Chapter 2 - Adjudicative Factors
The applicable period during which an applicant must show that he or she has been a person of good moral character (GMC) depends on the corresponding naturalization provision. In general, the statutory period for GMC for an applicant filing under the general naturalization provision starts 5 years prior to the date of filing.
The statutory period starts 3 years prior to the date of filing for certain spouses of U.S. citizens. The period during which certain service members or veterans must show GMC starts 1 or 5 years from the date of filing depending on the military provision.
In all cases, the applicant must also show that he or she continues to be a person of GMC until the time of his or her naturalization.
USCIS is not limited to reviewing the applicant's conduct only during the applicable GMC period. An applicant’s conduct prior to the GMC period may affect the applicant’s ability to establish GMC if the applicant’s present conduct does not reflect a reformation of character or the earlier conduct is relevant to the applicant’s present moral character.
In general, an officer must consider the totality of the circumstances and weigh all factors, favorable and unfavorable, when considering reformation of character in conjunction with GMC within the relevant period. The following factors may be relevant in assessing an applicant’s current moral character and reformation of character:
Family ties and background;
Absence or presence of other criminal history;
Other law-abiding behavior (for example, meeting financial obligations, paying taxes);
Credibility of the applicant;
Compliance with probation; and
Length of time in United States.
Most of the criminal offenses that preclude a finding of GMC require a conviction for the disqualifying offense or arrest. A “conviction” for immigration purposes means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met:
A judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and
The judge has ordered some form of punishment, penalty, or imposed a restraint on the alien’s liberty.
It is not always clear if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be deferred upon a finding or confession of guilt. Some states have a pretrial diversion program whereby the case is removed from the normal criminal proceedings. This way the person may enter into a counseling or treatment program and potentially avoid criminal prosecution.
If the accused is directed to attend a pre-trial diversion or intervention program, where no admission or finding of guilt is required, the order may not count as a conviction for immigration purposes.
In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes. A conviction for a person who is under 18 years of age and who was charged as an adult constitutes a conviction for immigration purposes.
A general “court martial” is defined as a criminal proceeding under the governing laws of the U.S. armed forces. A judgment of guilt by a court martial has the same force and effect as a conviction by a criminal court. However, disciplinary actions in lieu of a court martial are not convictions for immigration purposes.
In cases where adjudication is deferred, the original finding or confession of guilt and imposition of punishment is sufficient to establish a conviction for immigration purposes because both conditions establishing a conviction are met. If the court does not impose some form of punishment, then it is not considered a conviction even with a finding or confession of guilt. A decision or ruling of nolle prosequi does not meet the definition of conviction.
If a judgment is vacated for cause due to Constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes. The judgment is considered a conviction for immigration purposes if it was dismissed for any other reason, such as completion of a rehabilitative period (rather than on its merits) or to avoid adverse immigration consequences.
A conviction vacated where a criminal court failed to advise a defendant of the immigration consequences of a plea, which resulted from a defect in the underlying criminal proceeding, is not a conviction for immigration purposes.
USCIS considers a foreign conviction to be a “conviction” in the immigration context if the conviction was the result of an offense deemed to be criminal by United States standards. In addition, federal United States standards on sentencing govern the determination of whether the offense is a felony or a misdemeanor regardless of the punishment imposed by the foreign jurisdiction. The officer may consult with local USCIS counsel in cases involving foreign convictions.
An applicant who has received a full and unconditional executive pardon prior to the start of the statutory period may establish GMC if the applicant shows that he or she has been reformed and rehabilitated prior to the statutory period. If the applicant received a pardon during the statutory period, the applicant may establish GMC if he or she shows evidence of extenuating or exonerating circumstances that would establish his or her GMC.
Foreign pardons do not eliminate a conviction for immigration purposes.
Expunged Records and the Underlying Conviction
A record of conviction that has been expunged does not remove the underlying conviction. For example, an expunged record of conviction for a controlled substance violation or any crime involving moral turpitude (CIMT) does not relieve the applicant from the conviction in the immigration context. In addition, foreign expungements are still considered convictions for immigration purposes.
The Board of Immigration Appeals (BIA) has held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect on removing the underlying conviction for immigration purposes.
The officer may require the applicant to submit evidence of a conviction regardless of whether the record of the conviction has been expunged. It remains the applicant’s responsibility to obtain his or her records regardless of whether they have been expunged or sealed by the court. USCIS may file a motion with the court to obtain a copy of the record in states where the applicant is unable to obtain the record.
“Term of imprisonment or a sentence” generally refers to an alien’s original criminal sentence, without regard to post-sentencing alterations. Therefore, state-court orders that modify, clarify, or otherwise alter a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.
An officer may not approve a naturalization application while the applicant is on probation, parole, or under a suspended sentence. However, an applicant who has satisfactorily completed probation, parole, or a suspended sentence during the relevant statutory period is not automatically precluded from establishing GMC. The fact that an applicant was on probation, parole, or under a suspended sentence during the statutory period, however, may affect the overall GMC determination.
An applicant may be unable to establish GMC if he or she admits committing certain offenses even if the applicant has never been formally charged, indicted, arrested or convicted. This applies to offenses involving “moral turpitude” or any violation of, or a conspiracy or attempt to violate, any law or regulation relating to a controlled substance. When determining whether an applicant committed a particular offense, the officer must review the relevant statute in the jurisdiction where it is alleged to have been committed.
The officer must provide the applicant with a full explanation of the purpose of the questioning stemming from the applicant’s declaration that he or she committed an offense. In order for the applicant’s declaration to be considered an “admission,” it must meet the long held requirements for a valid “admission” of an offense:
The officer must provide the applicant the text of the specific law from the jurisdiction where the offense was committed;
The officer must provide an explanation of the offense and its essential elements in “ordinary” language; and
The applicant must voluntarily admit to having committed the particular elements of the offense under oath.
The officer must ensure that the applicant is under oath when taking the sworn statement to record the admission. The sworn statement must cover the requirements for a valid admission, to include the specifics of the act or acts that may prevent the applicant from establishing GMC. The officer may consult with his or her supervisor to ensure that sufficient written testimony has been received from the applicant prior to making a decision on the application.
There is an exception to certain conditional bars to GMC in cases where the offense was a “purely political offense” that resulted in conviction, or in conviction and imprisonment, outside of the United States. Purely political offenses are generally offenses that “resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious or political minorities.”
The “purely political offense” exception applies to the following conditional bars to GMC:
Conviction for one or more crimes involving moral turpitude (CIMTs);
Conviction of two or more offenses with a combined sentence of 5 years or more;and
Incarceration for a total period of 180 days or more.
These conditional bars to GMC do not apply if the underlying conviction was for a “purely political offense” abroad. The officer should rely on local USCIS counsel in cases where there is a question about whether a particular offense should be considered a “purely political offense.”
Certain conditional bars to GMC should not adversely affect the GMC determination if the applicant shows extenuating circumstances. The extenuating circumstance must precede or be contemporaneous with the commission of the offense. USCIS does not consider any conduct or equity (including evidence of reformation or rehabilitation) subsequent to the commission of the offense as an extenuating circumstance.
The “extenuating circumstances” provision applies to the following conditional bars to GMC:
These conditional bars to GMC do not apply if the applicant shows extenuating circumstances. The officer should provide the applicant with an opportunity during the interview to provide evidence and testimony of extenuating circumstances in relevant cases.
Certain permanent and conditional bars to GMC may also render the applicant amenable to removal proceedings. This depends on various factors specific to each case. Not all applicants who are found to lack GMC are removable. An applicant may be found to lack GMC and have his or her naturalization application denied under those grounds without DHS issuing a Notice to Appear.
[^ 4] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section B, Spouses of Military Members [12 USCIS-PM I.9(B)]. See INA 328(c) and INA 329. See 8 CFR 328.2(d) and 8 CFR 329.2(d).
[^ 7] See Ralich v. United States, 185 F.2d 784 (1950) (provided false testimony within the statutory period and operated a house of prostitution prior to the statutory period). See Marcantonio v. United States, 185 F.2d 934 (1950) (applicant had rehabilitated his character after multiple arrests before statutory period).
[^ 8] The term “nolo contendere” is Latin for “I do not wish to contest.”
[^ 13] The term “nolle prosequi” is Latin for “we shall no longer prosecute.”
[^ 14] See Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).
[^ 17] See Lennon v. INS, 527 F.2d 187 (2nd Cir. 1975).
[^ 18] Executive pardons are given by the President or a governor of the United States.
[^ 21] See Marino v. INS, 537 F.2d 686 (2nd Cir. 1976). See Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992). See Matter of B-, 7 I&N Dec. 166 (BIA 1956) (referring to amnesty).
[^ 23] For cases arising in the Ninth Circuit involving state law convictions for simple possession of a controlled substance, please consult local counsel as the date of the conviction may affect whether possible treatment under the Federal First Offender Act renders the conviction invalid for immigration purposes. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir 2011).
[^ 25] See Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007). See Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004).
[^ 28] See Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019) (“the phrase ‘term of imprisonment or a sentence’ in paragraph (B) [of INA 101(a)(48)] is best read to concern an alien’s original criminal sentence, without regard to post-sentencing alterations that, like a suspension, merely alleviate the impact of that sentence.”).
[^ 29] See Matter of Thomas and Thompson, 27 I&N Dec. 674, 682 (A.G. 2019) (holding that the tests set forth in Matter of Cota-Vargas (PDF), 23 I&N Dec. 849 (BIA 2005), Matter of Song (PDF), 23 I&N Dec. 173 (BIA 2001), and Matter of Estrada, 26 I&N Dec. 749 (BIA 2016), will no longer govern the effect of state-court orders that modify, clarify, or otherwise alter a criminal alien’s sentence.) For questions on procedural or substantive defects, officers should consult the Office of Chief Counsel (OCC).
[^ 32] See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5]. See 8 CFR 316.10(b)(2)(i) (offenses involving “moral turpitude”). See 8 CFR 316.10(b)(2)(iii) (violation of controlled substance law).
[^ 33] See Matter of K-, 7 I&N Dec. 594 (BIA 1957).
[^ 34] See Matter of J-, 2 I&N Dec. 285 (BIA 1945).
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. This interpretation was consistent with the definition of “residence” for purposes of naturalization under INA 316. 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.
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.
On March 26, 2020, the Citizenship for Children of Military Members and Civil Servants Act was enacted, 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.
[^ 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).
U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to ensure consistency in the naturalization decision-making process and to clarify circumstances under which an applicant may be found ineligible for naturalization if the applicant was not lawfully admitted to the United States for permanent residence in accordance with all applicable provisions under the Immigration and Nationality Act (INA).
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, 327.05 KB) between the AFM and the Policy Manual.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding how post-sentencing changes to criminal sentences impact convictions for immigration purposes and how two or more driving under the influence convictions affects good moral character determinations. These updates incorporate two recent decisions issued by the Attorney General.
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”].
USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.