USCIS Policy Manual

Current as of January 16, 2019

Volume 12 - Citizenship & Naturalization

Part A - Citizenship and Naturalization Policies and Procedures

Chapter 1 - Purpose and Background

A. Purpose

The United States has a long history of welcoming immigrants from all parts of the world. The United States values the contributions of immigrants who continue to enrich this country and preserve its legacy as a land of freedom and opportunity. USCIS is proud of its role in maintaining our country’s tradition as a nation of immigrants and will administer immigration and naturalization benefits with integrity.

U.S. citizenship is a unique bond that unites people around civic ideals and a belief in the rights and freedoms guaranteed by the U.S. Constitution. The promise of citizenship is grounded in the fundamental value that all persons are created equal and serves as a unifying identity to allow persons of all backgrounds, whether native or foreign-born, to have an equal stake in the future of the United States.

This volume of the USCIS Policy Manual explains the laws and policies that govern U.S. citizenship and naturalization.

USCIS administers citizenship and naturalization law and policy by:

Providing accurate and useful information to citizenship and naturalization applicants;

Promoting an awareness and understanding of citizenship; and

Adjudicating citizenship and naturalization applications in a consistent and accurate manner.

Accordingly, USCIS reviews benefit request for citizenship and naturalization to determine whether:

Foreign-born children of U.S. citizens by birth or naturalization meet the eligibility requirements before recognizing their acquisition or derivation of U.S. citizenship.

Persons applying for naturalization based on their time as lawful permanent residents meet the eligibility requirements to become U.S. citizens.

Persons applying for naturalization based on their marriage to a U.S. citizen meet the eligibility requirements for naturalization through the provisions for spouses of U.S. citizens.

Members of the U.S. armed forces and their families are eligible for naturalization and ensure that qualified applicants are naturalized expeditiously through the military provisions.

Persons working abroad for certain entities, to include the U.S. Government, meet the eligibility requirements for certain exceptions to the general naturalization requirements.

Volume 12, Citizenship and Naturalization, contains detailed guidance on the requirements for citizenship and naturalization.

Volume 12: Citizenship and Naturalization

Volume 12 Parts

Guidance

Part A

Citizenship and Naturalization Policies and Procedures

General policies and procedures relating to citizenship and naturalization

Part B

Naturalization Examination

Naturalization examination, to include security checks, interview and eligibility review

Part C

Accommodations

Accommodations and modifications that USCIS may provide in the naturalization process

Part D

General Naturalization Requirements

General naturalization requirements that apply to most lawful permanent residents

Part E

English and Civics Testing and Exceptions

Testing for educational requirements for naturalization

Part F

Good Moral Character

Good moral character for naturalization and the related permanent and conditional bars

Part G

Spouses of U.S. Citizens

Spouses of U.S. citizens who reside in the United States or abroad

Part H

Children of U.S. Citizens

Children of U.S. citizens who may have acquired or derived citizenship stateside or abroad

Part I

Military Members and their Families

Provisions based on military service for members of the military and their families

Part J

Oath of Allegiance

Oath of Allegiance for naturalization, to include modifications and waivers

Part K

Certificates of Citizenship and Naturalization

Issuance and replacement of Certificates of Citizenship and Certificates of Naturalization

Part L

Revocation of Naturalization

General procedures for revocation of naturalization (denaturalization)

B. Background

Upon the adoption of the U.S. Constitution in 1787, the first U.S. citizens were granted citizenship status retroactively as of 1776. Neither an application for citizenship, nor the taking of an Oath of Allegiance was required at that time. [1] See Frank G. Franklin, The Legislative History of Naturalization in the United States; From the Revolutionary War to 1861 (Chicago: The University of Chicago Press, 1906). Persons only needed to remain in the United States at the close of the war and the time of independence to show that they owed their allegiance to the new Government and accepted its protection.

The following key legislative acts provide a basic historical background for the evolution of the general eligibility requirements for naturalization as set forth in the Immigration and Nationality Act (INA).

Evolution of Naturalization Requirements Prior to the

Immigration and Nationality Act (INA) of 1952

Act

Statutory Provisions

Naturalization

Act of 1790

Established uniform rule of naturalization and oath of allegiance

Established two year residency requirement for naturalization

Required good moral character of all applicants

Naturalization

Act of 1798

Permitted deportation of foreign nationals considered dangerous

Increased residency requirements from 2 years to 14 years

Naturalization

Act of 1802

Reduced residency requirement from 14 years to 5 years

Naturalization

Act of 1891

Rendered polygamists, persons suffering from contagious disease and persons convicted of a “misdemeanor involving moral turpitude” ineligible for naturalization.

Naturalization

Act of 1906

Standardized naturalization procedures

Required knowledge of English language for citizenship

Established the Bureau of Immigration and Naturalization

The Alien Registration

Act of 1940

Required the registration and fingerprinting of all aliens in the United States over the age of 14 years

C. Legal Authorities

INA 103; 8 CFR 103 – Powers and duties of the Secretary, the Under Secretary, and the Attorney General

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 332; 8 CFR 332 – Naturalization administration; executive functions

INA 336; 8 CFR 336 – Hearings on denials of applications for naturalization

INA 337; 8 CFR 337 – Oath of renunciation and allegiance

8 CFR 2 – Authority of the Secretary of the Department of Homeland Security

Footnotes

1.

See Frank G. Franklin, The Legislative History of Naturalization in the United States; From the Revolutionary War to 1861 (Chicago: The University of Chicago Press, 1906).

 

Chapter 2 - Becoming a U.S. Citizen

A person may derive or acquire U.S. citizenship at birth. Persons who are born in the United States and subject to the jurisdiction of the United States are citizens at birth. Persons who are born in certain territories of the United States also may be citizens at birth. In general, but subject in some cases to other requirements, including residence requirements as of certain dates, this includes persons born in:

Puerto Rico on or after April 11, 1899; [1] See INA 302.

Canal Zone or the Republic of Panama on or after February 26, 1904; [2] See INA 303. If the person was born in the Canal Zone, he or she acquired U.S. citizenship at birth if born between February 26, 1904 and October 1, 1979, and one parent was a U.S. citizen at the time of the person’s birth. The Canal Zone ceased to exist on October 1, 1979. See the so-called Torrijos–Carter Treaties (September 7, 1977). If the person was born in the Republic of Panama, but not in the Canal Zone, one parent must have been a U.S. citizen parent employed by the U.S. Government, or by the Panama Railroad Company, at the time of the person’s birth.

Virgin Islands on or after January 17, 1917; [3] See INA 306.

Guam born after April 11, 1899; [4] See INA 307. or

Commonwealth of the Northern Mariana Islands (CNMI) on or after November 4, 1986. [5] See Section 303 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub. L. 94-241, 90 Stat. 263, 266 (March 24, 1976) (48 U.S.C. 1801 note). In addition, certain persons in the CNMI who were born before November 4, 1986, and their children if under age 18 on that date, became U.S. citizens at that time. See Section 301 of Pub. L. 94-241, 90 Stat. 263, 265-66 (March 24, 1976) (48 U.S.C. 1801 note). In addition, the Department of State will issue U.S. passports to persons born in the Northern Mariana Islands between January 9, 1978 and November 3, 1986, pursuant to a judicial decision holding that such persons are U.S. citizens. See Sabangan v. Powell, 375 F. 3d 818 (9th Cir. 2004).

Persons born in American Samoa and Swains Island are generally considered nationals but not citizens of the United States. [6] See INA 308.

In addition, persons who are born outside of the United States may be U.S. citizens at birth if one or both parents were U.S. citizens at their time of birth. Persons who are not U.S. citizens at birth may become U.S. citizens through naturalization. Naturalization is the conferring of U.S. citizenship after birth by any means whatsoever.

In general, an applicant files a naturalization application and then USCIS grants citizenship after adjudicating the application. In some cases, a person may be naturalized by operation of law. This is often referred to as deriving citizenship. In either instance, the foreign citizen or national must fulfill all of the requirements established by Congress. In most cases, a person may not be naturalized unless he or she has been lawfully admitted to the United States for permanent residence.

Deciding to become a U.S. citizen is one of the most important decisions an immigrant can make. Naturalized U.S. citizens share equally in the rights and privileges of U.S. citizenship. U.S. citizenship offers immigrants the ability to:

Vote in federal elections;

Travel with a U.S. passport;

Run for elective office where citizenship is required;

Participate on a jury;

Become eligible for federal and certain law enforcement jobs;

Obtain certain state and federal benefits not available to noncitizens;

Obtain citizenship for minor children born abroad; and

Expand and expedite their ability to bring family members to the United States.

Footnotes

1.

See INA 302.

 

2.

See INA 303. If the person was born in the Canal Zone, he or she acquired U.S. citizenship at birth if born between February 26, 1904 and October 1, 1979, and one parent was a U.S. citizen at the time of the person’s birth. The Canal Zone ceased to exist on October 1, 1979. See the so-called Torrijos–Carter Treaties (September 7, 1977). If the person was born in the Republic of Panama, but not in the Canal Zone, one parent must have been a U.S. citizen parent employed by the U.S. Government, or by the Panama Railroad Company, at the time of the person’s birth.

 

3.

See INA 306.

 

4.

See INA 307.

 

5.

See Section 303 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub. L. 94-241, 90 Stat. 263, 266 (March 24, 1976) (48 U.S.C. 1801 note). In addition, certain persons in the CNMI who were born before November 4, 1986, and their children if under age 18 on that date, became U.S. citizens at that time. See Section 301 of Pub. L. 94-241, 90 Stat. 263, 265-66 (March 24, 1976) (48 U.S.C. 1801 note). In addition, the Department of State will issue U.S. passports to persons born in the Northern Mariana Islands between January 9, 1978 and November 3, 1986, pursuant to a judicial decision holding that such persons are U.S. citizens. See Sabangan v. Powell, 375 F. 3d 818 (9th Cir. 2004).

 

6.

See INA 308.

 

Chapter 3 - USCIS Authority to Naturalize

It has long been established that Congress has the exclusive authority under its constitutional power to establish a uniform rule of naturalization and to enact legislation under which citizenship may be conferred upon persons. [1] See Chirac v. Chirac, 15 U.S. 259 (1817). Before 1991, naturalization within the United States was a judicial function exercised since 1790 by various courts designated in statutes enacted by Congress under its constitutional power to establish a uniform rule of naturalization.

As of October 1, 1991, Congress transferred the naturalization authority to the Attorney General (now the Secretary of DHS). [2] See INA 310(a). USCIS is authorized to perform such acts as are necessary to properly implement the Secretary’s authority. [3] See INA 310. In certain cases, an applicant for naturalization may choose to have the Oath of Allegiance [4] See INA 337(a). administered by USCIS or by an eligible court with jurisdiction. Eligible courts may choose to have exclusive authority to administer the Oath of Allegiance.

Footnotes

1.

See Chirac v. Chirac, 15 U.S. 259 (1817).

 

2.

See INA 310(a).

 

3.

See INA 310.

 

4.

See INA 337(a).

 

Part B - Naturalization Examination

Chapter 1 - Purpose and Background

A. Purpose

USCIS conducts an investigation and examination of all naturalization applicants to determine whether an applicant meets all pertinent eligibility requirements to become a U.S. citizen. The investigation and examination process encompasses all factors relating to the applicant's eligibility: [1] See INA 335. See 8 CFR 335.1 and 8 CFR 335.2.

Completion of security and criminal background checks;

Review of the applicant’s complete immigration record;

In-person interview(s) with oral and written testimony;

Testing for English and civics requirements; and

Qualification for a disability exception.

USCIS officers have authority to conduct the investigation and examination. [2] See INA 335(b). See 8 CFR 332.1 and 8 CFR 335.2. The authority is delegated by the Secretary of the Department of Homeland Security. The authority includes the legal authority for certain officers to administer the Oath of Allegiance, obtain oral and written testimony during an in-person interview, subpoena witnesses, and request evidence. [3] See INA 332, INA 335, and INA 337. See 8 CFR 332, 8 CFR 335, and 8 CFR 337.

The applicant has the burden of establishing eligibility by a preponderance of the evidence throughout the examination. [4] See 8 CFR 316.2(b). The officer must resolve any pending issues and obtain all of the necessary information and evidence to make a decision on the application. Uniformity in decision-making and application processing is vital to the integrity of the naturalization process. Consistency in the decision-making process enhances USCIS’ goal to ensure that the relevant laws and regulations are applied accurately to each case.

B. Background

Beginning in 1906, a complete examination and questioning under oath was required of the “petitioner” (now “applicant”) for naturalization and his or her witnesses at the final hearing for naturalization in court. [5] In 1981, Congress enacted legislation which eliminated the character witness requirements of naturalization, though USCIS has the authority to subpoena witnesses if necessary. Congress amended the statute in 1940 to include English language requirements and a provision for questioning applicants on their understanding of the principles of the Constitution. [6] See the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1137 (October 14, 1940).

Today, USCIS conducts an investigation and examination of all applicants for naturalization to determine their eligibility for naturalization, including the applicant’s lawful admission for permanent residence, ability to establish good moral character, attachment to the Constitution, residence and physical presence in the United States, and the English and civics requirements for naturalization.

C. 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 332; 8 CFR 332 – Procedural and administrative provisions; executive functions

INA 335; 8 CFR 335 – Investigation and examination of applicant

INA 336; 8 CFR 336 – Hearings on denials of naturalization application

Footnotes

1.

See INA 335. See 8 CFR 335.1 and 8 CFR 335.2.

 

2.

See INA 335(b). See 8 CFR 332.1 and 8 CFR 335.2. The authority is delegated by the Secretary of the Department of Homeland Security.

 

3.

See INA 332, INA 335, and INA 337. See 8 CFR 332, 8 CFR 335, and 8 CFR 337.

 

4.

See 8 CFR 316.2(b).

 

5.

In 1981, Congress enacted legislation which eliminated the character witness requirements of naturalization, though USCIS has the authority to subpoena witnesses if necessary.

 

6.

See the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1137 (October 14, 1940).

 

Chapter 2 - Background and Security Checks

A. Background Investigation

USCIS conducts an investigation of the applicant upon his or her filing for naturalization. The investigation consists of certain criminal background and security checks. [1] See INA 335. See 8 CFR 335.1. The background and security checks include collecting fingerprints and requesting a “name check” from the Federal Bureau of Investigations (FBI). In addition, USCIS conducts other inter-agency criminal background and security checks on all applicants for naturalization. The background and security checks apply to most applicants and must be conducted and completed before the applicant is scheduled for his or her naturalization interview. [2] See 8 CFR 335.2(b).

B. Fingerprints

1. Fingerprint Requirement

USCIS must collect fingerprint records as part of the background check process on applicants for naturalization regardless of their age. [3] See 8 CFR 103.2(b)(9), 8 CFR 335.1, and 8 CFR 335.2. See Part I, Military Members and their Families, Chapter 6, Required Background Checks [12 USCIS-PM I.6], for guidance on the background and security check procedures for members or veterans of the U.S. armed forces. In general, applicants receive a biometric service appointment at a local Application Support Center (ASC) for collection of their biometrics (fingerprints, photographs, and signature). [4] See 8 CFR 103.2(a).

USCIS notifies applicants in writing to appear for fingerprinting after filing the naturalization application. Fingerprints are valid for 15 months from the date of processing by the FBI. An applicant abandons his or her naturalization application if the applicant fails to appear for the fingerprinting appointment without good cause and without notifying USCIS. [5] See 8 CFR 103.2(b)(13)(ii). See Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4].

Previously, USCIS had waived the fingerprint requirements for applicants 75 years old or older because it was difficult to capture readable fingerprints from this age group. As a result, applicants 75 years old or older were not required to appear at an ASC. Electronic processing of applications and improved technology now allows USCIS to capture fingerprints for applicants of all ages and enhances the ability to confirm identity and perform required background checks. [6] See ​ INA 335 ​. See ​8 CFR 335.1​. ​

Once an ASC collects an applicant’s biometrics, USCIS submits the records to the FBI for a full criminal background check. [7] See 8 CFR 335.2(b). The response from the FBI that a full criminal background check has been completed includes confirmation that:

The applicant does not have an administrative or a criminal record;

The applicant has an administrative or a criminal record; or

The applicant’s submitted fingerprint records have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.

Accommodations

USCIS makes special arrangements to accommodate the needs of applicants who are unable to attend an appointment, including applicants with disabilities and homebound or hospitalized applicants. All domestic USCIS facilities are accessible to applicants with disabilities. Applicants who are homebound or hospitalized may request an accommodation when unable to appear at an ASC for biometrics processing. Applicants should submit a copy of the appointment notice and medical documentation verifying the need for an in-home appointment with the local field office.

Applicants who need to request an accommodation for their appointment can submit a request online or call the USCIS Contact Center at any time at 800-375-5283 (TDD: 800-767-1833). [8] See USCIS webpages on Homebound Processing and How to Request Special Accommodation.

2. Fingerprint Waivers

Applicants with Certain Medical Conditions

An applicant may qualify for a waiver of the fingerprint requirement if the applicant is unable to provide fingerprints because of a medical condition, to include birth defects, physical deformities, skin conditions, and psychiatric conditions. Only certain USCIS officers are authorized to grant a fingerprint waiver.

An officer responsible for overseeing applicant fingerprinting may grant the waiver in the following situations:

The officer has met with the applicant in person;

The officer or authorized technician has attempted to fingerprint the applicant; and

The officer determines that the applicant is unable to be fingerprinted at all or is unable to provide a single legible fingerprint.

An applicant who is granted a fingerprint waiver must bring local police clearance letters covering the relevant period of good moral character to his or her naturalization interview. All clearance letters become part of the record. In cases where the applicant is granted a fingerprint waiver or has two unclassifiable fingerprint results, the officer must take a sworn statement from the applicant covering the period of good moral character.

An officer should not grant a waiver if the waiver is solely based on:

The applicant has fewer than 10 fingers;

The officer considers that the applicant’s fingerprints are unclassifiable; or

The applicant’s condition preventing the fingerprint capturing is temporary.

An officer’s decision to deny a fingerprint waiver is final and may not be appealed.

C. FBI Name Checks

The FBI conducts “name checks” on all naturalization applicants, and disseminates the information contained in the FBI’s files to USCIS in response to the name check requests. The FBI’s National Name Check Program (NNCP) includes a search against the FBI’s Universal Index (UNI), which contains personnel, administrative, applicant, and criminal files compiled for law enforcement purposes. The FBI disseminates the information contained in the FBI’s files to USCIS in response to the name check requests.

The FBI name check must be completed and cleared before an applicant for naturalization is scheduled for his or her naturalization interview. A definitive FBI name check response of “NR” (No Record) or “PR” (Positive Response) is valid for the duration of the application for which they were conducted. Definitive responses used to support other applications are valid for 15 months from the FBI process date. A new name check is required in cases where the final adjudication and naturalization have not occurred within that timeframe or the name check was processed incorrectly.

Footnotes

1.

See INA 335. See 8 CFR 335.1.

 

2.

See 8 CFR 335.2(b).

 

3.

See 8 CFR 103.2(b)(9), 8 CFR 335.1, and 8 CFR 335.2. See Part I, Military Members and their Families, Chapter 6, Required Background Checks [12 USCIS-PM I.6], for guidance on the background and security check procedures for members or veterans of the U.S. armed forces.

 

4.

See 8 CFR 103.2(a).

 

5.

See 8 CFR 103.2(b)(13)(ii). See Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4].

 

6.

See ​ INA 335 ​. See ​8 CFR 335.1​. ​

 

7.

See 8 CFR 335.2(b).

 

8.

See USCIS webpages on Homebound Processing and How to Request Special Accommodation.

 

Chapter 3 - Naturalization Interview

A. Roles and Responsibilities

1. USCIS Officers

Authority to Conduct Examination

USCIS officers have authority to conduct the investigation and examination, to include the naturalization interview. [1] See INA 335(b). See 8 CFR 335.2. The officer should introduce him or herself and explain the purpose of the naturalization examination and place the applicant under oath at the start of the interview.

USCIS’ authority includes the legal authority for officers to:

Place an applicant under oath;

Obtain oral and written testimony during an in-person interview;

Subpoena witnesses;

Request evidence; and

Administer the Oath of Allegiance (when delegated by the Field Office Director).

Questions on Eligibility

An officer’s questioning of an applicant during the applicant’s naturalization interview must cover all of the requirements for naturalization. [2] See Part D, General Naturalization Requirements [12 USCIS-PM D]. In general, the officer’s questions focus on the information in the naturalization application. The officer may ask any questions that are pertinent to the eligibility determination. The officer should provide the applicant with suitable opportunities to respond to questions in all instances.

In general, the officer’s questions may include, but are not limited to, the following questions:

Biographical information, to include marital history and military service;

Admission and length of time as a lawful permanent resident (LPR);

Absences from the United States after becoming an LPR;

Places of residence and employment history;

Knowledge of English and of U.S. history and government (civics);

Moral character and any criminal history;

Attachment to the principles of the U.S. Constitution;

Affiliations or memberships in certain organizations;

Willingness to take an Oath of Allegiance to the United States; and

Any other topic pertinent to the eligibility determination.

In most cases, the officer conducting the naturalization interview administers the required tests relating to the applicant’s ability to read and write English, and his or her knowledge of U.S. history and government (civics), unless the applicant is exempt. [3] See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E]. The officer who conducts the naturalization interview and who determines the applicant’s ability to speak and understand English is not required to also administer the English reading and writing, and civics tests. Accordingly, a different officer may administer the tests.

Grounding Decisions on Applicable Laws

An officer must analyze the facts of each case to make a legally sound decision on the naturalization application. The officer must base his or her decision to approve or deny the application on the relevant laws, regulations, precedent decisions, and agency guidance:

The Immigration and Nationality Act (INA) is the primary source of pertinent statutory law. [4] See Pub. L. 82-414 (June 27, 1952), as amended.

The corresponding regulations explain the statutes further and provide guidance on how the statutes are applied. [5] See Title 8 of the Code of Federal Regulations (8 CFR). Most of the corresponding regulations have been promulgated by legacy INS or USCIS.

Precedent decisions have the force of law and are binding on cases within the jurisdiction of the court or appellate body making the decision. [6] Precedent decisions are judicial decisions that serve as an authority for deciding an immigration matter. Precedent decisions are decisions designated as such by the Board of Immigration Appeals (BIA), Administrative Appeals Office (AAO), and appellate court decisions. Decisions from district courts are not precedent decisions in other cases.

USCIS guidance provides the agency’s policies and procedures supporting the laws and regulations. The USCIS Policy Manual is the primary source for agency guidance. [7] The Adjudicator’s Field Manual (AFM) and policy memoranda also serve as key sources for guidance on topics that are not covered in the Policy Manual.

2. Authorized Representatives

An applicant may request the presence and counsel of a representative, to include attorneys or other representatives, at the applicant’s in-person interview. The representative must submit to USCIS a properly completed notice of entry of appearance. [8] See 8 CFR 335.2(a). The representative must use the Notice of Entry of Appearance as Attorney or Representative (Form G-28).

In cases where an applicant requests to proceed without the assistance of a representative, the applicant must sign a waiver of representation. If the applicant does not want to proceed with the interview without his or her representative, the officer must reschedule the interview. Officers should consult with a supervisor if the representative fails to appear for multiple scheduled interviews.

The representative’s role is to ensure that the applicant’s legal rights are protected. A representative may advise his or her client on points of law but should not respond to questions the officer has directed to the applicant.

An applicant may be represented by any of the following:

Attorneys in the United States; [9] See 8 CFR 292.1(a)(1).

Certain law students and law graduates not yet admitted to the bar; [10] See 8 CFR 292.1(a)(2).

Certain reputable individuals who are of good moral character, have a pre-existing relationship with the applicant and are not receiving any payment for the representation; [11] See 8 CFR 292.1(a)(3).

Accredited representatives from organizations accredited by the Board of Immigration Appeals (BIA); [12] See 8 CFR 292.1(a)(4) and 8 CFR 292.2.

Accredited officials of the government to which a person owes allegiance; [13] See 8 CFR 292.1(a)(5). or

Attorneys outside the United States. [14] See 8 CFR 292.1(a)(6). In naturalization cases, attorneys licensed only outside the United States may represent an applicant only when the naturalization proceeding can occur overseas and where DHS allows the representation as a matter of discretion. Attorneys licensed only outside the United States cannot represent an applicant whose naturalization application is processed solely within the United States unless the attorney also qualifies under another representation category.

No other person may represent an applicant. [15] See 8 CFR 292.1(e).

3. Interpreters

An interpreter may be selected either by the applicant or by USCIS in cases where the applicant is permitted to use an interpreter. The interpreter must:

Translate what the officer and the applicant say word for word to the best of his or her ability without providing the interpreter’s own opinion, commentary, or answer; and

Complete an interpreter’s oath and privacy release statement and submit a copy of his or her government-issued identification at the naturalization interview.

A disinterested party should be used as an interpreter. If the USCIS officer is fluent in the applicant’s native language, the officer may conduct the examination in the applicant’s language of choice.

USCIS reserves the right to disqualify an interpreter provided by the applicant if an officer considers that the integrity of the examination is compromised by the interpreter’s participation.

B. Preliminary Review of Application

A USCIS officer who is designated to conduct the naturalization interview should review the applicant’s “A-file” and naturalization application before the interview. The A-file is the applicant’s record of his or her interaction with USCIS, legacy Immigration and Naturalization Service (INS), and other governmental organizations with which the applicant has had proceedings pertinent to his or her immigration record. The officer addresses all pertinent issues during the naturalization interview.

1. General Contents of A-File

The applicant’s A-file may include the following information along with his or her naturalization application:

Documents that show how the applicant became an LPR;

Other applications or forms for immigration benefits submitted by the applicant;

Correspondence between USCIS and the applicant;

Memoranda and forms from officers that may be pertinent to the applicant’s eligibility;

Materials such as any criminal records, [16] For example, a Record of Arrest and Prosecution (“RAP” sheet). correspondence from other agencies, and investigative reports and enforcement actions from DHS or other agencies.

2. Jurisdiction for Application [17] See Part D, General Naturalization Requirements, Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

In most cases, the USCIS office having jurisdiction over the applicant’s residence at the time of filing has the responsibility for processing and adjudicating the naturalization application. [18] An applicant who is a student or a member of the U.S. armed forces may have different places of residence that may affect the jurisdiction requirement. See 8 CFR 316.5(b). An officer should review whether the jurisdiction of a case has changed because the applicant has moved after filing his or her naturalization application. The USCIS office may transfer the application to the appropriate office with jurisdiction when appropriate. [19] See 8 CFR 335.9. In addition, an applicant for naturalization as a battered spouse of a U.S. citizen [20] See INA 319(a). or child may use a different address for safety which does not affect the jurisdiction requirements.

In cases where an officer becomes aware of a change in jurisdiction during the naturalization interview, the officer may complete the interview and then forward the applicant’s A-file with the pending application to the office having jurisdiction. The officer informs the applicant that the application’s jurisdiction has changed. The applicant will receive a new appointment notice from the current office with jurisdiction.

3. Results of Background and Security Checks [21] See Chapter 2, Background and Security Checks [12 USCIS-PM B.2].

An officer should ensure that all of the appropriate background and security checks have been conducted on the naturalization applicant. The results of the background and security checks should be included as part of the record.

4. Other Documents or Requests in the Record

Requests for Accommodations or Disability Exceptions

USCIS accommodates applicants with disabilities by making modifications to the naturalization examination process. [22] See Part C, Accommodations [12 USCIS-PM C]. An officer reviews the application for any accommodations request, any oath waiver request or for a medical disability exception from the educational requirements for naturalization. [23] See Part E, English and Civics Testing and Exceptions, Chapter 3, Medical Disability Exception (N-648) [12 USCIS-PM E.3]. See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

Previous Notice to Appear, Order to Show Cause, or Removal Order

An officer reviews an applicant’s record and relevant databases to identify any current removal proceedings or previous proceedings resulting in a final order of removal from the United States. If an applicant is in removal proceedings, a Notice to Appear or the previously issued “Order to Show Cause” may appear in the applicant’s record. [24] An “Order to Show Cause" was the notice used prior to enactment of IIRIRA on April 1, 1997. USCIS cannot make a decision on any naturalization application from an applicant who is in removal proceedings. [25] This does not apply in cases involving naturalizations based on military service where the applicant may not be required to be lawfully admitted for permanent residence. See INA 318 and INA 329.

The officer should deny the naturalization application if the applicant has already received a final order of removal from an immigration judge, unless:

The applicant was removed from the United States and later reentered with the proper documentation and authorization; or

The applicant is filing for naturalization under the military naturalization provisions. [26] See INA 328(b)(2) and INA 329(b)(1).

C. Initial Naturalization Examination

All naturalization applicants must appear for an in-person examination before a USCIS officer after filing an Application for Naturalization (Form N-400). [27] See 8 CFR 335.2(a). The applicant’s examination includes both the interview and the administration of the English and civics tests. The applicant’s interview is a central part of the naturalization examination. The officer conducts the interview with the applicant to review and examine all factors relating to the applicant’s eligibility.

The officer places the applicant under oath and interviews the applicant on the questions and responses in the applicant’s naturalization application. [28] If an applicant is unable to undergo any part of the naturalization examination because of a physical or developmental disability or mental impairment, a legal guardian, surrogate or an eligible designated representative completes the naturalization process for the applicant. See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3]. The initial naturalization examination includes:

An officer’s review of information provided in the applicant’s naturalization application,

The administration of tests on the educational requirements for naturalization, [29] See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E]. USCIS may administer the test separately from the interview. and

An officer’s questions relating to the applicant’s eligibility for naturalization. [30] See the relevant Volume 12 [12 USCIS-PM] part for the specific eligibility requirements for each naturalization provision.

The applicant’s written responses to questions on his or her naturalization application are part of the documentary record signed under penalty of perjury. The written record includes any amendments to the responses in the application that the officer makes in the course of the naturalization interview as a result of the applicant’s testimony. The amendments, sworn affidavits, and oral statements and answers document the applicant’s testimony and representations during the naturalization interview(s).

At the officer’s discretion, he or she may record the interview by a mechanical, electronic, or videotaped device, may have a transcript made, or may prepare an affidavit covering the testimony of the applicant. [31] See 8 CFR 335.2(c). The applicant or his or her authorized attorney or representative may request a copy of the record of proceedings through the Freedom of Information Act (FOIA). [32] The applicant or authorized attorney or representative may request a copy of the record of proceedings by filing a Freedom of Information/Privacy Act Request (Form G-639).

The officer provides the applicant with a notice of results at the end of the examination regardless of the outcome. [33] The officer must use the Naturalization Interview Results (Form N-652). The notice provides the outcome of the examination and should explain what the next steps are in cases that are continued. [34] See Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4].

D. Subsequent Re-examination

USCIS may schedule an applicant for a subsequent examination (re-examination) to determine the applicant’s eligibility. [35] A USCIS field office may allow the applicant to provide documentation by mail in order to overcome any deficiencies without scheduling the applicant to come in person for another interview. During the re-examination:

The officer reviews any evidence provided by the applicant in a response to a request for evidence issued during or after the initial interview.

The officer considers new oral and written testimony and determines whether the applicant meets all of the naturalization eligibility requirements, to include re-testing the applicant on the educational requirements (if necessary).

In general, the re-examination provides the applicant with an opportunity to overcome deficiencies in his or her naturalization application. Where the re-examination is scheduled for failure to meet the educational requirements for naturalization during the initial examination, the subsequent re-examination is scheduled between 60 and 90 days from the initial examination. [36] See 8 CFR 335.3(b) (Re-examination no earlier than 60 days from initial examination). See 8 CFR 312.5(a) (Re-examination for educational requirements scheduled no later than 90 days from initial examination). In cases where an applicant does not meet the educational requirements for naturalization during the re-examination, USCIS denies the application. See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

If the applicant is unable to overcome the deficiencies in his or her naturalization application, the officer denies the naturalization application. An applicant or his or her authorized representative may request a USCIS hearing before an officer on the denial of the applicant’s naturalization application. [37] See Chapter 6, USCIS Hearing and Judicial Review [12 USCIS-PM B.6]. See Chapter 3, Naturalization Interview, Section A, Roles and Responsibilities [12 USCIS-PM B.3], for a list of authorized representatives. See 8 CFR 292.1.

E. Expediting Applications from Certain SSI Beneficiaries

USCIS will expedite naturalization applications filed by applicants:

Who are within one year or less of having their Supplemental Security Income (SSI) benefits terminated by the Social Security Administration (SSA); and

Whose naturalization application has been pending for four months or more from the date of receipt by USCIS.

Although USCIS will prioritize processing of these applications, each applicant is still required to meet all eligibility requirements for naturalization at the time of filing. Applicants, who have pending applications, must inform USCIS of the approaching termination of benefits by InfoPass appointment or by United States postal mail or other courier service by providing:

A cover letter or cover sheet to explain that SSI benefits will be terminated within one year or less and that their naturalization application has been pending for four months or more from the date of receipt by USCIS; and

A copy of the applicant’s most recent SSA letter indicating the termination of their SSI benefits. (The USCIS alien number must be written at the top right of the SSA letter).

Applicants who have not filed their naturalization application may write “SSI” at the top of page one of the application. Applicants should include a cover letter or cover sheet along with their application to explain that their SSI benefits will be terminated within one year or less.

Footnotes

1.

See INA 335(b). See 8 CFR 335.2.

 

2.

See Part D, General Naturalization Requirements [12 USCIS-PM D].

 

3.

See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E].

 

4.

See Pub. L. 82-414 (June 27, 1952), as amended.

 

5.

See Title 8 of the Code of Federal Regulations (8 CFR). Most of the corresponding regulations have been promulgated by legacy INS or USCIS.

 

6.

Precedent decisions are judicial decisions that serve as an authority for deciding an immigration matter. Precedent decisions are decisions designated as such by the Board of Immigration Appeals (BIA), Administrative Appeals Office (AAO), and appellate court decisions. Decisions from district courts are not precedent decisions in other cases.

 

7.

The Adjudicator’s Field Manual (AFM) and policy memoranda also serve as key sources for guidance on topics that are not covered in the Policy Manual.

 

8.

See 8 CFR 335.2(a). The representative must use the Notice of Entry of Appearance as Attorney or Representative (Form G-28).

 

9.

See 8 CFR 292.1(a)(1).

 

10.

See 8 CFR 292.1(a)(2).

 

11.

See 8 CFR 292.1(a)(3).

 

12.

See 8 CFR 292.1(a)(4) and 8 CFR 292.2.

 

13.

See 8 CFR 292.1(a)(5).

 

14.

See 8 CFR 292.1(a)(6). In naturalization cases, attorneys licensed only outside the United States may represent an applicant only when the naturalization proceeding can occur overseas and where DHS allows the representation as a matter of discretion. Attorneys licensed only outside the United States cannot represent an applicant whose naturalization application is processed solely within the United States unless the attorney also qualifies under another representation category.

 

15.

See 8 CFR 292.1(e).

 

16.

For example, a Record of Arrest and Prosecution (“RAP” sheet).

 

17.

See Part D, General Naturalization Requirements, Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

 

18.

An applicant who is a student or a member of the U.S. armed forces may have different places of residence that may affect the jurisdiction requirement. See 8 CFR 316.5(b).

 

19.

See 8 CFR 335.9.

 

20.

See INA 319(a).

 

21.

See Chapter 2, Background and Security Checks [12 USCIS-PM B.2].

 

22.

See Part C, Accommodations [12 USCIS-PM C].

 

23.

See Part E, English and Civics Testing and Exceptions, Chapter 3, Medical Disability Exception (N-648) [12 USCIS-PM E.3]. See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

 

24.

An “Order to Show Cause" was the notice used prior to enactment of IIRIRA on April 1, 1997.

 

25.

This does not apply in cases involving naturalizations based on military service where the applicant may not be required to be lawfully admitted for permanent residence. See INA 318 and INA 329.

 

26.

See INA 328(b)(2) and INA 329(b)(1).

 

27.

See 8 CFR 335.2(a).

 

28.

If an applicant is unable to undergo any part of the naturalization examination because of a physical or developmental disability or mental impairment, a legal guardian, surrogate or an eligible designated representative completes the naturalization process for the applicant. See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

 

29.

See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E]. USCIS may administer the test separately from the interview.

 

30.

See the relevant Volume 12 [12 USCIS-PM] part for the specific eligibility requirements for each naturalization provision.

 

31.

See 8 CFR 335.2(c).

 

32.

The applicant or authorized attorney or representative may request a copy of the record of proceedings by filing a Freedom of Information/Privacy Act Request (Form G-639).

 

33.

The officer must use the Naturalization Interview Results (Form N-652).

 

34.

See Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4].

 

35.

A USCIS field office may allow the applicant to provide documentation by mail in order to overcome any deficiencies without scheduling the applicant to come in person for another interview.

 

36.

See 8 CFR 335.3(b) (Re-examination no earlier than 60 days from initial examination). See 8 CFR 312.5(a) (Re-examination for educational requirements scheduled no later than 90 days from initial examination). In cases where an applicant does not meet the educational requirements for naturalization during the re-examination, USCIS denies the application. See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

 

37.

See Chapter 6, USCIS Hearing and Judicial Review [12 USCIS-PM B.6]. See Chapter 3, Naturalization Interview, Section A, Roles and Responsibilities [12 USCIS-PM B.3], for a list of authorized representatives. See 8 CFR 292.1.

 

Chapter 4 - Results of the Naturalization Examination

USCIS has 120 days from the date of the initial naturalization interview to issue a decision. If the decision is not issued within 120 days of the interview, an applicant may request judicial review of his or her application in district court. The officer must base his or her decision on the laws, regulations, precedent decisions, and governing policies.

The officer may:

Approve the application;

Continue the examination without making a decision (if more information is needed), if the applicant needs to be rescheduled, or for other relevant reasons; or

Deny the application.

The officer must provide the applicant with a notice of results at the end of the interview regardless of the outcome. The notice should address the outcome of the interview and the next steps involved for continued cases. [1] The officer issues a Notice of Examination Results (Form N-652).

A. Approval of Naturalization Application

If an officer approves a naturalization application, the application goes through the appropriate internal procedures before the USCIS office schedules the applicant to appear at a ceremony for the administration of the Oath of Allegiance. [2] See Part J, Oath of Allegiance [12 USCIS-PM J]. The internal procedures include a “re-verification” procedure where all approved applications are reviewed for quality. The officer who conducts the re-verification is not the same officer who conducts the interview. While the officer conducting the re-verification process does not adjudicate the application once again, the officer may raise any substantive eligibility issues.

USCIS does not schedule an applicant for the Oath of Allegiance in cases where USCIS receives or identifies potentially disqualifying information about the applicant after approval of his or her application. [3] See 8 CFR 335.5. See Chapter 5, Motion to Reopen [12 USCIS-PM B.5]. If USCIS cannot resolve the disqualifying information and the adjudicating officer finds the applicant ineligible for naturalization, USCIS then issues a motion to reopen and re-adjudicates the naturalization application.

B. Continuation of Examination

1. Continuation to Request Evidence

An officer issues the applicant a written request for evidence if additional information is needed to make an accurate determination on the naturalization application. [4] The officer issues a request for evidence on Form N-14. In general, USCIS permits a period of 30 days for the applicant to respond to a request for evidence. [5] See 8 CFR 335.7. The applicant has up to three more days after the 30-day period for responding to an RFE in cases where USCIS has mailed the request. See 8 CFR 103.8(b).

The request for evidence should include:

The specific documentation or information that the officer is requesting;

The ways in which the applicant may respond; and

The period of time that the applicant has to reply.

The applicant must respond to the request for evidence within the timeframe specified by the officer. If the applicant timely submits the evidence as requested, the officer makes a decision on the applicant’s eligibility. If the applicant fails to submit the evidence as requested, the officer may adjudicate the application based on the available evidence. [6] See 8 CFR 335.7.

2. Scheduling Subsequent Re-examination

If an applicant fails any portion of the naturalization test, an officer must provide the applicant a second opportunity to pass the test within 60 to 90 days after the initial examination unless the applicant is statutorily ineligible for naturalization based on other grounds. [7] See 8 CFR 312.5(a) and 8 CFR 335.3(b). An officer should also schedule a re-examination in order to resolve any issues on eligibility.

The outcome of the re-examination determines whether the officer conducting the second interview continues, approves, or denies the naturalization application. [8] See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

If the applicant fails to appear for the re-examination and USCIS does not receive a timely or reasonable request to reschedule, the officer should deny the application based on the applicant’s failure to meet the educational requirements for naturalization. The officer also should include any other areas of ineligibility within the denial notice.

C. Denial of Naturalization Application

If an officer denies a naturalization application based on ineligibility or lack of prosecution, the officer must issue the applicant and his or her attorney or representative a written denial notice no later than 120 days after the initial interview on the application. [9] See INA 335(d). See 8 CFR 336.1(a). The written denial notice should include:

A clear and concise statement of the facts in support of the decision;

Citation of the specific eligibility requirements the applicant failed to demonstrate; and

Information on how the applicant may request a hearing on the denial. [10] See 8 CFR 336.1(b). See Chapter 6, USCIS Hearing and Judicial Review [12 USCIS-PM B.6].

The table below provides certain general grounds for denial of the naturalization application. An officer should review the pertinent parts of this volume that correspond to each ground for denial and its related eligibility requirement for further guidance.

General Grounds for Denial of Naturalization Application (Form N-400)

Failure to establish…

Citation

Lawful Admission for Permanent Residence

INA 316(a)(1), INA 318, and

8 CFR 316.2(a)(2)

Continuous Residence

INA 316(a)(2), INA 316(b), and

8 CFR 316.2(a)(3), 8 CFR 316.5(c)

Physical Presence

INA 316(a)

8 CFR 316.2(a)(4)

3 Months of Residence in State or Service District

INA 316(a)

8 CFR 316.2(a)(5)

Good Moral Character

INA 316(a)(3), INA 316(e), and INA 101(f); 8 CFR 316.10

Attachment and Favorable Disposition to the Good Order and Happiness of the United States

INA 316(a)(3)

8 CFR 316.11

Understanding of English (Including Reading, Writing, and Speaking)

INA 312(a)(1)

8 CFR 312.1

Knowledge of U.S. History and Government

INA 312(a)(2)

8 CFR 312.2

Lack of Prosecution

INA 335(e)

8 CFR 335.7

D. Administrative Closure, Lack of Prosecution, Withdrawal, and Holding in Abeyance

1. Administrative Closure for Failing to Appear at Initial Interview

An applicant abandons his or her application if he or she fails to appear for his or her initial naturalization examination without good cause and without notifying USCIS of the reason for non-appearance within 30 days of the scheduled appointment. In the absence of timely notification by the applicant, an officer may administratively close the application without making a decision on the merits. [11] See 8 CFR 103.2(b)(13)(ii), 8 CFR 335.6(a), and 8 CFR 335.6(b). Generally, military applicants may file a motion to reopen at any time. See Part I, Military Members and their Families [12 USCIS-PM I].

An applicant may request to reopen an administratively closed application without fee by submitting a written request to USCIS within one year from the date the application was closed. [12] See 8 CFR 335.6(b). See Chapter 5, Motion to Reopen [12 USCIS-PM I.5]. The date of the applicant’s request to reopen an application becomes the date of filing the naturalization application for purposes of determining eligibility for naturalization. [13] See 8 CFR 335.6(b).

If the applicant does not request reopening of an administratively closed application within one year from the date the application was closed, USCIS:

Considers the naturalization application abandoned; and

Dismisses the application without further notice to the applicant. [14] See 8 CFR 335.6(c).

2. Failing to Appear for Subsequent Re-examination or to Respond to Request for Evidence

If the applicant fails to appear at the subsequent re-examination or fails to respond to a Request for Evidence within 30 days, officer must adjudicate the application on the merits. [15] See INA 335(e). See 8 CFR 335.7. This includes cases where the applicant fails to appear at a re-examination or to provide evidence as requested.

An officer should consider any good cause exceptions provided by the applicant for failing to respond or appear for an examination in adjudicating a subsequent motion to reopen.

3. Withdrawal of Application

The applicant may request, in writing, to withdraw his or her application. The officer must inform the applicant that the withdrawal by the applicant constitutes a waiver of any future hearing on the application. If USCIS accepts the withdrawal, the applicant may submit another application without prejudice. USCIS does not send any further notice regarding the application.

If the District Director does not consent to the withdrawal, the officer makes a decision on the merits of the application. [16] See INA 335(e). See 8 CFR 335.10.

4. Holding Application in Abeyance if Applicant is in Removal Proceedings

USCIS cannot adjudicate the naturalization application of an applicant who is in removal proceedings. [17] See INA 318. This does not apply in cases involving naturalizations based on military service under INA 329 where the applicant may not be required to be lawfully admitted for permanent residence. In general, USCIS holds the application in abeyance until the immigration judge has either issued a final order of removal or terminates the removal proceedings. Field offices should follow the advice of local USCIS counsel on how to proceed with such cases.

Footnotes

1.

The officer issues a Notice of Examination Results (Form N-652).

 

2.

See Part J, Oath of Allegiance [12 USCIS-PM J].

 

3.

See 8 CFR 335.5. See Chapter 5, Motion to Reopen [12 USCIS-PM B.5].

 

4.

The officer issues a request for evidence on Form N-14.

 

5.

See 8 CFR 335.7. The applicant has up to three more days after the 30-day period for responding to an RFE in cases where USCIS has mailed the request. See 8 CFR 103.8(b).

 

6.

See 8 CFR 335.7.

 

7.

See 8 CFR 312.5(a) and 8 CFR 335.3(b).

 

8.

See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

 

9.

See INA 335(d). See 8 CFR 336.1(a).

 

10.

See 8 CFR 336.1(b). See Chapter 6, USCIS Hearing and Judicial Review [12 USCIS-PM B.6].

 

11.

See 8 CFR 103.2(b)(13)(ii), 8 CFR 335.6(a), and 8 CFR 335.6(b). Generally, military applicants may file a motion to reopen at any time. See Part I, Military Members and their Families [12 USCIS-PM I].

 

12.

See 8 CFR 335.6(b). See Chapter 5, Motion to Reopen [12 USCIS-PM I.5].

 

13.

See 8 CFR 335.6(b).

 

14.

See 8 CFR 335.6(c).

 

15.

See INA 335(e). See 8 CFR 335.7.

 

16.

See INA 335(e). See 8 CFR 335.10.

 

17.

See INA 318. This does not apply in cases involving naturalizations based on military service under INA 329 where the applicant may not be required to be lawfully admitted for permanent residence.

 

Chapter 5 - Motion to Reopen

A. USCIS Motion to Reopen

An officer must execute a motion to reopen a previously approved naturalization application if:

USCIS receives or identifies disqualifying derogatory information about the applicant after approval of his or her application prior to the administration of the Oath of Allegiance; [1] See 8 CFR 335.5. or

An applicant fails to appear for at least two ceremonies to take the Oath of Allegiance without good cause. [2] See 8 CFR 337.10.

USCIS notifies the applicant in writing about the receipt of derogatory information or multiple failures to appear through the motion to reopen. The applicant has 15 days to respond to the motion to reopen and overcome the derogatory information or provide good cause for failing to appear at the Oath ceremony. [3] See 8 CFR 335.5.

If the applicant overcomes the derogatory information and qualifies for naturalization, the officer denies the motion to reopen and schedules the applicant for the Oath of Allegiance. If the applicant is unable to overcome the derogatory information, the officer grants the motion to reopen and denies the application on its merits. [4] See 8 CFR 336.1.

USCIS must not schedule an applicant for the administration of the Oath of Allegiance if USCIS receives or identifies disqualifying derogatory information. USCIS must not administer the Oath of Allegiance to the applicant until the matter is resolved favorably.

An applicant who fails to appear for at least two ceremonies to administer the Oath of Allegiance without good cause abandons his or her intent to be naturalized. USCIS considers multiple failures to appear to be equivalent to receipt of derogatory information after the approval of a naturalization application. [5] See 8 CFR 337.10.

B. Motion to Reopen Administratively Closed Application

An applicant may request to reopen an administratively closed naturalization application with USCIS by submitting a written request to USCIS within one year of the date his or her application was administratively closed. [6] Generally, military applicants may file a motion to reopen at any time. See Part I, Military Members and their Families, Chapter 6, Required Background Checks, Section C, Ways Service Members may Meet Fingerprint Requirement [12 USCIS-PM I.6(C)]. The applicant is not required to pay any additional fees. USCIS considers the date of the applicant’s request to reopen an application as the filing date of the naturalization application for purposes of determining eligibility for naturalization. [7] See 8 CFR 335.6(b). USCIS sends the applicant a notice approving or denying the motion to reopen.

Footnotes

1.

See 8 CFR 335.5.

 

2.

See 8 CFR 337.10.

 

3.

See 8 CFR 335.5.

 

4.

See 8 CFR 336.1.

 

5.

See 8 CFR 337.10.

 

6.

Generally, military applicants may file a motion to reopen at any time. See Part I, Military Members and their Families, Chapter 6, Required Background Checks, Section C, Ways Service Members may Meet Fingerprint Requirement [12 USCIS-PM I.6(C)].

 

7.

See 8 CFR 335.6(b).

 

Chapter 6 - USCIS Hearing and Judicial Review

A. Hearing Request

An applicant or his or her authorized representative [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. 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] 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).

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] See 8 CFR 336.2(b).

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] See 8 CFR 336.2(b).

A de novo review means that the officer makes a new and full review of the naturalization application. [5] The term “de novo” is Latin for “anew.” In this context, it means the starting over of the application’s review.

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] 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). 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] See INA 312. See 8 CFR 312. See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E]. 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] See 8 CFR 103.8(b).), 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] See 8 CFR 336.2(c)(2)(ii). 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] See 8 CFR 336.2(c)(2)(i).

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] See 8 CFR 103.5(a)(2).

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] See 8 CFR 103.5(a)(3).

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] 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. USCIS rejects these requests without refund of filing fee. [14] See 8 CFR 336.2(c)(1)(i).

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

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

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] See INA 310(c). See INA 336(a). 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).

 

Part C - Accommodations

Chapter 1 - Purpose and Background

A. Purpose

USCIS accommodates naturalization applicants with disabilities by making modifications to the naturalization process. [1] See 6 CFR 15.3 for the applicable definitions relating to enforcement of nondiscrimination on the basis of disability DHS federal programs or activities. USCIS aims to provide applicants with disabilities an equal opportunity to successfully complete the process. While USCIS is not required to make major modifications that would result in a fundamental change to the naturalization process or an undue burden for the agency, USCIS makes every effort to provide accommodations to naturalization applicants with disabilities.

USCIS evaluates disability accommodation requests on a case-by-case basis as accommodations vary according to the nature of the applicant’s disability. In determining what type of accommodation is necessary, USCIS gives primary consideration to the requests of the person with a disability.

USCIS provides applicants with the requested accommodation or an effective alternative that addresses the unique needs of the applicant where appropriate. [2] See, for example, 6 CFR 15.50 and 6 CFR 15.60.

Applicants may request an accommodation at the time of filing their naturalization application or at any other time during the naturalization process. [3] In some cases, applicants with physical impairments such as blindness or low vision or hearing loss may have submitted a medical disability exception form (Form N-648) along with their naturalization application to request an exception from the English and civics tests as they may be unable to take the tests, even with an accommodation. See Part E, English and Civics Testing and Exceptions, Chapter 3, Medical Disability Exception (Form N-648) [12 USCIS-PM E.3].

B. Background

The Rehabilitation Act requires all federal agencies to provide reasonable accommodations to persons with disabilities in the administration of their programs and benefits. [4] See Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 355, 394 (September 26, 1973). See 29 U.S.C. 794(a). The Act prohibits qualified persons with a disability from being excluded from participation in, denied the benefits of, or being subjected to discrimination under any programs or activities conducted by federal agencies solely on the basis of their disability. USCIS does not exclude persons with disabilities from its programs or activities based on their disability. The Rehabilitation Act and the implemented Department of Homeland Security (DHS) regulations [5] See 6 CFR 15. require USCIS to provide accommodations that assist an applicant with a disability to have an equal opportunity to participate in its programs, to include the naturalization process.

C. Difference between Accommodations and Waivers

Accommodations are different from statutory waivers or exceptions. For example, if an officer grants an applicant a waiver for a naturalization educational requirement, the applicant is exempt from meeting that educational requirement. An accommodation is a modification of an existing practice or procedure that will enable an applicant with a disability to participate in the naturalization process.

The accommodation does not exempt the applicant from the obligation to satisfy any applicable requirement for naturalization. The accommodation is a modification to the way in which the applicant may establish that he or she meets the requirement. [6] The accommodations discussed in this part are distinguished from the oath waiver process by which the applicant’s complete examination is conducted by a legal guardian or surrogate appointed by a court of law, or an eligible designated representative. See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

D. Legal Authorities

Section 504 of the Rehabilitation Act of 1973 [7] See Pub. L. 93-112, 87 Stat. 355, 394 (September 26, 1973). – Nondiscrimination under federal grants

29 U.S.C. 794 – Nondiscrimination under federal grants and programs

6 CFR 15 – DHS federal regulations on non-discrimination on the basis of disability of persons who access DHS programs or activities

8 CFR 334.4 – Examination and off-site visits for sick or disabled applicants

Footnotes

1.

See 6 CFR 15.3 for the applicable definitions relating to enforcement of nondiscrimination on the basis of disability DHS federal programs or activities.

 

2.

See, for example, 6 CFR 15.50 and 6 CFR 15.60.

 

3.

In some cases, applicants with physical impairments such as blindness or low vision or hearing loss may have submitted a medical disability exception form (Form N-648) along with their naturalization application to request an exception from the English and civics tests as they may be unable to take the tests, even with an accommodation. See Part E, English and Civics Testing and Exceptions, Chapter 3, Medical Disability Exception (Form N-648) [12 USCIS-PM E.3].

 

4.

See Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 355, 394 (September 26, 1973). See 29 U.S.C. 794(a). The Act prohibits qualified persons with a disability from being excluded from participation in, denied the benefits of, or being subjected to discrimination under any programs or activities conducted by federal agencies solely on the basis of their disability.

 

5.

See 6 CFR 15.

 

6.

The accommodations discussed in this part are distinguished from the oath waiver process by which the applicant’s complete examination is conducted by a legal guardian or surrogate appointed by a court of law, or an eligible designated representative. See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

 

7.

See Pub. L. 93-112, 87 Stat. 355, 394 (September 26, 1973).

 

Chapter 2 - Accommodation Policies and Procedures

USCIS has established policies and procedures for handling and processing accommodation requests, which include:

Providing information locally as needed on how to request accommodations;

Designating a point-of-contact to handle accommodation requests whenever possible;

Responding to inquiries and reviewing accommodation requests timely;

Establishing internal processes for receiving and for properly filing requests; and

Processing requests and providing accommodations whenever appropriate.

A. Requesting an Accommodation

1. Submitting the Request

It is the applicant’s responsibility to request an accommodation in advance, each time an accommodation is needed. Generally, the applicant, his or her attorney or accredited representative, or legal guardian should request an accommodation concurrently with the filing of the naturalization application. However, an applicant may also call the USCIS Contact Center at 1-800-375-5283 (TDD: 1-800-767-1833) in order to request an accommodation, or may also request an accommodation with the field office at any time during the naturalization process.

2. Timeliness of Request

The field office’s ability to provide an accommodation on the date that it is needed may be affected by the timeliness of the accommodation request. Some types of accommodations do not require advance notice and can be immediately provided. This may include a USCIS employee speaking loudly or slowly to an applicant, or allowing additional time for an applicant to answer during the examination. Other types of accommodations may be difficult to provide without advance planning. This may include providing a sign language interpreter, additional time for the examination, or scheduling an applicant for an off-site examination.

B. Documentation and Evidence

USCIS evaluates each request for an accommodation on a case-by-case basis. While an applicant is not required to include documentation of his or her medical condition, there may be rare cases where documentation is needed to evaluate the request. [1] Officers should contact local USCIS counsel prior to contacting the applicant and his or her attorney or accredited representative for further information.

C. Providing Accommodations as Requested

If an accommodation is warranted, a field office should provide the accommodation on the date and time the applicant is scheduled for his or her appearance. The field office should aim to provide the requested accommodation without having to reschedule the applicant’s appointment. If an accommodation cannot be provided for the scheduled appointment, the applicant and his or her attorney or accredited representative should be notified as soon as possible. The applicant’s appointment should be rescheduled within a reasonable period of time.

Footnotes

1.

Officers should contact local USCIS counsel prior to contacting the applicant and his or her attorney or accredited representative for further information.

 

Chapter 3 - Types of Accommodations

There are many types of accommodations that USCIS provides for applicants with disabilities. [1] The lists of accommodations in this chapter are not exhaustive. USCIS determines and provides accommodations on a case-by-case basis. Accommodations typically relate to the following:

Naturalization interview;

Naturalization test; and

Oath of Allegiance.

Each accommodation may apply to any aspect of the naturalization process as needed, to include any pre-examination procedures.

USCIS recognizes that some applicants may only require one accommodation, while others may need more. Some applicants may need one accommodation at a particular stage of the naturalization process and may require the same or another type of accommodation at a later date.

A. Accommodations for the Naturalization Examination

Field offices are able to make modifications to provide accommodations during the naturalization examination to applicants with disabilities. The table below serves as a quick reference guide listing common examples of accommodations to the naturalization examination for applicants with disabilities. The paragraphs that follow the table provide further guidance on each accommodation example.

Accommodations for the Naturalization Examination

Accommodation

Explanation

Extending examination time

and breaks

Some applicants with disabilities may need more time than is regularly scheduled for the examination

Providing English sign language interpreters or other aids for deaf or hard of hearing applicants

Deaf or hard of hearing applicants may need a sign language interpreter, or other accommodation, to complete the examination

Allowing relatives to attend the examination and assist in signing forms

Presence of a relative may have a calming effect, and such persons may assist applicants who are unable to sign or make any kind of mark

Legal guardian, surrogate, or designated representative at examination

Some applicants are unable to undergo an examination because of a physical or developmental disability or mental impairment

Allowing nonverbal communication

Applicants may be unable to speak sufficiently to respond to questions but may be able to communicate in non-verbal ways

Off-site examination

Some applicants may be unable to appear at the field office because of their disability

1. Extending Examination Time and Breaks

An officer may provide additional time for the examination and allow breaks if necessary for applicants with disabilities who have requested that type of accommodation. USCIS recognizes that some applicants may need more time than is regularly scheduled.

2. Providing Accommodations for Deaf or Hard of Hearing Applicants

In determining what type of auxiliary aid is necessary for deaf or hard of hearing applicants, USCIS gives primary consideration to the requests of the person with a disability.

Unless the applicant chooses to bring his or her own English sign language interpreter, the field office must provide an English sign language interpreter for a deaf or hard of hearing applicant upon his or her request. [2] If an applicant qualifies for an exception to the English requirement, the sign language interpreter does not need to sign in English. See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

The Rehabilitation Act requires USCIS to make an effective accommodation for the customer's disability, and USCIS cannot transfer the accommodation burden back to the customer. For example, if the person uses the sign language Pidgin English, USCIS must provide an interpreter who uses Pidgin English if one is reasonably available. USCIS cannot tell the person it will provide an American Sign Language (ASL) interpreter and require the person to provide an interpreter to translate between Pidgin English and ASL. [3] Contact the Registry of Interpreters for the Deaf (RID) at 703-838-0030 (voice), 703-838-0459 (TTY), or use RID's searchable interpreter agency referral database.

The officer should use any communication aids for the deaf or hard of hearing where available, permit the applicant to read lips, and allow the applicant to answer the officer’s questions in writing, as needed.

3. Allowing Relatives and Others to Attend Examinations and Assist in Signing Forms

In cases where an applicant has a disability, the officer may allow an applicant’s family member, legal guardian, or other person to attend the examination with the applicant. The presence of such a person or persons may help the applicant to remain calm and responsive during the examination. However, if the presence of such person or persons becomes disruptive to the examination, the officer may at any time remove the person from the examination and reschedule the examination if the applicant is unable to proceed at that time.

An officer may allow the person accompanying the applicant to repeat the officer’s questions in cases where such repetition facilitates the applicant’s responsiveness. An applicant’s mark is acceptable as the applicant’s signature on the naturalization application or documents relating to the application when an applicant is unable to sign. A family member may assist an applicant to sign, initial, or make a mark when completing the attestation on the naturalization application. Except as provided below, a family member or other person may not sign the naturalization application for the applicant.

4. Legal Guardian, Surrogate, or Designated Representative at Examinations

Currently, all applicants for naturalization are required to appear in person and give testimony under oath as to their eligibility for naturalization. [4] See 8 CFR 335.2. When an applicant is unable to undergo an examination because of a physical, developmental disability, or mental impairment, a legal guardian, surrogate, or an eligible designated representative completes the naturalization process for the applicant. USCIS waives the Oath of Allegiance and the legal guardian, surrogate, or designated representative attests to the applicant’s eligibility for naturalization. In addition to oath waiver, this process may require accommodations including off-site examinations. [5] See Part J, Oath of Allegiance [12 USCIS-PM J].

Persons eligible to act on behalf of the applicant include:

A person who a proper court has designated as the applicant’s legal guardian or surrogate and who is authorized to exercise legal authority over the applicant’s affairs; or

In the absence of a legal guardian or surrogate, a U.S. citizen, spouse, parent, adult son or daughter, or adult brother or sister who is the primary custodial caregiver and who takes responsibility for the applicant.

USCIS will only recognize one designated representative in the following order of priority:

Legal guardian or surrogate (highest priority);

U.S. citizen spouse;

U.S. citizen parent;

U.S. citizen adult son or daughter;

U.S. citizen adult brother or sister (lowest priority).

If there is a priority conflict between the persons seeking to represent the applicant and the persons share the same degree of familial relationship, USCIS gives priority to the party with seniority in age.

The person acting on behalf of the applicant must provide proof of legal guardianship, or documentation to establish the familial relationship, such as a birth certificate, marriage certificate, or adoption decree. In addition, the person must provide documentation to establish that he or she has the primary custodial care and responsibility for the applicant (for example, income tax returns, Social Security Administration documents, and affidavits from other relatives). A spouse, parent, adult son or daughter, or adult brother or sister who is not the legal guardian or surrogate must provide evidence of U.S. citizenship.

5. Allowing Nonverbal Communication

An officer may accept forms of nonverbal communication, such as blinking, head shaking or nodding, tapping, or other effective forms of nonverbal communication during the naturalization examination. The officer should also allow the applicant to point to answers on the application and allow the applicant to write out the answers to the civics test if the applicant is not able to communicate verbally. Prior to the start of the naturalization examination, the officer, the applicant, and the applicant’s representative (if any) should agree to the form of communication.

6. Off-Site Examination

An officer may conduct a naturalization examination in an applicant’s home or other residence such as a nursing home, hospice, hospital, or senior citizens center when appropriate. [6] See INA 335(b). This applies to cases where the applicant’s illness or disability makes it medically unsuitable for him or her to appear at the field office in person.

B. Accommodations for the Naturalization Test

An applicant with a disability may require an accommodation to take the English and civics tests. The officer should use the appropriate accommodation to meet the applicant’s particular needs. In addition, some applicants with disabilities may qualify for an exception to these requirements for naturalization. [7] See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2]. See INA 312(b). See 8 CFR 312.1(b) and 8 CFR 312.2(b).

The table below serves as a quick reference guide listing common examples of accommodations to the naturalization test for applicants with disabilities. The paragraphs that follow the table provide further guidance on each accommodation.

Accommodations for the Naturalization Test

Accommodation

Explanation

Providing reading tests in large print

Partially blind applicants may be unable to read small print

Oral writing test

Applicants with physical impairments or with limited use of their hands may be unable to write sentences in the test itself

Allowing nonverbal communication

Applicants may be unable to speak sufficiently to respond to questions but may be able to communicate in non-verbal ways

Providing English sign language interpreters

Deaf or hard of hearing applicants may need a sign language interpreter to complete the tests

1. Providing Reading Test in Large Print

An officer should provide the current reading naturalization test version in large print for applicants who are partially blind (have low vision). [8] Officers may photocopy the current versions of the test into larger print or increase the font electronically.

2. Oral Writing Test

An officer should administer the writing portion of the naturalization test orally for applicants with physical impairments, which cause limited or no use of their hands in a way as to preclude the applicant’s ability to write. The applicant may satisfy the writing requirements by spelling out the words from the writing test.

3. Allowing Nonverbal Communication

An officer may accept forms of nonverbal communication, such as blinking, head shaking or nodding, tapping, or other effective forms of nonverbal communication during the naturalization examination. The officer should also allow the applicant to point to answers on the application and allow the applicant to write out the answers to the civics test if the applicant is not able to communicate verbally. Prior to the start of the naturalization examination, the officer, the applicant, and the applicant’s representative (if any) should agree to the form of communication.

4. Providing Sign Language Interpreters

In determining what type of accommodation is necessary for deaf or hard of hearing applicants, USCIS gives primary consideration to the requests of the person with a disability.

Unless the applicant chooses to bring his or her own English sign language interpreter, the field office must provide an English sign language interpreter for a deaf or hard of hearing applicant upon his or her request. [9] If an applicant qualifies for an exception to the English requirement, the sign language interpreter does not need to sign in English. See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

The officer should use any communication aids for the deaf or hard of hearing where available, permit the applicant to read lips, and allowing the applicant to answer the officer’s questions in writing, as needed.

C. Accommodations for the Oath of Allegiance

A disability or medical impairment may make it difficult for some applicants to take the Oath of Allegiance at the oath ceremony. The table below lists examples of accommodations to the Oath of Allegiance. The paragraphs that follow the table provide further guidance on each accommodation. Some applicants may qualify for a waiver of the Oath of Allegiance. [10] See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

Accommodations for the Oath of Allegiance

Accommodation

Explanation

Simplifying language

for assent to the oath

Applicants with disabilities may need simpler language to show they assent to the oath

Expedited scheduling for oath

Applicants with disabilities may be unable to attend a later ceremony because of their condition

Providing sign language interpreter at oath

Deaf or hard of hearing applicants may need a sign language interpreter to participate in the ceremony

Off-site administration of oath

Applicants with disabilities may be unable to attend the court or field office ceremony because of their condition

1. Simplifying Language for Assent to the Oath

An officer may question the applicant about the Oath of Allegiance in a clear, slow manner and in simplified language if the applicant presents difficulty understanding questions regarding the oath. This approach allows the applicant to understand and assent to the Oath of Allegiance and understand that he or she is becoming a U.S. citizen.

2. Expedited Scheduling for Oath

A field office should expedite administration of the Oath of Allegiance for an applicant who is unable to attend a ceremony at a later time because of his or her medical impairment. The expedited process may include a ceremony on the same day or an off-site visit.

3. Providing Sign Language Interpreter at Oath

A field office should provide an English sign language interpreter for an applicant who is deaf or hard of hearing or permit the applicant to use his or her own interpreter during an administrative oath ceremony or for a judicial ceremony where a court is unable to provide an English sign language interpreter.

4. Off-Site Administration of Oath

A field office should administer the Oath of Allegiance immediately following the off-site examination for an applicant who is unable to attend because of his or her medical condition. Some applicants may have appeared at the field office for the examination, but due to a deteriorating condition are unable to attend the oath ceremony. In such cases, an off-site visit may be scheduled to administer the Oath of Allegiance.

Footnotes

1.

The lists of accommodations in this chapter are not exhaustive. USCIS determines and provides accommodations on a case-by-case basis.

 

2.

If an applicant qualifies for an exception to the English requirement, the sign language interpreter does not need to sign in English. See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

 

3.

Contact the Registry of Interpreters for the Deaf (RID) at 703-838-0030 (voice), 703-838-0459 (TTY), or use RID's searchable interpreter agency referral database.

 

4.

See 8 CFR 335.2.

 

5.

See Part J, Oath of Allegiance [12 USCIS-PM J].

 

6.

See INA 335(b).

 

7.

See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2]. See INA 312(b). See 8 CFR 312.1(b) and 8 CFR 312.2(b).

 

8.

Officers may photocopy the current versions of the test into larger print or increase the font electronically.

 

9.

If an applicant qualifies for an exception to the English requirement, the sign language interpreter does not need to sign in English. See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2].

 

10.

See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

 

Part D - General Naturalization Requirements

Chapter 1 - Purpose and Background

A. Purpose

Naturalization is the conferring of U.S. citizenship after birth by any means whatsoever. [1] See INA 101(a)(23). There are various ways a foreign citizen or national may become a U.S. citizen through the process of naturalization. This chapter addresses the general naturalization requirements. [2] See INA 316. See relevant parts in Volume 12 [12 USCIS-PM] for other naturalization provisions and requirements.

The applicant has the burden of establishing by a preponderance of the evidence that he or she meets the requirements for naturalization.

B. General Eligibility Requirements

The following are the general naturalization requirements that an applicant must meet in order to become a U.S. citizen: [3] See INA 316.

General Eligibility Requirements for Naturalization

The applicant must be age 18 or older at the time of filing for naturalization

The applicant must be a lawful permanent resident (LPR) for at least five years before being eligible for naturalization

The applicant must have continuous residence in the United States as an LPR for at least five years immediately preceding the date of filing the application and up to the time of admission to citizenship

The applicant must be physically present in the United States for at least 30 months out of the five years immediately preceding the date of filing the application

The applicant must have lived within the state or USCIS district with jurisdiction over the applicant’s place of residence for at least three months prior to the date of filing

The applicant must demonstrate good moral character for five years prior to filing for naturalization, and during the period leading up to the administration of the Oath of Allegiance

The applicant must have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the United States during all relevant periods under the law

The applicant must be able to read, write, and speak and understand English and have knowledge and an understanding of U.S. history and government

C. Legal Authorities

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

Footnotes

1.

See INA 101(a)(23).

 

2.

See INA 316. See relevant parts in Volume 12 [12 USCIS-PM] for other naturalization provisions and requirements.

 

3.

See INA 316.

 

Chapter 2 - Lawful Permanent Resident (LPR) Admission for Naturalization

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] See INA 101(a)(20) and INA 334(b). See 8 CFR 316.2(a)(2). 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] See INA 318. See Matter of Koloamatangi, 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).

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] See Chapter 3, Continuous Residence [12 USCIS-PM D.3]. though the applicant may file his or her application up to 90 days before reaching the five-year continuous residence period. [4] See Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

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. [5] See INA 245(b). Most applicants applying for adjustment of status become LPRs on the date USCIS approves the application. [6] 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].

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. [7] See Section 1 of the Cuban Adjustment Act, Pub. L. 89-732, 80 Stat. 1161, 1161 (November 2, 1966). See Matter of Carrillo, 25 I&N Dec. 99 (BIA 2009). A refugee is generally considered an LPR as of the date of entry into the United States. [8] See INA 209(a)(2). 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. [9] See 8 CFR 1245.7(e). 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. [10] See INA 209(b). See Volume 7, Adjustment of Status [7 USCIS-PM].

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 [11] See INA 316(a). must have met all of the applicable requirements of the conditional residence provisions. [12] See INA 216. 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. [13] See INA 216 and INA 318. Unless USCIS approves the applicant’s Petition to Remove Conditions on Residence (Form I-751), the applicant remains ineligible for naturalization. [14] 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.

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

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 [16] 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. 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. [17] See INA 101(a)(20).

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

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. [19] See INA 264(e). 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. [20] See Section A, Lawful Permanent Resident (LPR) at Time of Filing and Naturalization [12 USCIS-PM D.2(A)].

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, 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.

See INA 245(b).

 

6.

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].

 

7.

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

 

8.

See INA 209(a)(2).

 

9.

See 8 CFR 1245.7(e).

 

10.

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

 

11.

See INA 316(a).

 

12.

See INA 216.

 

13.

See INA 216 and INA 318.

 

14.

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.

 

15.

See INA 101(a)(29) and INA 308.

 

16.

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.

 

17.

See INA 101(a)(20).

 

18.

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

 

19.

See INA 264(e).

 

20.

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

 

Chapter 3 - Continuous Residence

A. Continuous Residence Requirement

An applicant for naturalization under the general provision [1] See INA 316(a). must have resided continuously in the United States after his or her lawful permanent resident (LPR) admission for at least five years prior to filing the naturalization application and up to the time of naturalization. An applicant must also establish that he or she has resided in the state or service district having jurisdiction over the application for three months prior to filing. [2] See INA 316(a). See Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

The concept of continuous residence involves the applicant maintaining a permanent dwelling place in the United States over the period of time required by the statute. The residence in question “is the same as that alien’s domicile, or principal actual dwelling place, without regard to the alien’s intent, and the duration of an alien’s residence in a particular location measured from the moment the alien first establishes residence in that location.” [3] See 8 CFR 316.5(a). Accordingly, the applicant’s residence is generally the applicant’s actual physical location regardless of his or her intentions to claim it as his or her residence.

Certain classes of applicants may be eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for an exemption from the continuous residence requirement altogether. [4] See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5]. These classes of applicants include certain military members and certain spouses of U.S. citizens. [5] See Part I, Military Members and their Families [12 USCIS-PM I].

The requirements of “continuous residence” and “physical presence” are interrelated but are different requirements. Each requirement must be satisfied (unless otherwise specified) in order for the applicant to be eligible for naturalization. [6] See Chapter 4, Physical Presence [12 USCIS-PM D.4].

B. Maintenance of Continuous Residence following LPR Status

USCIS will consider the entire period from the LPR admission until the present when determining an applicant’s compliance with the continuous residence requirement.

An order of removal terminates the applicant's status as an LPR and therefore disrupts the continuity of residence for purposes of naturalization. However, an applicant who has been readmitted as an LPR after a deferred inspection or by an immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. [7] See 8 CFR 316.5(c)(3) and 8 CFR 316.5(c)(4).

Other examples that may raise a rebuttal presumption that an applicant has abandoned his or her LPR status include cases where there is evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability or fails to file either federal or state income tax returns because he or she considers himself or herself to be a non-resident alien. [8] See 8 CFR 316.5(c)(2).

C. Breaks in Continuous Residence

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization. [9] See INA 316(b).

Absences of more than 6 months but less than one year; and

Absences of one year or more.

An officer may also review whether an applicant with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. In some cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time. [10] See 8 CFR 316.5(a). See Chapter 3, Continuous Residence, Section A, Continuous Residence Requirements [12 USCIS-PM D.3(A)].

1. Absence of More than Six Months (but Less than One Year)

An absence of more than six months [more than 181 days but less than one year (less than 365 days)] during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship. [11] See 8 CFR 316.5(c)(1) .

An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence.

An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence: [12] See 8 CFR 316.5(c)(1)(i).

The applicant did not terminate his or her employment in the United States or obtain employment while abroad.

The applicant’s immediate family remained in the United States.

The applicant retained full access to his or her United States abode.

2. Absence of One Year or More

An absence from the United States for a continuous period of one year or more (365 days or more) during the period for which continuous residence is required will break the continuity of residence. This applies whether the absence takes place prior to or after filing the naturalization application. [13] See INA 316(b).

The naturalization application of a person who is subject to the continuous residence requirement must be denied for failure to meet the continuous residence requirements if the person has been continuously absent for a period of one year or more without qualifying for the exception benefits of INA 316(b). An applicant who is absent for one year or more to engage in qualifying employment abroad may be permitted to preserve his or her residence. [14] See Section D, Preserving Residence for Naturalization (Form N-470) [12 USCIS-PM D.3(D)].

3. Eligibility after Break in Residence

An applicant who is required to establish continuous residence for at least 5 years [15] See INA 316(a). and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement [16] See INA 319(a). may apply two years and one day after returning to the United States to resume permanent residence. [17] See 8 CFR 316.5(c)(1)(ii).

D. Preserving Residence for Naturalization (Form N-470)

Certain applicants [18] See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5], for classes of applicants eligible to preserve residence. may seek to preserve their residence for an absence of one year or more to engage in qualifying employment abroad. [19] The applicant may also need to apply for a reentry permit to be permitted to enter the United States. Such applicants must file an Application to Preserve Residence for Naturalization Purposes (Form N-470) in accordance with the form instructions.

In order to qualify, the following criteria must be met:

The applicant must have been physically present in the United States as an LPR for an uninterrupted period of at least one year prior to working abroad.

The application may be filed either before or after the applicant’s employment begins, but before the applicant has been abroad for a continuous period of one year. [20] See 8 CFR 316.5(d).

In addition, the applicant must have been:

Employed with or under contract with the U.S. government or an American institution of research [21] See 8 CFR 316.20. See www.uscis.gov/AIR for lists of recognized organizations. recognized as such by the Attorney General;

Employed by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof if more than 50 percent of its stock is owned by an American firm or corporation; or

Employed by a public international organization of which the United States is a member by a treaty or statute and by which the applicant was not employed until after becoming an LPR. [22] See INA 316(b). See 8 CFR 316.20.

The applicant’s spouse and dependent unmarried sons and daughters are also entitled to such benefits during the period when they were residing abroad as dependent members of the principal applicant’s household. The application’s approval notice will include the applicant and any dependent family members who were also granted the benefit.

The approval of an application to preserve residence does not relieve an applicant (or any family members) from any applicable required period of physical presence, unless the applicant was employed by, or under contract with, the U.S. government. [23] See INA 316(c). See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5].

In addition, the approval of an application to preserve residence does not guarantee that the applicant (or any family members) will not be found, upon returning to the United States, to have lost LPR status through abandonment. USCIS may find that an applicant who claimed special tax exemptions as a nonresident alien to have lost LPR status through abandonment. The applicant may overcome that presumption with acceptable evidence establishing that he or she did not abandon his or her LPR status. [24] See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). In removal proceedings, the Department of Homeland Security bears the burden of proving abandonment by clear and convincing evidence. But if the probative evidence is sufficient to meet that standard of proof, approval of the application to preserve residence, by itself, would not preclude a finding of abandonment.

Approval of an application to preserve residence also does not relieve the LPR of the need to have an appropriate travel document when the LPR seeks to return to the United States. [25] See INA 212(a)(7)(A). A Permanent Resident Card (PRC) card, generally, is acceptable as a travel document only if the person has been absent for less than one year. [26] See 8 CFR 211.1(a)(2). If an LPR expects to be absent for more than one year, the LPR should also apply for a reentry permit. The LPR must actually be in the United States when he or she applies for a reentry permit. [27] See 8 CFR 223.2(b)(1).

E. Residence in the Commonwealth of the Northern Mariana Islands

As of November 28, 2009, the Commonwealth of the Northern Mariana Islands (CNMI) is defined as a state in the United States for naturalization purposes. [28] See INA 101(a)(36) and INA 101(a)(38). See 48 U.S.C. 1806(a) and 48 U.S.C. 1806(f). See Section 705(b) of the Consolidated Natural Resources Act of 2008 (CNRA), Pub. L. 110-229, 122 Stat. 754, 867 (May 8, 2008) (48 U.S.C. 1806 note). Previously, residence in the CNMI only counted as residence in the United States for naturalization purposes for an alien who was an immediate relative of a U.S. citizen residing in the CNMI.

All other noncitizens, including any non-immediate relative LPRs, were considered to be residing outside of the United States for immigration purposes. Therefore, some LPRs residing in the CNMI, before the Consolidated Natural Resources Act of 2008 (CNRA) was enacted, were considered to have abandoned their lawful permanent resident status if they continuously lived in the CNMI.

Under the current law, USCIS no longer considers lawful permanent residents to have abandoned their LPR status solely by residing in the CNMI. This provision is retroactive and provides for the restoration of permanent resident status. However, the provision did not provide that the residence would count towards the naturalization continuous and physical presence requirements. Therefore, USCIS will only count residence in the CNMI on or after November 28, 2009, as continuous residence within the United States for naturalization purposes. [29] See Section 705(c) of the CNRA, Pub. L. 110-229, 122 Stat. 754, 867 (May 8, 2008) (48 U.S.C. 1806 note). See Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012).

F. Documentation and Evidence

Mere possession of a PRC for the period of time required for continuous residence does not in itself establish the applicant’s continuous residence for naturalization purposes. The applicant must demonstrate actual maintenance of his or her principal dwelling place, without regard to intent, in the United States through testimony and documentation.

For example, a “commuter alien” may have held and used a PRC [30] See 8 CFR 211.5. for seven years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period.

USCIS will review all of the relevant records to determine whether the applicant has met the required period of continuous residence. The applicant's testimony will also be considered to determine whether the applicant met the required period of continuous residence.

Footnotes

1.

See INA 316(a).

 

2.

See INA 316(a). See Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

 

3.

See 8 CFR 316.5(a).

 

4.

See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5].

 

5.

See Part I, Military Members and their Families [12 USCIS-PM I].

 

6.

See Chapter 4, Physical Presence [12 USCIS-PM D.4].

 

7.

See 8 CFR 316.5(c)(3) and 8 CFR 316.5(c)(4).

 

8.

See 8 CFR 316.5(c)(2).

 

9.

See INA 316(b).

 

10.

See 8 CFR 316.5(a). See Chapter 3, Continuous Residence, Section A, Continuous Residence Requirements [12 USCIS-PM D.3(A)].

 

11.

See 8 CFR 316.5(c)(1) .

 

12.

See 8 CFR 316.5(c)(1)(i).

 

13.

See INA 316(b).

 

14.

See Section D, Preserving Residence for Naturalization (Form N-470) [12 USCIS-PM D.3(D)].

 

15.

See INA 316(a).

 

16.

See INA 319(a).

 

17.

See 8 CFR 316.5(c)(1)(ii).

 

18.

See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5], for classes of applicants eligible to preserve residence.

 

19.

The applicant may also need to apply for a reentry permit to be permitted to enter the United States.

 

20.

See 8 CFR 316.5(d).

 

21.

See 8 CFR 316.20. See www.uscis.gov/AIR for lists of recognized organizations.

 

22.

See INA 316(b). See 8 CFR 316.20.

 

23.

See INA 316(c). See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5].

 

24.

See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). In removal proceedings, the Department of Homeland Security bears the burden of proving abandonment by clear and convincing evidence. But if the probative evidence is sufficient to meet that standard of proof, approval of the application to preserve residence, by itself, would not preclude a finding of abandonment.

 

25.

See INA 212(a)(7)(A).

 

26.

See 8 CFR 211.1(a)(2).

 

27.

See 8 CFR 223.2(b)(1).

 

28.

See INA 101(a)(36) and INA 101(a)(38). See 48 U.S.C. 1806(a) and 48 U.S.C. 1806(f). See Section 705(b) of the Consolidated Natural Resources Act of 2008 (CNRA), Pub. L. 110-229, 122 Stat. 754, 867 (May 8, 2008) (48 U.S.C. 1806 note).

 

29.

See Section 705(c) of the CNRA, Pub. L. 110-229, 122 Stat. 754, 867 (May 8, 2008) (48 U.S.C. 1806 note). See Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012).

 

30.

See 8 CFR 211.5.

 

Chapter 4 - Physical Presence

A. Physical Presence Requirement

An applicant for naturalization is generally required to have been physically present in the United States for at least half the time for which his or her continuous residence is required. Applicants for naturalization under INA 316(a) are required to demonstrate physical presence in the United States for at least 30 months (at least 913 days) before filing the application. [1] See INA 316(a). See 8 CFR 316.2.

Physical presence refers to the number of days the applicant must physically be present in the United States during the statutory period up to the date of filing for naturalization. The continuous residence [2] See Chapter 3, Continuous Residence [12 USCIS-PM D.3]. and physical presence requirements are interrelated but each must be satisfied for naturalization.

USCIS will count the day that an applicant departs from the United States and the day he or she returns as days of physical presence within the United States for naturalization purposes. [3] USCIS will only count residence in the Commonwealth of the Northern Mariana Islands on or after November 28, 2009, as time counted for physical presence within the United States for naturalization purposes.

B. Documentation and Evidence

Mere possession of a Permanent Resident Card (PRC) for the period of time required for physical presence does not in itself establish the applicant’s physical presence for naturalization purposes. The applicant must demonstrate actual physical presence in the United States through documentation. USCIS will review all of the relevant records to assist with the determination of whether the applicant has met the required period of physical presence. The applicant's testimony will also be considered in determining whether the applicant met the required period of physical presence.

Footnotes

1.

See INA 316(a). See 8 CFR 316.2.

 

2.

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

 

3.

USCIS will only count residence in the Commonwealth of the Northern Mariana Islands on or after November 28, 2009, as time counted for physical presence within the United States for naturalization purposes.

 

Chapter 5 - Modifications and Exceptions to Continuous Residence and Physical Presence

Certain classes of applicants may be eligible for a reduced period of continuous residence and physical presence. Certain applicants may also be eligible to count time residing abroad as residence and physical presence in the United States for naturalization purposes.

Other applicants may be exempt from the residence or physical presence requirement, or both. Although not required in all cases, applicants are generally required to have been “physically present and residing within the United States for an uninterrupted period of at least one year” at some time after becoming a lawful permanent resident (LPR) and before filing to qualify for an exemption.

A. Qualifying Employment Abroad

The table below serves as a quick reference guide on certain continuous residence and physical presence provisions for persons residing abroad under qualifying employment. The paragraphs that follow the table provide further guidance on each class of applicant.

Continuous Residence and Physical Presence

for Qualifying Employment Abroad

Employer or Vocation

Provision

Continuous Residence

Physical Presence

U.S. government or contractor

INA 316(b)

INA 316(c)

Preserves residence through N-470 process

Exempt

through N-470 process

American institution of research

INA 316(b)

INA 316(c)

Preserves residence through N-470 process

Must meet regular

statutory requirement

American firm

INA 316(b)

INA 316(c)

Preserves residence through N-470 process

Must meet regular

statutory requirement

Media organizations

INA 319(c)

Exempt

Interpreter, translator, or security-related position (executive or manager)

Sec. 1059(e) of Pub. L. 109-163

Entire period abroad may count as continuous residence and physical presence in United States if engaged in qualifying employment for any portion of period abroad

Religious vocation

INA 317

Time residing abroad in religious vocation may count as residence and physical presence in United States

1. Employee of U.S. Government or Specified Entities

LPRs who have been continuously physically present in the United States for at least one year before filing an application to preserve residence and who obtain approval of the application from USCIS for employment by or contract with the U.S. government abroad will not break the continuity of their residence during such time abroad. [1] Any Peace Corps personal service contractor (PSC) who entered into a contract with the Peace Corps on or after November 21, 2011 is a U.S. government employee under the Immigration and Nationality Act (INA). See the Kate Puzey Peace Corps Volunteer Protection Act of 2011 (Puzey Act), Pub. L. 112-57 (November 21, 2011), 22 U.S.C. 2509(a)(5), amending Section 10(a)(5) of the Peace Corps Act, Pub. L. 87-293 (September 22, 1961), 22 U.S.C. 3901. Prior to enactment of the Puzey Act, PSCs were not considered U.S. government employees. Such persons are exempt from the physical presence requirement. [2] See INA 316(b) and INA 316(c). Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of continuous physical presence at any time prior to applying for naturalization and not just before filing the application to preserve residence. [3] See INA 316(c).

LPRs who have been continuously physically present in the United States for at least one year before filing an application to preserve residence and who obtain approval of the application from USCIS for employment abroad by an American institution of research recognized as such by the Attorney General (now DHS Secretary) or by an American firm [4] USCIS has adopted the AAO decision in Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). The decision states that under INA 316(b), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated and trades its stock exclusively on U.S. Stock Exchange markets. If the applicant is unable to meet this qualification, then he or she must meet the requirements under Matter of Warrach, 17 I&N Dec. 285, 286-287 (Reg. Comm. 1979). USCIS then determines the nationality of the corporation by reviewing whether more than 50 percent is owned by U.S. citizens. The applicant must establish this by a preponderance of the evidence. engaged in development of U.S. foreign trade and commerce or its subsidiary, or a public international organization, will not break the continuity of their residence during such time abroad. Such applicants are subject to the physical presence requirement. [5] See INA 316(b) and INA 316(c). See 8 CFR 316.20. See www.uscis.gov/AIR for a list of recognized organizations.

Only applicants who are employed by or under contract with the U.S. government may be exempt from the physical presence requirements. All other applicants who are eligible to preserve their residence remain subject to the physical presence requirement.

The applicant’s spouse and dependent unmarried sons and daughters, included in the application, are entitled to the same benefits for the period during which they were residing abroad with the applicant. [6] See INA 316(b)(2). See 8 CFR 316.5(d)(1)(ii).

2. Employee of Certain Media Organizations Abroad

An applicant for naturalization employed by a U.S. incorporated nonprofit communications media organization that disseminates information significantly promoting United States interests abroad, that is so recognized by the Secretary of Homeland Security, is exempt from the continuous residence and physical presence requirements if:

The applicant files the application for naturalization while still employed, or within six months of termination of employment;

The applicant has been continuously employed with the organization for at least five years after becoming an LPR;

The applicant is within the United States at the time of naturalization; and

The applicant declares a good faith intention to take up residence within the United States immediately upon termination of employment. [7] See INA 319(c). See 8 CFR 319.4.

3. Employed as an Interpreter, Translator, or Security-Related Position (Executive or Manager) [8] See Section 1059(e) of the National Defense Authorization Act of 2006, Pub. L. 109-163 [8 U.S.C. 1101 Note] (January 6, 2006), as amended. The subsection ‘(e)’ provision relating to naturalization was added to Section 1059 on June 15, 2007. The amendments state that certain persons do not break the continuity of their residence in the United States for naturalization purposes during time abroad if employed abroad by, or under contract with, the Chief of Mission (Department of State) or by the U.S. armed forces as an interpreter or translator in Iraq or Afghanistan. See Pub. L. 110-36 (June 15, 2007). On December 28, 2012, Section 1059(e) was further amended by adding certain security-related positions (in an executive or managerial capacity), in addition to interpreters and translators, as types of qualifying employment. The amendments also removed the geographical limitation of qualifying employment within Iraq or Afghanistan. See Pub. L. 112-227 (December 28, 2012).

Time Abroad as Continuous Residence and Physical Presence in the United States

An applicant’s time employed abroad by, or under contract with, the Chief of Mission (Department of State) or by the U.S. armed forces as an interpreter, translator, or in a security-related position in an executive or managerial capacity [9] See INA 101(a)(44)(A) and INA 101(a)(44)(B) for statutory definitions of the terms “managerial capacity” and “executive capacity.” See 8 CFR 204.5(j)(2), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). See Adjudicator’s Field Manual, Chapter 22.2(i)(3)(D) – (G) for further guidance on managerial and executive capacity and the evaluation of such positions. does not break any period for which continuous residence or physical presence in the United States is required for naturalization. The period abroad under such employment is treated as a period of residence and physical presence in the United States for naturalization purposes.

This benefit commonly referred to as the “section 1059(e)” provision only applies to the continuous residence and physical presence naturalization requirements. Applicants must still meet all other requirements for naturalization. The applicant has the responsibility of providing all documentation to establish eligibility. [10] Pub. L. 110-36 added Section 1059(e) to the National Defense Authorization Act for Fiscal Year 2006, which added the interpreter and translator provisions.

Qualifying Employment Abroad

In order to count time abroad as continuous residence and physical presence in the United States for purposes of naturalization under the “section 1059(e)” provision, the applicant must meet all of the following requirements during such time abroad:

The applicant must be:

Employed by the Chief of Mission or the U.S. armed forces;

Under contract with the Chief of Mission or the U.S. armed forces; or

Employed by a firm or corporation under contract with the Chief of Mission or the U.S. armed forces;

The applicant must be employed as:

An interpreter;

Translator; or

In a security-related position in an executive or managerial capacity; and

The applicant must have spent at least a portion of the time abroad working directly with the Chief of Mission or the U.S. armed forces.

Security-Related Position Must be in an Executive or Managerial Capacity [11] See INA 101(a)(44)(A) and INA 101(a)(44)(B) for statutory definitions of the terms “managerial capacity” and “executive capacity.” See 8 CFR 204.5(j)(2), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). See Adjudicator’s Field Manual, Chapter 22.2(i)(3)(D) – (G) for further guidance on managerial and executive capacity and the evaluation of such positions. See Foreign Affairs Manual (FAM), 9 FAM 402.12, Intracompany Transferees.

An applicant who was in a security-related position must have been in an executive or managerial capacity under such employment to qualify for the section 1059(e) benefits. USCIS uses the same definitions and general considerations that apply to other employment-based scenarios in the immigration context when determining whether an applicant worked in an executive or managerial capacity.

In general, an executive or managerial capacity requires a high level of authority and a broad range of job responsibilities. Managers and executives plan, organize, direct, and control an organization’s major functions and work through other employees to achieve the organization’s goals. The duties of the security-related position must primarily be of an executive or managerial nature, and a majority of the executive’s or manager’s time must be spent on duties relating to policy or operational management. This does not preclude the executive or manager from regularly applying his or her professional expertise to functions that are not executive or managerial in nature.

To be employed in an “executive capacity” means an assignment within an organization in which the employee primarily:

Directs the management of the organization or a major component or function of the organization;

Establishes the goals and policies of the organization, component, or function;

Exercises wide latitude in discretionary decision-making; and

Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. [12] See INA 101(a)(44)(B). See 8 CFR 204.5(j)(2). See 8 CFR 214.2(l)(1)(ii)(C).

To be employed in a “managerial capacity” means an assignment within an organization in which the employee primarily:

Manages the organization, or a department, subdivision, function, or component of the organization;

Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. [13] See INA 101(a)(44)(A). See 8 CFR 204.5(j)(2). See 8 CFR 214.2(l)(1)(ii)(B).

USCIS does not deem an applicant to be an executive or manager simply because he or she has such a title in an organization or because the applicant periodically directs the organization as the owner or sole managerial employee. The focus is on the applicant’s primary duties. In this regard, there must be sufficient staff, such as contract employees or others, to perform the day-to-day operations of the organization in order to enable the applicant to be primarily employed in an executive or managerial function. [14] See INA 101(a)(44)(A) and INA 101(a)(44)(B) for statutory definitions of the terms “managerial capacity” and “executive capacity.” See 8 CFR 204.5(j)(2), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). See Adjudicator’s Field Manual, Chapter 22.2(i)(3)(D) – (G) for further guidance on managerial and executive capacity and the evaluation of such positions. See 9 FAM 402.12, Intracompany Transferees.

USCIS does not consider a person to be acting in a managerial or executive capacity merely on the basis of the number of employees that the person supervises. USCIS takes into account the reasonable needs of the organization with regard to the overall purpose and stage of development of the organization in cases where staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity. [15] See INA 101(a)(44)(C).

Applicable Period of Absence

Section 1059(e) benefits are available for an absence from the United States when an applicant is employed in a qualifying position and has worked directly with the Chief of Mission or the U.S. armed forces for any period of time during that absence. However, if the applicant spent part of that time abroad in employment other than the specified qualifying employment, then the applicant does not receive credit for that part of the time.

Other employment abroad, or employment as an interpreter, translator, or in a security-related position (as described above) by an entity other than the Chief of Mission or the U.S. armed forces, or under contract with them, does not provide a benefit to the applicant. Such an applicant would still be required to meet the continuous residence and physical presence requirements unless the applicant qualified for the preservation of his or her residence (through the N-470 process). [16] See INA 316(b) and INA 316(c). Certain applicants who meet the requirements of INA 316(b) to preserve residence may also qualify for benefits under INA 316(c) dealing with physical presence. See Section A, Qualifying Employment Abroad [12 USCIS-PM D.5(A)].

4. Employed Abroad in Religious Vocation

LPRs who go abroad temporarily for the purpose of performing the ministerial or priestly functions of a religious denomination, or of serving as a missionary, [17] See INA 317. A missionary is a member of a religious group sent into an area to do religious teaching or evangelism. See Matter of Rhee, 16 I&N Dec. 607 (BIA 1978) (The term “minister” means a person duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties usually performed by a regularly ordained pastor or clergy of such denomination). See 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3). brother, nun, or sister for a religious denomination or interdenominational mission having a bona fide organization within the United States, may treat such time abroad as continuous residence and physical presence in the United States for naturalization purposes.

LPRs must have been physically present and residing within the United States for an uninterrupted period of at least one year in order to qualify. [18] See INA 317.

B. Qualifying Military Service

Applicants with certain types of military service may be eligible for a modification or exception to the continuous residence and physical presence requirements for naturalization.

See Part I, Military Members and their Families, [19] See 12 USCIS-PM I. for modifications and exceptions for applicants with certain types of military service, to include:

One Year of Military Service – INA 328;

Service during Hostilities – INA 329;

Service in WWII Certain Natives of Philippines – Section 405 of IMMACT90; and

Members who Enlisted under Lodge Act – Act of June 30, 1950, 64 Stat. 316.

C. Spouse, Child, or Parent of Certain U.S. Citizens

The spouse, child, or parent of certain U.S. citizens may be eligible for a modification or exception to the continuous residence and physical presence requirements for naturalization.

See Part G, Spouses of U.S. Citizens, [20] See 12 USCIS-PM G. for modifications and exceptions for spouses of certain U.S. citizens, to include:

Spouse of U.S. Citizen for 3 Years INA 319(a);

Spouse of Military Member Serving Abroad INA 319(e);

Surviving Spouse of U.S. Citizen INA 319(d); and

Surviving Spouse Person Conducting U.S. Intelligence. [21] See Section 305 of the Intelligence Authorization Act of 1997, Pub. L. 104-293, 110 Stat. 3461, 3465 (October 11, 1996).

See Part H, Children of U.S. Citizens, [22] See 12 USCIS-PM H. for modifications and exceptions to the continuous residence and physical presence requirements for children of certain U.S. citizens.

Child of U.S. Government Employee (Abroad) INA 320;

Surviving Child of U.S. Citizen INA 319(d); and

Surviving Child of Person Conducting U.S. Intelligence. [23] See Section 305 of the Intelligence Authorization Act of 1997, Pub. L. 104-293, 110 Stat. 3461, 3465 (October 11, 1996).

These parts will also include information on modifications and exceptions to the continuous residence and physical presence requirements for surviving parents of certain U.S. citizens.

D. Other Special Classes of Applicants

The table below serves as a quick reference guide to certain continuous residence and physical presence provisions for special classes of applicants. The paragraphs that follow the table provide further guidance on each class of applicant.

Continuous Residence and Physical Presence

for Special Classes of Applicants

Applicant

Provision

Continuous Residence

Physical Presence

Citizens who lost citizenship through foreign military service

INA 327

Exempt

Noncitizen nationals

INA 325

Time residing in outlying possession may count as residence and physical presence in the United States

Service on certain U.S. vessels

INA 330

Time in service on certain U.S. vessels may count as residence and physical presence in the United States

Service contributing to national security

INA 316(f)

Exempt

1. Citizens who Lost U.S. Citizenship through Foreign Military Service [24] See INA 327.

Former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship. The applicant must be admitted as an LPR. However, the applicant is exempt from the continuous residence and physical requirements for naturalization. [25] See 8 CFR 327.1(f).

2. Noncitizen Nationals of the United States

The time a noncitizen national of the United States spends within any of the outlying possessions of the United States counts as continuous residence and physical presence in the United States. [26] See INA 325. See 8 CFR 325.2. Unless otherwise provided under INA 301, the following persons are nationals, but not citizens of the United States at birth: (1) a person born in an outlying possession of the United States on or after the date of formal acquisition of such possession; (2) a person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person; (3) a person of unknown parentage found in an outlying possession of the United States while under the age of five years, until shown, prior to his attaining the age of twenty- one years, not to have been born in such outlying possession; and (4) a person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years: during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and at least five years of which were after attaining the age of fourteen years. See INA 101(a)(22) and INA 308.

3. Service on Certain U.S. Vessels

Any time an LPR has spent in qualifying honorable service on board a vessel operated by the United States or on board a vessel whose home port is in the United States will be considered residence and physical presence within the United States. [27] See INA 330. See 8 CFR 330.1. The qualifying service must take place within five years immediately preceding the date the applicant files for naturalization.

4. Service Contributing to National Security

The Director of Central Intelligence, the Attorney General, and the Director of USCIS may designate annually up to five persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities.” Such persons are exempted from the continuous residence and physical presence requirements. [28] See INA 316(f).

Footnotes

1.

Any Peace Corps personal service contractor (PSC) who entered into a contract with the Peace Corps on or after November 21, 2011 is a U.S. government employee under the Immigration and Nationality Act (INA). See the Kate Puzey Peace Corps Volunteer Protection Act of 2011 (Puzey Act), Pub. L. 112-57 (November 21, 2011), 22 U.S.C. 2509(a)(5), amending Section 10(a)(5) of the Peace Corps Act, Pub. L. 87-293 (September 22, 1961), 22 U.S.C. 3901. Prior to enactment of the Puzey Act, PSCs were not considered U.S. government employees.

 

2.

See INA 316(b) and INA 316(c).

 

3.

See INA 316(c).

 

4.

USCIS has adopted the AAO decision in Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). The decision states that under INA 316(b), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated and trades its stock exclusively on U.S. Stock Exchange markets. If the applicant is unable to meet this qualification, then he or she must meet the requirements under Matter of Warrach, 17 I&N Dec. 285, 286-287 (Reg. Comm. 1979). USCIS then determines the nationality of the corporation by reviewing whether more than 50 percent is owned by U.S. citizens. The applicant must establish this by a preponderance of the evidence.

 

5.

See INA 316(b) and INA 316(c). See 8 CFR 316.20. See www.uscis.gov/AIR for a list of recognized organizations.

 

6.

See INA 316(b)(2). See 8 CFR 316.5(d)(1)(ii).

 

7.

See INA 319(c). See 8 CFR 319.4.

 

8.

See Section 1059(e) of the National Defense Authorization Act of 2006, Pub. L. 109-163 [8 U.S.C. 1101 Note] (January 6, 2006), as amended. The subsection ‘(e)’ provision relating to naturalization was added to Section 1059 on June 15, 2007. The amendments state that certain persons do not break the continuity of their residence in the United States for naturalization purposes during time abroad if employed abroad by, or under contract with, the Chief of Mission (Department of State) or by the U.S. armed forces as an interpreter or translator in Iraq or Afghanistan. See Pub. L. 110-36 (June 15, 2007). On December 28, 2012, Section 1059(e) was further amended by adding certain security-related positions (in an executive or managerial capacity), in addition to interpreters and translators, as types of qualifying employment. The amendments also removed the geographical limitation of qualifying employment within Iraq or Afghanistan. See Pub. L. 112-227 (December 28, 2012).

 

9.

See INA 101(a)(44)(A) and INA 101(a)(44)(B) for statutory definitions of the terms “managerial capacity” and “executive capacity.” See 8 CFR 204.5(j)(2), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). See Adjudicator’s Field Manual, Chapter 22.2(i)(3)(D) – (G) for further guidance on managerial and executive capacity and the evaluation of such positions.

 

10.

Pub. L. 110-36 added Section 1059(e) to the National Defense Authorization Act for Fiscal Year 2006, which added the interpreter and translator provisions.

 

11.

See INA 101(a)(44)(A) and INA 101(a)(44)(B) for statutory definitions of the terms “managerial capacity” and “executive capacity.” See 8 CFR 204.5(j)(2), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). See Adjudicator’s Field Manual, Chapter 22.2(i)(3)(D) – (G) for further guidance on managerial and executive capacity and the evaluation of such positions. See Foreign Affairs Manual (FAM), 9 FAM 402.12, Intracompany Transferees.

 

12.

See INA 101(a)(44)(B). See 8 CFR 204.5(j)(2). See 8 CFR 214.2(l)(1)(ii)(C).

 

13.

See INA 101(a)(44)(A). See 8 CFR 204.5(j)(2). See 8 CFR 214.2(l)(1)(ii)(B).

 

14.

See INA 101(a)(44)(A) and INA 101(a)(44)(B) for statutory definitions of the terms “managerial capacity” and “executive capacity.” See 8 CFR 204.5(j)(2), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). See Adjudicator’s Field Manual, Chapter 22.2(i)(3)(D) – (G) for further guidance on managerial and executive capacity and the evaluation of such positions. See 9 FAM 402.12, Intracompany Transferees.

 

15.

See INA 101(a)(44)(C).

 

16.

See INA 316(b) and INA 316(c). Certain applicants who meet the requirements of INA 316(b) to preserve residence may also qualify for benefits under INA 316(c) dealing with physical presence. See Section A, Qualifying Employment Abroad [12 USCIS-PM D.5(A)].

 

17.

See INA 317. A missionary is a member of a religious group sent into an area to do religious teaching or evangelism. See Matter of Rhee, 16 I&N Dec. 607 (BIA 1978) (The term “minister” means a person duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties usually performed by a regularly ordained pastor or clergy of such denomination). See 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3).

 

18.

See INA 317.

 

19.

See 12 USCIS-PM I.

 

20.

See 12 USCIS-PM G.

 

21.

See Section 305 of the Intelligence Authorization Act of 1997, Pub. L. 104-293, 110 Stat. 3461, 3465 (October 11, 1996).

 

22.

See 12 USCIS-PM H.

 

23.

See Section 305 of the Intelligence Authorization Act of 1997, Pub. L. 104-293, 110 Stat. 3461, 3465 (October 11, 1996).

 

24.

See INA 327.

 

25.

See 8 CFR 327.1(f).

 

26.

See INA 325. See 8 CFR 325.2. Unless otherwise provided under INA 301, the following persons are nationals, but not citizens of the United States at birth: (1) a person born in an outlying possession of the United States on or after the date of formal acquisition of such possession; (2) a person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person; (3) a person of unknown parentage found in an outlying possession of the United States while under the age of five years, until shown, prior to his attaining the age of twenty- one years, not to have been born in such outlying possession; and (4) a person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years: during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and at least five years of which were after attaining the age of fourteen years. See INA 101(a)(22) and INA 308.

 

27.

See INA 330. See 8 CFR 330.1.

 

28.

See INA 316(f).

 

Chapter 6 - Jurisdiction, Place of Residence, and Early Filing

A. Three-Month Residency Requirement (in State or Service District)

In general, an applicant for naturalization must file his or her application for naturalization with the state or service district that has jurisdiction over his or her place of residence. The applicant must have resided in that location for at least three months prior to filing.

The term “state” includes the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands (CNMI). [1] See INA 101(a)(36). As of November 28, 2009, the CNMI is part of the definition of United States. See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008). See Chapter 3, Continuous Residence, Section E, Residence in the Commonwealth of the Northern Mariana Islands [12 USCIS-PM D.3(E)]. The term “service district” is defined as the geographical area over which a USCIS office has jurisdiction. [2] See 8 CFR 316.1.

The service district that has jurisdiction over an applicant’s application may or may not be located within the state where the applicant resides. In addition, some service districts may have jurisdiction over more than one state and most states contain more than one USCIS office.

In cases where an applicant changes or plans to change his or her residence after filing the naturalization application, the applicant is required to report the change of address to USCIS so that the applicant’s A-file (with application) can be transferred to the appropriate office having jurisdiction over the applicant’s new place of residence.

B. Place of Residence

The applicant’s “residence” refers to the applicant’s principal, actual dwelling place in fact, without regard to intent. [3] See INA 101(a)(33). This is the same as the applicant’s actual domicile. The duration of an applicant’s residence in a particular location is measured from the moment the applicant first establishes residence in that location. [4] See 8 CFR 316.5(a).

C. Place of Residence in Certain Cases

There are special considerations regarding the place of residence for the following applicants: [5] See 8 CFR 316.5(b).

1. Military Member

Special provisions exist for applicants who are serving or have served in the U.S. armed forces but who do not qualify for naturalization on the basis of the military service for one year. [6] See INA 328. See Part I, Military Members and their Families, Chapter 2, One Year of Military Service during Peacetime (INA 328) [12 USCIS-PM I.2].

The service member’s place of residence may be the state or service district where he or she is physically present for at least three months immediately prior to filing (or the examination if filed early);

The service member’s place of residence may be the location of the residence of his or her spouse or minor child, or both; or

The service member’s place of residence may be his or her home of record as declared to the U.S. armed forces at the time of enlistment and as currently reflected in the service member’s military personnel file.

2. Spouse of Military Member (Residing Abroad)

The spouse of a U.S. armed forces member may be eligible to count the time he or she is residing (or has resided) abroad with the service member as continuous residence and physical presence in any state or district of the United States. [7] See INA 319(e). 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 Part G, Spouses of U.S. Citizens, Chapter 3, Spouses of U.S. Citizens Residing in the United States [12 USCIS-PM G.3]. Such a spouse may consider his or her place of residence abroad as a place of residence in any state or district in the United States.

3. Students

An applicant who is attending an educational institution in a state or service district other than the applicant's home residence may apply for naturalization where that institution is located, or in the state of the applicant's home residence if the applicant is financially dependent upon his or her parents at the time of filing and during the naturalization process. [8] See 8 CFR 316.5(b)(2).

4. Commuter

A commuter must have taken up permanent residence (principal dwelling place) in the United States for the required statutory period and must meet the residency requirements to be eligible for naturalization. [9] See 8 CFR 211.5. See 8 CFR 316.5(b)(3).

5. Residence in Multiple States

If an applicant claims residence in more than one state, the residence for purposes of naturalization will be determined by the location from which the applicant’s annual federal income tax returns have been and are being filed. [10] See 8 CFR 316.5(b)(4).

6. Residence During Absences of Less than One Year

An applicant's residence during any absence abroad of less than one year will continue to be the state or service district where the applicant resided before departure. If the applicant returns to the same residence, he or she will have complied with the three-month jurisdictional residence requirement when at least three months have elapsed, including any part of the absence, from when the applicant first established that residence. [11] See 8 CFR 316.5(b)(5).

If the applicant establishes residence in a different state or service district from where he or she last resided, the applicant must reside three months at that new residence before applying in order to meet the three-month jurisdictional residence requirement. [12] See 8 CFR 316.2(a)(5).

7. Noncitizen Nationals of the United States

A noncitizen national may naturalize if he or she becomes a resident of any state and is otherwise qualified. [13] See INA 325. See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5]. Noncitizen nationals will satisfy the continuous residence and physical presence requirements while residing in an outlying possession. Such applicants must reside for three months prior to filing in a state or service district to be eligible for naturalization.

D. 90-Day Early Filing Provision (INA 334)

An applicant filing under the general naturalization provision may file his or her application up to 90 days before he or she would first meet the required 5-year period of continuous residence as an LPR. [14] See INA 334(a). See 8 CFR 334.2(b). Although an applicant may file early according to the 90 day early filing provision, the applicant is not eligible for naturalization until he or she has reached the required five-year period of continuous residence as a lawful permanent resident (LPR).

USCIS calculates the early filing period by counting back 90 days from the day before the applicant would have first satisfied the continuous residence requirement for naturalization. For example, if the applicant would satisfy the five-year continuous residence requirement for the first time on June 10, 2010 USCIS will begin to calculate the 90-day early filing period from June 9, 2010. In such a case, the earliest that the applicant is allowed to file would be March 12, 2010 (90 calendar days earlier).

In cases where an applicant has filed early and the required three month period of residence in a state or service district falls within the required five-year period of continuous residence, jurisdiction for filing will be based on the three-month period immediately preceding the examination on the application. [15] See 8 CFR 316.2(a)(5).

E. Expediting Applications from Certain Supplemental Security Income (SSI) Beneficiaries

USCIS will expedite naturalization applications filed by applicants:

Who are within one year or less of having their Supplemental Security Income (SSI) benefits terminated by the Social Security Administration (SSA); and

Whose naturalization application has been pending for four months or more from the date of receipt by USCIS.

Although USCIS will prioritize processing of these applications, each applicant is still required to meet all eligibility requirements for naturalization at the time of filing. Applicants must inform USCIS of the approaching termination of benefits by InfoPass appointment or by United States postal mail or other courier service by providing:

A cover letter or cover sheet to explain that SSI benefits will be terminated within one year or less and that their naturalization application has been pending for four months or more from the date of receipt by USCIS; and

A copy of the applicant’s most recent SSA letter indicating the termination of their SSI benefits. (The USCIS alien number must be written at the top right of the SSA letter).

Footnotes

1.

See INA 101(a)(36). As of November 28, 2009, the CNMI is part of the definition of United States. See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008). See Chapter 3, Continuous Residence, Section E, Residence in the Commonwealth of the Northern Mariana Islands [12 USCIS-PM D.3(E)].

 

2.

See 8 CFR 316.1.

 

3.

See INA 101(a)(33). This is the same as the applicant’s actual domicile.

 

4.

See 8 CFR 316.5(a).

 

5.

See 8 CFR 316.5(b).

 

6.

See INA 328. See Part I, Military Members and their Families, Chapter 2, One Year of Military Service during Peacetime (INA 328) [12 USCIS-PM I.2].

 

7.

See INA 319(e). 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 Part G, Spouses of U.S. Citizens, Chapter 3, Spouses of U.S. Citizens Residing in the United States [12 USCIS-PM G.3].

 

8.

See 8 CFR 316.5(b)(2).

 

9.

See 8 CFR 211.5. See 8 CFR 316.5(b)(3).

 

10.

See 8 CFR 316.5(b)(4).

 

11.

See 8 CFR 316.5(b)(5).

 

12.

See 8 CFR 316.2(a)(5).

 

13.

See INA 325. See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5].

 

14.

See INA 334(a). See 8 CFR 334.2(b).

 

15.

See 8 CFR 316.2(a)(5).

 

Chapter 7 - Attachment to the Constitution

A. Attachment to the Constitution

An applicant for naturalization must show that he or she has been and continues to be a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States during the statutorily prescribed period. [1] See INA 316(a). See 8 CFR 316.11. “Attachment” is a stronger term than “well disposed” and implies a depth of conviction, which would lead to active support of the Constitution. [2] See In re Shanin, 278 F. 739 (D.C. Mass. 1922).

Attachment includes both an understanding and a mental attitude including willingness to be attached to the principles of the Constitution. An applicant who is hostile to the basic form of government of the United States, or who does not believe in the principles of the Constitution, is not eligible for naturalization. [3] See Allan v. United States, 115 F.2d 804 (9th Cir. 1940).

To be admitted to citizenship, naturalization applicants must take the Oath of Allegiance in a public ceremony. At that time, an applicant declares his or her attachment to the United States and its Constitution. [4] See INA 337. See 8 CFR 337.1. See Part J, Oath of Allegiance [12 USCIS-PM J]. To be admitted to citizenship:

The applicant must understand that he or she is taking the Oath freely without any mental reservation or purpose of evasion;

The applicant must understand that he or she is sincerely and absolutely renouncing all foreign allegiance;

The applicant must understand that he or she is giving true faith and allegiance to the United States, its Constitution and laws; and

The applicant must understand that he or she is discharging all duties and obligations of citizenship including military and civil service when required by the law.

The applicant’s true faith and allegiance to the United States includes supporting and defending the principles of the Constitution by demonstrating an acceptance of the democratic, representational process established by the U.S. Constitution, and the willingness to obey the laws which result from that process. [5] The oath requirements may be modified for religious objections or waived for applicants with an inability to comprehend the oath. Prior to November 6, 2000, certain disabled applicants were precluded from naturalization because they could not personally express intent or voluntary assent to the oath requirement. However, subsequent legislation authorized USCIS to waive the oath requirements for anyone who has a medical condition constituting physical or developmental disability or mental impairment that makes him or her unable to understand or communicate an understanding of the meaning of the oath. An applicant for whom USCIS granted an oath waiver is considered to have met the requirement of attachment to the principles of the Constitution of the United States. See Pub. L. 106-448 (November 6, 2000). See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

B. Selective Service Registration

1. Males Required to Register

In general, males must register with Selective Service within 30 days of their 18th birthday but not after reaching 26 years of age. The U.S. government suspended the registration in April of 1975 and resumed it in 1980. An applicant who refused to or knowingly and willfully failed to register for Selective Service negates his disposition to the good order and happiness of the United States, attachment to the principles of the Constitution, good moral character, and willingness to bear arms on behalf of the United States. [6] See INA 316(a) and INA 337(a)(5)(A). See the Selective Training and Service Act of 1940, Pub. L. 76-783 (September 16, 1940).

Applicants may register for Selective Service at their local post office, return a Selective Service registration card received by mail, or online at the Selective Service System website. [7] See www.sss.gov. Confirmation of registration may be obtained by calling (847) 688-6888 or online at www.sss.gov. The officer may also accept other persuasive evidence presented by an applicant as proof of registration.

USCIS assists with the registration process by transmitting the appropriate data to the Selective Service System (SSS) for male applicants between the ages of 18 and 26 who apply for adjustment of status. After registering the eligible male, Selective Service will send an acknowledgement to the applicant that can be used as his official proof of Selective Service registration.

2. Failure to Register for Selective Service

USCIS will deny a naturalization application when the applicant refuses to register with Selective Service or has knowingly and willfully failed to register during the statutory period. [8] Failure to register is not a permanent bar to naturalization. The officer may request for the applicant to submit a status information letter and registration acknowledgement card before concluding that he failed to register.

The status information letter will indicate whether a requirement to register existed. The applicant must show by a preponderance of the evidence that his failure to register was not a knowing or willful act. [9] See 50 U.S.C. 3811. Failure on the part of USCIS or SSS to complete the process on behalf of the applicant, however, will not constitute a willful failure to register on the part of the applicant.

The denial notice in cases where willful failure to register is established may also show that in addition to failing to register, the applicant is not well disposed to the good order and happiness of the United States. This determination depends on the applicant’s age at the time of filing the application and up until the time of the oath:

Applicants Under 26 Years of Age

The applicant is generally ineligible.

Applicants Between 26 and 31 Years of Age

The applicant may be ineligible for naturalization. USCIS will allow the applicant an opportunity to show that he did not knowingly or willfully fail to register, or that he was not required to do so.

Applicants Over 31 Years of Age

The applicant is eligible. This is the case even if the applicant knowingly and willfully failed to register because the applicant’s failure to register would be outside of the statutory period.

3. Males Not Required to Register

The following classes of males are not required to register for Selective Service:

Males over the age of 26;

Males who did not live in the United States between the ages of 18 and 26 years;

Males who lived in the United States between the ages of 18 and 26 years but who maintained lawful nonimmigrant status for the entire period; and
​Males born after March 29, 1957 and before December 31, 1959.
[10] See Section 1-101 of Proclamation 4771 of July 2, 1980, 94 Stat. 3775. See 50 U.S.C. 3806. See Section 3(a) of the Selective Training and Service Act of 1940, Pub. L. 76-783, 54 Stat. 885, 885 (September 16, 1940). See 50 U.S.C. 3802(a).

C. Draft Evaders

In general, the law prohibits draft evaders and deserters from the U.S. armed forces during wartime from naturalizing for lack of attachment to the Constitution and favorable disposition to the good order of the United States. [11] See INA 316(a)(3).

A conviction by a court martial or a court of competent jurisdiction for a military desertion or a departure from the United States to avoid a military draft will preclude naturalization. [12] See INA 314. USCIS may obtain such information from the applicant’s testimony during the naturalization examination (interview), security checks, and from the Request for Certification of Military or Naval Service (Form N-426). [13] See Part I, Military Members and their Families [12 USCIS-PM I].

An applicant who admits to desertion during wartime, but who has not been convicted of desertion by court martial or court of competent jurisdiction may still be eligible for naturalization. [14] See State v. Symonds, 57 Me. 148 (1869). See Holt v. Holt, 59 Me. 464 (1871). See McCafferty v. Guyer, 59 Pa. 109 (1868). An applicant’s military record may list him or her as a deserter but without a final conviction.

D. Membership in Certain Organizations

The officer will review an applicant’s record and testimony during the interview on the naturalization application to determine whether he or she was ever a member of or in any way associated (either directly or indirectly) with:

The Communist Party;

Any other totalitarian party; or

A terrorist organization.

Current and previous membership in these organizations may indicate a lack of attachment to the Constitution and an indication that the applicant is not well disposed to the good order and happiness of the United States. [15] See INA 313 and INA 316. See 8 CFR 316. Membership in these organizations may also raise issues of lawful admission, good moral character, [16] See Part F, Good Moral Character [12 USCIS-PM F]. or may even render the applicant removable. [17] See INA 237(a)(4).

The burden rests on the applicant to prove that he or she has an attachment to the Constitution and that he or she is well disposed to the good order and happiness of the United States, among the other naturalization requirements. An applicant who refuses to testify or provide documentation relating to membership in such organizations has not met the burden of proof. USCIS may still deny the naturalization application under such grounds in cases where such an applicant was not removed at the end of removal proceedings. [18] See INA 313. See the Legal Decisions and Opinions of the Office of Immigration Litigation Case Summaries - No. 93-380, Price v. U.S. Immigration and Naturalization Service, seeking review of Price v. U.S. Immigration and Naturalization Service, 962 F.2d 836 (9th Cir. 1992).

1. Communist Party Affiliation

An applicant cannot naturalize if any of the following are true within 10 years immediately preceding his or her filing for naturalization and up until the time of the Oath of Allegiance:

The applicant is or has been a member of or affiliated with the Communist Party or any other totalitarian party;

The applicant is or has advocated communism or the establishment in the United States of a totalitarian dictatorship;

The applicant is or has been a member of or affiliated with an organization that advocates communism or the establishment in the United States of a totalitarian dictatorship, either through its own utterance or through any written or printed matter published by such organization;

The applicant is or has been a subversive, or a member of, or affiliated with, a subversive organization;

The applicant is knowingly publishing or has published any subversive written or printed matter, or written or printed matter advocating communism;

The applicant is knowingly circulating or has circulated, or knowingly possesses or has possessed for the purpose of circulating, subversive written or printed matter, or written or printed matter advocating communism; or

The applicant is or has been a member of, or affiliated with, any organization that publishes or circulates, or that possesses for the purpose of publishing or circulating, any subversive written or printed matter, or any written or printed matter advocating communism.

2. Exemptions to Communist Party Affiliation

The burden is on the applicant to establish eligibility for an exemption. An applicant may be eligible for naturalization if he or she establishes that:

The applicant’s membership or affiliation was involuntary;

The applicant’s membership or affiliation was without awareness of the nature or the aims of the organization, and was discontinued when the applicant became aware of the nature or aims of the organization;

The applicant’s membership or affiliation was terminated prior to his or her attaining the age of 16;

The applicant’s membership or affiliation was terminated more than 10 years prior to the filing for naturalization;

The applicant’s membership or affiliation was by operation of law; or

The applicant’s membership or affiliation was necessary for purposes of obtaining employment, food rations, or other essentials of living. [19] See INA 313(d).

Even if participating without awareness of the nature or the aims of the organization, the applicant’s participation must have been minimal in nature. The applicant must also demonstrate that membership in the covered organization was necessary to obtain the essentials of living like food, shelter, clothing, employment, and an education, which were routinely available to the rest of the population.

For purposes of this exemption, higher education qualifies as an essential of living only if the applicant can establish the existence of special circumstances which convert the need for higher education into a need as basic as the need for food or employment, and that he or she participated only to the minimal extent necessary to receive the essentials of living.

However, unless the applicant can show special circumstances that establish a need for higher education as basic as the need for food or employment, membership to obtain a college education is not excusable for obtaining an essential of living. [20] See Langhammer v. Hamilton, 194 F. Supp. 854, 857 (1961).

3. Nazi Party Affiliation

Applicants who were affiliated with the Nazi government of Germany or any government occupied by or allied with the Nazi government of Germany, either directly or indirectly, are ineligible for admission into the United States and permanently barred from naturalization. [21] See INA 212(a)(3)(E). The applicant is responsible for providing any evidence or documentation to support a claim that he or she is not ineligible for naturalization based on involvement in the Nazi Party.

4. Persecution and Genocide

An applicant who has engaged in persecution or genocide is permanently barred from naturalization because he or she is precluded from establishing good moral character. [22] See INA 101(a)(42), INA 101(f), and INA 208(b)(2)(A)(i). See Part F, Good Moral Character, Chapter 4, Permanent Bars to GMC, Section C, Persecution, Genocide, Torture, or Severe Violations of Religious Freedom [12 USCIS-PM F.4(C)]. Additionally, an applicant who engaged in persecution or genocide prior to admission as a lawful permanent resident (LPR) would have been inadmissible. Such an applicant would not have lawfully acquired LPR status in accordance with all applicable provisions and would be ineligible for naturalization. [23] See INA 318. See Chapter 2, LPR Admission for Naturalization [12 USCIS-PM D.2]. Such persons may also be deportable. [24] See INA 212(a)(3)(E).

5. Membership or Affiliation with Terrorist Organizations

Information concerning an applicant’s membership in a terrorist organization implicates national security issues. Such information is important in determining the applicant’s eligibility in terms of the good moral character and attachment requirements.

Footnotes

1.

See INA 316(a). See 8 CFR 316.11.

 

2.

See In re Shanin, 278 F. 739 (D.C. Mass. 1922).

 

3.

See Allan v. United States, 115 F.2d 804 (9th Cir. 1940).

 

4.

See INA 337. See 8 CFR 337.1. See Part J, Oath of Allegiance [12 USCIS-PM J].

 

5.

The oath requirements may be modified for religious objections or waived for applicants with an inability to comprehend the oath. Prior to November 6, 2000, certain disabled applicants were precluded from naturalization because they could not personally express intent or voluntary assent to the oath requirement. However, subsequent legislation authorized USCIS to waive the oath requirements for anyone who has a medical condition constituting physical or developmental disability or mental impairment that makes him or her unable to understand or communicate an understanding of the meaning of the oath. An applicant for whom USCIS granted an oath waiver is considered to have met the requirement of attachment to the principles of the Constitution of the United States. See Pub. L. 106-448 (November 6, 2000). See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers [12 USCIS-PM J.3].

 

6.

See INA 316(a) and INA 337(a)(5)(A). See the Selective Training and Service Act of 1940, Pub. L. 76-783 (September 16, 1940).

 

7.

See www.sss.gov.

 

8.

Failure to register is not a permanent bar to naturalization.

 

9.

See 50 U.S.C. 3811.

 

10.

See Section 1-101 of Proclamation 4771 of July 2, 1980, 94 Stat. 3775. See 50 U.S.C. 3806. See Section 3(a) of the Selective Training and Service Act of 1940, Pub. L. 76-783, 54 Stat. 885, 885 (September 16, 1940). See 50 U.S.C. 3802(a).

 

11.

See INA 316(a)(3).

 

12.

See INA 314.

 

13.

See Part I, Military Members and their Families [12 USCIS-PM I].

 

14.

See State v. Symonds, 57 Me. 148 (1869). See Holt v. Holt, 59 Me. 464 (1871). See McCafferty v. Guyer, 59 Pa. 109 (1868).

 

15.

See INA 313 and INA 316. See 8 CFR 316.

 

16.

See Part F, Good Moral Character [12 USCIS-PM F].

 

17.

See INA 237(a)(4).

 

18.

See INA 313. See the Legal Decisions and Opinions of the Office of Immigration Litigation Case Summaries - No. 93-380, Price v. U.S. Immigration and Naturalization Service, seeking review of Price v. U.S. Immigration and Naturalization Service, 962 F.2d 836 (9th Cir. 1992).

 

19.

See INA 313(d).

 

20.

See Langhammer v. Hamilton, 194 F. Supp. 854, 857 (1961).

 

21.

See INA 212(a)(3)(E).

 

22.

See INA 101(a)(42), INA 101(f), and INA 208(b)(2)(A)(i). See Part F, Good Moral Character, Chapter 4, Permanent Bars to GMC, Section C, Persecution, Genocide, Torture, or Severe Violations of Religious Freedom [12 USCIS-PM F.4(C)].

 

23.

See INA 318. See Chapter 2, LPR Admission for Naturalization [12 USCIS-PM D.2].

 

24.

See INA 212(a)(3)(E).

 

Chapter 8 - Educational Requirements

In general, applicants for naturalization must demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage. Applicants must also demonstrate a knowledge and understanding of the fundamentals of the history and principles and form of government of the United States (civics). These are the English and civics requirements for naturalization.

An applicant may be eligible for an exception to the English requirements if he or she is a certain age and has been an LPR for a certain period of time. In addition, an applicant who has a physical or developmental disability or mental impairment may be eligible for a medical exception of both the English and civics requirements. [1] See INA 312 and 8 CFR 312. See Part E, English and Civics Testing and Exceptions [12 USCIS-PM E].

Footnotes

1.

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

 

Chapter 9 - Good Moral Character

One of the requirements for naturalization is good moral character (GMC). An applicant for naturalization must show that he or she has been, and continues to be, a person of good moral character. In general, the applicant must show GMC during the five-year period immediately preceding his or her application for naturalization and up to the time of the Oath of Allegiance. Conduct prior to the five-year period may also impact whether the applicant meets the requirement. [1] See Part F, Good Moral Character [12 USCIS-PM F].

Footnotes

1.

See Part F, Good Moral Character [12 USCIS-PM F].

 

Part E - English and Civics Testing and Exceptions

Chapter 1 - Purpose and Background

A. Purpose

In general, a naturalization applicant must demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage. An applicant must also demonstrate a knowledge and understanding of the fundamentals of the history and principles and form of government of the United States (civics). These are the English and civics requirements for naturalization. [1] See INA 312. See 8 CFR 312.

B. Background

Prior to 1906, an applicant was not required to know English, history, civics, or understand the principles of the constitution to naturalize. If the court determined the applicant was a “thoroughly law-abiding and industrious man, of good moral character,” the applicant became a U.S. citizen. [2] See In re Rodriguez, 81 F. 337 (W.D. Tex. 1897). As far back as 1908, the former Immigration Service and the Courts determined that a person could not establish the naturalization requirement of showing an attachment to the Constitution unless he or she had some understanding of its provisions. [3] See In re Meakins, 164 F. 334 (E.D. Wash. 1908). See In re Vasicek, 271 F. 326 (E.D. Mo. 1921).

In 1940, Congress made amendments to include an English language requirement and certain exemptions based on age and residence, as well as a provision for questioning applicants on their understanding of the principles of the Constitution. [4] See the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1137 (October 14, 1940). In 1994, Congress enacted legislation providing an exception to the naturalization educational requirements for applicants who cannot meet the requirements because of a medical disability. Congress also amended the exceptions to the English requirement based on age and residence that are current today. [5] See the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (October 25, 1994).

On October 1, 2008, USCIS implemented a redesigned English and civics test. With this redesigned test, USCIS ensures that all applicants have the same testing experience and have an equal opportunity to demonstrate their understanding of English and civics.

C. Legal Authorities

INA 312; 8 CFR 312 – Educational requirements for naturalization

INA 316; 8 CFR 316 – General requirements for naturalization

Footnotes

1.

See INA 312. See 8 CFR 312.

 

2.

See In re Rodriguez, 81 F. 337 (W.D. Tex. 1897).

 

3.

See In re Meakins, 164 F. 334 (E.D. Wash. 1908). See In re Vasicek, 271 F. 326 (E.D. Mo. 1921).

 

4.

See the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1137 (October 14, 1940).

 

5.

See the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (October 25, 1994).

 

Chapter 2 - English and Civics Testing

A. Educational Requirements

An officer administers a naturalization test to determine whether an applicant meets the English and civics requirements.

The naturalization test consists of two components:

English language proficiency, which is determined by the applicant’s ability to read, write, speak and understand English; and

Knowledge of U.S. history and government, which is determined by a civics test.

An applicant has two opportunities to pass the English and civics tests: the initial examination and the re-examination interview. USCIS will deny the naturalization application if the applicant fails to pass any portion of the tests after two attempts. In cases where an applicant requests a USCIS hearing on the denial, officers must administer any failed portion of the tests. [1] Only one opportunity to pass the failed portion of the tests is provided at the hearing. See Part B, Naturalization Examination, Chapter 6, USCIS Hearing and Judicial Review, Section B, Review of Timely Filed Hearing Request [12 USCIS-PM B.6(B)].

Unless excused by USCIS, the applicant’s failure to appear at the re-examination for testing or to take the tests at an examination or hearing counts as a failed attempt to pass the test.

B. Exceptions

An applicant may qualify for an exception from the English requirement, civics requirement, or both requirements. The table below serves as a quick reference guide on the exceptions to the English and civics requirements for naturalization.

Exceptions to English and Civics Requirements for Naturalization

Exceptions

INA 312(b)

Educational Requirements

English

Read, write, speak

and understand

Civics

Knowledge of U.S. history and government

Age 50 or older and resided in U.S. as an LPR for at least 20 years at time of filing

Exempt

Still required. Applicants may take civics test in their language of choice using an interpreter.

Age 55 or older and resided in U.S. as an LPR for at least 15 years at time of filing

Exempt

Age 65 or older and resided in U.S. as an LPR for at least 20 years at time of filing

Exempt

Still required but officers administer specially designated test forms. Applicants may take the civics test in their language of choice using an interpreter.

Medical Disability Exception

(Form N-648)

May be exempt from English, civics, or both

1. Age and Residency Exceptions to English

An applicant is exempt from the English language requirement but is still required to meet the civics requirement if:

The applicant is age 50 or older at the time of filing for naturalization and has lived as a lawful permanent resident (LPR) in the United States for at least 20 years; or

The applicant is age 55 or older at the time of filing for naturalization and has lived as an LPR in the United States for at least 15 years.

The applicant may take the civics test in his or her language of choice with the use of an interpreter.

2. Special Consideration for Civics Test

An applicant receives special consideration in the civics test if, at the time of filing the application, the applicant is 65 years of age or older and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence. [2] See INA 312(b)(3). An applicant who qualifies for special consideration is administered specific test forms.

3. Medical Disability Exception to English and Civics

An applicant who cannot meet the English and civics requirements because of a medical disability may be exempt from the English requirement, the civics requirement, or both requirements.

C. Meeting Requirements under IRCA 1986

The Immigration Reform and Control Act of 1986 (IRCA) mandated that persons legalized under INA 245A meet a basic citizenship skills requirement in order to be eligible for adjustment to LPR status. An applicant was permitted to demonstrate basic citizenship skills by:

Passing the English and civics tests administered by legacy Immigration and Naturalization Service (INS); or

Passing standardized English and civics tests administered by organizations then authorized by the INS. [3] The INS Standardized Citizenship Testing Program was conducted by five non-government companies on behalf of the INS. That program was established in 1991 and ended on August 30, 1998. See 63 FR 25080 (May 6, 1998).

At the time of the naturalization re-examination, the officer will only retest the applicant on any portion of the test that the applicant did not satisfy under IRCA. In all cases, the applicant must demonstrate the ability to speak English at the time of the naturalization examination, unless the applicant meets one of the age and time as resident exemptions of English or qualifies for a medical waiver. [4] See INA 245A(b)(1)(D)(iii). See 8 CFR 312.3.

D. English Portion of the Test

A naturalization applicant must only demonstrate an ability to read, write, speak, and understand words in ordinary usage. [5] See INA 312. See 8 CFR 312. Ordinary usage means comprehensible and pertinent communication through simple vocabulary and grammar, which may include noticeable errors in pronouncing, constructing, spelling, and understanding completely certain words, phrases, and sentences.

An applicant may ask for words to be repeated or rephrased and may make some errors in pronunciation, spelling, and grammar and still meet the English requirement for naturalization. An officer should repeat and rephrase questions until the officer is satisfied that the applicant either fully understands the question or is unable to understand English. [6] See 8 CFR 335.2(c).

1. Speaking Test

An officer determines an applicant’s ability to speak and understand English based on the applicant’s ability to respond to questions normally asked in the course of the naturalization examination. The officer’s questions relate to eligibility and include questions provided in the naturalization application. [7] See 8 CFR 312.1(c)(1). The officer should repeat and rephrase questions during the naturalization examination until the officer is satisfied that the applicant either understands the questions or does not understand English.

An applicant who does not qualify for a waiver of the English requirement must be able to communicate in English about his or her application and eligibility for naturalization. An applicant does not need to understand every word or phrase on the application.

Passing the Speaking Test

If the applicant generally understands and responds meaningfully to questions relevant to his or her naturalization eligibility, then he or she has sufficiently demonstrated the ability to speak English.

Failing the Speaking Test

An applicant fails the speaking test when he or she does not understand sufficient English to be placed under oath or to answer the eligibility questions on his or her naturalization application. The officer must still administer all other parts of the naturalization test, including the portions on reading, writing, and civics.

An officer cannot offer or accept a withdrawal of a naturalization application from an applicant who does not speak English unless the applicant has an interpreter present who is able to clearly understand the consequences of withdrawing the application. [8] See Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination, Section D, Administrative Closure, Lack of Prosecution, Withdrawal, and Holding in Abeyance [12 USCIS-PM B.4(D)].

2. Reading Test

To sufficiently demonstrate the ability to read in English, applicants must read one sentence out of three sentences. The reading test is administered by the officer using standardized reading test forms. Once the applicant reads one of the three sentences correctly, the officer stops the reading test.

Passing the Reading Test

An applicant passes the reading test if the applicant reads one of the three sentences without extended pauses in a manner that the applicant is able to convey the meaning of the sentence and the officer is able to understand the sentence. In general, the applicant must read all content words but may omit short words or make pronunciation or intonation errors that do not interfere with the meaning.

Failing the Reading Test

An applicant fails the reading test if he or she does not successfully read at least one of the three sentences. An applicant fails to read a sentence successfully when he or she:

Omits a content word or substitutes another word for a content word;

Pauses for extended periods of time while reading the sentence; or

Makes pronunciation or intonation errors to the extent that the applicant is not able to convey the meaning of the sentence and the officer is not able to understand the sentence.

3. Writing Test

To sufficiently demonstrate the ability to write in English, the applicant must write one sentence out of three sentences in a manner that the officer understands. The officer dictates the sentence to the applicant using standardized writing test forms. An applicant must not abbreviate any of the words. Once the applicant writes one of the three sentences in a manner that the officer understands, the officer stops the writing test.

An applicant does not fail the writing test because of spelling, capitalization, or punctuation errors, unless the errors interfere with the meaning of the sentence and the officer is unable to understand the sentence.

Passing the Writing Test

The applicant passes the writing test if the applicant is able to convey the meaning of one of the three sentences to the officer. The applicant’s writing sample may have the following:

Some grammatical, spelling, or capitalization errors;

Omitted short words that do not interfere with meaning; or

Numbers spelled out or written as digits.

Failing the Writing Test

An applicant fails the writing test if he or she makes errors to a degree that the applicant does not convey the meaning of the sentence and the officer is not able to understand the sentence.

An applicant fails the writing test if he or she writes the following:

A different sentence or words;

An abbreviation for a dictated word; [9] An abbreviation for a dictated word may be accepted if the officer has approved the abbreviation.

Nothing or only one or two isolated words; or

A sentence that is completely illegible.

E. Civics Portion of the Test

A naturalization applicant must demonstrate a knowledge and understanding of the fundamentals of the history, the principles, and the form of government of the United States (civics). [10] See 8 CFR 312.2.

1. Civics Test

To sufficiently demonstrate knowledge of civics, the applicant must answer correctly at least six of ten questions from the standardized civics test form administered by an officer. The officer administers the test orally. [11] See 8 CFR 312.2(c)(1). Once the applicant answers six of the ten questions correctly, the officer stops the test.

Passing the Civics Test

An applicant passes the civics test if he or she provides a correct answer or provides an alternative phrasing of the correct answer for six of the ten questions.

Failing the Civics Test

An applicant fails the civics test if he or she provides an incorrect answer or fails to respond to six out of the ten questions from the standardized test form.

2. Special Consideration

An officer gives special consideration to an applicant who is 65 years of age or older and who has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence. [12] See INA 312(b)(3). The age and time requirements must be met at the time of filing the naturalization application. An officer only asks questions from the three “65/20” test forms when administering the civics test to such applicants. The test forms only contain 20 specially designated civics questions from the usual list of 100 questions.

3. Due Consideration

An officer should exercise “due consideration” on a case-by-case basis in choosing subject matters, phrasing questions, and evaluating responses when administering the civics test. The officer’s decision to exercise due consideration should be based on a review of the applicant’s:

Age;

Background;

Level of education;

Length of residence in the United States;

Opportunities available and efforts made to acquire the requisite knowledge; and

Any other relevant factors relating to the applicant’s knowledge and understanding. [13] See 8 CFR 312.2(c)(2).

F. Failure to Meet the English or Civics Requirements

If an applicant fails any portion of the English test, the civics test, or all tests during the initial naturalization examination, USCIS will reschedule the applicant to appear for a second examination between 60 and 90 days after the initial examination. [14] See 8 CFR 335.3(b) (re-examination no earlier than 60 days from initial examination). See 8 CFR 312.5(a) (re-examination no later than 90 days from initial examination).

In cases where the applicant appears for a re-examination, the reexamining officer must not administer the same English or civics test forms administered during the initial examination. The officer must only retest the applicant in those areas that the applicant previously failed. For example, if the applicant passed the English speaking, reading, and civics portions but failed the writing portion during the initial examination, the officer must only administer the English writing test during the re-examination. [15] See 8 CFR 312.5.

If an applicant fails any portion of the naturalization test a second time, the officer must deny the application based upon the applicant’s failure to meet the educational requirements for naturalization. The officer also must address any other areas of ineligibility in the denial notice. An applicant who refuses to be tested or to respond to individual questions on the reading, writing, or civics test, or fails to respond to eligibility questions because he or she did not understand the questions as asked or rephrased, fails to meet to the educational requirements. An officer should treat an applicant’s refusal to be tested or to respond to test questions as a failure of the test. [16] See 8 CFR 312.5(b).

G. Documenting Test Results

All officers administering the English and civics tests are required to record the test results in the applicant’s A-file. Officers are required to complete and provide to each applicant at the end of the naturalization examination the results of the examination and testing, unless the officer serves the applicant with a denial notice at that time. [17] Officers must use Naturalization Interview Results (Form N-652). The results include the results of the English and civics tests.

Footnotes

1.

Only one opportunity to pass the failed portion of the tests is provided at the hearing. See Part B, Naturalization Examination, Chapter 6, USCIS Hearing and Judicial Review, Section B, Review of Timely Filed Hearing Request [12 USCIS-PM B.6(B)].

 

2.

See INA 312(b)(3).

 

3.

The INS Standardized Citizenship Testing Program was conducted by five non-government companies on behalf of the INS. That program was established in 1991 and ended on August 30, 1998. See 63 FR 25080 (May 6, 1998).

 

4.

See INA 245A(b)(1)(D)(iii). See 8 CFR 312.3.

 

5.

See INA 312. See 8 CFR 312.

 

6.

See 8 CFR 335.2(c).

 

7.

See 8 CFR 312.1(c)(1).

 

8.

See Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination, Section D, Administrative Closure, Lack of Prosecution, Withdrawal, and Holding in Abeyance [12 USCIS-PM B.4(D)].

 

9.

An abbreviation for a dictated word may be accepted if the officer has approved the abbreviation.

 

10.

See 8 CFR 312.2.

 

11.

See 8 CFR 312.2(c)(1).

 

12.

See INA 312(b)(3).

 

13.

See 8 CFR 312.2(c)(2).

 

14.

See 8 CFR 335.3(b) (re-examination no earlier than 60 days from initial examination). See 8 CFR 312.5(a) (re-examination no later than 90 days from initial examination).

 

15.

See 8 CFR 312.5.

 

16.

See 8 CFR 312.5(b).

 

17.

Officers must use Naturalization Interview Results (Form N-652).

 

Chapter 3 - Medical Disability Exception (Form N-648)

A. Medical Exception Requirements

In 1994, Congress enacted legislation providing an exception to the naturalization educational requirements for applicants who cannot meet the educational requirements because of a physical or developmental disability or mental impairment. [1] See Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (October 25, 1994). See INA 312(b). The “55/15” and “50/20” exceptions, as well as the “65/20” special consideration provisions were also added by the same legislation.

The English and civics requirements do not apply to naturalization applicants who are unable to comply due to a “medically determinable” physical or developmental disability or mental impairment that has lasted, or is expected to last, at least 12 months. The regulations define “medically determinable” as a determination made by acceptable clinical or laboratory techniques. [2] See INA 312(b). See 8 CFR 312.1(b)(3) and 8 CFR 312.2(b).

The applicant must demonstrate a disability or impairment that affects the functioning of the individual such that, even with reasonable accommodations, he or she is unable to demonstrate the educational requirements for naturalization. Illiteracy alone is not a valid reason to seek an exception to the educational requirements. In addition, advanced age, in and of itself, is not a medically determinable physical or developmental disability or mental impairment.

An applicant seeking an exception to the educational requirements submits a Medical Certification for Disability Exceptions (Form N-648) as an attachment to the naturalization application. [3] See 8 CFR 312.2(b)(2). The first edition of Form N-648 was made available to the public as an attachment to the final rule. See 62 FR 12915, 12927-12928 (Mar. 19, 1997). See 74 Interpreter Releases 512-15 (March 24, 1997). A licensed medical professional must complete the form. The medical professional must certify that the applicant’s medical condition prevents the applicant from meeting the English requirement, the civics requirement, or both requirements.

USCIS recognizes that certain circumstances may prevent concurrent filing of the naturalization application and the disability exception form. Accordingly, an applicant may file the disability exception form during any part of the naturalization process, including after the application is filed but before the first examination, during the first examination, during the re-examination if the applicant’s first examination was rescheduled, and during the rehearing on a denied naturalization application.

B. Medical Exception Versus Accommodation

Requesting an exception to the English and civics requirements is different from requesting an accommodation to the naturalization examination process. [4] See Part C, Accommodations [12 USCIS-PM C]. An exception to the English and civics requirements exempts the applicant from the educational requirements completely. An accommodation, on the other hand, simply modifies the manner in which an applicant meets the educational requirements; it does not exempt the applicant from the educational requirements.

Reasonable accommodations include, but are not limited to, sign language interpreters, extended time for testing, and off-site testing. A disability exception requires an applicant to show that his or her medical condition prevents him or her from complying with the English and civics requirements even with reasonable accommodations.

C. Authorized Medical Professionals

USCIS only authorizes the following licensed medical professionals to certify the disability exception form:

Medical doctors;

Doctors of osteopathy; and

Clinical psychologists. [5] See 8 CFR 312.2(b)(2).

These medical professionals must be licensed to practice in any state of the United States, Washington, D.C., Guam, Puerto Rico, the Virgin Islands, or the Commonwealth of the Northern Mariana Islands. [6] Initially, the corresponding Notice of Proposed Rulemaking (NPRM) issued by legacy Immigration and Naturalization Service (INS) to address this legislation proposed that all exception eligibility determinations be based on individual assessments by civil surgeons or qualified persons or entities designated by the Attorney General. The proposed rule suggested that the civil surgeon (or “authorized entity”) provide their assessment in a one-page document. The assessment would attest to the origin, nature, and extent of the applicant's medical condition. INS removed the requirement for a civil surgeon determination in the final rule. See 61 FR 44227 (Aug. 28, 1996).

The medical professional must:

Conduct an in-person examination of the applicant;

Explain the nature and extent of the medical condition on Form N-648;

Explain how the medical condition relates to the applicant’s inability to comply with the English and civics requirements;

Attest that the medical condition has lasted or is expected to last at least 12 months; and

Attest that the cause of the medical condition is not related to the illegal use of drugs.

The medical professional must complete the disability exception form using common terminology that a person without medical training can understand. While staff associated with the medical professional may assist in completing the form, the medical professional alone is responsible for verifying the accuracy of the form’s content. The medical professional certifying the form may attach supporting documents, such as medical diagnostic reports and records. The attachments must not replace written responses to each question or item on the form.

D. Guidelines for Officer’s Review

1. General Guidelines for Review

An officer must review the disability exception form to determine whether the applicant is eligible for the exception. The officer may reach one of the following outcomes after his or her review:

The form sufficiently establishes that the applicant is eligible for the exception; or

The form is insufficient in establishing that the applicant is eligible for the exception.

The tables below provide general guidelines on what an officer should and should not do when reviewing a disability exception form.

General Guidelines for Officer’s Review of Form N-648

When reviewing the form, an officer SHOULD:

Determine whether the form has been properly completed, certified, and signed (the medical professional must have certified the form within 6 months of its submission). Once certified, the form is valid for the duration of the application.

Ensure that the form relates to the applicant and that there are no discrepancies between the form and other information, including biographic data, testimony during the interview, or information contained in the applicant’s A-file

Determine whether the form fully addresses the underlying medical condition and its causal connection with the applicant’s inability to comply with the requirements

Determine whether the form contains sufficient information to establish that the applicant is eligible for the exception by a preponderance of the evidence (more likely than not)

General Guidelines for Officer’s Review of Form N-648

When reviewing the form, an officer SHOULD NOT:

Assume responsibility or authority to determine the validity of the medical diagnosis or opinion on the applicant’s ability to comply with the English and civics requirements

Refer an applicant to another medical professional solely because the applicant sought care from a professional who shares the same language, culture, ethnicity, or nationality

Conclude that the applicant does not have the medical condition because it was not previously recorded in other immigration related medical examinations or documents

Question an applicant about the applicant’s ability to complete a certain activity if the form does not discuss that particular activity

Require that an applicant complete specific medical, clinical, or laboratory diagnostic techniques, tests, or methods

Develop and substitute his or her own diagnosis of the applicant’s medical condition in lieu of the medical professional’s diagnosis

Use questionnaires or tests to challenge each applicant’s diagnosed medical condition

Question the applicant about his or her medical care, job duties, community and civic affairs, or daily living activities unless facts in the form or during the examination directly contradict facts in the A-file

Request to see an applicant’s medical records or prescription medication solely to question whether there was a proper basis for the medical professional’s diagnosis

Infer that the applicant is able to comply with all portions of the English and civics requirements in cases where an applicant only seeks an exception from certain portions

2. Review for Completeness of Form

An officer must verify that the submitted disability exception form is complete. The officer should verify that the medical professional has answered all of the required questions and has certified the form along with the applicant. If a question has not been answered completely or the medical professional or applicant does not sign the form, the officer must proceed with the examination in English as if the applicant had not submitted the form. The officer provides the applicant with an opportunity to take each portion of the English and civics test.

A complete form [7] See Medical Certification for Disability Exceptions (Form N-648). must contain all of the information requested on the form, to include the information listed in the table below.

Properly Completed Form N-648

All forms must contain the information requested on the form, to include:

Clinical diagnosis of the applicant’s medical condition and, if applicable, the relevant medical code recognized by the Department of Health and Human Services (HHS). [8] See 45 CFR 162.1002. This includes the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the International Classification of Diseases (ICD) codes.

Description of the medical condition forming the basis for the disability exception

Date the medical professional examined the applicant

Description of the doctor-patient relationship indicating whether the medical professional regularly treats the applicant for the cited conditions or an explanation of why he or she is certifying the disability form instead of the regularly treating medical professional

Statement that the medical condition has lasted, or is expected to last, at least 12 months

Statement whether the medical condition is the result of the illegal use of drugs

Explanation of what caused the medical condition, if known

Description of the clinical methods used to diagnose the medical condition

Description of the medical condition’s effect on the applicant’s ability to successfully complete the educational requirements for naturalization

Statement whether the medical professional used an interpreter to examine the applicant

The medical professional is not required to address the severity of the effects of the medical condition on the applicant’s daily life.

3. Medical Examination and Nexus

In reviewing the request for the medical exception, the officer must focus on whether the medical professional has explained that the applicant has a disability or impairment and that there is a nexus (causal connection) between the disability or the impairment and the applicant’s inability to demonstrate the educational requirements for naturalization. The medical professional must specifically explain how the applicant's disability or impairment prohibits the applicant from being able to demonstrate the educational requirements.

4. Missing Interpreter Certification

There may be instances where the interpreter certification on the disability exception form may not have been completed. In this instance, the officer should ask the applicant whether the medical professional used an interpreter during the medical examination that formed the basis of the medical exception form.

The officer should not draw a negative inference if the medical professional did not use an interpreter if he or she examined the applicant in the applicant’s native language.

The officer may question the applicant about the applicant’s visits with the medical professional and the nature of their relationship if the interpreter certification is not complete and the medical professional did not conduct the examination in the applicant’s native language.

The officer should question the applicant under oath in the applicant’s language of choice with use of an interpreter to address the issues of concern related to the medical exception form.

5. Requesting a Supplemental Disability Determination

In general, an officer should not request a supplemental disability determination and should evaluate the original form on its own merits. If an officer questions the veracity of the information on the disability exception form, the officer should exercise caution when requesting an applicant to obtain a supplemental disability determination from another authorized medical professional. [9] See 8 CFR 312.2(b)(2). The officer must:

Explain the reasons for doubting the veracity of the information on the original disability exception form;

Consult with his or her supervisor and receive approval before requesting the applicant to undergo a supplemental disability determination; and

Provide the applicant with the relevant state medical board contact information to facilitate the applicant’s ability to find another medical professional.

E. Establishing Eligibility for the Exception

An officer determines a request for a medical exception is sufficient if:

The medical exception form is properly completed; and

The medical professional explains how the applicant’s medical condition prohibits the applicant from meeting the English requirement, the civics requirement, or both requirements.

The table below provides the general procedures for cases where an applicant qualifies for a disability exception. The procedures apply to any phase of the naturalization examination, to include the initial or re-examination, or hearing on a denial.

General Procedures if Form N-648 Establishes Eligibility

If form is deemed sufficient at any naturalization examination or hearing:

The officer must proceed with the interview without administering the test, in the applicant’s language of choice with the use of an interpreter, if the medical professional indicated on the form that the applicant was unable to comply with any of the educational requirements.

The officer must administer the tests for the other requirements, if the medical professional indicated on the form that the applicant was unable to comply with only some of the educational requirements. If the medical professional indicated that the applicant was unable to comply with the English speaking requirement, the interview can proceed in the applicant’s language of choice with the use of an interpreter.

The officer must determine whether the applicant meets the rest of the applicable naturalization requirements and make a decision on the naturalization application.

F. Failing to Establish Eligibility for the Exception

An officer determines that a request for a medical exception is insufficient if:

The N-648 form is not properly completed;

The medical professional fails to explain how the applicant’s medical condition prohibits the applicant from meeting the English requirement, the civics requirement, or both requirements; or

The officer finds that the applicant listed on the form was not examined by the certifying medical professional or is not the same person as the naturalization applicant.

The table below provides the general procedures for cases where an applicant is ineligible for the disability exception. The procedures apply to any phase of the naturalization examination, to include the initial or re-examination or hearing on a denial.

General Procedures if Form N-648 Fails to Establish Eligibility

If form is deemed insufficient at any naturalization examination or hearing:

The officer must proceed with the initial or re-examination, or hearing, in English as if the applicant had not submitted a disability exception form.

The officer must provide the applicant with an opportunity to take all portions of the English and civics testing.

1. Insufficient Request for Medical Exception at Initial Interview

Passing the English and Civics Tests

If an applicant fails to qualify for a disability exception but subsequently meets the English and civics requirements in the same examination:

The officer should proceed with the naturalization examination to determine whether the applicant meets the rest of the applicable eligibility requirements for naturalization.

The officer should not determine that the applicant engaged in fraud or lacks good moral character for the sole reason that the applicant met the English and civics requirements after submitting a disability exception form.

The officer may question the applicant further, however, on the reasons for submitting the form and the applicant’s relationship to the medical professional.

Failing the English and Civics Tests

If an applicant fails to qualify for the disability exception and fails to meet the English and civics requirements:

The officer must issue the applicant a request for evidence addressing the issues with the medical disability exception form. [10] The officer should issue a request for evidence on Form N-14.

The USCIS office must reschedule the applicant to appear for a re-examination, to include a second opportunity to meet the English and civics requirements, between 60 and 90 days after the initial examination.

2. Insufficient Request for Medical Exception at Re-Examination

If an officer determined that an applicant’s disability exception form was insufficient at the initial examination, the officer should have issued a request for evidence addressing the deficiencies of the form. An officer conducting the re-examination should review the evidence submitted in response to the request for evidence issued at the initial examination.

The reexamining officer may review an applicant’s disability exception form for the first time if the applicant is submitting the form for the first time at the re-examination.

If an applicant submits a medical exception form for the first time during the re-examination, the officer determines if the form is sufficient or insufficient. If the officer determines that the form is sufficient to establish eligibility for the disability exception, the officer must proceed with the naturalization examination with the use of an interpreter, exempting the applicant from the educational requirements.

If the officer determines that the form is insufficient, the officer must afford the applicant a second opportunity to take the English and civics tests. If the applicant fails any portion of the test or refuses to respond to test questions during the re-examination, the officer must deny the naturalization application based on the applicant’s failure to meet the educational requirements for naturalization. In the denial notice, the officer must provide a detailed explanation for finding the medical exception form insufficient.

If an officer determines that the evidence submitted in response to the request for evidence is insufficient:

The officer must proceed with the re-examination in English as if the applicant had not submitted a disability exception form.

The officer must provide the applicant with a second opportunity to take any portion of the English and civics tests that the applicant previously failed.

The officer must not provide the applicant a third opportunity to submit a disability exception form or to take the English and civics tests.

If the applicant fails any portion of the testing, to include a refusal to be tested or to respond, the officer must deny the naturalization application based on the applicant’s failure to meet the educational requirements for naturalization.

The officer must provide a detailed explanation of the disability exception form’s deficiencies in the naturalization application denial notice.

3. Insufficient Request for Medical Exception at Hearing on Denial

An officer may conduct a full de novo hearing on a denied naturalization application, including review of a previously submitted disability exception form during the hearing on the naturalization denial. [11] See 8 CFR 336.2. An applicant may submit additional documentation for review at the hearing, to include a new disability exception form.

If the applicant submits a new or initial form at the hearing, the hearing officer determines whether the form is sufficient for the medical exception. If the form is insufficient, the officer should retest the applicant on any portion of the English and civics tests previously failed by the applicant. [12] See Part B, Naturalization Examination, Chapter 6, USCIS Hearing and Judicial Review, Section B, Review of Timely Filed Hearing Request [12 USCIS-PM B.6(B)].

4. Discrepancies and Misrepresentation

Some cases may present questions about whether the certifying medical professional actually examined the applicant. An officer should find a disability exception form insufficient if the officer identifies any discrepancies or misrepresentations indicating:

The applicant on the form was not examined by the certifying medical professional; or

The applicant on the form is not the same person as the naturalization applicant.

G. Fraud Referrals

There may be cases where an officer suspects or determines that an applicant or medical professional has committed fraud in the process of seeking a medical disability exception. The officer should consult with his or her supervisor to determine whether to refer such a case to Fraud Detection and National Security (FDNS).

If an officer or the local FDNS office determines that an applicant or medical professional has committed fraud, the officer must explain the findings of fraud in the denial notice.

Footnotes

1.

See Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (October 25, 1994). See INA 312(b). The “55/15” and “50/20” exceptions, as well as the “65/20” special consideration provisions were also added by the same legislation.

 

2.

See INA 312(b). See 8 CFR 312.1(b)(3) and 8 CFR 312.2(b).

 

3.

See 8 CFR 312.2(b)(2). The first edition of Form N-648 was made available to the public as an attachment to the final rule. See 62 FR 12915, 12927-12928 (Mar. 19, 1997). See 74 Interpreter Releases 512-15 (March 24, 1997).

 

4.

See Part C, Accommodations [12 USCIS-PM C].

 

5.

See 8 CFR 312.2(b)(2).

 

6.

Initially, the corresponding Notice of Proposed Rulemaking (NPRM) issued by legacy Immigration and Naturalization Service (INS) to address this legislation proposed that all exception eligibility determinations be based on individual assessments by civil surgeons or qualified persons or entities designated by the Attorney General. The proposed rule suggested that the civil surgeon (or “authorized entity”) provide their assessment in a one-page document. The assessment would attest to the origin, nature, and extent of the applicant's medical condition. INS removed the requirement for a civil surgeon determination in the final rule. See 61 FR 44227 (Aug. 28, 1996).

 

7.

See Medical Certification for Disability Exceptions (Form N-648).

 

8.

See 45 CFR 162.1002.

 

9.

See 8 CFR 312.2(b)(2).

 

10.

The officer should issue a request for evidence on Form N-14.

 

11.

See 8 CFR 336.2.

 

12.

See Part B, Naturalization Examination, Chapter 6, USCIS Hearing and Judicial Review, Section B, Review of Timely Filed Hearing Request [12 USCIS-PM B.6(B)].

 

Part F - Good Moral Character

Chapter 1 - Purpose and Background

A. Purpose

One of the general requirements for naturalization is good moral character (GMC). GMC means character which measures up to the standards of average citizens of the community in which the applicant resides. [1] See 8 CFR 316.10(a)(2). See INA 101(f). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947) (moral standard of average citizen). In general, an applicant must show that he or she has been and continues to be a person of GMC during the statutory period prior to filing and up to the time of the Oath of Allegiance. [2] See INA 316(a). See 8 CFR 316.10(a)(1).

The applicable naturalization provision under which the applicant files determines the period during which the applicant must demonstrate GMC. [3] See Chapter 2, Adjudicative Factors, Section A, Applicable Statutory Period [12 USCIS-PM F.2(A)]. The applicant’s conduct outside the GMC period may also impact whether he or she meets the GMC requirement. [4] See INA 316(e). See 8 CFR 316.10(a)(2).

While USCIS determines whether an applicant has met the GMC requirement on a case-by-case basis, certain types of criminal conduct automatically preclude applicants from establishing GMC and may make the applicant subject to removal proceedings. [5] See INA 101(f). An applicant may also be found to lack GMC for other types of criminal conduct (or unlawful acts).

An officer’s assessment of whether an applicant meets the GMC requirement includes an officer’s review of:

The applicant’s record;

Statements provided in the naturalization application; and

Oral testimony provided during the interview.

There may be cases that are affected by specific jurisdictional case law. The officer should rely on local USCIS counsel in cases where there is a question about whether a particular offense rises to the level of precluding an applicant from establishing GMC. In addition, the offenses and conduct which affect the GMC determination may also render an applicant removable.

B. Background

The Naturalization Act of 1790 introduced the long-standing GMC requirement for naturalization. Any conduct or act that offends the accepted moral character standards of the community in which the applicant resides should be considered without regard to whether the applicant has been arrested or convicted of an offense.

In general, an applicant for naturalization must establish GMC throughout the requisite periods of continuous residence in the United States. In prescribing specific periods during which GMC must be established, Congress generally intended to make provision for the reformation and eventual naturalization of persons who were guilty of certain past misconduct.

C. Legal Authorities

INA 101(f) – Good moral character definition

INA 316; 8 CFR 316 – General naturalization requirements

INA 316(e); 8 CFR 316.10 – Good moral character requirement

INA 318 – Prerequisite to naturalization, burden of proof

Footnotes

1.

See 8 CFR 316.10(a)(2). See INA 101(f). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947) (moral standard of average citizen).

 

2.

See INA 316(a). See 8 CFR 316.10(a)(1).

 

3.

See Chapter 2, Adjudicative Factors, Section A, Applicable Statutory Period [12 USCIS-PM F.2(A)].

 

4.

See INA 316(e). See 8 CFR 316.10(a)(2).

 

5.

See INA 101(f).

 

Chapter 2 - Adjudicative Factors

A. Applicable Statutory Period

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. [1] See the relevant Volume 12 [12 USCIS-PM] part for the specific statutory period pertaining to each naturalization provision. In general, the statutory period for GMC for an applicant filing under the general naturalization provision starts five years prior to the date of filing. [2] See Part D, General Naturalization Requirements, Chapter 1, Purpose and Background, Section B, General Eligibility Requirements [12 USCIS-PM D.1(B)]. See INA 316(a). See 8 CFR 316.2(a)(7).

The statutory period starts three years prior to the date of filing for certain spouses of U.S. citizens. [3] See Part G, Spouses of U.S. Citizens, Chapter 1, Purpose and Background, Section C, Table of General Provisions [12 USCIS-PM G.1(C)]. See INA 319(a) and 8 CFR 319.1(a)(7). The period during which certain service members or veterans must show GMC starts one or five years from the date of filing depending on the military provision. [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).

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. [5] See 8 CFR 316.10(a)(1).

B. Conduct Outside of the Statutory Period

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. [6] See INA 316(e). See 8 CFR 316.10(a)(2).

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. [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). 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;

Education;

Employment history;

Other law-abiding behavior (for example, meeting financial obligations, paying taxes);

Community involvement;

Credibility of the applicant;

Compliance with probation; and

Length of time in United States.

C. Definition of Conviction

1. Statutory Definition of Conviction for Immigration Purposes

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 [8] The term “nolo contendere” is Latin for “I do not wish to contest.” 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. [9] See INA 101(a)(48)(A).

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. [10] See Matter of Grullon, 20 I&N Dec. 12 (BIA 1989).

2. Juvenile Convictions

In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes. [11] See Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000). 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.

3. Court Martial Convictions

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. [12] See Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008). However, disciplinary actions in lieu of a court martial are not convictions for immigration purposes.

4. Deferrals of Adjudication

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 [13] The term “nolle prosequi” is Latin for “we shall no longer prosecute.” does not meet the definition of conviction.

5. Vacated Judgments

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. [14] See Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

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. [15] See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). See Alim v. Gonzales, 446 F.3d 1239 (11th Cir 2006).

6. Foreign Convictions

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. [16] See Matter of Squires, 17 I&N Dec. 561 (BIA 1980). See Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978). 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. [17] See Lennon v. INS, 527 F.2d 187 (2nd Cir. 1975). The officer may consult with local USCIS counsel in cases involving foreign convictions.

7. Pardons

An applicant who has received a full and unconditional executive pardon [18] Executive pardons are given by the President or a governor of the United States. 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. [19] See 8 CFR 316.10(c)(2)(i). 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. [20] See 8 CFR 316.10(c)(2)(ii).

Foreign pardons do not eliminate a conviction for immigration purposes. [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).

8. Expunged Records

Expunged Records and the Underlying Conviction

A record of conviction that has been expunged does not remove the underlying conviction. [22] See Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005). For example, an expunged record of conviction for a controlled substance violation [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). or any crime involving moral turpitude (CIMT) does not relieve the applicant from the conviction in the immigration context. [24] See 8 CFR 316.10(c)(3)(i) and 8 CFR 316.10(c)(3)(ii). In addition, foreign expungements are still considered convictions for immigration purposes. [25] See Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007). See Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004).

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. [26] See In re Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999).

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.

D. Effect of Probation

An officer may not approve a naturalization application while the applicant is on probation, parole, or under a suspended sentence. [27] See 8 CFR 316.10(c)(1). 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.

E. Admission of Certain Criminal Acts

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. [28] See 8 CFR 316.10(b)(2)(iv). 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. [29] 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). 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: [30] See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

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. [31] See Matter of J-, 2 I&N Dec. 285 (BIA 1945).

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.

F. “Purely Political Offense” Exception

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. [32] See In re O'Cealleagh, 23 I&N Dec. 976 (BIA 2006) (finding that a CIMT offense must be completely or totally political for “purely political offense” exception to apply). 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.” [33] See 22 CFR 40.21(a)(6).

The “purely political offense” exception applies to the following conditional bars to GMC: [34] See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5], for further guidance on each bar to GMC.

Conviction for one or more crimes involving moral turpitude (CIMTs); [35] See Chapter 5, Conditional Bars for Acts in Statutory Period, Section A, One or More Crimes Involving Moral Turpitude [12 USCIS-PM F.5(A)].

Conviction of two or more offenses with a combined sentence of five years or more; [36] See Chapter 5, Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More [12 USCIS-PM F.5(B)]. and

Incarceration for a total period of 180 days or more. [37] See Chapter 5, Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More [12 USCIS-PM F.5(D)].

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.”

G. Extenuating Circumstances

Certain conditional bars to GMC should not adversely affect the GMC determination if the applicant shows extenuating circumstances. [38] See 8 CFR 316.10(b)(3). 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: [39] See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5], for further guidance on extenuating circumstances.

Failure to support dependents; [40] See Chapter 5, Conditional Bars for Acts in Statutory Period, Section K, Failure to Support Dependents [12 USCIS-PM F.5(K)].

Adultery; [41] See Chapter 5, Conditional Bars for Acts in Statutory Period, Section L, Adultery [12 USCIS-PM F.5(L)]. and

Unlawful acts. [42] See Chapter 5, Conditional Bars for Acts in Statutory Period, Section M, Unlawful Acts [12 USCIS-PM F.5(M)].

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.

H. Removability and GMC

Certain permanent and conditional bars to GMC may warrant a recommendation that the applicant be placed in removal proceedings. [43] See INA 237 (“general classes of deportable aliens”). 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 necessitating a recommendation for removal proceedings. USCIS will not make a decision on any naturalization application from an applicant who is in removal proceedings. [44] See INA 318. See Part B, Naturalization Examination, Chapter 3, Naturalization Interview, Section B, Preliminary Review of Application [12 USCIS-PM B.3(B)].

Footnotes

1.

See the relevant Volume 12 [12 USCIS-PM] part for the specific statutory period pertaining to each naturalization provision.

 

2.

See Part D, General Naturalization Requirements, Chapter 1, Purpose and Background, Section B, General Eligibility Requirements [12 USCIS-PM D.1(B)]. See INA 316(a). See 8 CFR 316.2(a)(7).

 

3.

See Part G, Spouses of U.S. Citizens, Chapter 1, Purpose and Background, Section C, Table of General Provisions [12 USCIS-PM G.1(C)]. See INA 319(a) and 8 CFR 319.1(a)(7).

 

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).

 

5.

See 8 CFR 316.10(a)(1).

 

6.

See INA 316(e). See 8 CFR 316.10(a)(2).

 

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.”

 

9.

See INA 101(a)(48)(A).

 

10.

See Matter of Grullon, 20 I&N Dec. 12 (BIA 1989).

 

11.

See Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000).

 

12.

See Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008).

 

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).

 

15.

See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). See Alim v. Gonzales, 446 F.3d 1239 (11th Cir 2006).

 

16.

See Matter of Squires, 17 I&N Dec. 561 (BIA 1980). See Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978).

 

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.

 

19.

See 8 CFR 316.10(c)(2)(i).

 

20.

See 8 CFR 316.10(c)(2)(ii).

 

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).

 

22.

See Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005).

 

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).

 

24.

See 8 CFR 316.10(c)(3)(i) and 8 CFR 316.10(c)(3)(ii).

 

25.

See Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007). See Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004).

 

26.

See In re Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999).

 

27.

See 8 CFR 316.10(c)(1).

 

28.

See 8 CFR 316.10(b)(2)(iv).

 

29.

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).

 

30.

See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

 

31.

See Matter of J-, 2 I&N Dec. 285 (BIA 1945).

 

32.

See In re O'Cealleagh, 23 I&N Dec. 976 (BIA 2006) (finding that a CIMT offense must be completely or totally political for “purely political offense” exception to apply).

 

33.

See 22 CFR 40.21(a)(6).

 

34.

See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5], for further guidance on each bar to GMC.

 

35.

See Chapter 5, Conditional Bars for Acts in Statutory Period, Section A, One or More Crimes Involving Moral Turpitude [12 USCIS-PM F.5(A)].

 

36.

See Chapter 5, Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More [12 USCIS-PM F.5(B)].

 

37.

See Chapter 5, Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More [12 USCIS-PM F.5(D)].

 

38.

See 8 CFR 316.10(b)(3).

 

39.

See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5], for further guidance on extenuating circumstances.

 

40.

See Chapter 5, Conditional Bars for Acts in Statutory Period, Section K, Failure to Support Dependents [12 USCIS-PM F.5(K)].

 

41.

See Chapter 5, Conditional Bars for Acts in Statutory Period, Section L, Adultery [12 USCIS-PM F.5(L)].

 

42.

See Chapter 5, Conditional Bars for Acts in Statutory Period, Section M, Unlawful Acts [12 USCIS-PM F.5(M)].

 

43.

See INA 237 (“general classes of deportable aliens”).

 

44.

See INA 318. See Part B, Naturalization Examination, Chapter 3, Naturalization Interview, Section B, Preliminary Review of Application [12 USCIS-PM B.3(B)].

 

Chapter 3 - Evidence and the Record

A. Applicant Testimony

Issues relevant to the good moral character (GMC) requirement may arise at any time during the naturalization interview. The officer’s questions during the interview should elicit a complete record of any criminal, unlawful, or questionable activity in which the applicant has ever engaged regardless of whether that information eventually proves to be material to the GMC determination.

The officer should take into consideration the education level of the applicant and his or her knowledge of the English language. The officer may rephrase questions and supplement the inquiry with additional questions to better ensure that the applicant understands the proceedings. [1] See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2], for guidance on rephrasing questions.

The officer must take a sworn statement from an applicant when the applicant admits committing an offense for which the applicant has never been formally charged, indicted, arrested or convicted. [2] See 8 CFR 316.10(b)(2)(iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)].

B. Court Dispositions

In general, an officer has the authority to request the applicant to provide a court disposition for any criminal offense committed in the United States or abroad to properly determine whether the applicant meets the GMC requirement. USCIS requires applicants to provide court dispositions certified by the pertinent jurisdiction for any offense committed during the statutory period. In addition, USCIS may request any additional evidence that may affect a determination regarding the applicant’s GMC. The burden is on the applicant to show that an offense does not prevent him or her from establishing GMC.

An applicant is required to provide a certified court disposition for any arrest involving the following offenses and circumstances, regardless of whether the arrest resulted in a conviction:

Arrest for criminal act committed during the statutory period;

Arrest that occurred on or after November 29, 1990, that may be an aggravated felony; [3] See INA 101(a)(43). See Chapter 4, Permanent Bars to Good Moral Character (GMC), Section B, Aggravated Felony [12 USCIS-PM F.4(B)].

Arrest for murder;

Arrest for any offense that would render the applicant removable;

Arrest for offenses outside the statutory period, if when combined with other offenses inside the statutory period, the offense would preclude the applicant from establishing GMC; and

Arrest for crime where the applicant would still be on probation at the time of adjudication of the naturalization application or may have been incarcerated for 180 days during the statutory period.

These procedures are not intended to limit the discretion of any officer in requesting documentation that the officer needs to properly assess an applicant’s GMC.

In cases where a court disposition or police record is not available, the applicant must provide original or certified confirmation that the record is not available from the applicable law enforcement agency or court.

C. Failure to Respond to Request for Evidence

In cases where the initial naturalization examination has already been conducted, the officer should adjudicate the naturalization application on the merits where the applicant fails to respond to a request for additional evidence. [4] See Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4], for guidance on decisions on the application, to include cases where the applicant fails to respond. The officer should not deny the application for lack of prosecution after the initial naturalization examination. [5] See INA 335(e). See 8 CFR 335.7.

Footnotes

1.

See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2], for guidance on rephrasing questions.

 

2.

See 8 CFR 316.10(b)(2)(iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)].

 

3.

See INA 101(a)(43). See Chapter 4, Permanent Bars to Good Moral Character (GMC), Section B, Aggravated Felony [12 USCIS-PM F.4(B)].

 

4.

See Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4], for guidance on decisions on the application, to include cases where the applicant fails to respond.

 

5.

See INA 335(e). See 8 CFR 335.7.

 

Chapter 4 - Permanent Bars to Good Moral Character (GMC)

A. Murder

An applicant who has been convicted of murder at any time is permanently barred from establishing good moral character (GMC) for naturalization. [1] See 8 CFR 316.10(b)(1)(i).

B. Aggravated Felony

In 1996, Congress expanded the definition and type of offense considered an “aggravated felony” in the immigration context. [2] See INA 101(a)(43). See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208 , 110 Stat. 3009-546 (September 30, 1996). An applicant who has been convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from establishing GMC for naturalization. [3] See 8 CFR 316.10(b)(1)(ii).

While an applicant who has been convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalization, the officer should consider the seriousness of the underlying offense (aggravated felony) along with the applicant's present moral character in determining whether the applicant meets the GMC requirement. If the applicant's actions during the statutory period do not reflect a reform of his or her character, then the applicant may not be able to establish GMC. [4] See 8 CFR 316.10(a)(2).

Some offenses require a minimum term of imprisonment of one year to qualify as an aggravated felony in the immigration context. The term of imprisonment is the period of confinement ordered by the court regardless of whether the court suspended the sentence. [5] See INA 101(a)(43)(B) . See Matter of S-S-, 21 I&N Dec. 900 (BIA 1997). For example, an offense involving theft or a crime of violence is considered an aggravated felony if the term of imprisonment ordered by the court is one year or more, even if the court suspended the entire sentence. [6] See INA 101(a)(43)(F) and INA 101(a)(43)(G).

The table below serves as a quick reference guide listing aggravated felonies in the immigration context. The officer should review the specific statutory language for further information.

“Aggravated Felonies” in the Immigration Context

Aggravated Felony

Citation

Murder, Rape, or Sexual Abuse of a Minor

INA 101(a)(43)(A)

Illicit Trafficking in Controlled Substance

INA 101(a)(43)(B)

Illicit Trafficking in Firearms or Destructive Devices

INA 101(a)(43)(C)

Money Laundering Offenses (over $10,000)

INA 101(a)(43)(D)

Explosive Materials and Firearms Offenses

INA 101(a)(43)(E)(i)–(iii)

Crime of Violence (imprisonment term of at least 1 yr)

INA 101(a)(43)(F)

Theft Offense (imprisonment term of at least 1 yr)

INA 101(a)(43)(G)

Demand for or Receipt of Ransom

INA 101(a)(43)(H)

Child Pornography Offense

INA 101(a)(43)(I)

Racketeering, Gambling (imprisonment term of at least 1 yr)

INA 101(a)(43)(J)

Prostitution Offenses (managing, transporting, trafficking)

INA 101(a)(43)(K)(i)–(iii)

Gathering or Transmitting Classified Information

INA 101(a)(43)(L)(i)–(iii)

Fraud or Deceit Offenses or Tax Evasion (over $10,000)

INA 101(a)(43)(M)(i), (ii)

Alien Smuggling

INA 101(a)(43)(N)

Illegal Entry or Reentry by Removed Aggravated Felon

INA 101(a)(43)(O)

Passport, Document Fraud (imprisonment term of at least 1 yr)

INA 101(a)(43)(P)

Failure to Appear Sentence (offense punishable by at least 5 yrs)

INA 101(a)(43)(Q)

Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles

INA 101(a)(43)(R)

Obstruction of Justice, Perjury, Bribery of Witness

INA 101(a)(43)(S)

Failure to Appear to Court (offense punishable by at least 2 yrs)

INA 101(a)(43)(T)

Attempt or Conspiracy to Commit an Aggravated Felony

INA 101(a)(43)(U)

C. Persecution, Genocide, Torture, or Severe Violations of Religious Freedom

The applicant is responsible for providing any evidence or documentation to support a claim that he or she is not ineligible for naturalization based on involvement in any of the activities addressed in this section.

1. Nazi Persecutions

An applicant who ordered, incited, assisted, or otherwise participated in the persecution of any person or persons in association with the Nazi Government of Germany or any government in an area occupied by or allied with the Nazi Government of Germany is permanently barred from establishing GMC for naturalization. [7] See INA 101(f)(9) and INA 212(a)(3)(E).

2. Genocide

An applicant who has ordered, incited, assisted, or otherwise participated in genocide, at any time is permanently barred from establishing GMC for naturalization. [8] See INA 101(f)(9) and INA 212(a)(3)(E). See 18 U.S.C. 2340 and 18 U.S.C. 1091(a). The criminal offense of “genocide” includes any of the following acts committed in time of peace or time of war with the specific intent to destroy in whole or in substantial part a national, ethnic, racial, or religious group as such:

Killing members of that group;

Causing serious bodily injury to members of that group;

Causing the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

Subjecting the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

Imposing measures intended to prevent births within the group; or

Transferring by force children of the group to another group. [9] See 18 U.S.C. 1091. See Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S. 278 [Dec. 9, 1948]).

3. Torture or Extrajudicial Killings

An applicant who has committed, ordered, incited, assisted, or otherwise participated in the commission of any act of torture or under color of law of any foreign nation any extrajudicial killing is permanently barred from establishing GMC for naturalization. [10] See INA 101(f)(9) and INA 212(a)(3)(E).

“Torture” is defined as an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his or her custody or physical control. [11] See 18 U.S.C. 2340.

An “extrajudicial killing” is defined as a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees, which are recognized as indispensable by civilized peoples. [12] See 28 U.S.C. 1350 (Note). See Section 3(a) of the Torture Victim Protection Act of 1991.

4. Particularly Severe Violations of Religious Freedom

An applicant who was responsible for, or directly carried out, particularly severe violations of religious freedom while serving as a foreign government official at any time is not able to establish GMC. [13] See INA 101(f)(9) and INA 212(a)(2)(G). “Particularly severe violations of religious freedom” are defined as systematic, ongoing, egregious violations of religious freedom, including violations such as:

Torture or cruel, inhuman, or degrading treatment or punishment;

Prolonged detention without charges;

Causing the disappearance of persons by the abduction or clandestine detention of those persons; or

Other flagrant denial of the right to life, liberty, or the security of persons. [14] See 22 U.S.C. 6402.

Footnotes

1.

See 8 CFR 316.10(b)(1)(i).

 

2.

See INA 101(a)(43). See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208 , 110 Stat. 3009-546 (September 30, 1996).

 

3.

See 8 CFR 316.10(b)(1)(ii).

 

4.

See 8 CFR 316.10(a)(2).

 

5.

See INA 101(a)(43)(B) . See Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).

 

6.

See INA 101(a)(43)(F) and INA 101(a)(43)(G).

 

7.

See INA 101(f)(9) and INA 212(a)(3)(E).

 

8.

See INA 101(f)(9) and INA 212(a)(3)(E). See 18 U.S.C. 2340 and 18 U.S.C. 1091(a).

 

9.

See 18 U.S.C. 1091. See Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S. 278 [Dec. 9, 1948]).

 

10.

See INA 101(f)(9) and INA 212(a)(3)(E).

 

11.

See 18 U.S.C. 2340.

 

12.

See 28 U.S.C. 1350 (Note). See Section 3(a) of the Torture Victim Protection Act of 1991.

 

13.

See INA 101(f)(9) and INA 212(a)(2)(G).

 

14.

See 22 U.S.C. 6402.

 

Chapter 5 - Conditional Bars for Acts in Statutory Period

In addition to the permanent bars to good moral character (GMC), the Immigration and Nationality Act (INA) and corresponding regulations include bars to GMC that are not permanent in nature. USCIS refers to these bars as “conditional bars.” These bars are triggered by specific acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance. [1] See INA 316(a). See 8 CFR 316.10. An offense that does not fall within a permanent or conditional bar to GMC may nonetheless affect an applicant’s ability to establish GMC. [2] See INA 101(f). See Chapter 1, Purpose and Background [12 USCIS-PM F.1].

With regard to bars to GMC requiring a conviction, the officer reviews the relevant federal or state law or regulation of the United States, or law or regulation of any foreign country to determine whether the applicant can establish GMC.

The table below serves as a quick reference guide on the general conditional bars to establishing GMC for acts occurring during the statutory period. The sections and paragraphs that follow the table provide further guidance on each bar and offense.

Conditional Bars to GMC for Acts Committed in Statutory Period

Offense

Citation

Description

One or More CIMTs

8 CFR 316.10(b)(2)(i), (iv)

INA 101(f)(3)

Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense

Aggregate Sentence of Five Yrs or More

8 CFR 316.10(b)(2)(ii), (iv) INA 101(f)(3)

Conviction of two or more offenses with combined sentence of five years or more (other than political offense)

Controlled Substance Violation

8 CFR 316.10(b)(2)(iii), (iv) INA 101(f)(3)

Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana

Incarceration for 180 Days

8 CFR 316.10(b)(2)(v)

INA 101(f)(7)

Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad

False Testimony under Oath

8 CFR 316.10(b)(2)(vi)

INA 101(f)(6)

False testimony for the purpose of obtaining any immigration benefit

Prostitution Offenses

8 CFR 316.10(b)(2)(vii)

INA 101(f)(3)

Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution

Smuggling of a Person

8 CFR 316.10(b)(2)(viii)

INA 101(f)(3)

Involved in smuggling of a person to enter or try to enter the United States in violation of law

Polygamy

8 CFR 316.10(b)(2)(ix)

INA 101(f)(3)

Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)

Gambling Offenses

8 CFR 316.10(b)(2)(x)–(xi)

INA 101(f)(4)–(5)

Two or more gambling offenses or derives income principally from illegal gambling activities

Habitual Drunkard

8 CFR 316.10(b)(2)(xii)

INA 101(f)(1)

Is or was a habitual drunkard

Failure to Support Dependents

8 CFR 316.10(b)(3)(i)

INA 101(f)

Willful failure or refusal to support dependents, unless extenuating circumstances are established

Adultery

8 CFR 316.10(b)(3)(ii)

INA 101(f)

Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established

Unlawful Acts

8 CFR 316.10(b)(3)(iii) INA 101(f)

Unlawful act that adversely reflect upon GMC, unless extenuating circumstances are established

A. One or More Crimes Involving Moral Turpitude

1. Crime Involving Moral Turpitude (CIMT)

“Crime involving moral turpitude” (CIMT) is a term used in the immigration context that has no statutory definition. Extensive case law, however, has provided sufficient guidance on whether an offense rises to the level of a CIMT. The courts have held that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” [3] See Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001), quoting Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992). See Matter of Flores, 17 I&N Dec. 225 (BIA 1980) (and cases cited therein).

Whether an offense is a CIMT is largely based on whether the offense involves willful conduct that is morally reprehensible and intrinsically wrong, the essence of which is a reckless, evil or malicious intent. The Attorney General has decreed that a finding of “moral turpitude” requires that the perpetrator committed a reprehensible act with some form of guilty knowledge. [4] See Matter of Silva-Trevino, 24 I&N Dec. 687, 688, 706 (A.G. 2008).

The officer should consider the nature of the offense in determining whether it is a CIMT. [5] See Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979). In many cases, the CIMT determination depends on whether the relevant state statute includes one of the elements that involves moral turpitude. For example, an offense or crime may be a CIMT in one state, but a similarly named crime in another state may not be a CIMT because of differences in the definition of the crime or offense. The officer may rely on local USCIS counsel in cases where there is a question about whether a particular offense is a CIMT.

The table below serves as a quick reference guide on the general categories of CIMTs and their respective elements or determining factors. The paragraphs that follow the table provide further guidance on each category.

General Categories of Crimes Involving Moral Turpitude (CIMTs)

CIMT Category

Elements of Crime

Crimes against a person

Criminal intent or recklessness, or is defined as morally reprehensible by state (may include statutory rape)

Crimes against property

Involving fraud against the government or an individual (may include theft, forgery, robbery)

Sexual and family crimes

No one set of principles or elements; see further explanation below (may include spousal or child abuse)

Crimes against authority of the Government

Presence of fraud is the main determining factor (may include offering a bribe, counterfeiting)

Crimes Against a Person

Crimes against a person involve moral turpitude when the offense contains criminal intent or recklessness or when the crime is defined as morally reprehensible by state statute. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon. For example, aggravated battery is usually, if not always, a CIMT. Simple assault and battery is not usually considered a CIMT.

Crimes Against Property

Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or against an individual. Certain crimes against property may require guilty knowledge or intent to permanently take property. Petty theft, grand theft, forgery, and robbery are CIMTs in some states.

Sexual and Family Crimes

It is difficult to discern a distinguishing set of principles that the courts apply to determine whether a particular offense involving sexual and family crimes is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent may also be a determining factor. The CIMT determination depends upon state statutes and the controlling case law and must be considered on a case-by-case basis.

Offenses such as spousal or child abuse may rise to the level of a CIMT, while an offense involving a domestic simple assault generally does not. An offense relating to indecent exposure or abandonment of a minor child may or may not rise to the level of a CIMT. In general, if the person knew or should have known that the victim was a minor, any intentional sexual contact with a child involves moral turpitude. [6] See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).

Crimes Against the Authority of the Government

The presence of fraud primarily determines the presence of moral turpitude in crimes against the authority of the government. Offering a bribe to a government official and offenses relating to counterfeiting are generally CIMTs. Offenses relating to possession of counterfeit securities without intent and contempt of court, however, are not generally CIMTs.

2. Committing One or More CIMTs in Statutory Period

An applicant who is convicted of or admits to committing one or more CIMTs during the statutory period cannot establish GMC for naturalization. [7] See INA 101(f)(3). See 8 CFR 316.10(b)(2)(i). If the applicant has only been convicted of (or admits to) one CIMT, the CIMT must have been committed within the statutory period as well. In cases of multiple CIMTs, only the commission and conviction (or admission) of one CIMT needs to be within the statutory period.

Petty Offense Exception

An applicant who has committed only one CIMT that is a considered a “petty offense,” such as petty theft, may be eligible for an exception if all of the following conditions are met:

The “petty offense” is the only CIMT the applicant has ever committed;

The sentence imposed for the offense was six months or less; and

The maximum possible sentence for the offense does not exceed one year. [8] See INA 212(a)(2)(A)(ii)(ll).

The petty offense exception does not apply to an applicant who has been convicted of or who admits to committing more than one CIMT even if only one of the CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense of which only one is a CIMT may be eligible for the petty offense exception. [9] See Matter of Garcia-Hernandez, 23 I&N Dec. 590, 594-95 (BIA 2003).

Purely Political Offense Exception

This bar to GMC does not apply to a conviction for a CIMT occurring outside of the United States for a purely political offense committed abroad. [10] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

B. Aggregate Sentence of Five Years or More

An applicant may not establish GMC if he or she has been convicted of two or more offenses during the statutory period for which the combined, imposed sentence was five years or more. [11] See 8 CFR 316.10(b)(2)(ii). The underlying offenses must have been committed within the statutory period.

Purely Political Offense Exception

The GMC bar for having two or more convictions does not apply if the convictions and resulting sentence or imprisonment of five years or more occurred outside of the United States for purely political offenses committed abroad. [12] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

C. Controlled Substance Violation

An applicant cannot establish GMC if he or she has been convicted of or admits to having violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. [13] See INA 101(f)(3) and INA 212(a)(2)(A)(i)(II). See 8 CFR 316.10(b)(2)(iii) and 8 CFR 316.10(b)(2)(iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)]. This bar to establishing GMC also applies to an admission to committing acts which constitute the essential elements of any controlled substance violation.

Exception for Single Offense of Simple Possession

The conditional bar to GMC for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana. [14] See INA 101(f)(3). See 8 CFR 316.10(b)(2)(iii). While an offense for simple possession of 30 grams or less of marijuana is excluded from INA 101(f)(3), it may nonetheless affect GMC under the residual clause of the GMC definition. See INA 101(f). See 8 CFR 316.10(a)(2).

D. Imprisonment for 180 Days or More

An applicant cannot establish GMC if he or she is or was imprisoned for an aggregate period of 180 days or more during the statutory period based on a conviction. [15] See INA 101(f)(7). See 8 CFR 316.10(b)(2)(v). This bar to GMC does not apply if the conviction resulted only in a sentence to a period of probation with no sentence of incarceration for 180 days or more. This bar applies regardless of the reason for the conviction. For example, this bar still applies if the term of imprisonment results from a violation of probation rather than from the original sentence. [16] See Matter of Piroglu, 17 I&N Dec. 578 (BIA 1980).

The commission of the offense resulting in conviction and confinement does not need to have occurred during the statutory period for this bar to apply. Only the confinement needs to be within the statutory period for the applicant to be precluded from establishing GMC.

Purely Political Offense Exception

This bar to GMC does not apply to a conviction and resulting confinement of 180 days or more occurring outside of the United States for a purely political offense committed abroad. [17] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

E. False Testimony

1. False Testimony in Statutory Period

An applicant who gives false testimony to obtain any immigration benefit during the statutory period cannot establish GMC. [18] See INA 101(f)(6). See 8 CFR 316.10(b)(2)(vi). False testimony occurs when the applicant deliberately intends to deceive the U.S. Government while under oath in order to obtain an immigration benefit. This holds true regardless of whether the information provided in the false testimony would have impacted the applicant’s eligibility. The statute does not require that the benefit be obtained, only that the false testimony is given in an attempt to obtain the benefit. [19] See Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).

While the most common occurrence of false testimony is failure to disclose a criminal or other adverse record, false testimony can occur in other areas. False testimony may include, but is not limited to, facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, or tax filing information.

2. Three Elements of False Testimony

There are three elements of false testimony established by the Supreme Court that must exist for a naturalization application to be denied on false testimony grounds: [20] See Kungys v. United States, 485 U.S. 759, 780-81 (1988).

Oral Statements

The “testimony” must be oral. False statements in a written application and falsified documents, whether or not under oath, do not constitute “testimony.” [21] See Matter of L-D-E, 8 I&N Dec. 399 (BIA 1959). However, false information provided orally under oath to an officer in a question-and-answer statement relating to a written application is “testimony.” [22] See Matter of Ngan, 10 I&N Dec. 725 (BIA 1964). See Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959). The oral statement must also be an affirmative misrepresentation. The Supreme Court makes it clear that there is no “false testimony” if facts are merely concealed, to include incomplete but otherwise truthful answers.

Oath

The oral statement must be made under oath in order to constitute false testimony. [23] See Matter of G-, 6 I&N Dec. 208 (BIA 1954). Oral statements to officers that are not under oath do not constitute false testimony. 

Subjective Intent to Obtain an Immigration Benefit

The applicant must be providing the false testimony in order to obtain an immigration benefit. False testimony for any other reason does not preclude the applicant from establishing GMC.

F. Prostitution

An applicant may not establish GMC if he or she has engaged in prostitution, procured or attempted to procure or to import prostitutes or persons for the purpose of prostitution, or received proceeds from prostitution during the statutory period. [24] See INA 101(f)(3) and INA 212(a)(2)(D)(i) and INA 212(a)(2)(D)(ii). See 8 CFR 316.10(b)(2)(vii). The Board of Immigration Appeals (BIA) has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct. [25] See Matter of T, 6 I&N Dec. 474 (BIA 1955). The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement. [26] See Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008).

G. Smuggling of a Person

An applicant is prohibited from establishing GMC if he or she is or was involved in the smuggling of a person or persons by encouraging, inducing, assisting, abetting or aiding any alien to enter or try to enter the United States in violation of law during the statutory period. [27] See INA 101(f)(3) and INA 212(a)(6)(E). See 8 CFR 316.10(b)(2)(viii).

Family Reunification Exception

This bar to GMC does not apply in certain cases where the applicant was involved in the smuggling of his or her spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law before May 5, 1988. [28] See INA 212(a)(6)(E)(ii). See Section 301 of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 5029 (November 29, 1990).

H. Polygamy

An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC. [29] See INA 101(f)(3) and INA 212(a)(10)(A). See 8 CFR 316.10(b)(2)(ix). Polygamy is the custom of having more than one spouse at the same time. [30] Polygamy is not the same as bigamy. Bigamy is the crime of marrying a person while being legally married to someone else. An applicant who has committed bigamy may be susceptible to a denial under the “unlawful acts” provision. The officer should review documents in the file and any documents the applicant brings to the interview for information about the applicant’s marital history, to include any visa petitions or applications, marriage and divorce certificates, and birth certificates of children.

I. Gambling

An applicant who has been convicted of committing two or more gambling offenses or who derives his or her income principally from illegal gambling activities during the statutory period is precluded from establishing GMC. [31] See INA 101(f)(5). See 8 CFR 316.10(b)(2)(x) and 8 CFR 316.10(b)(2)(xi). The gambling offenses must have been committed within the statutory period.

J. Habitual Drunkard

An applicant who is or was a habitual drunkard during the statutory period is precluded from establishing GMC. [32] See INA 101(f)(1). See 8 CFR 316.10(b)(2)(xii). Certain documents may reveal habitual drunkenness, to include divorce decrees, employment records, and arrest records. In addition, termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence may be indicators that the applicant is or was a habitual drunkard.

K. Failure to Support Dependents

An applicant who willfully failed or refused to support his or her dependents during the statutory period cannot establish GMC unless the applicant establishes extenuating circumstances. [33] See 8 CFR 316.10(b)(3)(i). See Hague Convention on the International Recovery of Child Support. The GMC determination for failure to support dependents includes consideration of whether the applicant has complied with his or her child support obligations abroad in cases where it is relevant. [34] See Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

Even if there is no court-ordered child support, the courts have concluded that parents have a moral and legal obligation to provide support for their minor children, and a willful failure to provide such support demonstrates that the individual lacks GMC. [35] See Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Malaszenko, 204 F.Supp. 744 (D.N.J. 1962) (and cases cited). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972). See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979).

An applicant who fails to support dependents may lack GMC if he or she:

Deserts a minor child; [36] See U.S. v. Harrison, 180 F.2d 981 (9th Cir. 1950).

Fails to pay any support; [37] See In re Malaszenko, 204 F.Supp. 744 (D. N.J. 1962). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947). or

Obviously pays an insufficient amount. [38] See In re Halas, 274 F.Supp. 604 (E.D. Pa. 1967). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960).

If the applicant has not complied with court-ordered child support and is in arrears, the applicant must identify the length of time of non-payment and the circumstances for the non-payment. An officer should review all court records regarding child support, and non-payment if applicable, in order to determine whether the applicant established GMC. [39] See 8 CFR 316.10(b)(3)(i).

Extenuating Circumstances

If the applicant shows extenuating circumstances, a failure to support dependents should not adversely affect the GMC determination. [40] See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

The officer should consider the following circumstances:

An applicant’s unemployment and financial inability to pay the child support; [41] See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972).

Cause of the unemployment and financial inability to support dependents;

Evidence of a good-faith effort to reasonably provide for the support of the child; [42] See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958).

Whether the nonpayment was due to an honest but mistaken belief that the duty to support a minor child had terminated; [43] See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979). and

Whether the nonpayment was due to a miscalculation of the court-ordered arrears. [44] See Etape v. Napolitano, 664 F.Supp.2d 498, 517 (D. Md. 2009).

L. Adultery

An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing GMC. [45] See 8 CFR 316.10(b)(3)(ii).

Extenuating Circumstances

If the applicant shows extenuating circumstances, an offense of adultery should not adversely affect the GMC determination. [46] See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)]. Extenuating circumstances may include instances where the applicant divorced his or her spouse but later the divorce was deemed invalid or the applicant and the spouse mutually separated and they were unable to obtain a divorce. [47] See In re Petition of Schroers, 336 F.Supp. 1348 (S.D.N.Y. 1971). See In re Petition of Russo, 259 F.Supp. 230 (S.D.N.Y. 1966). See Dickhoff v. Shaughnessy, 142 F.Supp. 535 (S.D.N.Y. 1956).

M. Unlawful Acts

An applicant who has committed, was convicted, or imprisoned for an unlawful act or acts during the GMC period may be found to lack GMC. [48] See INA 101(f). See 8 CFR 316.10(b)(3)(iii). This provision may apply to cases where an offense is not specifically listed in the other relevant GMC provisions but rises to the level of preventing the applicant from establishing GMC. [49] See 8 CFR 316.10(b)(1) and 8 CFR 316.10(b)(2) (other relevant GMC regulations). This provision does not require the applicant to have been charged or convicted of the offense.

An “unlawful act” includes any act that is against the law, illegal or against moral or ethical standards of the community. The fact that an act is a crime makes any commission thereof an unlawful act. [50] See U.S. v. Lekarczyk, 354 F.Supp.2d 883 (W.D. Wis. 2005). See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir.2005). Collateral estoppel bars a defendant who is convicted in a criminal trial from contesting this conviction in a subsequent civil action with respect to issues necessarily decided in the criminal trial. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157 (1963).

Considering Extenuating Circumstances for Unlawful Acts

If the applicant shows extenuating circumstances, the commission of an unlawful act [51] See 8 CFR 316.10(b)(3)(iii). or acts should not adversely affect the GMC determination. [52] See INA 101(f). See 8 CFR 316.10(b)(3)(iii). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)]. An extenuating circumstance must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act. [53] See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005) citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y. 2003).

An officer may not consider conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act as an extenuating circumstance. Consequences after the fact and future hardship are not considered extenuating circumstances. [54] See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005). If a jury or a court acquitted the applicant, he or she has not committed an unlawful act.

The factors considered in the determination are included in the denial notices in cases that result in an unfavorable determination.

Examples of Unlawful Acts

The following are examples of offenses that may be considered under the unlawful acts regulation. Each GMC determination is made on a case-by-case basis, to include determinations involving an “unlawful act” consideration.

1. Unlawful Voting and False Claim to U.S. Citizenship for Voting

An applicant may fail to show GMC if he or she engaged in unlawful voting or falsely claimed U.S. citizenship for voting. [55] See 18 U.S.C. 611 (voting by aliens). See 18 U.S.C. 1015(f) (false claim to U.S. citizenship). In September 1996, Congress enacted legislation to address unlawful voting and false claims to U.S. citizenship for purposes of registering to vote or voting. [56] See INA 212(a)(10)(D)(i) and INA 237(a)(6)(A) (addressing unlawful voting). See INA 212(a)(6)(C)(ii)(I) and INA 237(a)(3)(D)(i) (addressing false claims to U.S. citizenship). These provisions were added by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (September 30, 1996).

A noncitizen who is convicted of unlawful voting may be fined, imprisoned up to one year, or both, and subject to removal. [57] See 18 U.S.C. 611 (voting by aliens).

A noncitizen who is convicted of making a false claim to U.S. citizenship to register to vote or vote may be fined, imprisoned up to five years, or both, and subject to removal. [58] See 18 U.S.C. 1015(f) (false claim to U.S. citizenship).

The officer may request the applicant to provide a sworn statement regarding his or her testimony on illegal voting or false claim to citizenship for voting. The officer may also require an applicant to obtain any relevant evidence, such as the voter registration card, applicable voter registration form, and voting record from the relevant board of elections commission.

The table below serves as a quick reference guide on the effect on GMC determinations by unlawful voting or for false claims to U.S. citizenship. Further guidance is provided below.

Effect on GMC by Unlawful Voting or

False Claim to U.S. Citizenship in Statutory Period

Offense

Penalty

if Convicted

Effect on GMC

If Convicted

If Imprisoned

If Not Convicted

Unlawful Voting

18 U.S.C. 611

May be fined or imprisoned up to 1 yr, or both

Unlikely a CIMT and will not bar GMC by itself

Bars GMC if incarcerated for 180 days or more, or if sentence from convictions total 5 yrs or more

May bar GMC depending on totality of the circumstances, and on whether exceptions apply

False Claim to Citizenship

18 U.S.C. 1015(f)

May be fined or imprisoned up to 5 yrs, or both

CIMT and will bar GMC (may be a felony)

Offenses without Convictions

An officer may find the applicant to lack GMC if the applicant was not convicted of unlawful voting or false claim to citizenship for voting. The officer should consider the totality of the circumstances and weigh all favorable and unfavorable factors of each case, to include whether the applicant qualifies for an exception.

An applicant may only have engaged in unlawful voting if his or her conduct was unlawful under the relevant federal, state, or local election law. The officer should consider the controlling statutes in cases involving potential unlawful voting offenses, because some local municipalities permit lawful permanent residents (LPRs) or other noncitizens to vote in municipal elections.

The officer does not need to focus on the underlying election law for false claims to U.S. citizenship. An applicant may be considered to have made a false claim to U.S. citizenship if the following conditions have been met on or after September 30, 1996.

The applicant actually falsely represented himself or herself as a U.S. citizen; and

The applicant made such misrepresentation in order to register to vote or for voting.

Convictions

A conviction for unlawful voting, by itself, generally should not bar an applicant from establishing GMC because the conviction is unlikely to be a CIMT. [59] See 18 U.S.C. 611 (voting by noncitizens). See 8 U.S.C. 1015(f) (false claim to U.S. citizenship). On the other hand, making a false claim to U.S. citizenship in order to register to vote or to vote is a CIMT. An applicant who is convicted of a CIMT is generally precluded from establishing GMC.

A conviction for making a false claim to U.S. citizenship in order to register to vote or for voting is a felony and prevents an applicant from showing GMC unless an exception applies. [60] See INA 101(f)(3).

Imprisonment

Unless an applicant qualifies for an exception, the applicant is barred from establishing GMC if:

The applicant was convicted and imprisoned for 180 days or more during the statutory period for unlawful voting or for making a false claim to U.S. citizenship; [61] See Chapter 5 Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More [12 USCIS-PM F.5(D)]. See INA 101(f)(7). or

The applicant has multiple convictions with an aggregate sentence of five years or more, which include conviction(s) for unlawful voting or making a false claim to U.S. citizenship. [62] See Chapter 5 Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More [12 USCIS-PM F.5(B)]. See INA 101(f)(3).

Exceptions

In 2000, Congress added exceptions for GMC determinations and removal of noncitizens for unlawful voting and false claims to U.S. citizenship. [63] See INA 101(f). See INA 212(a)(10)(D)(ii) and INA 237(a)(6)(B) (unlawful voting exception). See INA 212(a)(6)(C)(ii)(II) and INA 237(a)(3)(D)(i) (false claims to U.S. citizenship exception). These provisions were added by the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (October 30, 2000). The exceptions only apply to convictions that became final on or after October 30, 2000. [64] See Section 201(d)(3) of the CCA, Pub. L. 106-395, 114 Stat. 1631, 1636 (October 30, 2000).

An applicant qualifies for an exception if the following conditions are met:

The applicant’s natural or adoptive parents are or were U.S. citizens at the time of the violation; [65] As a matter of policy, USCIS has determined that the applicant’s parents had to be U.S. citizens at the time of the illegal voting or false claim to U.S. citizenship in order to meet the first prong of this exception.

The applicant permanently resided in the United States prior to reaching the age of 16 years; and

The applicant “reasonably believed” at the time of the violation that he or she was a U.S. citizen.

To assess whether the applicant “reasonably believed” that he or she was a U.S. citizen at the time of the violation, the officer must consider the totality of the circumstances in the case, weighing such factors as the length of time the applicant resided in the United States and the age when the applicant became an LPR.

2. Failure to File Tax Returns or Pay Taxes

An applicant who fails to file tax returns or pay his or her taxes may be precluded from establishing GMC. LPRs are generally taxed in the same way as U.S. citizens. This means that their worldwide income may be subject to U.S. tax and may need to be reported on their U.S. tax return. The income of LPRs is subject to the same graduated tax rates that apply to U.S. citizens. [66] See IRS Publication 519, U.S. Tax Guide for Aliens.

An applicant who did not originally file tax returns or did not pay the appropriate taxes may be able to establish GMC by submitting a letter from the tax authority indicating that:

The applicant has filed the appropriate forms and returns; and

The applicant has paid the required taxes, or has made arrangements for payment.

If the officer uncovers inconsistencies in facts submitted on the application for naturalization and material elements on the applicant’s tax return, such as marital status, number of children, and employment, the applicant may be precluded from establishing GMC due to an attempt to defraud the Internal Revenue Service (IRS) by avoiding taxes. [67] The following involve defrauding the United States by avoiding taxes (a CIMT). See Matter of M , 8 I&N Dec. 535 (BIA 1960). See Matter of E , 9 I&N Dec. 421 (BIA 1961). See Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005) (state failure to pay taxes; evasion is same as fraud). See Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (state crime).

Footnotes

1.

See INA 316(a). See 8 CFR 316.10.

 

2.

See INA 101(f). See Chapter 1, Purpose and Background [12 USCIS-PM F.1].

 

3.

See Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001), quoting Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992). See Matter of Flores, 17 I&N Dec. 225 (BIA 1980) (and cases cited therein).

 

4.

See Matter of Silva-Trevino, 24 I&N Dec. 687, 688, 706 (A.G. 2008).

 

5.

See Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979).

 

6.

See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).

 

7.

See INA 101(f)(3). See 8 CFR 316.10(b)(2)(i).

 

8.

See INA 212(a)(2)(A)(ii)(ll).

 

9.

See Matter of Garcia-Hernandez, 23 I&N Dec. 590, 594-95 (BIA 2003).

 

10.

See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

 

11.

See 8 CFR 316.10(b)(2)(ii).

 

12.

See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

 

13.

See INA 101(f)(3) and INA 212(a)(2)(A)(i)(II). See 8 CFR 316.10(b)(2)(iii) and 8 CFR 316.10(b)(2)(iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)].

 

14.

See INA 101(f)(3). See 8 CFR 316.10(b)(2)(iii). While an offense for simple possession of 30 grams or less of marijuana is excluded from INA 101(f)(3), it may nonetheless affect GMC under the residual clause of the GMC definition. See INA 101(f). See 8 CFR 316.10(a)(2).

 

15.

See INA 101(f)(7). See 8 CFR 316.10(b)(2)(v).

 

16.

See Matter of Piroglu, 17 I&N Dec. 578 (BIA 1980).

 

17.

See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

 

18.

See INA 101(f)(6). See 8 CFR 316.10(b)(2)(vi).

 

19.

See Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).

 

20.

See Kungys v. United States, 485 U.S. 759, 780-81 (1988).

 

21.

See Matter of L-D-E, 8 I&N Dec. 399 (BIA 1959).

 

22.

See Matter of Ngan, 10 I&N Dec. 725 (BIA 1964). See Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959).

 

23.

See Matter of G-, 6 I&N Dec. 208 (BIA 1954).

 

24.

See INA 101(f)(3) and INA 212(a)(2)(D)(i) and INA 212(a)(2)(D)(ii). See 8 CFR 316.10(b)(2)(vii).

 

25.

See Matter of T, 6 I&N Dec. 474 (BIA 1955).

 

26.

See Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008).

 

27.

See INA 101(f)(3) and INA 212(a)(6)(E). See 8 CFR 316.10(b)(2)(viii).

 

28.

See INA 212(a)(6)(E)(ii). See Section 301 of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 5029 (November 29, 1990).

 

29.

See INA 101(f)(3) and INA 212(a)(10)(A). See 8 CFR 316.10(b)(2)(ix).

 

30.

Polygamy is not the same as bigamy. Bigamy is the crime of marrying a person while being legally married to someone else. An applicant who has committed bigamy may be susceptible to a denial under the “unlawful acts” provision.

 

31.

See INA 101(f)(5). See 8 CFR 316.10(b)(2)(x) and 8 CFR 316.10(b)(2)(xi).

 

32.

See INA 101(f)(1). See 8 CFR 316.10(b)(2)(xii).

 

33.

See 8 CFR 316.10(b)(3)(i). See Hague Convention on the International Recovery of Child Support.

 

34.

See Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

 

35.

See Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Malaszenko, 204 F.Supp. 744 (D.N.J. 1962) (and cases cited). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972). See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979).

 

36.

See U.S. v. Harrison, 180 F.2d 981 (9th Cir. 1950).

 

37.

See In re Malaszenko, 204 F.Supp. 744 (D. N.J. 1962). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947).

 

38.

See In re Halas, 274 F.Supp. 604 (E.D. Pa. 1967). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960).

 

39.

See 8 CFR 316.10(b)(3)(i).

 

40.

See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

 

41.

See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972).

 

42.

See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958).

 

43.

See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979).

 

44.

See Etape v. Napolitano, 664 F.Supp.2d 498, 517 (D. Md. 2009).

 

45.

See 8 CFR 316.10(b)(3)(ii).

 

46.

See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

 

47.

See In re Petition of Schroers, 336 F.Supp. 1348 (S.D.N.Y. 1971). See In re Petition of Russo, 259 F.Supp. 230 (S.D.N.Y. 1966). See Dickhoff v. Shaughnessy, 142 F.Supp. 535 (S.D.N.Y. 1956).

 

48.

See INA 101(f). See 8 CFR 316.10(b)(3)(iii).

 

49.

See 8 CFR 316.10(b)(1) and 8 CFR 316.10(b)(2) (other relevant GMC regulations).

 

50.

See U.S. v. Lekarczyk, 354 F.Supp.2d 883 (W.D. Wis. 2005). See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir.2005). Collateral estoppel bars a defendant who is convicted in a criminal trial from contesting this conviction in a subsequent civil action with respect to issues necessarily decided in the criminal trial. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157 (1963).

 

51.

See 8 CFR 316.10(b)(3)(iii).

 

52.

See INA 101(f). See 8 CFR 316.10(b)(3)(iii). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

 

53.

See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005) citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y. 2003).

 

54.

See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005).

 

55.

See 18 U.S.C. 611 (voting by aliens). See 18 U.S.C. 1015(f) (false claim to U.S. citizenship).

 

56.

See INA 212(a)(10)(D)(i) and INA 237(a)(6)(A) (addressing unlawful voting). See INA 212(a)(6)(C)(ii)(I) and INA 237(a)(3)(D)(i) (addressing false claims to U.S. citizenship). These provisions were added by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (September 30, 1996).

 

57.

See 18 U.S.C. 611 (voting by aliens).

 

58.

See 18 U.S.C. 1015(f) (false claim to U.S. citizenship).

 

59.

See 18 U.S.C. 611 (voting by noncitizens). See 8 U.S.C. 1015(f) (false claim to U.S. citizenship).

 

60.

See INA 101(f)(3).

 

61.

See Chapter 5 Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More [12 USCIS-PM F.5(D)]. See INA 101(f)(7).

 

62.

See Chapter 5 Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More [12 USCIS-PM F.5(B)]. See INA 101(f)(3).

 

63.

See INA 101(f). See INA 212(a)(10)(D)(ii) and INA 237(a)(6)(B) (unlawful voting exception). See INA 212(a)(6)(C)(ii)(II) and INA 237(a)(3)(D)(i) (false claims to U.S. citizenship exception). These provisions were added by the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (October 30, 2000).

 

64.

See Section 201(d)(3) of the CCA, Pub. L. 106-395, 114 Stat. 1631, 1636 (October 30, 2000).

 

65.

As a matter of policy, USCIS has determined that the applicant’s parents had to be U.S. citizens at the time of the illegal voting or false claim to U.S. citizenship in order to meet the first prong of this exception.

 

66.

See IRS Publication 519, U.S. Tax Guide for Aliens.

 

67.

The following involve defrauding the United States by avoiding taxes (a CIMT). See Matter of M , 8 I&N Dec. 535 (BIA 1960). See Matter of E , 9 I&N Dec. 421 (BIA 1961). See Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005) (state failure to pay taxes; evasion is same as fraud). See Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (state crime).

 

Part G - Spouses of U.S. Citizens

Chapter 1 - Purpose and Background

A. Purpose

Spouses of United States citizens may be eligible for naturalization on the basis of their marriage under special provisions of the Immigration and Nationality Act (INA), to include overseas processing. In general, spouses of U.S. citizens are required to meet the general naturalization requirements. [1] See INA 316. See 8 CFR 316. See Part D, General Naturalization Requirements [12 USCIS-PM D]. The special provisions, however, provide modifications to those requirements.

The spouse of a U.S. citizen may naturalize through various provisions:

The spouse of a U.S. citizen may naturalize under the general naturalization provisions for applicants who have resided in the United States for at least five years after becoming a lawful permanent resident (LPR). [2] See INA 316(a). See Part D, General Naturalization Requirements [12 USCIS-PM D].

The spouse of a U.S. citizen may naturalize after residing in the United States for three years after becoming an LPR, rather than five years as generally required. [3] See INA 319(a). See Chapter 3, Spouses of U.S. Citizens Residing in the United States [12 USCIS-PM G.3].

The spouse of a U.S. citizen employed abroad who is working for the U.S. Government (including the armed forces) or other qualified entity may naturalize in the United States without any required period of residence or physical presence in the United States after becoming an LPR. [4] See INA 319(b). See Chapter 4, Spouses of U.S. Citizens Employed Abroad [12 USCIS-PM G.4].

The spouse of a U.S. citizen who is serving abroad in the U.S. armed forces may naturalize abroad while residing with his or her spouse, and time spent abroad under these circumstances is considered residence and physical presence in the United States for purposes of the general five-year or three-year provision for spouses. [5] See INA 316(a), INA 319(a), and INA 319(e). See 8 U.S.C. 1443a. See Part I, Military Members and their Families [12 USCIS-PM I].

The surviving spouse of a U.S. citizen who dies during a period of honorable service in an active-duty status in the U.S. armed forces or was granted citizenship posthumously may naturalize in the United States without any required period of residence or physical presence after becoming an LPR. [6] See INA 319(d). 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)].

In addition, spouses, former spouses, or intended spouses of U.S. citizens may naturalize if they obtained LPR status on the basis of having been battered or subjected to extreme cruelty by their citizen spouse. [7] See INA 319(a). See Chapter 3, Spouses of U.S. Citizens Residing in the United States [12 USCIS-PM G.3].

B. Background

The current naturalization provisions for spouses of U.S. citizens reflect legislation dating back to 1922. Congress considered it inefficient and undesirable to require the spouse of a U.S. citizen to wait five years before naturalization. [8] See H.R. REP. 67-1110, 2d Sess., p. 2. See Immigration Act of September 22, 1922. Congress made further amendments in 1934, to include a required period of three years of residence. In 1940, Congress incorporated provisions into the Nationality Act of 1940 that were substantially similar to those of the 1922 and 1934 acts. Today’s statutes reflect Congress’ long-standing aim to facilitate the naturalization process for spouses of U.S. citizens to provide spouses with the protections afforded by U.S. citizenship.

C. Table of General Provisions

The table below serves as a quick reference guide to the pertinent naturalization authorities for spouses of U.S. citizens. The chapters that follow the table provide further guidance.

General Provisions for Applicants filing as Spouses of U.S. Citizens

Provision

Marriage and Marital Union

Continuous

Residence

Physical

Presence

Eligibility for Overseas Processing

Spouses of U.S. Citizens Residing in United States

INA 319(a)

Married and living in marital union for at least 3 years prior to filing

3 years after becoming an LPR

18 months during period of residence

Not applicable, except for spouses of military members who may complete entire process from abroad – INA 319(e)

Spouses of U.S. Citizens Employed Abroad

INA 319(b)

Married prior to filing

Must be LPR at filing; no specified period required

Not applicable; all must be in U.S. for interview and Oath

Spouses of Deceased Service Members

INA 319(d)

Must have been married and living in marital union at time of death

Must be LPR at filing; no specified period required

Not applicable; all must be in U.S. for interview and Oath

D. Legal Authorities

INA 316; 8 CFR 316 – General requirements for naturalization

INA 319; 8 CFR 319 – Spouses of U.S. citizens

INA 319(e); 8 CFR 316.5(b)(6) and 8 CFR 316.6 – Residence, physical presence, and overseas naturalization for certain spouses of military personnel

8 U.S.C. 1443a – Overseas naturalization for service members and their family

Footnotes

1.

See INA 316. See 8 CFR 316. See Part D, General Naturalization Requirements [12 USCIS-PM D].

 

2.

See INA 316(a). See Part D, General Naturalization Requirements [12 USCIS-PM D].

 

3.

See INA 319(a). See Chapter 3, Spouses of U.S. Citizens Residing in the United States [12 USCIS-PM G.3].

 

4.

See INA 319(b). See Chapter 4, Spouses of U.S. Citizens Employed Abroad [12 USCIS-PM G.4].

 

5.

See INA 316(a), INA 319(a), and INA 319(e). See 8 U.S.C. 1443a. See Part I, Military Members and their Families [12 USCIS-PM I].

 

6.

See INA 319(d). 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)].

 

7.

See INA 319(a). See Chapter 3, Spouses of U.S. Citizens Residing in the United States [12 USCIS-PM G.3].

 

8.

See H.R. REP. 67-1110, 2d Sess., p. 2. See Immigration Act of September 22, 1922.

 

Chapter 2 - Marriage and Marital Union for Naturalization

A. Validity of Marriage

1. Validity of Marriages in the United States or Abroad

Validity of Marriage for Immigration Purposes

The applicant must establish validity of his or her marriage. In general, the legal validity of a marriage is determined by the law of the place where the marriage was celebrated (“place-of-celebration rule”). Under this rule, a marriage is valid for immigration purposes in cases where the marriage is valid under the law of the jurisdiction in which it is performed. [1] See, for example, Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005); Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976); Matter of H-, 9 I&N Dec 640 (BIA 1962).

In all cases, the burden is on the applicant to establish that he or she has a valid marriage with his or her U.S. citizen spouse for the required period of time. [2] See 8 CFR 319.1(b)(1). In most cases, a marriage certificate is prima facie evidence that the marriage was properly and legally performed.

USCIS does not recognize the following relationships as marriages, even if valid in the place of celebration:

Polygamous marriages; [3] See Matter of H-, 9 I&N Dec. 640 (BIA 1962). Polygamous marriages are not recognized as a matter of federal public policy. However, note that battered spouses who had a bigamous marriage may still be eligible for naturalization. See INA 204(a)(1)(A)(iii)(II) and INA 319(a).

Certain marriages that violate the strong public policy of the state of residence of the couple; [4] This is a narrow exception that under BIA case law generally has been limited to situations, such as certain incestuous marriages, where the marriage violates the criminal law of the state of residence. See Matter of Da Silva, 15 I&N Dec 778 (BIA 1976); Matter of Zappia, 12 I&N Dec. 439 (BIA 1967); Matter of Hirabayashi, 10 I&N Dec 722 (BIA 1964); Matter of M, 3 I&N Dec. 465 (BIA 1948). Note that as discussed below, if the state of residence has a public policy refusing to recognize same-sex marriage, this will not result in a same-sex marriage being considered invalid for immigration purposes if it is valid in the place of celebration.

Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration; [5] If the relationship is treated as a marriage, however, such as a “common law marriage,” it will be recognized.

Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated; [6] See INA 101(a)(35). or

Relationships entered into for purposes of evading immigration laws of the United States. [7] See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975; Matter of M-, 8 I&N Dec. 217 (BIA 1958).

Validity of Marriage Between Two Persons of the Same Sex

In June 2013, the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), which had limited the terms “marriage” and “spouse” to opposite-sex marriages for purposes of all federal laws, was unconstitutional. [8] See United States v. Windsor, 133 S. Ct. 2675 (2013). See 1 U.S.C. 7 (section 3 of DOMA). See the Defense of Marriage Act (DOMA), Pub.L. 104-199, 110 Stat. 2419 (September 21, 1996). In accordance with the Supreme Court decision, USCIS determines the validity of a same-sex marriage by the place-of-celebration rule, just as USCIS applies this rule to determine the validity of an opposite-sex marriage. [9] Prior to the Supreme Court decision, United States v. Windsor, USCIS did not recognize relationships between two persons of the same sex as marriages or intended marriages in accordance with section 3 of DOMA.

Therefore, in cases of marriage between persons of the same sex, officers will review the laws of the jurisdiction in which the marriage took place to determine if the jurisdiction recognizes same-sex marriages and the marriage otherwise is legally valid.

Since the place-of-celebration rule governs same-sex marriages in exactly the same way that it governs opposite-sex marriages, unless the marriage is polygamous or otherwise falls within an exception to the place-of-celebration rule as discussed above, the legal validity of a same-sex marriage is determined exclusively by the law of the jurisdiction where the marriage was celebrated.

If the same-sex couple now resides in a jurisdiction different from the one in which they celebrated their marriage, and that jurisdiction does not recognize same-sex marriages, the officer will look to the law of the state where the marriage was celebrated in order to determine the validity of the marriage. The domicile state’s laws and policies on same-sex marriages will not affect whether USCIS will recognize a marriage as valid.

Validity of Marriage in Cases Involving Transgender Persons

USCIS accepts the validity of a marriage in cases involving transgender persons if the state or local jurisdiction in which the marriage took place recognizes the marriage as a valid marriage, subject to the exceptions described above (such as polygamy). [10] Officers should consult OCC in cases where the marriage was originally an opposite-sex marriage celebrated in a state that does not recognize same-sex marriage, and one of the spouses changed gender after the marriage.

2. Validity of Foreign Divorces and Subsequent Remarriages

The validity of a divorce abroad depends on the interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried. [11] See Matter of Luna, 18 I&N Dec. 385 (BIA 1983). See Matter of Ma, 15 I&N Dec. 70 (BIA 1974). If the divorce is not final under the foreign law, remarriage to a U.S. citizen is not valid for immigration purposes. [12] See Matter of Ma, 15 I&N Dec. 70, 71 (BIA 1974). See Matter of Miraldo, 14 I&N Dec. 704 (BIA 1974).

An officer should ensure that the court issuing the divorce had jurisdiction to do so. [13] For example, law requires both parties to be domiciled in the country at the time of divorce, but that was not the case. See Matter of Hosseinian, 19 I& N Dec. 453 (BIA 1987). See Matter of Weaver, 16 I&N Dec. 730 (BIA 1979). See Matter of Luna, 18 I&N Dec. 385 (BIA 1983). Foreign divorce laws may allow for a final decree even when the applicants are not residing in the country. Some states, however, do not recognize these foreign divorces and do not provide reciprocity. The applicant and his or her former spouse’s place of domicile at the time of the divorce is important in determining whether the court had jurisdiction.

3. Evidence

The burden is on the applicant to establish that he or she is in a valid marriage with his or her U.S. citizen spouse for the required period of time. [14] See 8 CFR 319.1(b)(1). A spouse of a U.S. citizen must submit with the naturalization application an official civil record to establish that the marriage is legal and valid. If an official civil record cannot be produced, secondary evidence may be accepted on a case-by-case basis. An officer has the right to request an original record if there is doubt as to the authenticity of the record. [15] See 8 CFR 103.2(b). See 8 CFR 319.1 and 8 CFR 319.2.

B. Common Law Marriage

The concept of common law marriage presupposes an honest good-faith intention on the part of two persons, free to marry, to live together as husband and wife from the inception of the relationship. Some states recognize common law marriages and consider the parties to be married. [16] For purposes of determining whether a common law marriage exists, see statutes and case law for the appropriate jurisdiction. In order for a common law marriage to be valid for immigration purposes:

The parties must live in that jurisdiction; and

The parties must meet the qualifications for common law marriage for that jurisdiction.

Other states may recognize a common law marriage contracted in another state even if the recognizing state does not accept common law marriage as a means for its own residents to contract marriage.

USCIS recognizes common law marriages for purposes of naturalization if the marriage was valid and recognized by the state in which the marriage was established. [17] The date a common law marriage commences is determined by laws of the relevant jurisdiction. This applies even if the naturalization application is filed in a jurisdiction that does not recognize or has never recognized the principle of common law marriage.

The officer should review the laws of the relevant jurisdiction on common law marriages to determine whether the applicant and spouse should be considered to be married for purposes of naturalization and when the marriage commenced.

C. U.S. Citizenship from Time of Filing until Oath

In order to take advantage of the special naturalization provisions for spouses of U.S. citizens, the applicant’s spouse must be and remain a U.S. citizen from the time of filing until the time the applicant takes the Oath of Allegiance. An applicant is ineligible for naturalization under these provisions if his or her spouse is not a U.S. citizen or loses U.S. citizenship status by denaturalization or expatriation prior to the applicant taking the Oath of Allegiance. [18] See 8 CFR 319.1(b)(2)(i) and 8 CFR 319.2(c).

D. Marital Union and Living in Marital Union

1. Married and Living in Marital Union

In general, all naturalization applicants filing on the basis of marriage to a U.S. citizen must continue to be the spouse of a U.S. citizen from the time of filing the naturalization application until the applicant takes the Oath of Allegiance. In addition, some spousal naturalization provisions require that the applicant “live in marital union” with his or her citizen spouse for at least 3 years immediately preceding the date of filing the naturalization application. [19] See INA 319(a). See 8 CFR 319.1(a)(3) and 8 CFR 319.1(b). USCIS considers an applicant to “live in marital union” with his or her citizen spouse if the applicant and the citizen actually reside together.

An applicant does not meet the married and “living in marital union” requirements if:

The applicant is not residing with his or her U.S. citizen spouse at the time of filing or during the time in which the applicant is required to be living in marital union with the U.S. citizen spouse; or

The marital relationship is terminated at any time prior to taking the Oath of Allegiance.

If the applicant ceases to reside with his or her U.S. citizen spouse between the time of filing and the time at which the applicant takes the Oath of Allegiance, the officer should consider whether the applicant met the living in marital union requirement at the time of filing.

There are limited circumstances where an applicant may be able to establish that he or she is living in marital union with his or her citizen spouse even though the applicant does not actually reside with the citizen spouse. [20] See 8 CFR 319.1(b)(2)(ii)(C) and guidance below on “Involuntary Separation” under the paragraph “Failure to be Living in Marital Union due to Separation.” See Volume 12, Citizenship & Naturalization, Part G, Spouses of U.S. Citizens, Chapter 2, Marriage and Marital Union for Naturalization, Section 3, Failure to be Living In Marital Union due to Separation [12 USCIS-PM D.3].

In all cases where it is applicable, the burden is on the applicant to establish that he or she has lived in marital union with his or her U.S. citizen spouse for the required period of time. [21] See 8 CFR 319.1(b)(1).

2. Loss of Marital Union due to Death, Divorce, or Expatriation

Death of U.S. Citizen Spouse

An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen dies any time prior to the applicant taking the Oath of Allegiance. [22] See 8 CFR 319.1(b)(2)(i). See 8 CFR 319.2(c). However, if the applicant is the surviving spouse of a U.S. citizen who died during a period of honorable service in an active-duty status in the U.S. armed forces, the applicant may be eligible for naturalization based on his or her marriage under a special provision. [23] See INA 319(d). See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section D, Naturalization for Surviving Spouse, Child, or Parent of Service Member (INA 319(d)) [12 USCIS-PM I.9(D)].

Divorce or Annulment

A person’s marital status may be terminated by a judicial divorce or by an annulment. A divorce or annulment breaks the marital relationship. The applicant is no longer the spouse of a U.S. citizen if the marriage is terminated by a divorce or annulment. Accordingly, such an applicant is ineligible to naturalize as the spouse of a U.S. citizen if the divorce or annulment occurs before or after the naturalization application is filed. [24] See 8 CFR 319.1(b)(2)(i) and 8 CFR 319.2(c).

The result of annulment is to declare a marriage null and void from its inception. An annulment is usually retroactive, meaning that the marriage is considered to be invalid from the beginning. A court's jurisdiction to grant an annulment is set forth in the various divorce statutes and generally requires residence or domicile of the parties in that jurisdiction. When a marriage has been annulled, it is documented by a court order or decree.

In contrast, the effect of a judicial divorce is to terminate the status as of the date on which the court entered the final decree of divorce. When a marriage is terminated by divorce, the termination is entered by the court with jurisdiction and is documented by a copy of the final divorce decree. USCIS determines the validity of a divorce by examining whether the state or country which granted the divorce properly assumed jurisdiction over the divorce proceeding. [25] See Matter of Hussein, 15 I&N Dec. 736 (BIA 1976). USCIS also determines whether the parties followed the proper legal formalities required by the state or country in which the divorce was obtained to determine if the divorce is legally binding. [26] See Matter of Luna, 18 I&N Dec. 385 (BIA 1983). In all cases, the divorce must be final.

An applicant’s ineligibility for naturalization as the spouse of a U.S. citizen due to the death of the citizen spouse or to divorce is not cured by the subsequent marriage to another U.S. citizen.

Expatriation of U.S. Citizen Spouse

An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen has expatriated any time prior to the applicant taking the Oath of Allegiance for naturalization. [27] See 8 CFR 319.1(b)(2)(i). See 8 CFR 319.2(c). See INA 337.

3. Failure to be Living in Marital Union due to Separation

Legal Separation

A legal separation is a formal process by which the rights of a married couple are altered by a judicial decree but without eliminating the marital relationship. [28] See for example, Nehme v. INS, 252 F.3d 415, 422-27 (5th Cir. 2001) (Discussing legal separation for purposes of derivation of citizenship). In most cases, after a legal separation, the applicant will no longer be actually residing with his or her U.S. citizen spouse, and therefore will not be living in marital union with the U.S. citizen spouse.

However, if the applicant and the U.S. citizen spouse continue to reside in the same household, the marital relationship has been altered to such an extent by the legal separation that they will not be considered to be living together in marital union.

Accordingly, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are legally separated. [29] See 8 CFR 319.1(b)(2)(ii)(A). An applicant who is legally separated from his or her spouse during the time period in which he or she must be living in marital union is ineligible to naturalize as the spouse of a U.S. citizen.

Informal Separation

In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse.

However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen. [30] See 8 CFR 319.1(b)(2)(ii)(B). Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation suggests the possibility of marital disunity.

Factors to consider in making this determination may include:

The length of separation;

Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation;

Whether the spouses intend to separate permanently; and

Whether either spouse becomes involved in a relationship with others during the separation. [31] See U.S. v. Moses, 94 F. 3d 182 (5th Cir. 1996).

Involuntary Separation

Under very limited circumstances and where there is no indication of marital disunity, an applicant may be able to establish that he or she is living in marital union with his or her U.S. citizen spouse even though the applicant does not actually reside with citizen spouse. An applicant is not made ineligible for naturalization for not living in marital union if the separation is due to circumstances beyond his or her control, such as: [32] See 8 CFR 319.1(b)(2)(ii)(C).

Service in the U.S. armed forces; or

Required travel or relocation for employment.

USCIS does not consider incarceration during the time of required living in marital union to be an involuntary separation.

Footnotes

1.

See, for example, Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005); Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976); Matter of H-, 9 I&N Dec 640 (BIA 1962).

 

2.

See 8 CFR 319.1(b)(1).

 

3.

See Matter of H-, 9 I&N Dec. 640 (BIA 1962). Polygamous marriages are not recognized as a matter of federal public policy. However, note that battered spouses who had a bigamous marriage may still be eligible for naturalization. See INA 204(a)(1)(A)(iii)(II) and INA 319(a).

 

4.

This is a narrow exception that under BIA case law generally has been limited to situations, such as certain incestuous marriages, where the marriage violates the criminal law of the state of residence. See Matter of Da Silva, 15 I&N Dec 778 (BIA 1976); Matter of Zappia, 12 I&N Dec. 439 (BIA 1967); Matter of Hirabayashi, 10 I&N Dec 722 (BIA 1964); Matter of M, 3 I&N Dec. 465 (BIA 1948). Note that as discussed below, if the state of residence has a public policy refusing to recognize same-sex marriage, this will not result in a same-sex marriage being considered invalid for immigration purposes if it is valid in the place of celebration.

 

5.

If the relationship is treated as a marriage, however, such as a “common law marriage,” it will be recognized.

 

6.

See INA 101(a)(35).

 

7.

See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975; Matter of M-, 8 I&N Dec. 217 (BIA 1958).

 

8.

See United States v. Windsor, 133 S. Ct. 2675 (2013). See 1 U.S.C. 7 (section 3 of DOMA). See the Defense of Marriage Act (DOMA), Pub.L. 104-199, 110 Stat. 2419 (September 21, 1996).

 

9.

Prior to the Supreme Court decision, United States v. Windsor, USCIS did not recognize relationships between two persons of the same sex as marriages or intended marriages in accordance with section 3 of DOMA.

 

10.

Officers should consult OCC in cases where the marriage was originally an opposite-sex marriage celebrated in a state that does not recognize same-sex marriage, and one of the spouses changed gender after the marriage. 

 

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