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Chapter 2 - Lawful Permanent Resident Admission for Naturalization

Alert

On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.

Therefore, we will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. If you send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date.

For information about the relevant court decisions, please see the public charge injunction webpage.

A. Lawful Permanent Resident (LPR) at Time of Filing and Naturalization

1. Lawful Admission for Permanent Residence

In general, an applicant for naturalization must be at least 18 years old and must establish that he or she has been lawfully admitted to the United States for permanent residence at the time of filing the naturalization application. [1] An applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the Immigration and Nationality Act (INA) if his or her lawful permanent resident (LPR) status was obtained by mistake or fraud, or if the admission was otherwise not in compliance with the law. [2] 

In determining an applicant’s eligibility for naturalization, USCIS must determine whether the LPR status was lawfully obtained, not just whether the applicant is in possession of a Permanent Resident Card (PRC). If the status was not lawfully obtained for any reason, the applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the INA, and is ineligible for naturalization even though the applicant possesses a PRC.

An applicant must also reside continuously in the United States for at least five years as an LPR at the time of filing, [3] though the applicant may file his or her application up to 90 days before reaching the five-year continuous residence period. [4] 

Public Charge Inadmissibility

The public charge ground of inadmissibility does not apply in naturalization proceedings.[5] Therefore, an applicant for naturalization does not need to demonstrate that he or she is not inadmissible as likely at any time to become a public charge as part of a naturalization application. Officers should not make a new determination of public charge inadmissibility when adjudicating a naturalization application.

However, when determining the applicant’s eligibility for naturalization, USCIS assesses whether the applicant was lawfully admitted as an LPR,[6] which includes an assessment of whether the naturalization applicant was inadmissible at the time the application that conveyed LPR status was granted,[7] at the time the applicant was granted adjustment of status, or at the time the applicant was admitted as an LPR.[8]  

When reviewing a naturalization application in which the applicant’s adjustment of status was postmarked on or after February 24, 2020, or in which the applicant was admitted into the United States with an immigrant visa on or after February 24, 2020, the officer determines whether the alien was lawfully admitted as an LPR, including that he or she was not inadmissible as a public charge.[9] 

The determination of whether the applicant was lawfully admitted as a LPR must be made with the evidence available at the time the application that conveyed LPR status was granted, at the time the applicant was granted adjustment of status, or at the time the applicant was admitted as an LPR. If a naturalization applicant received public benefits after obtaining LPR status, or if the applicant is receiving public benefits at the time he or she applies for naturalization or before the approval of the naturalization,[10] officers should not assume that the applicant should have been found inadmissible on the public charge ground at the time the application that conveyed LPR status was granted, at the time the applicant was granted adjustment of status, or at the time the applicant was admitted as an LPR. Public benefits are generally only considered if received on or after February 24, 2020.[11]

For a naturalization application in which the applicant’s adjustment of status application was postmarked before February 24, 2020, or in which the applicant was admitted into the United States with an immigrant visa before February 24, 2020, the officer reviews the 1999 Interim Field Guidance (PDF) when determining whether the alien was lawfully admitted as an LPR.[12]

2. Effective Date of Lawful Permanent Residence

A person is generally considered to be an LPR at the time USCIS approves the applicant’s adjustment application or at the time the applicant enters and is admitted into the United States with an immigrant visa. [13] Most applicants applying for adjustment of status become LPRs on the date USCIS approves the application. [14] 

For certain classifications, however, the effective date of becoming an LPR may be a date that is earlier than the actual approval of the status (commonly referred to as a “rollback” date). For example, a person admitted under the Cuban Adjustment Act is generally an LPR as of the date of the person’s last arrival and admission into the United States or 30 months before the filing of the adjustment application, whichever is later. [15] A refugee is generally considered an LPR as of the date of entry into the United States. [16] A parolee granted adjustment of status pursuant to the Lautenberg Amendment is considered an LPR as of the date of parole into the United States. [17] In addition, USCIS generally considers an asylee’s date of admission as an LPR to be one year prior to the date of approval of the adjustment application. [18] 

B. Conditional Residence in the General Requirements (INA 316)

A conditional permanent resident (CPR) filing for naturalization under the general provision on the basis of his or her permanent resident status for five years [19] must have met all of the applicable requirements of the conditional residence provisions. [20] CPRs are not eligible for naturalization unless the conditions on their resident status have been removed because such CPRs have not been lawfully admitted for permanent residence in accordance with all applicable provisions of the INA. [21] Unless USCIS approves the applicant’s Petition to Remove Conditions on Residence (Form I-751), the applicant remains ineligible for naturalization. [22] 

C. Exceptions

1. Nationals of the United States

The law provides an exception to the LPR requirement for naturalization for non-citizen nationals of the United States. Currently, persons who are born in American Samoa or Swains Island, which are outlying possessions of the United States, are considered nationals of the United States. [23] 

A non-citizen national of the United States may be naturalized without establishing lawful admission for permanent residence if he or she becomes a resident of any state [24] and complies with all other applicable requirements of the naturalization laws. These nationals are not “aliens” as defined in the INA and do not possess a PRC. [25] 

2. Certain Members of the U.S. Armed Forces

Certain members of the U.S. armed forces with service under specified conditions are also exempt from the LPR requirement. [26] 

D. Documentation and Evidence

USCIS issues a PRC to each person who has been lawfully admitted for permanent residence as evidence of his or her status. LPRs over 18 years of age are required to have their PRC in their possession as evidence of their status. [27] The PRC contains the date and the classification under which the person was accorded LPR status. The PRC alone, however, is insufficient to establish that the applicant has been lawfully admitted for permanent residence in accordance with all applicable provisions of the INA. [28] 

Footnotes


1. [^] See INA 101(a)(20) and INA 334(b). See 8 CFR 316.2(a)(2)

2. [^] See INA 318. See Matter of Koloamatangi (PDF), 23 I&N Dec. 548, 550 (BIA 2003). See Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010). See Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. 2007). See De La Rosa v. DHS, 489 F.3d 551 (2nd Cir. 2007). See Savoury v. U.S. Attorney General, 449 F.3d 1307(11th Cir. 2006). See Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005). See Monet v. INS, 791 F.2d 752 (9th Cir. 1986). See Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983).

3. [^] See Chapter 3, Continuous Residence [12 USCIS-PM D.3].

4. [^] See Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

5. [^] An applicant may become removable on account of the public charge ground of deportability while in LPR status, which may be assessed at the time of naturalization. However, assessing whether an alien is deportable on the public charge ground entails a different analysis than assessing whether an alien is inadmissible on public charge grounds. An alien is deportable from the United States under INA 237(a)(5) when the following conditions are met: (1) within 5 years after the date of entry, has become a public charge (2) from causes not affirmatively shown to have arisen since entry. The deportability ground, therefore, looks at past behavior, occurring after entry or adjustment. In contrast, the public ground charge of inadmissibility under INA 212(a)(4) is prospective and requires an analysis to determine whether there is a likelihood that an alien will become a public charge at any time. See Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, PM-602-0050.1, issued June 28, 2018. (PDF) As necessary, consult with the Office of Chief Counsel for relevant public charge issues in any adjudication or for purposes of issuing a Notice to Appear.

6, [^] See INA 318

7. [^] See 8 CFR 212.23. The public charge ground of inadmissibility generally does not apply to applications that convey LPR status other than adjustment of status and immigrant visas, such as cancellation of removal for certain nonpermanent residents pursuant to INA 240A(b)

8. [^] See Inadmissibility on Public Charge Grounds, 84 FR 41292 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).

9. [^] For applications and petitions that are sent by commercial courier (for example, UPS, FedEx, DHL), the postmark date is the date reflected on the courier receipt. See Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility [8 USCIS-PM G]. 

10. [^] As defined in 8 CFR 212.21(b).

11. [^] See Volume 8, Admissibility Part G, Public Charge Ground of Inadmissibility, Chapter 10, Public Benefits [8 USCIS-PM G.10].

12. [^] See 64 FR 28689 (PDF) (May 26, 1999). For applications and petitions that are sent by commercial courier (for example, UPS, FedEx, DHL), the postmark date is the date reflected on the courier receipt.

13. [^] See INA 245(b).

14. [^] In general, a lawful permanent resident card should have the correct date of LPR status. For additional information on adjustment of status dates, see Volume 7, Adjustment of Status [7 USCIS-PM].

15. [^] See Section 1 of the Cuban Adjustment Act, Pub. L. 89-732 (PDF), 80 Stat. 1161, 1161 (November 2, 1966). See Matter of Carrillo (PDF), 25 I&N Dec. 99 (BIA 2009).

16. [^] See INA 209(a)(2).

17. [^] See 8 CFR 1245.7(e).

18. [^] See INA 209(b). See Volume 7, Adjustment of Status [7 USCIS-PM].

19. [^] See INA 316(a).

20. [^] See INA 216

21. [^] See INA 216 and INA 318

22. [^] See Part G, Spouses of U.S. Citizens [12 USCIS-PM G]; Part H, Children of U.S. Citizens [12 USCIS-PM H]; and Part I, Military Members and their Families [12 USCIS-PM I], for special circumstances under which the applicant may not be required to have an approved petition to remove conditions prior to naturalization.

23. [^] See INA 101(a)(29) and INA 308.

24. [^] See INA 325. See 8 CFR 325.2. Non-citizen nationals may satisfy the residence and physical presence requirements through their residence and presence within any of the outlying possessions of the United States.

25. [^] See INA 101(a)(20).

26. [^] See Part I, Military Members and their Families, Chapter 3, Military Service during Hostilities (INA 329) [12 USCIS-PM I.3].

27. [^] See INA 264(e).

28. [^] See Section A, Lawful Permanent Resident (LPR) at Time of Filing and Naturalization [12 USCIS-PM D.2(A)].

Resources

Legal Authorities

INA 316, 8 CFR 316 - General requirements for naturalization

INA 318 - Prerequisite to naturalization, burden of proof

INA 332, 8 CFR 332 - Naturalization administration, executive functions

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

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

Appendices

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.

POLICY ALERT - Implementation of Guidance on Inadmissibility on Public Charge Grounds

This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of aliens who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.

Read More
POLICY ALERT - Public Charge Ground of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, see the appendices related to applicability.

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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 - Effective Date of Lawful Permanent Residence for Purposes of Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the date of legal permanent residence (LPR) for naturalization and citizenship purposes. 

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POLICY ALERT - Security-Related Positions Abroad

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address amendments to section 1059(e) of the National Defense Authorization Act of 2006 by Public Law 112-227.

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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