NATURALIZATION (N-400)
Overview
The naturalization process by which an individual will become a lawful U.S. citizen and who has fulfilled the requirements established by Congress in the Immigration and Nationality Act (INA). After naturalization, foreign-born citizens enjoy nearly all of the same benefits, rights, and responsibilities that the Constitution gives to native-born U.S. citizens, including the right to vote.
Requirements
If you are interested in applying for U.S. citizenship, first make sure that all of the following apply:
- You must be admitted to the U.S. as a lawful permanent resident (LPR), commonly referred to as a person who possesses green card status. There is only one exception to this requirement: If an applicant has served in the U.S. armed forces during war, that person may be naturalized without first becoming a permanent resident if they were in the U.S. upon induction or enlistment into the U.S. military.
- You must have had continuous residence in the US for at least five years immediately preceding filing for naturalization. Continuous residence is not the same thing as physically present here. That is, one must maintain their status as a legal permanent resident but not necessarily be physically inside the borders of the U.S. to accomplish this. For example, if you are overseas for a portion of this period, maintaining an address location and paying your state and federal taxes may help ensure continuity of residence for this requirement. Also, if you are overseas for any more than a few months, it may be advisable to obtain a travel document prior to departing. Only three years continuous residence are required if you are filing for U.S. citizenship based upon marriage. This exception applies if you are the spouse of a U.S. citizen and have been married for three years; are the battered spouse of a U.S. citizen (even if you are separated or divorced); are a refugee or political asylee; in the U.S. military or are a widow or widower of someone in the U.S. military; or are a spouse of a U.S. citizen in particular overseas jobs.
- You must have an actual physical residence (within the state in which the petition is filed) during at least the three months immediately before filing for U.S. citizenship is another requirement.
- You must be physically present within the U.S. for a total of at least one half of the period of required continuous residence. That is, two and a half years for most applicants and one and a half years for spouses of U.S. citizens.
- You must have continuous residence (but not necessarily physical presence) in the U.S. from the date of filing the naturalization application up to the date of being sworn in as a U.S. citizen.
- You must have the ability to read, write and speak ordinary English unless you are physically unable to do so due to a disability such as being blind or deaf, or suffer from a developmental disability or mental impairment. Those over 50 years old on the date of filing who have lived in the U.S. for a total of at least 20 years after admission as a permanent resident and those who are over 55 and have been legal permanent residents for at least 15 years are also exempt from this requirement.
- You must have a basic understanding of the fundamentals of U.S. history and government. There is an oral test that covers fundamentals of U.S. history and government and it is required for naturalization.
- You must be of good moral character and an affinity for the principles of the U.S. Constitution. Good moral character is reflected in the applicant’s behavior before applying for US citizenship. Good moral character is demonstrated by paying taxes and having a clean criminal record, for example, and is an important part of qualifying for naturalization.
- You must be at least 18 years of age at the time of filing. Certain exceptions exist, however, for the children of other permanent residents who are seeking naturalization.
Other Paths to Citizenship
An applicant under the age of 18, may still qualify for naturalization if one of his or her parents is a citizen or becomes a citizen of the United States.
Period of Stay
As stated above, naturalization allows the applicant to live permanently in the U.S. along with their spouse and children under the age of 21 years.
PUBLIC ACCESS FILES & H-1B COMPLIANCE
Employers who sponsor H-1B visas are responsible for preparing a Public Access File which should be available in a public inspection within one day from filing the LCA with DOL. The employer has to make the file available to the requesting officers within one business day of the request. The public access file should include the completed LCA (labor Condition Application), Wage Determination Data, Actual Wage Pay System Memorandum, Copy of Prevailing Wage Documentation, and Documentation regarding benefit to H-1B worker, etc.
If the employer is an H-1B dependent employer, further obligations are imposed.
I-9 COMPLIANCE
Form I-9, Employment Eligibility Verification
Employers are responsible for the completion and retention of Forms I-9 for all employees, regardless of citizenship or national origin, hired for employment in the United States.
An employee is any individual compensated for services or labor by an employer, whether by payment in the form of wages or other remuneration (such as goods or services such as food and lodging). On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9.
No-Match Letter
The government requires employers to resolve discrepancies between their employee records and those of the Social Security Administration or the Department of Homeland Security. Once the employer is put on notice by SSA or DHS of a discrepancy in Social Security number (a “No-Match Letter”) or immigration status information, the employer has 93 days within which to re-verify the information. If the employer is unable to correct the discrepancy within 93 days, the employer has two choices: either terminate the employment and risk lawsuit by the employee or continue the employment and risk severe civil and criminal sanctions from DHS.
Employers often receive “no match” letters for very legitimate reasons, such as clerical errors, or failure to register a change of name after marriage. The final rule set forth by DHS expands the definition of “constructive knowledge” to include the failure to take reasonable steps to address three (3) situations: (1) an employee’s request for the employer’s sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter (as described above) from the Social Security Administration (“SSA”); and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee’s employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.
E-Verify
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) administers the program.
E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The program provides participating employers an automated Internet-based resource to verify the employment eligibility of newly hired employees. Employment eligibility verification queries authorization checks on all newly hired employees, including U.S. citizens and non-U.S. citizens, can be run against SSA and DHS databases. Through this process, E-Verify assists employers in maintaining a legal workforce and protects jobs for authorized U.S. workers.
Image Program
By voluntarily participating in the IMAGE program, companies can reduce unauthorized employment and the use of fraudulent identity documents. As part of IMAGE, ICE and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, use of the E-Verify employment eligibility verification program and anti-discrimination procedures.
Employers seeking to participate in IMAGE must agree to:
– Complete a self-assessment questionnaire;
– Enroll in E-Verify;
– Enroll in the Social Security Number Verification Service;
– Adhere to IMAGE Best Employment Practices;
– Undergo an I-9 audit conducted by ICE; and
– Review and sign an official IMAGE partnership agreement with ICE
Upon enrollment and commitment to DHS’s best hiring practices, program participants will be deemed “IMAGE Certified” – a distinction DHS believes will become an industry standard. The results of the IMAGE program and participation in IMAGE by partners in industry will serve to guide DHS in shaping future worksite enforcement policy and legislation.
IMAGE members participate in DHS’s E-Verify employment eligibility verification program, administered by USCIS. Through this program, employers can verify that newly hired employees are eligible to work in the United States. This Internet-based system is available in all 50 states and is free to employers. It provides an automated link to the Social Security Administration database and DHS immigration records.