to think through when to apply, and if it makes sense to apply. Sometimes the better thing to do is to not apply at all or to wait. So, one thing when it comes to applying for citizenship is you need to make sure that you’re not putting yourself at risk of losing your green card. I just read a denial today of a naturalization case where a fellow had applied for naturalization and it turns out that when he got his immigrant visa, he allegedly did not disclose a prior drug conviction. So, this poor guy never should have applied for his citizenship, and it’s most likely that he’s probably going to lose his green card or at least be placed into removal proceedings. So you always need to think about that in the back of your mind. I know it’s a great reward to get your citizenship, but if you’re putting your green card and your ability to stay in the United States at risk, you need to be careful about that and think it all through.

The next issue we need to discuss is travel overseas. So remember when you receive your green card, you want to make sure that you don’t put your green card at risk by staying outside of the United States for more than six months, but staying outside the United States for a long time as a lawful permanent resident can not only put your green card at risk, it can also derail or deny your ability to naturalize in a timely fashion. If you’ve been outside the United States for more than six months, you’re going to have trouble establishing that you maintained your residency for purposes of citizenship. How does this work? Well, you need to demonstrate that you have no trips outside the United States for more than six months. If you do have a trip outside the United States for more than six months, you may not want to apply for a citizenship right away. You might want to wait for that bad over six month trip to go off your history. In other words, to wait till that’s long enough in the past that it’s not going to put your citizenship case at risk.

We’ve seen a lot of cases denied because people were outside of the United States for more than six months. And one thing to keep in mind is that if you get a re-entry permit, the re-entry permit does allow you to stay outside the United States for more than six months, but it also does contribute to a finding that you’ve broken the continuous presence in the United States for purposes of naturalization. You might not be able to establish that you’ve maintained your residence in the United States, and that might be the basis of a denial for naturalization. So a trip of more than six months is going to make it very hard for your case to be approved. You’re going to need to demonstrate that you did not abandon your residency.

The way that you make sure that you can prove that you did not abandon your residency is by demonstrating all the ties that you kept in the United States. Did you keep your job? Did you keep your property? Did you keep your bank account? All those kinds of things. It’s still an uphill battle. Many times we recommend that people just simply wait to apply for citizenship and not that they apply right away, but instead, like I said earlier, wait for that bad time to sort of move off their history.

The other thing that you need to keep in mind is that if you have more than half the time outside the United States during the lookback period, you’re going to have a hard time getting your citizenship case approved and, in fact, it will not be approved. So, if you applying under the five-year rule, the simple question is where are you in the United States for two years, six months, and one day? And if you apply under the three-year-old, it’s one year, six months, and one day. And it’s just math. You either have the right number of days, or you don’t have the right number of days. If you don’t have the right number of days, your case is going to be denied.

All right, the last topic we need to discuss is good moral character. Now you might be wondering how can good moral character affect my ability to apply for citizenship? So, let’s say that you have a criminal conviction and this could be for a DUI or multiple DUIs or for other non-deportable offenses, but which USCIS believes impact your good moral character. Remember, it’s your burden as a naturalization applicant to establish that you have good moral character, that you follow the laws of the United States, and that you’re going to make a good citizen. If you have a conviction, most likely USCIS is going to argue that you are not a person of good moral character. If you show up at your interview on probation, it’s almost a sure thing that your naturalization case is going to be denied. If you have a conviction and it’s within that look back period, the five-year or the three-year look back period, that might also affect your ability to naturalize.

When someone comes to our office and they want to apply for citizenship, if they have a conviction in that look back period, the five years or the three years, we’re going to need to get those records and see if that can serve as the basis of a finding for bad moral character because if there’s bad moral character, you’re going to need to spend some time waiting to apply for citizenship. What do I mean? Well, let’s say you get a conviction for, let’s say, drunk and disorderly conduct or something that USCIS doesn’t like, like let’s say an assault, or they could think that that demonstrates a bad moral character on your part. If you apply for citizenship within five years of that conviction, or more specifically, if you apply for citizenship within five years of the completion of the sentence, so if you get put on probation or if you have some kind of jail sentence or whatever, if you apply too early, that’s going to impact the viability of your claim. That’s going to impact whether or not your case gets approved or not.

So we see this a lot with probation, and people apply to soon after their probation, they think, “Well, my conviction is way in the past.” But USCIS likes to deny cases, and one of the ways they do that is by looking at the actual date of probations and then calculating good moral character from that point. So a lot of times we’ll tell people that you need to wait three years from the date probation ended, or five years from the date probation ended. We’ve actually had those conversations and we’ve had those cases approved later on after the person waits the requisite amount of time. You sort of need to let the dust settle and let those convictions work their way out of your history.

So that’s the gist of when you can apply for citizenship. We tried to cover all the different things that can impact the time of when you file. You need to think about when am I statutorily eligible? When does it make sense for me to apply? When does any kind of travel that I have impact my ability to naturalize? And then of course, if I have any kind of criminal conviction, that can be the last factor that impacts when you apply for citizenship. And of course, remember our idea and our plan is always to take away the reasons for them to say no. So if I can have you wait for a certain amount of time to re-establish residency or to establish a stronger history of no problems with the law or no trips too long, then we’re going to do it. We’re going to always err on the side of trying to get your case approved, even if it means you have to wait a little bit longer. You might want to think that through.

If you have any questions about this, about naturalization, or if you think you need our help, give us a call 314-961-8200. You can email us at info@hackinglawpractice.com. Be sure to join us in our Facebook group. It’s called Immigrant Home. If you like this video, we ask that you please share it out on social and that you subscribe to our YouTube channel so that you get updates whenever we make videos like this one. And then, don’t forget on most Tuesdays and Thursdays, you’ll find us live in our YouTube channel and on our Facebook group answering all of your immigration questions that we can in one hour for free. Thanks a lot and have a great day.

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