Herbert A. Weiss Immigration Law Blog on Lawyers.com

Lately I am much enamored of reading American history, particularly the era in which our Founding Fathers lived.  I have enjoyed immensely two biographies, the first about Benjamin Franklin written by Walter Isaacson, the second a Pulitzer Prize-winning book about John Adams by David McCullough who also penned the marvelous “1776.”  These biographies provide the reader with insight regarding the enormous trials faced by our great American patriots who risked their lives in founding a nation.

Our War of Independence from Great Britain also gave rise to two immortal, inspirational documents that have seldom met their match:  The Declaration of Independence (1776) and The Constitution of the United States of America (1787).  Who can fail to be moved by the elegant prose and majestic ideas of these two quintessential American works?

As an immigration lawyer I am called upon often to assist foreign nationals in applying for U.S. citizenship through the naturalization process.  When a lawful permanent resident alien changes status from permanent residence, i.e., green card holder, to U.S. citizenship, it is, from my experience, one of that person’s proudest days.  My parents were naturalized citizens, and although they are deceased, I would never think of discarding their original certificates of naturalization or their U.S. passport(s).  They are sacred documents to me.

 The naturalization process is as old as the U.S. Constitution itself.  Article 1, Section 8 lists the power to establish a uniform rule of naturalization as one of the enumerated powers of Congress.  But what rules or guidance could Congress turn to in 1787 in adopting a uniform rule of naturalization that could be fairly applied within the framework and context of colonial society?

The first law enacted by Congress dealing with the granting of national citizenship was the United States Naturalization Law of March 26, 1790.  This law limited naturalization to immigrants who were “free white persons” of “good moral character.”   By limiting citizenship to “free whites,” Congress, in deference to the times, left out indentured servants (white or black), slaves, free blacks and later Asians.  Women, however, were included in the Act.

The “good moral character” requirement, interestingly, has been maintained to the present day, albeit in a different form.  The 1790 Act required two years of residence in the United States and one year in the state of residence prior to applying for naturalization.  A specified period of residence was necessary to help the courts decide whether good moral character existed.  The Naturalization Act of 1795 extended the residence requirement to five years.  Today in determining good moral character, Section 316 of the Immigration and Nationality Act says that the Attorney General, acting through the USCIS, may look beyond the five year period immediately preceding the filing of the application in assessing the applicant’s good moral character.

The adoption in 1868 of The Fourteenth Amendment to the Constitution granted citizenship to all persons born within the United States (excluding non-taxed Indians who were granted citizenship in the 1920’s).  The invidious laws that unfairly prevented persons of various nationalities, e.g., Asians, from becoming naturalized were eventually repealed, and in 1952 all racial and gender discrimination in naturalization was thankfully prohibited.