In Part 1 of this blog post, we explored 5 reasons why a Green Card holder should seriously consider becoming a U.S. Citizen, in addition to the right to vote in elections (and despite the necessity of having to perform jury duty, which is not required of or possible for Green Card holders).

 

Here are 5 more significant reasons, again in no special order of importance.

 

 •       Automatic citizenship for your children born abroad, under certain circumstances

We all know that under the 14th Amendment, your children born in the U.S. are automatically U.S. Citizens.  But what about your children born abroad?  Under certain circumstances, if you are already a U.S. Citizen, they can be U.S. Citizens at birth; and if you become a citizen, they can naturalize automatically (“by operation of law”).

If you are a U.S. Citizen who, before your child’s birth resided in the U.S. for a total of at least 5 years, at least 2 of which were after age 14, AND child was born “in wedlock,” your child is a U.S. Citizen by birth, even if born abroad.  (There are special requirements for children born out of wedlock, beyond the scope of this post.)  Not so with children of LPRs.

Similarly, if you are a U.S. Citizen and obtain a “Green Card” for a child under age 18, who lives in your “legal and physical custody” after getting the Green Card, the child automatically becomes a U.S. citizen “by operation of law,” under the terms of the Child Citizenship Act, codified at Sections 320 and 322 of the Immigration and Nationality Act ("INA")

If you are not yet a citizen when your child is under age 18, but become a citizen before the child’s 18th birthday, the child, if living in your “legal and physical custody,” likewise becomes a U.S. citizen automatically “by operation of law,” under the terms of the Child Citizenship Act.

None of the above works unless you are or become a U.S. Citizen.

The provisions of the Child Citizenship Act apply to your adopted as well as your natural-born children, as long as the adoption was completed before the child’s 16th birthday, and complied with applicable laws pertaining to adoption-related immigration.  Unfortunately, they do not apply to your stepchildren because of the way “child” is defined in Section 101(c) of the Immigration and Nationality Act.

 

•        Certain jobs and benefits are available only to U.S. Citizens

Green Card holders are allowed to work in the U.S.  But that doesn’t mean that they are eligible to work in every occupation or position.  In many cases, the so-called “equal protection” Clause of the Fourteenth Amendment (which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws”) prevents discrimination against non-Citizens. However, there are important exceptions, especially for government employers, which allow government employers to insist that only U.S. Citizens may perform certain jobs, as long as they can show “some rational relationship between the interest sought to be protected and the limiting classification.” 

The Supreme Court has heard many challenges to such restrictions and in some cases has sided with the governmental body that has imposed that restriction.  It may surprise you to learn that the Supreme Court has upheld a New York requirement that public school teachers must be citizens or “[have] manifested an intention to apply for citizenship” (Ambach v. Norwick, 441 U.S. 68 (1979)) and another New York state requirement that its state troopers must be citizens (Foley v. Connelie, 435 U.S. 291 (1978)).  There are other such holdings.  (Surprisingly, a Connecticut requirement that lawyers must be citizens was shot down!  In re Griffiths, 413 U.S. 717 (1973).)

Such restrictions are few, but education and law enforcement, and government employment in general, are popular occupations. And remember that this exception applies not just to the Federal government, but also many state and local governments.

In addition, certain coveted jobs, or consulting contracts, that entail access to classified information, may require high-level security clearance which is available only to U.S. Citizens. 

Finally, although Green Card holders are eligible for many Federal grants, scholarships and student loans, there are still many financial aid grants, including college scholarships and funds given by the Federal government for specific purposes, which are available only to U.S. citizens. 

 

•        Some government benefits are available only to Citizens

Nobody wants to go on welfare or other forms of public assistance, but sometimes it’s unavoidable and necessary.  Many welfare or other so-called “means-tested” public benefits programs may be made available to Green Card holders as well as Citizens.  But if a Green Card holder becomes what is called a “public charge” for receiving such benefits, his or her status can be jeopardized, and the Green Card holder or any person who “sponsored” the Green Card holder for the Green Card, might be compelled to repay the benefit.  There is no such restriction or requirement for U.S. Citizens.

Aside from the fact that Supplemental Security Income (“SSI”) is a “means-tested public benefit” as discussed above, not all LPRs are “qualified aliens” eligible to get SSI in any case.  In general, only an LPR with at least 5 years of residence after obtaining Green Card AND 40 qualifying quarters of earnings (in which may be counted work done by your spouse or parent(s)) is eligible for SSI.  There are some exceptions generally not germane here; and there is some limited (7-year) SSI eligibility for refugees, asylees, a few other limited categories; but in general, SSI is for citizens. 

Another important limitation of benefits for Green Card holders involves Medicare Part A.  A person who has been an LPR for less than 5 years is not eligible for Part A.  Even thereafter, the LPR may have to pay a premium.  Since Part A covers such benefits as hospital care, skilled nursing facility care, nursing home care, hospice and home health services, this is an important benefit.

 

•        Ability to obtain U.S. passport, and to seek protection of the U.S. Government abroad

Only a U.S. Citizen can obtain a U.S. passport.  Having a U.S. passport usually makes return to the U.S. easier.   A U.S. passport may also make travel to many (not all) foreign countries easier, since many foreign countries have easier visa processes for U.S. Citizens, and sometimes even waive visa requirements for U.S. Citizens. 

If you get into trouble while abroad, every U.S. Consulate has a Citizenship Services section devoted to helping U.S. Citizens abroad.  The Consulates cannot always solve the problems of the U.S. Citizen who seeks their help, but frequently they can.

 

•        A surprise benefit in estate planning

One little-known benefit of citizenship is in estate planning.  The government imposes pretty high taxes on estates valued over a certain amount.  As most people know, each spouse gets a large “exemption” before estate taxes kick in ($5.45 million per spouse in 2016), and in general, when one spouse dies, the deceased spouse’s “exemption” is “portable” to the estate of the surviving spouse, meaning that a married couple gets a total exemption of $10.90 million before any estate tax kicks in.  This portability is coupled with what is known as the “unlimited marital deduction,” which allows the first spouse to die to leave any amount of money to the survivor, completely free of estate tax.  This at a minimum allows for deferral of estate taxes.  It applies, however, only when both spouses are U.S. Citizens.

This estate tax exemption is “unified” with the so-called “gift” tax, for which there is a similar large exemption, but all gifts to anybody over $14,000 per year can count against the exemption, meaning that a person’s estate may be more likely to have to pay taxes in certain circumstances.  There is a big “hole” in this system:  one U.S. Citizen spouse may give his or her U.S. Citizen spouse unlimited gifts every year, without any gift tax concerns.  However, if the spouse getting the gift is not a U.S. Citizen, the amount that can be given without gift tax consequences is only $148,000 a year (in 2016, indexed for inflation).   This is not a problem a lot of people have.  But for those who do, it can be a big deal.

Estate taxes on an individual exemption of $5.45 million also are, in general, not due until the second spouse dies.  However, if the surviving spouse is not a U.S. Citizen, estate taxes, if applicable, may be due upon the death of the first-to-die spouse.  There are only two ways around this problem:  either the surviving non-citizen spouse must become a U.S. Citizen within a comparatively short time prescribed by law; or the surviving non-citizen spouse must set up a special kind of trust known as a Qualified Domestic Trust or “QDOT.”

With a QDOT, the first spouse’s assets go to the trust instead of to the surviving non-citizen, who can receive some benefits from the QDOT, but can’t own the assets.  When the non-citizen spouse dies, the assets in the QDOT, which are not part of the estate of that non-citizen spouse, pass to the other beneficiaries named in that trust.  Note that at least one of the trustees of the QDOT must be a U.S. Citizen; and if the QDOT’s assets are over $2 Million, at least one trustee must be a U.S. bank, or the trustee must pay the expense of a bond to protect the value of the QDOT.

The actual mechanics of the QDOT requirements are complex and severe, and beyond the scope of this discussion.  The “takeaway” however is that estate planning for a married couple is much easier, and the couple will almost certainly enjoy more tax-exempt or at least tax-deferred benefits, if both spouses are U.S. Citizens. 

 

© Paul D. Cass 2016