Monday, March 24, 2008

Lawfully Admitted for Permanent Residence, Eligibility Requirements for Naturalization

1. Lawfully Admitted for Permanent Residence
2. Continuity of Residence
3. Residency: Jurisdiction
4. Physical Presence
5. Good Moral Character
6. Attachment to the Constitution, English and Civics

Naturalization applicants must establish that they were “Lawfully Admitted for Permanent Residence”. Every applicant for naturalization must meet this requirement for naturalization unless he or she is specifically exempt. The law provides that special classes of persons may be naturalized based upon active duty service in the United States Armed Forces during specified periods of hostilities. Applicants who qualify for naturalization under these sections of the law are exempted from establishing lawful p ermanent resident status. The law also allows non-citizen nationals to be naturalized without having to be lawfully admitted for permanent residence provided that all other requirements are met.

(a) Introduction . The immigration and nationality laws prescribe eligibility requirements for aliens seeking status benefits in the United States. The highest of those status benefits is naturalization- the process by which an alien is conferred United States citizenship. Section 316(a) and section 318 of the Act outline a general requirement that applicants for naturalization must have previously been “lawfully admitted for permanent residence”. This portion of the manual deals with the relation of the term “lawfully admitted for permanent residence” to eligibility for naturalization. It will also discuss excepted classes of aliens who are eligible to be naturalized without having been lawfully admitted for permanent residence.

b) “ Lawfully Admitted for Permanent Residence” as a Basic Requirement for Naturalization . Generally, to be eligible for naturalization an alien must establish that he or she has been lawfully admitted to the United States for permanent residence. An applicant has the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant’s initial entry or any subsequent reentry. When an alien files an application for naturalization with USCIS , he or she must provide evidence of lawful permanent residence in the United States in the form of photocopies (front and back) of Forms I-551 (Permanent Resident Card), or any other entry document. See section 316(a)(1) of the Act, 8 CFR 316.2(a) , 8 CFR 316.2(b) and 8 CFR 316.4(a)(2) .

(c) Definition of “Lawfully Admitted for Permanent Residence” . The term “lawfully admitted for permanent residence” is defined in the Act as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having been changed.” See section 101(a)(20) of the Act. For purposes of benefits under the Act, an “immigrant” is every alien except an alien who is within one of the classes of nonimmigrant aliens. See section 101(a)(15) of the Act.

(d) Documenting Lawful Permanent Resident Status . USCIS issues a Permanent Resident Card (PRC) to each alien who has been lawfully admitted for permanent residence as evidence of his or her status. The PRC contains the bearer’s alien registration number, name, date of birth, and other biographic information. It also contains the date and the classification under which the alien was accorded lawful permanent resident (LPR) status. This information is used to determine whether an alien may be eligible for naturalization. You must ensure that the date the applican t was granted lawful permanent residence and all other biographic information are the same on the card, application, and the A-file.

Adult permanent resident aliens are required to have the PRC in their possession at all times as evidence of their status. See section 264(e) of the Act. When an applicant who claims to have been lawfully admitted for permanent residence is not in possession of a permanent resident card at the time of his or her naturalization interview, official records of the Service and USCIS must be consulted. You may be able to verify the applicant’s claimed status by carefully reviewing the contents of the A-file. The A-file is a record of the applicant’s interaction with the Service and USCIS. The Central Index System (USCIS) may also be a useful source t o check information as to an applicant’s immigration status. See Chapter 72.2 of this field manual, Examination Preparation, for a complete list of information that an A-file should include.

(e) Burden of Proof to Establish Lawful Permanent Resident Status . Applicants have the burden of proving that they have been lawfully admitted to the United States for permanent residence. The burden of proof shall be upon such person to show that he or she entered the United States lawfully, and the time, place, and manner of such entry into the United States. For example, an applicant who entered the United States as the unmarried child of a United States citizen must establish that he or she was unmarried at the time of visa issuance as well as at the time of entry to the United States.

The applicant must also establish that his or her lawful permanent resident status has not been abandoned or terminated.

At the time of the examination of the application for naturalization, the applicant must be required to establish the lawful permanent resident status by submitting the original evidence, issued by the Service or USCIS, of lawful permanent residence in the United States. The applicant may also be required to submit any passports, or any other documents that have been used to enter the United States at any time after the original admission for permanent residence. See section 318 of the Act, 8 CFR 316.4(a)(2) and 8 CFR 316.4(c) .

(f) Special Classes Exempted from the “Lawfully Admitted for Permanent Residence” Requirement . Two distinct classes of applicants are exempt from establishing lawful admission for permanent residence as a requirement for naturalization. These distinct classes include certain non-citizen nationals of the United States and aliens or non- citizen nationals who have served in the armed forces of the United States under certain specified conditions that are detailed as follows:

(1) Non-citizen Nationals of the United States . The Act provides in section 325 that a “ national of the United States” may, if otherwise qualified, be naturalized if he or she:

• becomes a resident of any State, and
• complies with all other applicable requirements of naturalization laws, except that such applicant can also satisfy the residence and physical presence requirements of sections 316 and 319 of the Act by “residence and physical presence within any of the outlying possessions of the United States.” ( Section 101(a)(29) of the Act defines “outlying possessions of the United States” as American Samoa and Swains Island.)

Nationals of the United States are those individuals born in an outlying possession, i.e. American Samoa or Swains Island. See also section 308 of the Act.

Since these non-citizen nationals of the United States are not aliens within the definition of section 101(a)(3) of the Act, permanent resident alien immigrant visa requirements do not apply to them, and they do not possess a PRC. Consequently, lawful admission for permanent residence is not a requisite for their naturalization. See section 325 of the Act and 8 CFR 325.2

(2) Military Service under Certain Specified Conditions . Section 329 of the Act establishes another class of persons who may be exempt from the “lawfully admitted for permanent residence” requirement, on the basis of active duty service in the United States Armed Forces during specified periods of hostilities. Under that section, any person who, while an alien or non-citizen national of the United States, has served honorably in an active-duty status in the military, air, or naval forces of the United States during:

• World War I (April 6, 1917-November 11, 1918),
• World War II (September 1, 1939-December 31, 1946),
•Korea (June 25, 1950-July 1, 1955),
•Vietnam (February 28, 1961-October 15, 1978),
•Persian Gulf (August 2, 1990-April 11, 1991),
•Operation Enduring Freedom (September 11, 2001-present), or
•any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force, as designated by the President in an executive order and who, if separated from such service, was separated under honorable conditions, may be naturalized provided that all other requirements are met. The terms “served honorably” and “separated under honorable conditions” refer to service or separation from service, which the executive department under which the applicant served has certified to have been honorable.

Persons applying for naturalization under Section 329 of the Act are exempt from the general requirement of having been lawfully admitted for permanent residence. However, to be exempt from this requirement, applicants must establish that at the time of enlistment or induction into the Armed Forces of the United States they were physically present in the United States or its outlying possessions. An applicant who cannot meet this requirement must be a lawful permanent resident on the day he or she files an application for naturalization.

(3) World War II Participants born in the Philippines . The law provides for another special class of aliens who have served honorably in the United States Armed Forces during a certain time period to naturalize provided certain requirements are met. In accordance with section 405 of the Immigration Act of 1990 (IMMACT) , natives of the Philippines with active duty service during World War II may naturalize in compliance with 8 CFR 329.2 , provided that they meet all other requirements that are unique to this special class of aliens. This special class of aliens is also exempt from the lawfully admitted for permanent residence requirement as with other applicants that file for naturalization under 8 CFR 329 . However, in order for an application for naturalization under section 405 of IMMACT to be considered, the application must have been filed with the Service no earlier than November 29, 1990, and no later than February 3, 1995. To qualify for naturalization under section 405 of (IMMACT) , an applicant must in addition to meeting the eligibility requirements stated in 8 CFR 329.2 establish that he or she:
•was born in the Philippines,
• served honorably during the period of September 1, 1939-December 31, and 1946. In an active-duty status under the command of the United States Armed Forces in the Far East or within the Commonwealth Army of the Philippines, the Philippine Scouts, or recognized guerrilla units, and
•resided in the Philippines prior to the service described in bullet number two.

See 8 CFR 329.5 . Regulations require these applicants to submit certain documents to establish eligibility. Also, the examination on an application filed under section 405 of IMMACT may be conducted in the United States or in the Philippines depending on the applicant’s place of residence. In addition, irrespective of the requirement that the administrative oath ceremony must be conducted in the United States, the administrative oath ceremony for these applicants may be held within the geographical limits of the Philippines, provided the examination on the application was conducted in the Philippines.

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