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Chapter 6 - USCIS Hearing and Judicial Review

A. Hearing Request

An applicant or his or her authorized representative [1] may request a USCIS hearing before an officer on the denial of the applicant’s naturalization application. The applicant or authorized representative must file the request with USCIS within 30 days after the applicant receives the notice of denial. [2] 

B. Review of Timely Filed Hearing Request

1. Hearing Scheduled within 180 Days

Upon receipt of a timely hearing request, USCIS schedules the hearing within 180 days. The hearing should be conducted by an officer other than the officer who conducted the original examination or the officer who denied the application. The officer conducting the hearing must be classified at a grade level equal to or higher than the grade of the examining officer. [3] 

2. Review of Application

An officer may conduct a de novo review of the applicant’s naturalization application or may utilize a less formal review procedure based on:

  • The complexity of the issues to be reviewed or determined; and

  • The necessity of conducting further examinations essential to the naturalization requirements. [4] 

A de novo review means that the officer makes a new and full review of the naturalization application. [5] 

An officer conducting the hearing has the authority and discretion to:

  • Review all aspects of the naturalization application and examine the applicant anew;

  • Review any record, file or report created as part of the examination;

  • Receive new evidence and testimony relevant to the applicant's eligibility; and

  • Affirm the previous officer’s denial or re-determine the decision in whole or in part.

The officer conducting the hearing:

  • Affirms the findings in the denial and sustains the original decision to deny;

  • Re-determines the original decision but denies the application on newly discovered grounds of ineligibility; [6] or

  • Re-determines the original decision and reverses the original decision to deny, and approves the naturalization application.

3. English and Civics Testing at Hearing

In hearings involving naturalization applications denied on the basis of failing to meet the educational requirements (English and civics), [7] officers must administer any portion of the English or civics tests that the applicant previously failed. Officers provide only one opportunity to pass the failed portion of the tests at the hearing.

C. Improperly Filed Hearing Request

1. Untimely Filed Request

If an applicant files a hearing request over 30 days after receiving the denial notice (33 days if notice was mailed by USCIS [8] ), USCIS considers the request improperly filed. If an applicant’s untimely hearing request meets either the motion to reopen or motion to reconsider requirements, USCIS will treat the hearing request as a motion. [9] USCIS renders a decision on the merits of the case in such instances. If the request does not meet the motion requirements, USCIS rejects the request without refund of filing fee. [10] 

Hearing Request Treated as a Motion to Reopen

USCIS treats an untimely request for a hearing as a motion to reopen if the applicant presents new facts and evidence. If the application or petition was denied due to abandonment, the request must be filed with evidence that the decision was in error because:

  • The requested evidence leading to the denial was not material to the issue of eligibility;

  • The required initial evidence was submitted with the application, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

  • USCIS sent the relevant correspondence to the wrong address or the applicant filed a timely change of address before USCIS sent the correspondence. [11] 

Hearing Request Treated as a Motion to Reconsider

USCIS handles an untimely hearing request for a hearing as a motion to reconsider if:

  • The applicant explains the reasons for reconsideration;

  • Pertinent precedent decisions establish that the decision to deny was based on an incorrect application of law or USCIS policy; and

  • The applicant establishes that the decision to deny was incorrect based on the evidence of record at the time of the decision. [12] 

2. Requests Improperly Filed by Unauthorized Persons or Entities

USCIS considers a hearing request improperly filed if an unauthorized person or entity files the request. [13] USCIS rejects these requests without refund of filing fee. [14] 

3. Requests Improperly Filed by Attorneys or Authorized Representatives

USCIS considers a hearing request improperly filed if an attorney or representative files the request without properly filing a notice of entry of appearance entitling that person to represent the applicant. The officer must ask the attorney or representative to submit a proper filed notice within 15 days. [15] 

If the attorney or representative replies with a properly executed notice within 15 days, the officer should handle the hearing request as properly filed. If the attorney or representative fails to do so, the officer may nevertheless make a new decision favorable to the applicant through the officer’s own motion to reopen without notifying the attorney or representative. [16] 

D. Judicial Review

A naturalization applicant may request judicial review before a United States district court of his or her denied naturalization application after USCIS issues the decision following the hearing with a USCIS officer. [17] The applicant must file the request before the United States District Court having jurisdiction over the applicant’s place of residence. The district court reviews the case de novo and makes its own findings of fact and conclusions of law.

Footnotes


1. [^] See Chapter 3, Naturalization Interview, Section A, Roles and Responsibilities [12 USCIS-PM B.3(A)], for a list of authorized representatives. See 8 CFR 292.1.

2. [^] See INA 336(a). See 8 CFR 336.2. See the Request for Hearing on a Decision in Naturalization Proceedings under Section 336 of the INA (Form N-336).

3. [^] See 8 CFR 336.2(b).

4. [^] See 8 CFR 336.2(b).

5. [^] The term “de novo” is Latin for “anew.” In this context, it means the starting over of the application’s review.

6. [^] In re-determining the decision, the officer may take any action necessary, including issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).

7. [^] See INA 312. See 8 CFR 312. See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E].

8. [^] See 8 CFR 103.8(b).

9. [^] See 8 CFR 336.2(c)(2)(ii).

10. [^] See 8 CFR 336.2(c)(2)(i).

11. [^] See 8 CFR 103.5(a)(2).

12. [^] See 8 CFR 103.5(a)(3).

13. [^] See Chapter 3, Naturalization Interview, Section A, Roles and Responsibilities [12 USCIS-PM B.3(A)], for a list of authorized representatives. See 8 CFR 292.1.

14. [^] See 8 CFR 336.2(c)(1)(i).

15. [^] See 8 CFR 336.2(c)(1)(ii). See Form G-28.

16. [^] See 8 CFR 336.2(c)(1)(ii) and 8 CFR 103.5(a)(5)(i).

17. [^] See INA 310(c). See INA 336(a).

Resources

Legal Authorities

INA 310, 8 CFR 310 - Naturalization authority

INA 312, 8 CFR 312 - Educational requirements for naturalization

INA 316, 8 CFR 316 - General requirements for naturalization

INA 318 - Prerequisite to naturalization, burden of proof

INA 335, 8 CFR 335 - Investigation of applicants, examination of applications

INA 336, 8 CFR 336 - Hearings on denials of applications for naturalization

INA 337, 8 CFR 337 - Oath of renunciation and allegiance

Appendices

History of Acquiring Citizenship under INA 320 for Children of U.S. Citizens who are Members of the U.S. Armed Forces, U.S. Government Employees, or their Spouses

Appendix: History of Acquiring Citizenship under INA 320 for Children of U.S. Citizens who are Members of the U.S. Armed Forces, U.S. Government Employees, or their Spouses

Before October 29, 2019, USCIS considered children of members of the U.S. armed forces or U.S. government employees, who were stationed outside of the United States, to meet the requirement of “is residing in” the United States for the purpose of acquiring citizenship under INA 320.[1] This interpretation was consistent with the definition of “residence” for purposes of naturalization under INA 316.[2] Based on this treatment of U.S. government employees and their children in the context of naturalization under INA 316, USCIS determined that “residing in the United States” for purposes of acquisition of citizenship under INA 320 should likewise be interpreted to include children of U.S. military and government employees stationed outside of the United States who were residing with their parents.[3]

This interpretation, however, was inconsistent with other provisions of the Immigration and Nationality Act (INA), including the definition of “residence” at INA 101(a)(33) and language in INA 322(a) and INA 322(d), which suggested that the citizenship of military children residing outside of the United States should be considered under that provision rather than under INA 320. Effective October 29, 2019, USCIS amended its policy guidance to address these concerns, and determined that children of members of the U.S. armed forces or U.S. government employees stationed outside of the United States would not be eligible for citizenship acquisition under INA 320.[4]

On March 26, 2020, the Citizenship for Children of Military Members and Civil Servants Act was enacted,[5] amending INA 320, so that a child residing with his or her U.S. citizen parent, who is stationed outside of the United States as a member of the U.S. armed forces or a U.S. government employee, or is residing in marital union with a member of the U.S. armed forces or a U.S. government employee who is stationed outside of the United States, acquires citizenship under INA 320 if all requirements of INA 320(c) and INA 320(a)(1)-(2) are met. In line with the statute, USCIS rescinds its previous guidance, clarifying that these children are eligible to acquire citizenship under INA 320 if all other requirements under INA 320 are met.

The amendment to INA 320 applies to children who were under the age of 18 on March 26, 2020.

Footnotes


1. [^] Even though the child of a member of the U.S. armed forces or U.S. government employee stationed outside of the United States may be eligible to apply for a Certificate of Citizenship under INA 322 since he or she resides outside of the United States, USCIS interpreted the child to meet residency requirements under INA 320 as well, which formerly required the child to be residing in the United States with his or her parent to acquire citizenship.

2. [^] For example, U.S. government employees, including members of the U.S. armed forces, are eligible to apply for an exception to the continuous residence requirement for naturalization under INA 316 as long as their residency outside of the United States was on behalf of the U.S. government. See INA 316(b). See INA 316(a). See Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3].

3. [^] See Policy Manual Technical Update, Child Citizenship Act and Children of U.S. Government Employees Residing Abroad (July 20, 2015); and Acquisition of Citizenship by Children of U.S. Military and Government Employees Stationed Abroad under Section 320 of the Immigration and Nationality Act (INA), No. 103, issued May 6, 2004.

4. [^] See USCIS Policy Alert, Defining “Residence” in Statutory Provisions Related to Citizenship [PA-2019-05] (PDF, 308.45 KB). This Policy Alert has been superseded by Policy Manual updates to reflect changes made under Pub. L. 116-133 (PDF).

5. [^] See Pub. L. 116-133 (PDF) (March 26, 2020).

Updates

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

POLICY ALERT - Comprehensive Citizenship and Naturalization Policy Guidance

USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.

Read More