U.S. Citizenship: Requirements, Application, Exceptions

How can you apply for U.S. citizenship?

U.S. citizenship can be acquired in two ways: by birth or by naturalization.

U.S. citizenship by descent: Ius sanguinis

U.S. citizenship can also be acquired if one parent had U.S. citizenship at birth. However, this acquisition is subject to a number of requirements that have changed over the years. The requirements that must be met in order to acquire U.S. citizenship from the parents depend on the laws in force at the time of birth. The requirements vary depending on whether

• both parents are U.S. citizens,
• only one parent is a U.S. citizen,
• the parents were married at the birth of the child or not,
• the U.S. parent is the father or mother of the child.

In particular, if only one parent has U.S. citizenship, this parent must have lived in the USA for some time before the birth of the child in order to be able to pass on citizenship to children. Anyone who was born in the USA but left the USA as an infant and has not lived in the USA since then is a U.S. citizen, but cannot pass on their citizenship to their children.

For children born on or after November 14, 1986, who were born in wedlock and where only one parent has U.S. citizenship, it is required that this parent has lived in the USA for five years, two of them after the age of 14. However, there are exceptions to this rule. For example, the child can still acquire citizenship “automatically” if it receives a green card before the age of 18, i.e. the parents or the U.S. parent move to the USA with the child and apply for a U.S. green card for the child (“automatic acquisition of citizenship after birth”, see INA 320).

Children born out of wedlock to a U.S. father can only acquire citizenship by birth on or after November 14, 1986 if, among other things, the father has given written assurance of financial support until the child reaches the age of 18 and

• the parents have married after the birth,
• the father has acknowledged his paternity in writing and under oath, or
• a competent court has established paternity.

Acquiring U.S. citizenship through naturalization

As a rule, U.S. citizenship can only be acquired through naturalization if you have been in possession of a green card for several years and have lived in the USA for a certain period of time.

If you have won a green card through the Diversity Lottery or have been given one by a U.S. employer, you can apply for U.S. citizenship after five years.

If you are married to a U.S. spouse, you can apply for U.S. citizenship as a “lawful permanent resident” after just three years.

Employment in the U.S. military can also lead to U.S. citizenship. However, it should be noted that it is practically impossible to be accepted into the U.S. military as a foreigner without a green card.

Naturalization is of course subject to further requirements, which generally include language skills, knowledge of the U.S. Constitution and history and good moral character.

First step towards U.S. citizenship: Obtaining a green card

If you are married to a U.S. citizen, you can apply for a green card to live in the USA with your partner. After three years, the foreign spouse can even apply for U.S. citizenship.

In the first step, the U.S. spouse must submit a petition, usually to the USCIS in the USA. In exceptional cases, the petition can also be submitted and processed at a U.S. Consulate abroad.

If the petition is approved, the foreign spouse can apply for the immigrant visa at the U.S. Consulate. In order to receive the green card, the foreign spouse must travel to the USA on time (within six months). The green card will then be sent automatically to the U.S. address provided by the foreign spouse. It cannot be sent to an address outside the USA. There are no exceptions for spouses of U.S. citizens, i.e. the spouse must apply for a visa and travel to the USA in order to receive the green card.

Applying for U.S. citizenship: stays abroad

The situation is different when applying for U.S. citizenship.

8 CFR 319.1(a)(2) stipulates that the foreign spouse must have lived or had his or her principal place of residence in the USA for three years after obtaining lawful permanent resident status:

„(a) To be eligible for naturalization under section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:
(1) Has been lawfully admitted for permanent residence to the United States;
(2) Has resided continuously within the United States, as defined under § 316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence […].“

It should be noted that shorter stays abroad do not interrupt the required continuity. However, stays of six months to one year are problematic:

8 CFR 316.5(c) states that continuity of residence is generally deemed to be broken for stays abroad of six months to one year - unless and until the foreign national can convince USCIS otherwise. It may be helpful, for example, that the foreign national continued to be employed in the USA during his absence from the USA, that his immediate family members (spouse, children under the age of 21, parents) remained in the USA or that he had unrestricted access to his U.S. residence.

A stay abroad of more than one year interrupts the required continuity so that naturalization can no longer take place. An application for naturalization cannot be filed again until two years and one day after the foreign spouse has returned to the U.S. (see 8 CFR 316.5(c)(1)(ii)):

„An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant’s return to the United States to resume permanent residence.“

Special rules for spouses of U.S. military personnel

Special rules apply to spouses of U.S. men and women who are employed by the U.S. military and spend time abroad for this purpose: In this case, stays abroad are deemed to be stays in the USA in accordance with INA 319(e) (identical to 8 USC 1430(e)) and 8 CFR 316.6:

„(1) In the case of a person lawfully admitted for permanent residence in the United States who is the spouse of a member of the Armed Forces of the United States, is authorized to accompany such member and reside abroad with the member pursuant to the member’s official orders, and is so accompanying and residing with the member in marital union, such residence and physical presence abroad shall be treated, for purposes of subsection (a) and […] as residence and physical presence in—
(A) the United States […].“ (8 USC 1430(e))

„Pursuant to section 319(e) of the Act, any period of time the spouse of a United States citizen resides abroad will be treated as physical presence in any State or district of the United States for purposes of naturalization under section 316(a) or 319(a) of the Act if, during the period of time abroad, the applicant establishes that he or she was:
(a) The spouse of a member of the Armed Forces;
(b) Authorized to accompany and reside abroad with that member of the Armed Forces pursuant to the member’s official orders; and
(c) Accompanying and residing abroad with that member of the Armed Forces in marital union in accordance with 8 CFR 319.1(b).“ (8 CFR 316.6)

Accordingly, leaving a U.S. residence is not considered abandonment of that residence, as is clear from 8 USC 1354(b):

„If a person lawfully admitted for permanent residence is the spouse or child of a member of the Armed Forces of the United States, is authorized to accompany the member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member (in marital union if a spouse), then the residence and physical presence of the person abroad shall not be treated as—
(1) an abandonment or relinquishment of lawful permanent resident status for purposes of clause (i) of section 1101(a)(13)(C) of this title; or
(2) an absence from the United States for purposes of clause (ii) of such section.“

The question of who is considered a “member of the armed forces” has not yet been answered. 10 USC 101(a)(4) defines them as follows:

„The term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard.“

According to 8 USC 1443a, the entire naturalization procedure can even be carried out abroad:

„Notwithstanding any other provision of law, the Secretary of Homeland Security, the Secretary of State, and the Secretary of Defense shall ensure that any applications, interviews, filings, oaths, ceremonies, or other proceedings […] relating to naturalization of members of the Armed Forces, and persons made eligible for naturalization by section 319(e) or 322(d) of such Act […], are available through United States embassies, consulates, and as practicable, United States military installations overseas.“

The same applies to civilian government employees: For them, the stay abroad is not even deemed to be a U.S. stay, but 8 USC 1430(b) waives the requirement to live in the USA:

„Any person, (1) whose spouse is (A) a citizen of the United States, (B) in the employment of the Government of the United States, or of an American institution of research […], and (C) regularly stationed abroad in such employment, and (2) who is in the United States at the time of naturalization, and (3) who declares […] in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States […] shall be required.“

However, unlike “members of the armed forces”, they must complete the naturalization process in the USA, as they are not mentioned in the cited 8 USC 1443a.

There is therefore relief for foreign spouses of U.S. citizens who are employed by the U.S. military or the U.S. government. They can apply for U.S. citizenship without ever having actually lived in the USA.

Advice on U.S. citizenship

Are you interested in a U.S. visa, a green card or would you like to apply for U.S. citizenship? Our experts will be happy to help you. Please contact us at any time if you would like to make an appointment for a consultation with one of our experts - by e-mail (info@visum-usa.com) or by phone (+49 69 76 75 77 85 26).