Puerto Rico voters have rejected the current territorial status and voted in favor of statehood. Congress is expected to consider the question of Puerto Rico’s status soon. However, there is still an anti-statehood faction not only in Puerto Rico, but also in Congress.
Anti-statehood activists often claim that U.S. citizenship will be “permanent and irreversible” for Puerto Ricans and their children, regardless of the political status of Puerto Rico. The Congressional Research Service (CRS) in 1989 said otherwise. Puerto Rican citizenship, CRS concluded, was statutory rather than constitutional, and so could be taken away by Congress.
Former Attorney General Dick Thornburgh explained it this way in Foreign in a Domestic Sense,:
History and U.S. law show that U.S. citizenship will end in one of two ways. When the independent nation of the Philippines succeeded the Philippines commonwealth, U.S. nationality and territorial citizenship for persons who acquired it based on birth in the territory ended and all persons so situated became aliens under U.S. law. Those residing in the United States were repatriated to their homeland in the new republic of the Philippines, except for those who met residency requirements in the states of the Union and thereby were permitted by Congress to become candidates for naturalization. The other option, exemplified by in the case of the succession from Spanish to U.S. sovereignty, provides for an election of allegiance to be allowed, requiring a choice of nationalities but not allowing dual nationality to be created by U.S. law or as part of the succession process.
If Puerto Rico became an independent nation with a Compact of Free Association, people born in Puerto Rico and their children would not be able to rely on their current citizenship continuing in the new political relationship.
They could become U.S. citizens through naturalization, though.
How to become a U.S. citizen
Everyone born in the United States, including Puerto Rico, is automatically a U.S. citizen. Yet people who are not born in the U.S. can still become citizens. Their first step is to become a permanent resident: that is, they must receive a green card. Noncitizens can get a green card in several ways:
- Be sponsored by a close relative, such as a spouse or parent
- Have a qualifying job offer
- Qualify as a refugee (probably not an option for Puerto Rico)
Puerto Ricans living in Puerto Rico would probably have to receive a green card to become U.S. citizens. They would then have to relocate to a State and live there for 5 years with only limited time spent away from the States before they could apply for U.S. citizenship. They would have to pay a $750 application fee and pass tests of English and civics knowledge. They would also have to prove “good moral character” and would not be eligible for citizenship if they had a criminal record. No one under the age of 18 can apply for citizenship. The process can take years to complete.
This would be impractical for many residents of Puerto Rico. The Pew Research Center found that cost and limited English language skills kept many Mexican nationals from applying for ciitizenship even though they were eligible. The cost of application has increased significantly over time, and it was scheduled to increase again in October, but has not yet done so. If an applicant is denied, there are additional fees to appeal that decision. An applicant who fails a test or makes an error may have to begin the process again.
It is also worth noting that there is a backlog of hundreds of thousands of cases currently waiting for processing. While the Biden administration is working hard to increase the rate of naturalization, the Trump administration famously worked hard to reduce that rate. The Immigration and Naturalization Service is funded by fees, not taxpayer dollars, and has for some time been in financial difficulty.
With 3 million plus Puerto Ricans living on the Island and 5 million plus in the States, it would not be surprising if a rush of naturalization applications exacerbated the problems the INS is already facing.
What about those already living in a State?
Puerto Ricans born in a State would still be U.S. citizens if Puerto Rico became an independent nation. Those who were born in Puerto Rico might not keep their U.S. citizenship, though. They might, like people born in the Philippines, lose their citizenship as soon as Puerto Rico became independent, or they might have to choose between U.S. and Puerto Rican citizenship.
Much depends on the COFA negotiated between the U.S. and the new Republic of Puerto Rico. They might, like citizens of Palau, the Federated States of Micronesia and the Marshall Islands, be able to live and work freely in the United States, but without becoming citizens.
Or they might face the situation Deferred Action for Childhood Arrivals (DACA) recipients are currently facing.
DACA participants, sometimes called Dreamers, are people who entered the U.S.unlawfully as children. In many cases, they have never returned to the countries where they were born, have no family there, and in some cases cannot even speak the language. DACA allows these individuals to delay deportation by two years so they have time to figure out a way to stay in the U.S. legally.
DACA was terminated by the Trump administration and reinstated by the Biden administration. However, the federal government has not come up with any way to give Dreamers a path to legal citizenship.
Most cannot apply for a green card because people in a State can only receive a green card if they entered the U.S. legally.
Since most Dreamers, by definition, entered unlawfully, they can only get a green card by returning to their native countries and applying from those countries. They must be sponsored by a family member who is in the U.S. legally, or by a company offering them a qualifying job. Without a green card, they cannot even begin the citizenship application process.
Puerto Ricans living in the States would not have entered unlawfully, so they would not be in the same position. However, they would still have to be sponsored for their green cards by a close family member with a green card or citizenship, or by an employer with a qualifying job.
Why can’t Congress fix it?
Theoretically, Congress could make a special arrangement for Puerto Rico, perhaps making a law that would allow Puerto Ricans living in a State to apply for citizenship without a green card. But Congress could do the same for Dreamers — they just haven’t yet been able to accomplish this.
The American Dream and Promise Act of 2021 is a bill which passed the House but is still stuck in the Senate. “The Department of Homeland Security (DHS) or the Department of Justice (DOJ) shall provide conditional permanent resident status for 10 years to a qualifying alien who entered the United States as a minor and (1) is deportable or inadmissible, (2) has deferred enforced departure (DED) status or temporary protected status (TPS), or (3) is the child of certain classes of nonimmigrants,” the bill says. There are specific conditions to be met, but they will not require the applicant to leave the country to establish permanent residency.
If the bill passes, Dreamers would have permanent resident status (a green card) for ten years, which should be long enough to get through the citizenship application process.
The Senate version of the bill, however, has just one sponsor. It has been in committee since February of 2021. It may still pass the Senate and become law. It may not. In fact, most political observers consider the proposal dead on arrival in the Senate.
Puerto Rico will be in the same position. Unlike statehood, special arrangements for citizenship for people born in Puerto Rico will not be permanent and guaranteed by the U.S. constitution. They will be subject to change by future administrations and Congresses. They may apply to the people who are already adults when the shift in status takes place, but not to future generations.
As the Dreamers know, U.S. citizenship can be complicated and, at least for the moment, just a dream.
