Waiving Oath Due to Mental Capacity


Mental Capacity

The most important thing to know is that there are no express guidelines for mental capacity in the context of naturalization, which means that there have not been any regulations or cases that say a person must have full mental capacity to become a U.S. citizen. Applicants who have impairments or disabilities are able to seek the N-648 Medical Disability Waiver (uscis.gov/sites/default/files/files/form/n-648.pdf) as an exemption to the English and/or civics portion of the interview.

 

Another issue arises when the person does not have the capacity to understand the Oath of Allegiance.

  • In November 2000, a statute was signed by then-President Clinton, allowing applicants who were unable to comprehend the oath to seek a waiver.
  • Standard: the person is unable to understand or communicate an understanding of the meaning of the oath due to a physical or mental impairment.
    • To fulfill the oath requirement, a person must understand that he/she is
      • 1) Becoming a citizen of the U.S.
      • 2) Giving up allegiance to his/her country of nationality
      • 3) Voluntarily agreed to the change
  • Practice Tip: an application cannot be denied only because of the failure to understand the Oath of Allegiance!

 

USCIS can try to determine whether the applicant is able to understand the oath requirement. Examples of questions that the officer may ask are:

  • Do you like living in the U.S.?
  • Would you hurt anyone in this country?
  • Do you want to be an American?
  • If your father told you to help America, would you?

 

Requesting a Waiver of the Oath

Requirements:

  1. Person is unable to understand or communicate an understanding of the meaning of the oath due to a physical or developmental disability or mental impairment.
  2. Applicant is presumed to be attached to the principles of the Constitution and U.S.
  3. For children under 14, USCIS has determined that they are generally unable to understand the meaning of the oath.

 

Practice Tips:

  • Must be requested in writing.
  • Request and evaluation must be done by certified medical professional.
  • Can be sent at any time before the oath ceremony is scheduled.
  • Should be sent to the USCIS Field Office handling the case.

 

Written Evaluation by Medical Professional:

  • The doctor must be licensed in the U.S.
    • He/she should include their state license number.
    • He/she should have an existing relationship/be familiar with the applicant’s history.
  • The medical condition/disability should be explained in a way the Immigration Officer can understand.
  • Include an explanation of why and how the applicant is unable to understand the oath due to the condition.
  • Discuss whether there is a likelihood that the applicant will be able to understand the oath in the near future.

 

If the waiver is granted, the applicant will not be required to attend the public ceremony. If denied, an appeal can first be made to USCIS and then to the federal District Court.