Naturalization - The Other Five Year Rule

Just a reminder that there is another five year rule associated with naturalization that we often forget about: good moral character for the five years (three years for spouses of US citizens) immediately prior to filing the naturalization application. Many cross-border practitioners probably assume that high net worth Canadians always meet this requirement. Bad assumption. 

Arrests, charges, and criminal convictions of any kind and at any time in the client’s life must be noted on the naturalization application and may affect the good moral character assessment, whether or not the “bad conduct” occurred during the five year period before filing (sounds unfair, doesn’t it?). Almost any arrest or conviction merits a consultation with an immigration attorney who is highly experienced in naturalization matters.

IMPORTANT: As far as CIS is concerned, no arrest or conviction is ever expunged and no court record is ever sealed. A long time ago, I stopped acting surprised when decades old “expunged” convictions and “sealed” court records showed up during CIS background checks. Similarly, there is no “youthful indiscretion" exception. Failure to disclose every arrest, charge, or conviction on the naturalization application will be treated as a separate act of bad character forcing the CIS officer to deny the application; and the applicant starts counting from zero 5 years of good character required for naturalization.


But involvement with law enforcement is not the only activity that can trigger denial of a naturalization application. The application form (N-400) asks whether the applicant has ever committed an offense for which he/she was NOT arrested! If in the course of the naturalization interview, the naturalization background check, or the examining officer’s own research, CIS uncovers conduct that could be construed as reflecting bad character (forget simple traffic violations), and that conduct is not disclosed on the application, the application may be denied and the five year period of good character must start anew. This conduct is not limited to undiscovered crimes. Included is known conduct where the government decided to not to prosecute or decided to pursue an alternative to prosecution—both of which may be a matter of public record. Conduct in this category includes: 



• Simple drug possession (yes, pot counts and any time since birth) – the dumb things people admit to in interviews! 
• Domestic violence with no arrests or charges, especially where a police report was filed and there is a pattern of such incidents. 
• Willful failure to file tax returns, underpayment of tax, and other tax violations, where deception or evasion may have been a component, especially where IRS elected to impose hefty administrative penalties rather than prosecute criminally 
• Willful (a pattern of) failure to pay child support, especially where enforcement proceedings were initiated 
• Causing death or injury to another where willful or grossly negligent conduct is a component, especially where such conduct results in a wrongful death or personal injury lawsuit 
• Adultery (it’s in the examiner’s manual) 
• Suspension or cancelation of a license or permit, impeachment, loss of office, where the government action taken (short of prosecution) still implies serious wrongdoing 

This list is not exhaustive. CIS “rules” in this area are case and fact specific, so what’s permissible and what isn’t gets worked out through the courts and case law.

It is easy for a naturalization applicant to get in trouble with a “that doesn’t count” or a “who is going to know?” attitude. Be thorough in completing the moral character questions on the naturalization application. Again, failing to disclose bad conduct is in itself bad conduct. If problem areas come to light, consult with an immigration attorney who is well versed in naturalization matters before filing.