Why bother becoming a citizen? Or, what’s in it for me? (Part 2 of 2)

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

Should your U.S. Citizen child get “certified”? Or, why spend the money for a Certificate of Citizenship?

As many people know, a child who is in the U.S. as a Lawful Permanent Resident (“LPR,” or colloquially “Green Card”), can automatically become a U.S. Citizen, without any further application or action, under the Child Citizenship Act (codified at Sections 320 and 322 of the Immigration and Nationality Act (“INA”)). For a child to become a U.S. Citizen automatically (“by operation of law”) all of the following factors must be present as of the date of the last qualifying event:

  1. Child is under age 18.

  2. Child is an LPR (“Green Card” holder).

  3. Child has at least one parent, including an adoptive parent (BUT NOT a stepparent) who is a U.S. Citizen, either by birth or by naturalization.

  4. Child is residing in the United States in the “legal and physical custody” of the U.S. citizen parent.

​So, in the most common case, where an LPR parent naturalizes, his or her child who at the time of the parent’s naturalization is under 18, has a Green Card, and is living with and in the “legal” custody of the naturalizing parent, automatically becomes a citizen when that parent naturalizes. 

In a slightly less common but still frequently encountered scenario, a child who gets a Green Card and is living with a parent who is already a Citizen, becomes a citizen at the same time as he or she gets the Green Card.

What’s the problem?  It turns out that the U.S. Immigration and Immigration Services (“USCIS”) doesn’t make any special entry or notation in its database when this occurs.  So, as far as the USCIS’s records are concerned, this Naturalization “by operation of law” never happened.  

That doesn’t mean the child isn’t a citizen.  He or she can (and should) apply for a U.S. passport with documentation supporting this “automatic” Naturalization.  In fact, many attorneys (wrongly in my opinion) tell clients just to apply for a passport for the child, and not even to bother with the hassle of filing for a Certificate of Citizenship, which costs hundreds of dollars in filing fees alone.

In most cases, a passport IS sufficient proof of citizenship. Under 22 U.S. Code section 2705, a passport, “during its period of validity (if such period is the maximum period authorized by law)” has the same force and effect for proof of citizenship as a Naturalization Certificate (or a Citizenship Certificate). So, no problem, right?

Well, not necessarily.  The passport is not issued by the USCIS, which is an agency of the Department of Homeland Security (“DHS”).  It’s issued by the Passport Office, which is an agency of an entirely different department, the Department of State.  It may surprise you to know that the two departments’ softwares don’t “speak” to each other, so what one agency “knows” may not be known to the other.  Passport information in the Passport Office’s database may (in fact, almost certainly will) never get to the USCIS.

And passports are transitory.  Passports can expire.  An expired passport is not official proof of citizenship. 

A passport issued for less than the “maximum period authorized by law” also is not, in theory, proof of citizenship.  Who gets passports issued for less than the allowable maximum period?  Children.  Children 16 years and older may get “limited validity” passports for less than 10 years; children under 16 may get “limited validity” passports for less than 5 years.

Also, just because a passport has been issued once, doesn’t mean it will be renewed.  Just for example, felons and people who owe child support payments may have passport applications denied.

By contrast, a Certificate of Citizenship does not expire.   Once issued, it does not have to be reissued or renewed.  It cannot later be revoked if a person falls behind on child support or commits a serious crime. 

Of equal importance, the Certificate of Citizenship, issued by USCIS, IS entered into the DHS’s database, so that agents of the various DHS agencies (not just the USCIS, but Immigration and Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”), and the Border Patrol) have easy access to the information when trying to determine if someone is a citizen.

Why does this matter?  Tragically, every year hundreds if not thousands of U.S. Citizens are deported, even though they are citizens, because government agents who take them into custody for a myriad of reasons don’t do the research – or don’t do enough research – to find out that they are citizens, and classify them as “undocumented.”  Uncounted thousands of others are detained, in facilities that nobody would ever confuse with the Ritz Carlton, for periods ranging from a day to several months, while government agents determine whether or not they are citizens.  Frequently, their families have to retain lawyers to help them, at a cost many times greater than the cost of a Certificate of Citizenship.   Having a Certificate of Citizenship makes proving a person's citizenship to these government officals easier and faster.

You might also be surprised to learn that many government employees at other agencies don’t necessarily know that an unexpired passport is proof of citizenship, and insist on a Certificate of Citizenship.  Having one will avoid the hassle of proving them wrong. 

The Certificate of Citizenship, while not cost-free, is a lifetime investment and “insurance policy,” in my opinion, well worth the expense.

 

© Paul D. Cass 2016

Categories