Immigration Law Blog

There are four primary methods of becoming a U.S. citizen: (1) being born on U.S. soil, including U.S. territories, (2) being born to American parents, (3) at least one of your parents becoming a naturalized citizen, or (4) becoming a naturalized citizen by living in the U.S. legally. This post will focus on the first three methods of obtaining U.S. citizenship.

Being Born in the U.S. or in a U.S. Territory

Many individuals who were born within the U.S. or a U.S. territory but have lived abroad their entire life may not realize that they are still U.S. citizens. If you were born within the U.S., you instantly receive U.S. citizenship. However, birth in a U.S. territory, such as Guam or the Virgin Islands, does not automatically grant U.S. citizenship. Individuals born in a U.S. territory may be granted citizenship if one or both parents were U.S. citizens and physically present in the U.S. or one of its territories for a continuous period of at least one year at the time of birth.

Being born in the United States (“U.S.”) is not the only way to become a citizen, although it is certainly the simplest method. For those who weren’t born in the United States, the route to becoming a U.S. citizen is termed “naturalization.”

To be eligible to become a citizen through naturalization, you must meet the following requirements at the time of filing the application for naturalization:

The Board of Immigration Appeals is the highest administrative body for issues pertaining to immigration laws. It is an administrative appellate body that reviews decisions made by United States immigration courts and district directors of the Department of Homeland Security, among other departments. The Board of Immigration Appeals is headquartered in Falls Church, Virginia.

What are the Powers of the Board of Immigration Appeals?

The Board of Immigration Appeals has the authority to review and potentially overturn decisions made by immigration courts, the United States’ Citizenship and Immigration Services, and the Department of Homeland Security. While the Board of Immigration Appeals is the highest administrative body for immigration law, it is not the highest authority. Some decisions made by the Board of Immigration Appeals can be appealed to the United States’ Court of Appeals, and then potentially to the Supreme Court of the United States.

Who Makes up the Board of Immigration Appeals?

The Board of Immigration Appeals is authorized to be comprised of up to 21 Board Members with a Chairman and Vice Chairman. A current list of Board Members can be found here.

To become a U.S. citizen, you must either have been born in the U.S. or go through the naturalization process. To be eligible for naturalization, several requirements must be met, including residing in the U.S. for a specific amount of time prior to filing. Once you have determined that you meet all of the requirements for naturalization, you may complete the application and file it with the U.S. Citizenship and Immigration Services (“USCIS”).

After reviewing your application, a USCIS officer will contact you to schedule an interview. In the interview, the USCIS officer will ask you questions specific to your application and may also ask more general questions. When preparing for the interview and during the interview itself, make sure to follow these helpful tips:

If you have illegally resided within the United States (“U.S.”) for more than one year, you will likely receive a 10-year reentry ban. This ban means that you cannot return to the U.S. for a 10-year period. Similarly, if you have been deported for reasons of crime or immigration fraud, you will also receive a reentry ban, although this ban could be permanent in certain instances. If you have been deported, or are being deported, you may be able to claim extreme hardship and file an application for a 601 waiver. The 601 waiver may allow you to remain in the U.S. or legally reenter the U.S. despite being inadmissible.

When considering a 601 waiver application, the U.S. Citizenship and Immigration Service (USCIS) policy manual requires the officers to “make extreme hardship determinations based on the factors, arguments, and evidence submitted. The extreme hardship must be shown in relation to a qualifying relative – not just to the applicant. A qualifying relative is a member of your immediate family (e.g., daughter, son, mother).

Overall, the USCIS officer must consider the totality of circumstances when determining the presence of extreme hardship. While there is no express identification of what constitutes extreme hardship, such circumstances may include:

The first stage in the removal (deportation) of a foreign national is a Notice to Appear (NTA) at a Master Calendar Hearing.  The purpose of the hearing is not to reach a final decision on removal, but to obtain basic information about the case and create a schedule for it to proceed.  It also is an opportunity for the court to outline all of the legal rights available to the foreign national, including the right to answer charges, present evidence, examine witnesses and, if the respondent lacks counsel, make use of any free or low-cost legal service providers who may be available.

The Notice to Appear contains the date, time and location of the hearing, usually at least ten days later.  A foreign national (the "respondent") who receives a notice must attend in person, with or without an attorney.  Failure to attend, or even showing up late, can result in denial of an application and deportation "in absentia."  The respondent should bring the Notice to Appear and any official identification documents.  Family members can attend.

The Notice to Appear also contains allegations about the respondent's illegal status in the United States.  The respondent, with the help of an attorney if possible, should examine these allegations carefully and be prepared to deny them and correct any inaccuracies.

The Master Calendar Hearing itself is brief, though it may take hours for a case to be called.  When the respondent's name and Alien Registration Number are announced, the respondent and counsel, if any, appear before an Immigration Court Judge.  The court will generally provide an interpreter, if needed.

The judge may ask for basic information, such as name, address, and the languages the respondent speaks.  The judge then reviews the charges.  The respondent can deny some or all of the government's allegations and point out any factual errors regarding names, dates, places, or other details.  The respondent can designate—or refuse to designate— a "country of removal," i.e. where to be sent if deported.

The U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration (SSA), offers E-Verify to help employers instantly determine an employee's eligibility to work.  Initial confirmations and "Tentative Non Confirmations" are available in as little as three to five seconds.

The voluntary Internet-based program works by comparing the information from an employee’s Form I-9, Employment Eligibility Verification, with Department of Homeland Security and Social Security Administration records.  Instead of simply retaining I-9s on file in their own offices, employers who enroll in E-Verify must enter the I-9s of all new hires into the program's database.

There are both advantages and disadvantages to using E-Verify.  Employers must weigh each and its relevance to their circumstances.

Five Benefits of Signing Up for E-Verify

 • While E-Verify is generally voluntary, some states require employers to use E-Verify, and it is mandatory for some federal government contracts.

 • E-Verify could become mandatory nationwide.  Adopting it earlier affords employers more time to become familiar with it and adapt.

 • E-Verify helps companies avoid hiring and training a person who turns out to be ineligible to work.  It can eliminate "No Match" letters from the SSA notifying an employer that an employee's reported social security number does not match government records.

The Immigration and Nationality Act (INA) requires employers to verify the identity of their employees and their eligibility to work in the U.S.  To comply, employers must retain original I-9 Forms for current employees and, for former employees, keep them for at least three years.  These need not be submitted to the government but must be available for inspection.  From time to time, U.S. Immigration and Customs Enforcement (ICE) ask to inspect the forms. 

What Does an Inspection Entail?

An employer who receives a Notice of Inspection must produce its I-9s, usually within 3 business days, and may be asked for payroll records, employee lists, articles of incorporation, and business licenses.  ICE may ask the employer to bring the documents to an ICE field office, or officials may visit the employer.  At the inspection, in addition to printed documents, the employer must retrieve any electronically stored documents requested and provide the ICE officer with the hardware and software needed to view them.  The employer must also provide an electronic summary of information in the I-9s, if one exists.

What Happens Afterwards?

After reviewing the I-9s, ICE may send the employer one or more of the following:

Immigrants don't want to become citizens.

The number of eligible immigrants submitting citizenship applications continues to increase. Due to huge backlogs in the system, the majority of applicants must wait years to hear a decision. Several factors determine an immigrant's eligibility, and meeting all of the requirements is not easy. In order to apply for naturalization, immigrants must pass background checks, verify they have paid their taxes, take a U.S. history and civics test, and prove they have resided in the United States (with lawful permanent resident status) for five years, among other regulations. In fact, only 7 percent of Hispanic immigrants surveyed as part of a Pew Hispanic Center study said they didn't want to become citizens.

Immigrants Won't Learn English.

Immigrants to the U.S. may not speak fluent English right away, but polls show that after 15 years, 75 percent of first generation immigrants speak English proficiently. The ability to speak the language increases significantly with succeeding generations: 91 percent and 97 percent of second and third generation immigrant families, respectively, speak English.

Immigrants don't pay taxes.

Despite the fact that most immigrants are unable to benefit from federal and federal-state assistance programs, the majority pay income tax or have taxes withheld from their paychecks; all immigrants pay sales and property taxes. Both legal and undocumented immigrants can't claim social security benefits, a tax refund or other welfare benefits.

Immigrants bring crime to the areas in which they settle.