Discussion of Form N-400 (Part-by-Part)
(a) Part 1: Information About You.
(1) Introduction. Part One of the application contains applicant biographic information that you must verify during the examination. In this part of the examination you must determine that the applicant is who he or she claims to be. You must be satisfied that you know to whom you are speaking. You must also establish that the file and all its contents relate to the person before you. Once you are sure of those facts, you must determine whether you have jurisdiction over the application. The information in this section of the N-400 review will help you in these important tasks.
Before beginning your review of the Form N-400, please note that there might be reasons to ask the questions on the form in an order other than that in which they are printed. For example, to the extent that information in Part 1, relating to mailing address, and Part 4, relating to residence and employment, are inter related, it may be preferable to review those sections together.
Prior to beginning any oral examination on the application, you must place the applicant under oath. During the examination, you may also need to ask questions that do not appear on Form N-400, to bring out all the facts that establish the applicant’s eligibility. Before starting the examination, you should inform the applicant that you will ask additional questions about his or her answers on the application. You should also rephrase or repeat questions to the applicant until you are satisfied that he or s he understands your questions or is unable to comprehend English. See 8 CFR 335.2(c) Procedure.
(A) Identification. 8 CFR 103.2(b)(17) states “Verifying claimed citizenship or permanent resident status. The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States will be verified from official records of the Service.”
You must verify an applicant’s identity before examining him or her for naturalization eligibility. In relation to naturalization, identification can be viewed as a three-step process. First, review the applicant’s A-file, paying close attention to personal identifying information and old photographs contained in the file. Second, review the pending naturalization application itself. Ensure that the latest information and photographs on the application match the previous information and photographs containe d in the file. Third, physically verify the applicant’s identity after you have called the applicant into your office but before you begin the examination. You should ask the applicant for any identification documents that he or she has brought to the examination. This documentation should match the information in both the A-file and on the application.
Note: The term identification document means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, when completed with information concerning a particular individual, which is of a type intended or commonly accepted for the purpose for identification of individuals. An officer should consider the identity document(s) satisfactory if the document(s) identify the applicant. See Chapter 51 of this field manual.
(B) Evaluate the Documents. The Examination Notice (Form N-430) directs the applicant to bring his or her permanent resident card and any immigration documents to the naturalization examination. If the case is scheduled in CLAIMS 4, Form I-797C (Request for Applicant to Appear for Naturalization Initial Interview) will be sent to the applicant instructing him/her where to go and what to bring to the examination, including permanent resident card (PRC) and other INS or USCIS-issued documentation. At the time of examination or promptly thereafter, the applicant shall surrender all entry documents in his or her possession for which he/she has no use prior to naturalization, such as an immigrant identification card, border crossing card, certificate of registry or lawful entry, reentry permit, alien registration receipt card (other than Form I-551) or similar documents. Form I-551 shall be exhibited but retained by the applicant until naturalization, at which time he or she must surrender said document. All docum ents surrendered or presented by the applicant will need to be evaluated to make sure that the individual in front of you is the rightful holder of the permanent resident card and not an imposter (See Chapter 17.3 of the Inspector’s Field Manual regarding fraudulent documents). A thorough knowledge of the security features on the current permanent resident cards and knowledge of detection techniques for photo substitutions will help you detect counterfeit and altered cards. DHS provides numerous aids, such as document alerts, to assist you in developing proficiency in this area. See Chapter 32.5 of the Inspector’s Field Manual. When you are faced with a potential imposter, it may also be useful to question the applicant regarding the basis for his or her original immigration or adjustment of status. Codes and explanations of current and past immigrant classifications are included in Appendix 13-1 of the Inspector’s Field Manual. The nationality code included on each permanent resident card can also be helpful in verifying if the bearer is the rightful holder. (See Appendix 13-2 of the Inspector’s Field Manual.)
(2) Review of Part One. There are 6 questions listed in Part One:
• Family name, given name, and middle name ( Question 1 ) • U.S. Mailing Address-Care of, Street Number and Name, Apt. #, City, County, State, and Zip Code ( Question 2 )
• Date of Birth (month/day/year) ( Question 3 ) • Country of Birth ( Question 4 ) • Social Security # ( Question 5 ) • Alien Registration # ( Question 6 )
1. Name (Family, Given, Middle Initial) .
(A) Full, True and Correct Name . The applicant’s full, true and correct name (or legal name) is the name that must be written on the application. The legal name is either: 1) the applicant’s name at birth; 2) the applicant’s name following a legal name change or 3) the recognized, anglicized version of the applicant’s legal name. You must question the applicant and amend the application in red ink to reflect the applicant’s full, true, and correct name without abbreviation. In all cases, you must verify the spelling of the applicant’s na me. An initial is not a complete given name unless it is entered as such on an official birth or legal record. Check the name on the application against the name on the file, PRC, reentry documents, passports, birth certificates or recognized documentation from their prior country, as well as other identification such as driver’s license and social security card. Compare these sources with the applicant’s testimony. The applicant’s name should be a complete full name. The applicant should demonstrate that h e/she has a legal right to use the name he/she is using. If the applicant has no evidence of a name change but believes that his or her name has been changed, indicate that the applicant must have his or her name changed through a naturalization ceremony administered by the court.
An applicant’s legal name may be changed through a formal legal proceeding undertaken specifically to change his or her name. A legal name change may also occur through other legal proceedings, such as annulment or divorce. The Foreign Affairs Manual can be used for guidance as to what would be accepted as a legal document by any given country. See www.foia.state.gov/famdir/Fam/fams.asp?level=2&id=10&fam=0 . Scroll down to 9 FAM appendix C.
In addition, a name change can occur under principles of the common law recognized in some jurisdictions. Marriage, for example, may result in a legal name change absent a court order.
When it appears that a name has been assumed without formal legal proceedings, ask the applicant how and when he or she changed names. Ask the applicant for evidence that his place of residence authorized this change of name. You must then determine whether the appropriate jurisdiction allows for common law name changes, including through common law marriage. If you are not sure, speak with your supervisor or district counsel. Also, see Appendix 21-1 for a list of states recognizing common law marriages and their requirements. Where available, you can do initial research by checking the Internet for the civil procedures of your state. See Chapter 14 of this field manual, Sources of Information/Conducting Research.
If the jurisdiction allows common law name changes, you must then determine the circumstances of the name change to ensure that this was properly done. That name will only be considered the individual’s legal name under common law if adopted for other than illegal or fraudulent purposes. To determine this you should ask the applicant to explain why he or she changed names.
When questioning the applicant about the name, it is essential to ask him/her why, when, and where he/she assumed the name. You should explore the extent and nature of the usage of the assumed name. For example, was the applicant employed and issued licenses under the assumed name, did he/she pay taxes under the assumed name, did the applicant use the name for legitimate purposes throughout an extended period of time? These questions will help resolve any issues. If the name has been adopted for illegal pur poses or to commit fraud, it would not be a name change under the common law. [During this questioning, the applicant may also disclose information pertinent not only to the name issue but also to other aspects of naturalization eligibility. For example, an applicant may have used another name when working “off the books;” this would be pertinent to the questions in Part 7 regarding payment of income taxes. (See Part 7, question 8)]
Please note that a correct Anglicization of a name can be used by a naturalization applicant as their legal name. See Interpretations 334.1(b) for a discussion about names, including Anglicization and name changes. You should use a table of foreign names and titles, and their English equivalents, to determine whether a correct Anglicization is used. If it is not correctly used, then the non-Anglicized name must be used as the legal name on the naturalization application, and in this instance a formal name change petition is necessary.
Once you are satisfied that the name listed in Part 1 is the full, true and correct name, you should use this information as a reference for other areas of testimony. For example, does the name on Part 1 match the name on the most recent marriage certificate? Also, verify the applicant’s signature at the end of the examination (the jurat, found in Part 12 of the application); the signature there should also be the full true and correct name.
The 1991 edition of the N-400 only asked for a middle initial. The current version, however, now requires the applicant to provide his or her full middle name (if any). If there is a change from what is on the N-400 at the time the application was data-entered into CLAIMS 4, you must follow local procedures to update the system, including spelling out the full middle name. See Chapter 72.3 , Step-by- Step Discussion of the Decision Process in this Field Manual. See Chapter 72.3 , Decision, part 4, “Granting an application,” subsection “Naturalization Case Management System.” This will allow the system to print an accurate naturalization certificate, if the applicant is eligible for naturalization.
(B) Name Change . If the applicant wants to change his or her name as it will appear on the certificate of naturalization, then the applicant must petition the court for a name change. You should assist the applicant with preparing the name change petition at the examination. However, USCIS does not have the authority to grant any name changes. See 8 CFR 337.4 and 8 CFR 338.2 .
2. U.S. Mailing Address.
(A) After verifying identity, the first questions you ask should address this issue .
[(b)(2) or (b)(7)(E)]
3. Date of birth .
Section 334(b) of the Act and 8 CFR 316.2 require applicants filing for naturalization to be at least 18 years of age. You should confirm the applicant’s date of birth first with the PRC and file information, and then on a driver’s license or other government or state-issued identification, employment identification, and/or other similar documents. In general, even if other documents support one date, the official date of birth is that recorded on the birth record. If there is a discrepancy between dates that cannot be clearly explained, check wit h your supervisor on which date should be used. You would not usually change a date of birth that is already established in the file unless the applicant presents irrefutable evidence that another birth date is correct. Such cases would include a file where there is clear and convincing evidence that the translation was incorrect, or the applicant’s date of birth was erroneously determined on a calendar different from the Gregorian calendar not calculated on the basis of the standard conversion system. Wher e proof of birth, marriage, divorce or death is required, an official civil record shall be requested; if such proof cannot be produced secondary evidence may be accepted. The applicant may present copies of official records as provided under 8 CFR 103.2(b)(4) and USCIS has the right to request the original as provided under 8 CFR 103.2(b)(5) . If there is doubt as to the authenticity of the record produced, you can verify the information using official records.
You can check document availability in the Department of State’s (DOS) Foreign Affairs Manual (FAM). The FAM is available through the DOS web site. See 9 FAM Appendix F, 700, titled Guides on Proper Names and Name Citing. The address is: www.foia.state.gov/refer.asp
You may encounter cases where the documents (such as refugee processing documents), list the date of birth as “5 Jun, 1973” but when the data was entered into USCIS or on the PRC listed the date of birth as 05/06/1973, (“May 6, 1973”). After verifying the correct date of birth from official records, provided there is a clear discrepancy, you should update the N-400, USCIS and CLAIMS 4 before the naturalization certificate is prepared so that it will reflect the correct date of birth.
You must record any corrections in red ink on the application and in CLAIMS 4 before the applicant is naturalized. The recorded date of birth cannot be changed after naturalization, except to correct a clerical error on the certificate. See 8 CFR 338.5 .
See Interpretations 334.1(c) for the history and a discussion regarding the age of an applicant. See General Counsel Opinion 93-81 regarding an applicant who used an assumed name and date of birth to obtain Permanent Resident status, and sought to resume his true identity during the naturalization examination.
4. Country of Birth.
To determine country of birth, check any available birth certificate, the visa and underlying documents, other documents in the file, and any entry documents such as a passport for information relating to place of birth.
The country of birth and the country of nationality are not always the same. An applicant may have acquired nationality/citizenship in a country other than his or her country of birth. The applicant may hold a passport from the country of acquired nationality/citizenship, and another from the country of birth.
Applicants who have legitimate claims to dual or multiple nationalities must pick one of those nationalities for certificate purposes. You should stress to the applicant that upon taking the oath of allegiance he or she is renouncing allegiance to all former countries of nationality/citizenship, not merely the one listed on the application and certificate.
No one can have “stateless” listed on the certificate of naturalization. In some cases, applicants, such as refugees, may wish to sever all ties or completely disassociate themselves from their country of birth and may not complete this item or respond to your question until you explain that the information is necessary for identification and statistical purposes. See the Oath Ceremony discussion in Chapter 75 of this field manual.
You may encounter a situation where the applicant, asks you to record a different country of former citizenship than the country that issued the applicant’s last passport (e.g., a refugee from the former USSR). As the USSR no longer exists, the “country of last citizenship or nationality” would no longer have that name. The applicant can have their choice of listing the country name that existed when the applicant was born or the current name of the country that includes the place where the applicant was bo rn. For example, an individual who was born in the section of Ethiopia now recognized as the independent country of Eritrea can list either Ethiopia or Eritrea as the country of birth.
5. Social Security Number.
(A) Verify the number on the Social Security Card against any documents in the file, such as previously filed affidavits of support; tax and employment records; financial statements; and identification cards such as a driver’s license. You may also check USCIS to verify the applicant’s Social Security number. If there is a discrepancy, explore it and depending on the circumstances, you may need to contact your supervisor.
6. A Number
(A) The applicant should bring his or her permanent resident card and any immigration documents to the examination. Compare the information on the PRC with information on this line and with the name and number on the file folder. Also check the contents of the file, including the visa packet if there is one, to be sure that there is no other relating file that has not yet been consolidated into the file containing the application. If there is a relating file, you should finish the examination, request the r elating file, and continue the case until you receive and review the relating file. The relating file may contain information that has a bearing on the applicant’s eligibility.
If the applicant claims loss or destruction of Form I-551 or any other entry document, carefully question him or her to determine the validity of the claim. Check the file to see if there is a history of lost Permanent Resident Cards. If you are satisfied that there is no fraud, and that the applicant is not attempting to retain the PRC after naturalization, you should complete the NQP4 affidavit regarding the loss of the I–551 (See NQP4 TOC in Appendix 72-1 ). You do not need to continue the case if you are satisfied that the applicant is telling the truth regarding the loss of his or her PRC. If you believe that the applicant is engaged in fraud, or is not telling the truth, discuss the situation with your supervisor. Local resources may be available to investigate the circumstances surrounding repeated loss of the PRC.
If the applicant’s PRC is about to expire, or has expired, you will need to take additional steps. Please see Chapter 73.1(a) of this field manual concerning Residency: Lawfully admitted as permanent resident, and requirements when the PRC is not available at the time of scheduled initial examination. _________________________________________
(b) Part 2: Basis for Eligibility . (check one)
(1) Introduction to Part 2 . Part 2 of the N-400 should clearly note the section of law under which the applicant is filing his/her application. You should review the case for eligibility under any provisions of the law rather than to deny a case under the strictest provisions of the law. In other words, if an applicant can establish eligibility under any section of law, then you should adjudicate the application under that section of law. If the applicant in ignorance or error overlooked a section of law favorable to him/herself, yo u are responsible for correcting that error.
The applicant bears the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization. See 8 CFR 316.2(b) . Remember, as you examine applicants for eligibility, to conduct the examination so that you determine eligibility under any provision applicable, covering all aspects of eligibility under the appropriate section. For example, if an applicant is not eligible under section 329 but appears eligible under section 319, ask the appropriate questions for that section.
For a complete discussion of the eligibility requirements please refer to Chapter 73 of this field manual.
(2) Filing the Application for Naturalization . The filing date of the application controls the eligibility of the applicant. The date of filing a naturalization application is the date when the application is properly received by the Service Center having jurisdiction, which requires that the application be signed and accompanied by the appropriate fee, 8 CFR 103.7 . The application will be stamped to show the date of actual receipt and unless otherwise specified, should be regarded as properly filed when so stamped, if it is signed and executed and the required filing fee is attached or a waiver of the filing fee is granted.
By statute good moral character must be established throughout the requisite periods of continuous residence in the United States. Issues such as residence and good moral character will be affected by the filing date. Therefore you will need to be aware of the filing date from which to start counting when determining eligibility. If the applicant was not eligible for naturalization at the time of filing, the applicant will continue to be ineligible on any request for a new or de novo hearing. There are two exceptions to this. The first exception is when an applicant’s case is administratively closed because the applicant failed to appear for his or her initial examination and failed to notify the Service or USCIS of the reason for not appearing. If the applicant submits a written request to reopen his or her case within one year, the case will be reopened and the date of the request for reopening will be considered the new filing date. In this situation, an applicant initially ineligible may become eligible u pon reopening. The second exception is when the applicant files an application three months or less before meeting the residence and jurisdiction requirements. See section 334 of the Act.
Section 316(a) of the Act requires the applicant, immediately preceding the filing of the application, to have resided continuously in the U.S. for at least 5 years after having been lawfully admitted for permanent residence. Section 319(a) of the Act requires the applicant, immediately preceding the filing of the application, to have resided continuously in the United States for at least 3 years after having been lawfully admitted for permanent residence. Section 334 of the Act provides that an application for naturalization may be filed up to 3 months prior to the completion of the required period of residence for applicants filing under section 316(a) or 319(a). Even though applicants may file their applications up to three months early pursuant to section 334(a) of the Act, the statutory period must be fulfilled prior to the time of examination. This rule applies to section 316(a) and section 319(a) cases. ( 8 CFR 310.2 ; 8 CFR 316.2(a)(5) ). Only applicants filing under section 316(a) or 319(a) may file 3 months early. An applicant under any other section of law must complete the requisite residency period prior to filing.
(4) Application Based on Having Five Years of Residence in the United States . The N- 400 reads:
a. I have been a permanent resident for at least five (5) years.
(A) Section 316(a) of the Act . Most applicants fall into this category. Eligibility requirements under this section of law are:
• at least 18 years of age • at least 5 years as a lawful permanent resident • continuous residence, no trip of six months or longer that disrupt the continuity of residence • physical presence, at least half the required time (i.e. 30 months under section 316(a) of the Act) • at least 3 months residence in Service District or State • knowledge of English and civics, unless the applicant qualifies for an exception • during the statutory period, has been and continues to be a person of good moral character • during the statutory period, has been and is attached to the principles of the Constitution of the United States and favorably disposed toward the good order of happiness of the United States
For additional information pertaining to the general eligibility requirements for naturalization, see 8 CFR 316 .
(B) Section 316(b) of the Act . This section of the Act provides exemptions to the general physical presence requirements. For specific requirements and guidelines when determining eligibility under this section of law, refer to Chapter 73.3 , Residency: Continuity and Chapter 73.5 , Residency: Physical Presence . See also Appendix 74-24 of this field manual regarding the Form N-470 , “Application to Preserve Residence for Naturalization Purposes”.
(C) Section 317 of the Act . This section refers to the temporary absence of applicants performing religious duties and obligations during the statutory period. For further discussion refer to Chapter 73.3 , Residency: Continuity and Chapter 73.5 , Residency: Physical Presence of this field manual for specific requirements and guidelines when determining eligibility under this section of law. See Appendix 74-24 of this field manual regarding the Form N-470 , “Application to Preserve Residence for Naturalization Purposes.”
(5) Application Based on Being the Spouse of a U.S. Citizen . The N-400 reads:
b. I have been a permanent resident for at least three (3) years and have been married to a United States Citizen for those three years
(A) Section 319(a) of the Act . An applicant whose spouse is a United States citizen may be naturalized upon compliance with all the requirements of Title III except paragraph (1) of section 316(a) if such a person immediately preceding the date of filing his/her application has satisfied the following:
• resided continuously, after being lawfully admitted for permanent residence, within the U.S. for at least three years, and • has been living in marital union with the citizen spouse during the three years immediately preceding the date of filing his/her application, and • the citizen spouse must have been a U.S. citizen for those three years. • been physically present in the U.S. for periods totaling at least half of that time (18 months) and • resided within the State or district in the United States in which the applicant filed his/her application for at least three months.
Public Law 106-386 amended section 319(a) of the Act by extending the benefit of this section to persons who obtained status as a lawful permanent resident by reason of being a spouse or child of who was subjected to battering or extreme cruelty by a United States citizen. For further guidance please see Appendix 74-25 for a copy of Policy Memorandum 89 dated October 15, 2002, “Instructions Regarding the Expanded Meaning of Section 319(a)”.
See Interpretations 319.1 , naturalization based upon citizenship of spouse for a discussion of the history of this provision, and whether the applicant must be married to the same USC, marital union, separations and related topics. For further discussion refer to Chapter 74.2(e) of this field manual, Part 5 of the N-400.
(6) Application Based on Being the Child of a U.S. Citizen . The N-400 reads:
c. I am a permanent resident child of United States citizen parent(s)
(A) Question of Citizenship . For a complete discussion see Chapter 71 : Citizenship: Acquisition and Derivation.
(7) Application Based on Military Service . The N-400 reads:
d. I am applying on the basis of qualifying military service in the Armed Forces of the U.S. and have attached completed Forms N-426 and G-325B
(A) Military Service . In cases involving military service, whether the applicant is or is not applying under a military service-related section of law, you will still have to check his/her military record. For applicants who have ever served, or are serving in the Armed Forces of the United States during the statutory period, you must check their military record. This information can be found in Form G-325B, which should be filed with the naturalization application regardless of what section of law the applicant is applying un der. In cases where the Form G-325B has not been filed, the applicant must complete Form G-325B after the interview and you must continue the case until a response has been received. See Chapter 72.2 on Preparation.
(B) Form G-325B: Biographic Information . Those applicants who have ever served in the armed forces of the United States, must file Form G-325B, Biographic Information. Regardless of what section of law the applicant is applying under, this form must be completed. It is used to confirm honorable service in the military, and will show whether the applicant has/had any derogatory information in his/her military record. Applicants with military convictions, and or disciplinary actions, may be found to lack good moral character (GMC). (See to Chapter 73.6 ).
This form contains questions regarding the applicant’s biographic information, places of residence, places of employment, past and present memberships, and military disciplinary actions. Military disciplinary proceedings are not conducted by the judicial systems, and the records from those proceedings are housed at military record holding centers. Under the facilitated military N-400 filing procedure, the military will front-end the processing of the Form G-325B check. For additional ways to submit the Form G-325B refer to memo dated April 7, 2000, on Military G- 325B Processing contained in Appendix 72-21 of this field manual.
(C) Form N-426: Request for Certification of Military or Naval Service . Only those applicants who are applying under section 328 or section 329 of the Act must submit, in addition to the Form G-325B, Form N-426 Request for Certification of Military or Naval Service. See 8 CFR 328.4 , and 8 CFR 329.4 . This form is used to obtain a certified copy of the applicant’s service record to determine whether he/she served honorably in an active duty status, and to determine whether he/she was excused or released from military service based on a claim of alienage. As in the case of the Form G-325B, a copy of this form, containing the results of the investigation, should be in the file. For information discussing the streamlined processing of naturalization applications filed under sections 328 and 329 see Appendix 72-19 of this field manual for a copy of the memo dated February 3, 2000, on Facilitated Military Service Member Naturalization.
The Adjudicator must review this form very carefully to determine if there are any issues pertaining to GMC. See Chapter 73.6 of this field manual. In addition, you should carefully examine the form to determine if the applicant was excused or released from service in the United States Armed forces based on a claim of alienage. If this occurred you must deny the application under section 315 of the Act, which states that no person shall be naturalized if they were discharged from the military on the grounds that he/she was an alien. Refer to 8 CFR 315.2(b) for specific exemptions to this rule. Moreover, the records from the Selective Service and the military department in which they served are considered conclusive evidence of service and discharge. (See 8 CFR 315.3 and Chapter 73.6 on Good Moral Character, Chapter 72.3 on Interview Preparation, and the discussion in Chapter 74.2 (g) , part 7, Question 6 concerning discharge due to alienage.)
For additional information regarding military service please see the following:
• 32 CFR, Part 41, sets forth the types of discharges from military service, the basis therefor, and procedures for effecting discharges. (D) Section 328 of the Act . Applicants filing their applications under section 328 of the Act must meet the following criteria: • Be in the U.S. Armed Forces and have served for at least 3 years (or will be filing his/her application within 6 months of an honorable discharge) • Be a LPR at the time of examination, • Have the ability to demonstrate English and civics knowledge; • Have been, during any period within the 5 years preceding the filing of the naturalization application and continue to be, of good moral character, • Be attached to the Constitution of the United States, and • Be favorably disposed to the good order and happiness of the U.S.
Note: All continuous residence, physical presence, and time in the District or state requirements are waived.
For additional information, please see 8 CFR 328 , Special Classes of Persons Who May Be Naturalized: Persons with Three Years Service in Armed Forces of the United States.
If an applicant was in the U.S. Armed Forces for less than 3 years or if he or she was in the U.S. Armed Forces for 3 years or more but was discharged more than 6 months ago, he or she must apply under section 316(a) and must be a LPR for 5 years. If an applicant was out of the country as part of their service, this time out of the country does not break their “continuous residence.” It is treated like time spent in the U.S. Time in the U.S. Armed Forces counts as time “physically present” in the United Sta tes, no matter where. For applicants who are serving in the Armed Forces of the United States but do not qualify under section 328, the applicant’s residence may be:
• The location where he or she had been physically present for three months preceding filing (see 8 CFR 316.5 (b) ), • The home of the applicant’s spouse or minor children, or • The home of record as indicated by official military records.
See paragraphs (i), (ii) and (iii) of 8 CFR 316.5 (b) .
(E) Section 329 of the Act . Section 329 of the Act provides that special classes of persons may be naturalized based upon active duty service in the United States Armed Forces during specific periods of hostilities. This law allows 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 (11/11/16-4/6/17), • World War II (9/1/39-12/31/46), • Korea (6/25/50-7/1/55), • Vietnam (2/28/61-10/15/78), • Grenada Conflict (10/25-11/3/83), • Persian Gulf (8/2/90-4/11/91), • Operation Enduring Freedom (9/11/ 01- a date yet to be determined), 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 that the President designates by executive order and who, if separated from such service, was separated under honorable conditions. Honorable service and separation means service and separation from service which the executive department under which the applicant serviced determines to be honorable.
An applicant who applies for naturalization under this section of law is not required to meet the lawfully admitted for permanent residence requirement to qualify for naturalization. However, to be exempt from this requirement, the applicant must establish that he or she, at the time of enlistment or induction into the Armed Forces of the United States, was physically present in the U.S. or its outlying possessions. See section 101(a)(29) of the Act for outlying possessions of the U.S. An applicant who cannot meet this requirement must be a lawful permanent resident on the day he or she files an application for naturalization. For additional information see 8 CFR 329 – Special Classes of Persons Who May Be Naturalized: Naturalization Based upon Active Duty Service in the United States Armed Forces During Specified Periods of Hostilities.
(F) Section 405 of the Immigration and Nationality Act of 1990 . Section 405 of the Immigration and Nationality Act of 1990 (IMMACT90) provides for another special class of aliens who have served honorably in the U.S. Armed Forces during a certain time period to naturalize provided certain requirements are met. In accordance with section 405 of the IMMACT90, natives of the Philippines with active duty service during World War II may naturalize in compliance with 8 CFR 329.5 provided that they meet all other requirements that are unique to this special class of aliens. This special class of aliens are also exempt from the lawfully admitted for permanent residence requirement as with other applicants that file for naturalization under 8 CFR 329.5. However, in order for an application for naturalization under section 405 of IMMACT90 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 qu alify for naturalization under Section 405 of IMMACT90, an applicant must, in addition to meeting the eligibility requirements stated in 8 CFR 329.5, establish that he or she:
• Was born in the Philippines; • Served honorably during the period of September 1, 1939-December 31, 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
Regulations require these applicants to submit certain documents to establish eligibility. Also, the examination on an application filed under Section 405 of IMMACT 90 may be conducted in the United States or in the Philippines depending on the applicant’s place of residence. In addition, 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.
(8) Application Based on Other Provisions of Law . The N-400 reads:
e. Other. (Please specify section of law)
(A) Special Cases . In certain cases involving confidentiality or national security, some A-files will not be released to the field. This situation is covered in the Naturalization Quality Procedures; please refer to Appendix 74-23 of this field manual for a copy of Policy Memo 35 dated June 2, 1998, “NQP compliance for Cases Requiring Special Handling” for further guidance.
(B) Section 316(f) of the Act . This section of law concerns the naturalization of an applicant otherwise eligible for naturalization who has made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities.
• An applicant may be naturalized without regard to the residence and physical presence requirement of section 316: – He or she is not held to the prohibitions of section 313 of the Act. – He or she is not required to reside within a particular State or district in the United States. • The applicant must have resided continuously in the United States for at least one year prior to naturalization. • The provision in this subsection will not apply to any alien described in clauses (i) through (v) of section 208(b)(2)(A) of the Act. • The applicant may be administered the oath of allegiance under section 337(a) by any district court of the United States without regard to the residence of the applicant. • Proceedings under this subsection must be conducted in a manner consistent with the protection of intelligence sources, methods and activities. • The number of aliens naturalized under this subsection in any fiscal year must not exceed five.
(B) Section 319(b) of the Act . This section of law requires that the applicant be a LPR (no set period) and that he or she is the spouse of a United States citizen who is assigned overseas with one of the following:
• U.S. military or U.S. government, • U.S. firm engaged in the development of foreign trade and commerce of the US international organization of which the U.S. participates by treaty or statute, • U.S. institution of research, or • Religious ministry In addition, the applicant must:
• Submit his/her application to any USCIS office; • Be present in the U.S. at the time of naturalization; • Declare in good faith an intention to take up residence within the U.S. immediately following the termination of employment abroad of the U.S. citizen spouse; • (Generally) submit an affidavit from the spouse's employer itemizing the nature of the employment, length of time the spouse will be employed abroad, the ownership of the organization and the nature of the organization along with the naturalization application; • Naturalize upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the U.S. or within a District or state shall be required; and • Establish that he or she will depart to join the citizen spouse within 30-45 days after the date of naturalization.
See 8 CFR 319.2(b)(1) . See also 8 CFR 319.5 for additional information regarding public international organizations in which the U.S. participates by treaty or statute.
For additional information see 8 CFR 319.2 , Person whose United States citizen spouse is employed abroad. Also see Interpretations 319.2(a-e) for a discussion of the history and requirements for naturalization based upon citizenship of spouse employed abroad including: Statutory development, residence (physical presence) exemption, other eligibility requirements, Military dependents, the meaning of the phrase “regularly stationed abroad" and specific types of qualifying employment.
(C) Section 319(c) of the Act . When applying under section 319(c) of the Act, an applicant must:
• Be a legal permanent resident;
• Be employed by a bona fide United States incorporated nonprofit organization which is involved with disseminating information abroad via communication media which in turn promotes United States interest abroad and which is recognized as such by the Attorney General; • Have been employed continuously for a period of not less than five years after a lawful admission for permanent residence; • Have filed their application for naturalization while so employed or within six months of the termination of employment; • Be present in the U.S. at the time of naturalization; • Have a good faith intention of taking up residence in the U.S. immediately following the termination of such employment; and • Be naturalized upon compliance with all the requirements of 8 CFR 316 except that no prior residence or specified period of physical presence within the U.S. or any State or district in the U.S. is required.
See 8 CFR 319.4 for additional information on persons continuously employed for 5 years by United States organizations engaged in disseminating information.
See 8 CFR 319.6 for additional information regarding United States nonprofit organizations engaged abroad in disseminating information which significantly promotes U.S. interests.
(D) Section 319(d) of the Act . If an applicant was married to a U.S. citizen who died during a period of honorable active duty service in the U.S. Armed Forces and was living with his or her U.S. citizen spouse at the time of the death of that spouse, then he or she is eligible for naturalization under section 319(d) of the Act. The applicant must:
• Be a LPR at time of examination; • Be a person of good moral character, attached to the principles of the U.S. Constitution, and favorably disposed to the good order and happiness of the United States; and • Comply with all other requirements as provided in 8 CFR 316 , except for those contained in paragraphs (3) through (6) of 8 CFR 316.2(a) ;
Note: If the surviving spouse remarries, he or she still remains eligible for naturalization under section 319(d) of the Act. See 8 CFR 319.3(b) .
See 8 CFR 319.3 , for information on surviving spouses of U.S. citizens who died during a period of honorable service in an active duty status in the Armed Forces of the U.S.
(E) Section 325 of the Act . Under this section any applicant who owes permanent allegiance to the U.S. (i.e., is a non-citizen national), and who is otherwise qualified, may be naturalized if he or she:
• Has a birth certificate or other evidence of national status; • Becomes a resident of any State (but is not required to be an LPR); • Complies with all of the applicable requirements in 8 CFR 316 or 8 CFR 319, as appropriate, except as modified in 8 CFR 325.
For purposes of applying the residence and physical presence requirements in parts 316 and 319 of this chapter, except as they relate to the required three months’ residence in a State or Service District, an non-citizen national applicant’s residence and physical presence in an outlying possession of the United States will count as residence and physical presence in the United States. An applicant resuming residence in an outlying possession, after naturalization, will be considered to have established tha t he/she intends to reside permanently in the United States.
(F) Section 326 of the Act . This section of law refers to resident Philippine citizens excepted from certain requirements. An applicant eligible to file under this section of law is any person who:
• Was a citizen of the Commonwealth of the Philippines on July 2, 1946; • Entered the United States prior to May 1, 1934; and • Has since, such entry, resided continuously in the U.S.
An applicant is regarded as having been lawfully admitted to the U.S. for permanent residence for the purpose of applying for naturalization under this section.
(G) Section 327 of the Act . To be eligible for naturalization under section 327 of the Act the applicant must establish that he or she:
• On or after September 1, 1939, and on or before September 2, 1945:
– served in the military, air or naval forces of any country at war with a country with which the United States was at war after December 7, 1941, and before September 2, 1945; or
– took an oath of allegiance or obligation for the purpose of entering or serving in the military, air or naval forces of any country at war with a country with which the United States was at war after December 7, 1941, and before September 2, 1945;
• Was a U.S. citizen at the time of the service or oath specified; • Lost U.S. citizenship as a result of the service or oath specified; • Has been lawfully admitted for permanent residence and intends to reside permanently in the U.S. • Is and has been for a period of at least five years immediately preceding the oath, a person of good moral character, attached to the principles of the Constitution of the U.S. and favorably disposed toward the good order and happiness of the U.S. • Complied with all other requirement for naturalization as provided in 8 CFR 316 , except sections 316.2(a)(3) through (a)(6).
The naturalization application must be accompanied by a statement describing the applicant’s eligibility under paragraphs (a), (b), or (c) of 8 CFR 327.1 and any available documentation to establish those facts.
Once naturalized, the applicant will take a copy of the oath of allegiance to the Department of State.
See section 327 of the Act and 8 CFR 327 – Special Classes Of Persons Who May Be Naturalized: Persons Who Lost United States Citizenship Through Service In Armed Forces Of Foreign Country During World War II.
Note: This section does not apply to any person who during WWII served in the armed forces of a country while such a country was at war with the U.S.
(H) Section 330 of the Act . To be eligible for naturalization under section 330 of the Act, an applicant must establish that he or she:
• Has been a legal permanent resident for five years; • Has served honorably or with good conduct, during such period of lawful residence, in a capacity other than as a member of the Armed Forces of the U.S., on board:
– a vessel operated by the U.S., or
– a vessel registered in the U.S. (in this case, the vessel must be owned by U.S. citizens of a U.S. corporation).
• Served in the capacity mentioned above within five years immediately preceding the date on which the applicant filed the application of naturalization (or on which the alien is examined, if the application was filed early pursuant to section 334(a) of the Act); • Has been during the five years preceding the filing of the application for naturalization (or the examination if the application was filed early under section 334(a) of the Act) and continues to be, of good moral character, attached to the principles of the Constitution of the U.S. and favorably disposed toward the good order and happiness of the U.S. • Has complied with all other requirements for naturalization as provided in section 316 of the Act, in addition to certain conditions regarding continuous residence and physical presence in the U.S.:
– has been a LPR for 5 years without leaving the U.S. for trips of six months or longer (If the applicant was out of the country while serving on a vessel, that time out of the country does not break his/her “continuous residence.” It is treated just like time spent in the U.S.)
– has been physically present in the U.S. for at least 30 months (time served on the vessel counts as time “physically present” in the United States no matter where).
Proof of service on a vessel operated by the U.S. may be duly authenticated copies of the records of the executive departments or agency having custody of records of such service. Proof of service on a vessel registered in the U.S. may be certificates from the masters of such vessels.
For further information see 8 CFR 330 – Special Classes of Persons Who May Be Naturalized: Seamen. ________________________________________________________________________
(c) Part 3: Additional Information about You . Generally, an applicant must have been lawfully admitted to the United States for permanent residence to be eligible for naturalization. After an applicant has been admitted for permanent residence, he or she must reside in the United States continuously for at least five years and have been physically present for at least 30 months before filing the application for naturalization. However, there are special classes of persons who are not required to meet the above requirements. See Chapter 74.2(b) of this manual for more information on these special classes of applicants.
The topics listed below are discussed in this subsection:
• Information regarding permanent residency ( Question 1 ) • Information regarding port of entry where admitted as immigrant or office where granted adjustment of status ( Question 2 ) • Information regarding citizenship ( Question 3 ) • Information regarding the applicant’s name ( Question 4 ) • Information regarding other names used by the applicant ( Question 5 ) • Information regarding the applicant’s sex ( Question 6 ) • Information regarding the applicant’s height ( Question 7 ) • Information regarding the applicant’s current marital status ( Question 8 ) • Information regarding the English and Civics requirements for naturalization ( Question 9 ) • Information regarding residency and absences from the U.S. ( Question 10 )
More detailed information on the law, regulations, and policies regarding the naturalization eligibility requirements may be found in the links contained within each of these topics.
(1) Date you became a permanent resident
(A) General . Naturalization eligibility generally requires a lawful admission to the United States for permanent residence. Section 316 (a)(1) of the Act states that: No person, except as otherwise provided in this title, shall be naturalized unless such applicant: ...immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence... [See 8 CFR 316.2(a)(2) and section 318 of the Act.]
The date of admission for lawful permanent residence is important because you must use that date to determine whether the applicant has continuously resided in the United States for the required period of time. This is also important for determining whether the applicant is eligible for a section 312 exemption at the time of filing his/her naturalization application.
Information concerning entry must be carefully checked and a determination must be made as to whether the applicant was lawfully admitted to the U.S. for permanent residence and had the required residence and physical presence for naturalization. Every claim of lawful admission for permanent residence must be verified from official records, as defined in 8 CFR 103.2(b) , unless an applicant presents documentary evidence establishing that his or her admission to the United States is presumed to be lawful under 8 CFR 101 .
You must determine that the applicant is actually the person he/she claims to be, namely the individual whose entry is shown on the application, by comparing the file, application, and visa petition or other entry record to determine if they all relate to the same person. At a minimum, review and compare the applicant’s permanent resident card to be sure that the photo matches the applicant. Make sure the date the applicant was granted permanent residence and all other biographic information are the same on the card, file and application. You will have a number of sources available to you: the visa petition or other record of admission, other file information, passport, and state-issued identification such as a driver’s license. If you detect a discrepancy in the identification or other details of the applicant’s history and circumstances, you will have to carefully question the applicant, take an affidavit and speak with your supervisor.
Question the applicant regarding detailed information in the administrative file to make a determination that it relates to the person appearing for the examination. In phrasing questions, be careful not to disclose the substance of the information. In other words, do not give the applicant any information in your questions or ask the applicant leading questions.
When a comparison of the testimony and the information of record reveals discrepancies, you must determine whether they are sufficiently material and extensive enough to support a finding that the applicant has failed to establish identity.
Studying the file prior to the examination gives you the needed information and makes the applicant aware that you have a reliable source of information. If the applicant consistently answers in a way that shows he or she is not familiar with the information in the file, there are good reasons to question his or her identity.
As a secondary approach to this determination, questions may be addressed to the details and sequence of travel, marital history and the number of children. Repetitive examination along these lines may develop inconsistencies and contradictions that may be revealing. If you believe that the person at the examination is not the person who immigrated or adjusted status to a permanent resident, you should take a sworn statement from the applicant to record the testimony that is different from the record; you s hould speak with a supervisor, and proceed accordingly.
You must also consider whether an applicant for naturalization may have applied for the document and entered the United States under the identity of another person. When there is an indication that a visa petition or adjustment of status may have been procured under an assumed identity through fraud or misrepresentation you will need to fully explore that possibility. Again, a sworn statement and a consultation with your supervisor are recommended.
The 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 he or she was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of initial entry or any subsequent reentry. [See 8 CFR 316.2(b) .]
(B) No Record of Admission . When there is no record of the applicant’s admission for permanent residence and the applicant maintains that he/she has been admitted for permanent residence, you may ask the applicant to provide secondary evidence to establish that his or her admission is presumed lawful under 8 CFR 101. Documentary evidence to establish a presumption of lawful admission may consist of family bible entries, immigration documents, passports, deeds, leases, wills, insurance polices, bank books, employment records, receipt s, school records, church records, baptismal certificates, census records, or city directories. If documentary evidence cannot be submitted, the applicant may present witnesses for examination. When witnesses are unable to appear, detailed affidavits of at least two witnesses may be accepted if their contents raise no question as to the truthfulness of the statements made. Exercise extreme caution when affidavits are the sole evidence presented. The affiants may be called upon to present documents to suppor t their statements. In practice, USCIS would not usually proceed with the application for naturalization until the applicant’s status as a permanent resident had been recorded. Also, 8 CFR 264.2 and chapter 23.4 of this field manual address procedures for documenting the status of aliens who are eligible for presumption of lawful permanent residence under 8 CFR 101 . See your supervisor if you encounter this type of case.
(C) Immigration Status . In addition to the date on which the applicant acquired permanent residence, your file review should determine the basis upon which such status was gained. In reviewing this section of the application and questioning the applicant about his or her immigration status, you may determine that the applicant was not entitled to permanent resident status at the time he or she immigrated or adjusted status. If the applicant unlawfully acquired LPR status via an immigrant visa you can place the applicant in remov al proceedings. If the applicant unlawfully adjusted status in the United States and has been a LPR for less than five years, you can rescind his/her LPR status under section 246 of the Act (see chapter 26 of this field manual). If the applicant unlawfully adjusted status in the United States and has been a permanent resident for more than five years, a five-year statute of limitations prevents you from rescinding the LPR status under section 246. However, you can still deny the naturalization application under section 318 if the applicant did not lawfully acquire permanent resident status. You should also speak to your supervisor about placing the applicant in removal proceedings. [See sections 212 , 237 , 238 , 239 , and 240 of the Act and 8 CFR 239 and 240 .]
The type of questions you ask the applicant to determine whether the applicant acquired LPR status lawfully, depends on how the applicant obtained LPR status. The following are typical examples of how an applicant may have obtained LPR status.
• Through An Employment Based Petition – An applicant obtained permanent residence through employment with a U. S. company. You should review the employment history section of the N-400 application to ensure that the I-140 petitioning employer is listed. If the petitioning employer is not listed, you should prepare questions to address this issue. Such questions might include:
– Did you ever work for the petitioner? – How long did you work for the petitioner? – In what capacity did you work for the petitioner? – Why did you leave the position? – What were you paid? – Where did you work for the petitioner (location)? – Where did you go or work after you left your job with the petitioner or instead of working for the petitioner? – When did you first learn that there would not be a long-term position for you?
You should also determine whether the applicant met all of the eligibility requirements of the employment classification under which he/she was granted status. For example, did the applicant have the necessary training or experience that the labor certification required for that classification? The labor certification, which seeks to classify the applicant’s occupation as a shortage occupation, must be filed with the U. S. Department of Labor for most employment-based immigrant petitions. [See 8 CFR 204.5 . and Chapter 22 of this manual.]
• Through Marriage – In cases where the applicant obtained status through marriage you would review the marital history section of the N-400, the list of addresses, and children to determine whether the applicant had a qualifying relationship at the time of immigration or adjustment and, for section 319 applicants, is living in marital union with the petitioner.
If the applicant acquired status through marriage and he/she is now divorced from the U. S. citizen or resident alien spouse, you must develop questions to address this issue. You should ask these applicants to provide a copy of their divorce decrees, and findings of fact, conclusions of law, bill of complaint, petition for dissolution of marriage, or separation agreement to explain when the parties to a divorce were separated. These documents must be reviewed carefully, especially for those applicants who were granted conditional permanent residence, and claimed to be residing with the United States citizen or resident alien spouse when the Petition to Remove Conditions on Residence, Form I-751 was filed, yet they were separated at the time. These applicants were classified as conditional permanent residents because they had less than two years of marriage to their spouse at the time they were granted resident alien status. [See 8 CFR 319 , 216.1 , 216.2 . ]
• Through a Relative: Unmarried Sons or Daughters – U.S. citizens or aliens lawfully admitted for permanent residence may file a petition on behalf of an unmarried son/daughter. The son or daughter must be unmarried at the time the I-130 is filed and at the time he/she is granted LPR status. You should review the marital history section of the application very carefully in these cases. If the applicant lists a spouse on the application, you should develop questions to determine when the marriage took place, and request a copy of the marriage certificate fo r review. See 8 CFR 204.2(d) and sections 203(a)(1) and 203(a)(2) of the Act.
If there is evidence that the applicant was married at the time he or she acquired permanent residence, you should discuss the matter with your supervisor and consider institution of removal or rescission proceedings.
• Through Legalization or Special Agricultural Worker Program (SAW) . Caution should be exercised when reviewing SAW files. The Headquarters Office of the General Counsel has determined that information contained under the red sheet should be used for limited purposes only. [See General Counsel Opinion 89-74 for a detailed discussion on this issue. See 8 CFR 245a(2)(t)(5) authorizing the use of information contained in approved Legalization applications in connection with benefits including naturalization.]
For aliens who became permanent residents under Pub. L. 99-603, the Immigration Reform and Control Act of 1986, there are two dates on the Permanent Resident Card, Form I-551, that relate to alien’s status: the date that the alien became a temporary resident and the date that the alien became a legal permanent resident. Be careful when you determine eligibility for naturalization that you use the correct date. The card clearly shows the temporary date, while the permanent residence adjustment date is the fi rst item on the left on the bottom line of the numerical information on the reverse of the card.
Note: You may encounter Legalization cases with incorrect Permanent Resident Cards where the date of permanent residence may have been computed incorrectly. These cards can be easily detected because the time difference from the date temporary residence was granted to the date that permanent residence was granted is less than eighteen months. If you encounter such a case, compute the time between the temporary residence date and the permanent residence date in the A-file (eighteen months or less), and check the Central Index for the permanent residence date. This only applies to Legalization cases (see section 245(A) of the Act), not SAW cases (see section 210 of the Act).
If you determine that you have an applicant with an incorrect card, after checking these two sources, you can determine the adjustment date from the Central Index System (USCIS) or the file. Check both sources to be sure that they agree. If they don’t, see your supervisor or training officer. These Permanent Resident Cards with incorrect dates must be replaced whenever they are encountered by CBP, USCIS, or ICE. The alien will be required to submit Form I-90, fee exempt, through the usual Form I-90 processi ng procedures for the replacement of incorrect Form I-551s. However, under certain conditions, the applicant may keep the incorrect card temporarily. All of these conditions must apply:
– applicant meets the residence and all other requirements, and you approve the application that day, and – the oath of allegiance will be administered before a replacement card will be issued. To determine processing times on I-90s, check with your supervisor.
Information furnished by persons who filed applications pursuant to an application for legalization cannot be used for anything other than:
– to adjudicate the Legalization application, – to prosecute for fraud under section 245A(b)(6) of the Act, – to prepare reports to Congress under section 404 of the Immigration Reform and Control Act of 1986.
You cannot use the information furnished by persons who filed applications pursuant to an application for Legalization to:
– make any publication whereby the information furnished by any particular applicant can be identified; or – permit anyone other than the sworn officers and employees of the Department or Bureau or Agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications. See section 245A(c)(5)(A) of the Act.
You are permitted to use information in the Legalization application as it relates to the naturalization application to validate information on the N-400 such as identity, marital history, and family relationships. See 8 CFR 245(a).2(t)(5) and General Counsel memorandum Request for Guidance: Institution of Deportation Proceedings/Legalization or SAW Applicants: Naturalization of Persons Who Filed Fraudulent Legalization or SAW , from the Office of the General Counsel, dated September 6, 1996, found in Appendix 74-11 for a full discussion of these issues. The summary conclusions expressed in this memo are:
Legalization Considerations : Naturalization may be denied if an applicant fraudulently gained lawful permanent residence through a legalization application that USCIS can establish was fraudulent. Regulations permit information contained in granted legalization files to be used by USCIS at a later date to make a decision on a naturalization application. The basis for denial would be the applicant’s inability to establish that he or she was admitted to the United States for permanent residence pursuant to section 318 of the Act. [See 8 CFR 245a.3(n)(4)(ii) and 8 CFR 245a.4(b)(23)(iv) .]
Removal proceedings cannot be instituted against persons who obtained lawful permanent resident status through a fraudulent legalization application except in two instances: where the person has been convicted of legalization fraud and is charged with removal based on the fraud conviction, or the person volunteers a detailed admission of fraud, which would render the person removable on the same ground, namely inadmissible at the time of adjustment in violation of section 237(a)(1)(A) of the Act on the basis of section 212(a)(6)(C)(i) , misrepresentation or fraud in the procurement of an immigration benefit. The use of the fraud conviction to support a charge of removal does not violate legalization confidentiality provision.
SAW Considerations . Removal proceedings cannot be instituted against persons who obtained lawful permanent resident status through a fraudulent SAW application, except in two instances: where the person has been convicted of fraud and is charged with removal based on the fraud conviction, or the person volunteers a detailed admission of fraud, which would render him or her removable on the same ground, namely as inadmissible at the time of adjustment in violation of section 237(a)(1)(A) on the basis of section 212(a)(6)(C)(i) , misrepresentation or fraud in the procurement of an immigration benefit.
Information provided by a person pursuant to a SAW application that is contained in the A-file may not be used for any purpose other than to:
– make a determination on the SAW application, including a determination under subsection (a)(3)(B), Termination of Temporary Residence Status , or – for enforcement of paragraph (7) Penalties For False Statements In Applications . Information that is contained in the A-file that was provided by a person pursuant to a SAW application may not be used to: – make any publication whereby the information furnished by any particular individual can be identified; – permit anyone other than the sworn officers and employees of the Department or Bureau or Agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.
The confidentiality clause prohibits you from questioning an applicant regarding any information provided by the applicant relative to his or her SAW application (see section 210(a)(6)(A) of the Act).
Evidence Before Placing in Removal Proceedings. Placing an applicant into proceedings is an extraordinary event, not the norm. You should only consider it where you have evidence and can clearly articulate the marriage or other fraud. [For more information see Chapters 25 and 26 of this manual.] Take no further action on the N-400 until the rescission process is completed. The N-400 application can ultimately be denied pursuant to section 318 of the Act because the applicant was not lawfully admitted for permanent residence.
(2) Port admitted with an immigrant visa or INS office where granted adjustment of status
(A) General . The statute places the burden of proof upon the applicant not only to show that he/she entered lawfully but also to establish the time, place, and manner of his/her entry into the United States. However, in sustaining such burden, he or she is entitled to the production of records not considered confidential pertaining to the alleged entry, which are in the custody of USCIS . In the majority of cases, after you have determined the applicant’s identity, the applicant's entry may be established by his or her visa or by a verification of entry from other USCIS records if he or she has lost his or her permanent resident card.
The port of entry information on the applicant’s permanent resident card should match the information on the application and in the ‘A’ file; if it does not, check that you have the correct person in front of you, and that the card is valid. Note that many persons who enter the United States as refugees will list on their applications the port at which they arrived as their port of entry. The card will show the office at which they adjusted status to that of resident alien. A similar situation will occur fo r some people who adjust status in the U.S.; they may indicate the port at which they entered as a nonimmigrant. You should question the applicant about:
• his or her adjustment application or immigrant visa application, and • the petition underlying the immigrant visa or adjustment application.
This will help you to determine if the card is bona fide and if the permanent resident status is valid, or if there is a problem. See your supervisor and take a sworn statement from the applicant if there is a problem.
(B) Additional References . See Interpretations 318.1 for a discussion regarding lawful entry for permanent residence, including:
• Congressional purpose, • Definition relevant to current requirement, • Inapplicability, • Certificate of arrival, • United States-born children of foreign diplomats considered permanent residents, • Entry under military orders, and • Entry of inhabitants of the Bonin Islands.
See Interpretations 334.1(d), regarding previous requirements for evidence of arrival in the United States.
(3) Citizenship
(A) Stateless Persons . Many times, applicants will write “STATELESS” in this item. If a person claims that he/she is stateless, you should ask the applicant for his/her country of nationality before they became stateless. After verifying the answer against information in the file and on documents presented, amend the application. When amending the application, be sure to number the amendments as required by NQP, located in Appendix 72-1 .
(B) Additional Information . See Interpretations 334.1(f) for a discussion on nationality and statelessness.
(4) Name on Permanent Resident Card
(A) General . In most instances, the Permanent Resident Card shows the applicant’s correct, legal name. There are certain rare instances where the card may not reflect the correct legal name. For example, if the applicant has a three-part Asian name, the Permanent Resident Card may have the first and middle names reversed. You should look at the documents supporting the immigrant visa or the refugee application and supporting documents and discuss this with the applicant. Placing the names in the correct order is not a legal name change and does not require court authorization. If the case will not be granted or if there is a substantial amount of time between the examination and the oath ceremony, the applicant could apply for a replacement card with the corrected name.
The name on the card in most cases will be the legal name at the time the applicant became a lawful permanent resident. Check that the name on the application is the same. If not, you must ask the applicant about the difference. In some cases, the applicant will have changed names legally, for example by marriage. You must ask the applicant to document the name change. In other cases, the Permanent Resident Card may not show the correct name; you must make this determination based on the documents in the fi le and any documents (including passport and birth certificate) that the applicant presents at the examination. If the legal name is not the same as the name on the Permanent Resident Card, make sure the application and the certificate preparation sheet show the legal name. Also, be sure that the naturalization case management system has the applicant’s legal name. If the applicant has changed his/her name pursuant to common law practice, then be sure to keep copies in the file of all documentation showing the name recognized under common law. When you accept the validity of a common law name change, USCIS should be updated to show the new name as being the subject’s name, and the previous name should be shown as an alias. This action must be completed prior to the oath ceremony being closed. If you have a question about the common law governing the place where the applicant claims the common law name change occurred, see your supervisor or district counsel. Also see the discussion on names in Part One of the N-400 application, located in Chapter 74.2(a) .
(5) Other names used since you became a permanent resident
(A) General . The applicant must show every name he or she has used at any time, including nicknames, whether in the United States or any other country, and, if a married woman, both the married and maiden names. If the applicant has never used another name, enter the word "none” on the application. If any other names have been used, the applicant should list all of the names and testify that those are all of the names that he/she has ever used including nicknames. See also the discussion on name changes in Parts One a nd Twelve of the N-400, located in Chapter 74.2(a) and Chapter 74.2(l) , respectively.
(6) Sex
This information will be recorded on the certificate of naturalization, and will be used for statistical purposes.
(7) Height
This information will be recorded on the certificate of naturalization, the document that the applicant will receive as evidence of his or her United States citizenship. It will serve as an identification feature.
(8) Marital Status
When adjudicating most applications or petitions for benefits, all persons who are not currently married, for whatever reason (never married, divorced, marriage annulled), are defined as being unmarried. [See section 101(a)(39) of the Act.] But for purposes of the personal description called for by section 338 of the Act, when there are the series of choices offered for the preparation of the Naturalization Certificate, single, unmarried, married, divorced, widowed, separated are all proper descriptive terms, even if some of them overlap legally. If the person has never been married, "single" is the preferred description, for certificate preparation purposes. You are responsible for obtaining the information that will appear on t he certificate, and it is your responsibility to make sure the N-400 reflects the correct information. Get the documents needed to support the claimed status, and verify that status against information in the file and the applicant's passport, tax returns, and other supporting documentation. This is especially important in section 319(a) cases.
(9) Can you speak, read and write English?
(A) General . This paragraph provides guidance on the standardized procedures for testing naturalization applicants on English and civics based on 8 CFR 312 . This citizenship test is probably the matter of greatest concern to the majority of applicants. As part of the USCIS ’s good customer service policy, remember to use a calm voice. Administering the test in this manner will do much to calm the nervous and excited applicant and help to get through the testing process. See also Chapter 2 of this manual which discusses customer service policy and techniques.
You may administer the tests at any given time throughout the course of the examination, keeping in mind any locally mandated procedures.
(B) Testing Requirements and Exemptions . Section 312(a)(1) of the Act imposes the English language requirement on naturalization applicants. This general requirement is clarified in 8 CFR 312.1 , Further, section 312(a)(2) of the Act imposes a U. S. history and civics requirement, clarified in 8 CFR 312.2 . Some persons are exempt from the literacy requirement under 8 CFR 312.1(b)(1) and (2), but they must still satisfy the history and civics requirements.
The following persons are not required to demonstrate an ability to read, write and speak words in ordinary usage in the English language:
• A person who, on the date of filing of his or her application for naturalization, is over 50 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence;
• A person who, on the date of filing his or her application for naturalization, is over 55 years of age and has been living in the United States for periods totaling at least 15 years subsequent to a lawful admission for permanent residence;
• A person who is unable to demonstrate knowledge of the English language because of a medically determinable physical or mental impairment or combination of impairment that has lasted or is expected to last at least 12 months. The loss of any cognitive abilities based on the direct effects of the illegal use of drugs will not be considered in determining whether a person is unable to demonstrate an understanding of the English language.
The following persons are required to demonstrate a knowledge of the history principles and form of government of the United States, but they are allowed to do so in the language of their choice :
• A person who, on the date of filing of his or her application for naturalization, is over 50 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence; • A person who, on the date of filing his or her application for naturalization, is over 55 years of age and has been living in the United States for periods totaling at least 15 years subsequent to a lawful admission for permanent residence.
The following persons are required to demonstrate knowledge of the history and government of the United States, but they are allowed to do so in the language of their choice and are entitled to special consideration under Section 312(b)(3) of the Act:
• A person who, on the date of filing his or her application for naturalization, is over 65 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence.
See also Appendix 74-15 , Policy Memo 69A: Hmong Veterans’ Naturalization Act of 2000 , which addresses Pub. L. 106-207 as amended by Pub. L. 106-415 relating to the eligibility of certain Hmong applicants for special consideration when demonstrating requirements.
The following person is not required to demonstrate knowledge of history or government. Any person who is unable to demonstrate knowledge of history or government because of a medically determinable physical or mental impairment or combination of impairment that has lasted or is expected to last at least 12 months. The loss of any cognitive abilities based on the direct effects of the illegal use of drugs will not be considered in determining whether a person is unable to demonstrate an understanding of Un ited States history and government.
(C) Literacy Test . The literacy examination consists of verbal, reading and writing skills. Verbal skills are the applicant’s ability to speak English. Reading and writing skills include the applicant’s ability to read and write words in simple words and phrases in ordinary usage in the English language.
An applicant’s verbal skills must be determined from the applicant’s answers to questions normally asked in the course of an examination [ 8 CFR 312.1(c)(1) ]. In addition, 8 CFR 335.2(c) requires officers to repeat and rephrase questions until the officer is satisfied that the applicant either fully understands the question or does not understand English. Although the applicant must be able to communicate in English about his or her application and eligibility for naturalization, the applicant does not need to understand every term, word or phrase on the N-400 application. If the applicant generally understands and can respond meaningfully to questions relevant to the determination of elig ibility, the applicant has sufficiently demonstrated his or her ability to speak English. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000].
Note that those applicants who have already passed the civics/history and the English language proficiency tests at the time of adjustment for lawful permanent status under section 245A(b)(1)(D)(iii) of the Act are still required to demonstrate the ability to speak English at the time of the examination on the N-400 application. [See 8 CFR 312.3(b) ].
Also note that 8 CFR 312.2(c)(1)(ii) provides that the applicant may be examined regarding the other elements of eligibility in his or her native language, with the assistance of an interpreter selected in accordance with 8 CFR 312.4, if:
• the applicant has satisfied the English literacy requirement under 8 CFR 312.1(a), and • you examine the applicant's knowledge of the history and form of government of the United States orally in the English language, and he or she satisfies the requirement, and • you determine that an inaccurate or incomplete record of the examination would result if the examination on technical or complex issues were conducted in English. An applicant’s ability to read English is tested using the following resources: • Excerpts from one or more parts of the authorized Federal Textbooks on Citizenship (Publications M-289 and M-291, which are reproduced in Appendices 73-2 and 73-4 ) written at the elementary literacy level [ 8 CFR 312.1(c)(2) ]. Although the Constitution of the United States appears as an appendix in Publication M-289, it is not written at the elementary literacy level; its use as a test of reading would usually fall within the “extraordinary or unreasonable conditions” barred under section 312(a)(1) of the Act. • USCIS currently uses other bodies of knowledge that have expanded the regulatory sources. Many offices’ reading and writing tests no longer focus exclusively on material dealing with U.S. history and government, but are drawn from vocabulary more ordinarily used in everyday situations. These alternative sources are widely available to the public. Therefore, officers are strongly encouraged to select sentences from the “Sample Sentences for Written English Testing”, available in the back pocket of A Guide to Naturalization , Publication M-476 . The sentences from the “Everyday Life” column of the Sample Sentences are also available in the CLAIMS4 program. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]
Each applicant must be given an opportunity to read up to three sentences, if necessary, but no applicant shall be required to read more sentences than necessary to demonstrate reading ability. An applicant’s ability to read should be sufficiently demonstrated if the applicant can read one sentence in a manner suggesting to you that the applicant appears to understand the meaning of the sentence at a general level. When you make a positive determination after hearing the first sentence, the applicant does not need to read a second or third sentence. Applicants shall not be failed because of their accent when speaking English.
An applicant’s ability to write English is tested using the following resources:
• Using excerpts from one or more parts of the authorized Federal Textbooks on Citizenship (Publications M-289 and M-291) written at the elementary literacy level [ 8 CFR 312.1(c)(2) ]. • As noted in the reading section, you may also select sentences from the “Sample Sentences for Written English Testing,” available in the back pocket of A Guide to Naturalization , Publication M-476. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]
Each applicant must be given up to three opportunities to write (either in block printing or in cursive script) a sentence, if necessary, but no applicant shall be required to write more sentences than necessary to demonstrate writing ability. You must repeat each sentence clearly if asked or if necessary to ensure that the applicant understands the sentence. An applicant’s ability to write should be sufficiently demonstrated if the applicant can write one sentence that would be understandable as written to a reasonable person. An applicant must not be failed because of poor penmanship or spelling, capitalization or punctuation errors unless the penmanship or errors would prevent a reasonable person from understanding what the sentence means.
When you dictate a sentence to be written by the applicant, you must be sure that the applicant understands the meaning of the sentence and he/she must write the words that were dictated to him/her. The officer shall repeat each sentence clearly if asked or if necessary to ensure that the applicant understands the sentence. There may be times when an applicant may write a totally different sentence than the one that you dictated to him/her even after being given three opportunities to write the dictated sen tence. This does not satisfy the requirement. In these cases, it is important that you make a note of the sentence that was dictated to the applicant.
(D) Civics Test . Except as noted in paragraph B, applicants must demonstrate a knowledge and understanding of the fundamentals of the history, and of the principles and form of government of the United States. The scope of the examination must be limited to subject matters covered in the authorized Federal Textbooks on Citizenship, except for the identity of current officeholders [8 CFR 312.2(c)(2)]. You are encouraged to use the list of 100 questions available as attachment to the Guide and in CLAIMS4. Because the list o f ten questions in CLAIMS 4 are randomly generated, you must review each set of questions to determine if the list contains questions that are too complex or advanced for the applicant, taking into consideration the factors in 8 CFR 312.2(c)(2) , such as the applicant’s education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the knowledge.
You should continue to test applicants who qualify for 65/20 “special consideration” by using the list of 25 questions developed for this purpose. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]. A person who, on the date of filing his or her application for naturalization, is over 65 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence shall be entitled to special consideration pursuant to section 312(b)(3) of the Act.
All applicants shall be given 10 questions to complete either orally or in writing. An applicant’s knowledge of civics is demonstrated if the applicant can correctly answer six or more questions. Applicants meeting 65/20 requirements demonstrate sufficient knowledge with six correct answers. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]
(E) Advising Applicant of Test Results . You are required to complete and provide to each applicant Form N-652, recording the results of the English and civics tests at the end of each examination, unless you will be serving the applicant with a denial notice before he or she leaves the office. Offices should be using exclusively the N- 652 revised on 12/7/99.
In general, an applicant has two opportunities to pass the English and/or civics tests. An applicant for naturalization who fails the English literacy and/or history and government test at the first examination will be afforded a second opportunity to pass the test(s), not earlier than 60 days after the first examination but within 90 days after the first examination. See 8 CFR 335.3(b) , 8 CFR 312.5(a) and Appendix 74-12, Policy Memo #73 dated 12/26/2000).
If an applicant fails the test a second time, you will have to deny the application based on failing to speak, read, write or understand English, or understand civics/history of the United States, or both. USCIS can accept the applicant’s withdrawal on his/her N-400 application at his/her request.
It is only appropriate to accept a withdrawal if the applicant has been fully informed and understands the consequences of withdrawing the application from consideration, including the fact that he or she gives up the right to request a hearing under section 336 of the Act ( 8 CFR 335.10 ). You must not offer or accept withdrawals from applicants who do not understand English unless they have an interpreter with them and are able to clearly understand the consequences of withdrawing their applications. See also Chapter 72.4 of this manual concerning withdrawals. You should already have noted the name of interpreter, relationship to applicant and driver license/ID number in the file in case the applicant challenges the withdrawal in future.
If you decide to administer the tests at the beginning or during the examination process, and you determine that the applicant is unable to pass either test, then stop the testing process and proceed with the examination. Do not stop the examination process unless the applicant is unable to understand English after several attempts to rephrase the questions on the application.
If an applicant submits a Form N-648 for medical exception at any scheduled examination, and that Form N-648 is insufficient, refer to Policy Memo 47: Section 312 Disability Naturalization Adjudications, dated 4/7/99 (see Appendix 72-13 of this field manual).
(10) Have you been absent from the U.S. since becoming a permanent resident? If yes, complete the following: Date left U.S. Date returned Did absence last 6 months or more? Destination Reason for trip
(A) General . Part 2 of the application describes the required period of residence in the United States under various statutory provisions. Based on the applicant's current length of residence, determine which section of law is applicable to the applicant's case.
Most applicants must be physically present in the United States for a certain number of months to be eligible for naturalization. Applicants filing under section 316(a) of the Act must have been present in the United States for at least 30 months. Applicants filing under section 319(a) of the Act must have been physically present in the U.S. for at least 18 months.
For example, if a person, filing under section 316(a), takes eleven trips over the five year statutory period and each trip lasted three months, this would total 33 months that the applicant had been absent from the United States. He/she would be ineligible for naturalization because the trips (even though each trip was under six months) totaled more than 30 months. The applicant would have to stay in the United States until a date on which he or she has been physically present for at least a total of 30 mo nths of the last five years immediately before filing an application for naturalization.
You should make sure that the applicant has listed any absences of less than six months. Frequent short absences may be included in one concise statement giving the longest absence, such as "Visits to Canada for not more than two weeks at a time, the applicant’s last visit having been for one week ending (date)." When an issue arises regarding physical presence or continuous residence, exact dates must be obtained.
Be sure to ask for and look at all travel documents issued by any authority, as well as the applicant’s Permanent Resident Card and Re-entry Permit(s). The applicant may have additional evidence of travel: ticket stubs, boarding passes, and/or any other receipts for transportation. Once you have these items, compare them to the information listed in this section. This review is important because determining that an applicant has met the continuous residence and physical presence requirements depends on this information.
Some applicants do not realize that the dates of travel can significantly affect eligibility and as a result you will have to determine if the answer the applicant provides is accurate. You will also have to determine if the applicant has established continuous residence and physical presence.
To determine whether the applicant has met the requirements, you will have to add up the days the applicant was present in the United States to see if the applicant has the required physical presence and continuous residence. When you count, give the applicant credit for each day in the United States, including full credit for the day the applicant left the United States and the day the applicant returned to the United States. See A Guide to Naturalization . Calculating the actual time is important because it is an eligibility requirement that must be fulfilled by almost every applicant. [See also paragraph 74.2(b) of this chapter.]
Note that applicants who frequently visit contiguous territory often do not think of such visits as being absences. Keep this in mind as you do your examination. On occasion, the only available evidence of a period of absence will be an admission by the applicant on the application or during the examination. Remind the applicant that visits outside the United States, no matter how brief, need to be listed on the application. It may help the applicant to remember absences if you ask if he or she has any fami ly outside the United States. You may also ask whether he or she has visited them since immigrating to the U.S. to determine how frequently and for how long the applicant visited. The applicant should complete a list when there appears to be an issue regarding the physical presence or continuous residence particularly for absences raised for the first time during the examination. If it appears that this will take more than a few minutes, you should ask the applicant to prepare the list in the waiting room, and call the next applicant. After you finish the intervening examination, call the applicant, ask if he or she has finished the list and is sure that it is accurate, and resume the examination or take another applicant as appropriate.
(B) ‘Physical Presence’ vs. ‘Continuous Residence’ . ‘Physical presence’ is the time the applicant actually is physically in the geographic United States. It involves the total number of days the applicant was in the United States. ‘Continuous residence’ involves whether the applicant has actually established a residence and maintained such residence in the United States for a certain period. The applicant must ensure that he/she fulfills both the physical presence and the continuous residence requirements. See section 101(a)(33) of the Act regarding the term ‘residence’.
An applicant disrupts the continuity of continuous residence if he or she:
• is absent from the United States for a continuous period of one year or more, or • is absent for a period of more than six months and less than one year and the applicant fails to demonstrate he/she did not disrupt the continuity of residence.
Continuous Residence Example
The applicant filed Form N-400 on September 8, 1999. He met the physical presence requirements during the statutory period. However, on June 15, 1999, he was sent overseas on an assignment by his employer, which is not an American corporation. He appeared for his interview on January 24, 2001. He informed the examining officer that he was on temporary work assignment in the U.K. and Russia. He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England. He was not gone for more than six months at any time, but his trips back to the U.S. from June 1999 to January 2001 were brief and sporadic. He cited several rulings from the 1940’s to support his claim that he had met the continuous residence requirement.
The application should be denied for lack of continuous residence under Section 316 of the Act. He failed to reside continuously in the U.S. from the date of application for naturalization up to the time of admission to citizenship.
INA 316(a) says: No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, . . . (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship,
The definition for “residence” is at INA 101(a): As used in this Act: (33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.
Even though the applicant may have met the requirements of section 316(a)(1) or section 316(b) of the Act, the applicant in this case has not been residing in the USA from June 1999 until the time of the initial examination.
101(a)(33) was added to the INA in the 1940 Act, but without the phrase "without regard to intent." Prior to the 1940 Act, the INA did not have a definition for “residence”. As a result, various court decisions interpreted the term "residence" differently, some equating the term with mere physical presence in the United States, others making the term synonymous with "domicile" which requires intent. While the pre-1952 decisions are relevant to understand the history of the term “residence,” the 1952 Act an d subsequent rulings created a different standard. The 1952 Act clarified the definition of residence and created an objective standard for determining residence not based on the applicant's intent.
For a detailed explanation of the requirements of continuous residence see Chapter 73.3 of this manual. For a detailed explanation of the requirements for physical presence, see Chapter 73.5 of this manual
(C) Absences of Between Six Months and One Year . Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under 8 CFR 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence unless the applicant can establish otherwise to the satisfaction of USCIS . This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws.
If the applicant claims that he/she did not disrupt the continuity of residence you must ask additional questions about the absence and the nature of his/her claimed continuous residence in the United States. Some of the things that you should ask for are:
• Evidence that the applicant did not terminate his or her employment in the United States; • Evidence that the applicant's immediate family remained in the United States; • Evidence that the applicant retained full access to his or her United States abode; or • Evidence that the applicant did not obtain employment while abroad. Also, this would normally include evidence of how he/she supported him/herself during the absence.
You should ask for other evidence if the items listed above do not cover the issue fully in a specific case.
If the applicant is unable to establish that he/she did not disrupt residence, he/she will be ineligible for naturalization. The applicant will be eligible to re-apply for naturalization, four years and one day (two years and one day if applying under section 319(a) of the Act) from the most recent date that he/she returned to the United States. See the letter from the Headquarters Office of Naturalization and Special Projects to Messr. Kiblan and Battles dated September 22, 1993, located in Appendix 74-13 .
The information contained in this area is particularly important in determining if there has been any break in the applicant's residence for naturalization purposes and in determining if the applicant has the required physical presence. The statute provides that the requisite continuity of residence for naturalization purposes shall be conclusively broken by any continuous absence of a year or more during the statutory period. Occasionally, an applicant will admit an absence just short of one year and there will be nothing in the related file to confirm or refute this testimony. Under such circumstances, an especially detailed interrogation should be conducted to determine the exact dates of departure and reentry. Under the statute, the requisite continuity of residence is also broken by an absence abroad of more than six months but less than a year, unless the applicant establishes that he did not in fact abandon his residence.
[(b)(2) or (b)(7)(E)]
Unless the applicant demonstrates that the absence did not disrupt the continuity of residence, he or she will have to wait at least four years and one day before he or she can be eligible to apply again for naturalization. [See 8 CFR 316.5(c)(1)(ii) and the memorandum dated 9/22/93 located in Appendix 74-13 .].
(D) Absences in Excess of One Year . Unless an applicant applies for benefits in accordance with section 316.5(d) of the Act, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required shall disrupt the continuity of the applicant's residence.
When you question the applicant about absences, keep in mind that an applicant who has been absent for a period totaling more than one year, may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resu me permanent residence.
(E) Non-resident Tax Status . [(b)(2) or (b)(7)(E)]
(F) Removal and Return . On rare occasions you will encounter an applicant who was a resident alien and departed from the United States while under an order of removal (including previously issued orders of exclusion or deportation). That departure terminates the applicant's status as a lawful permanent resident. You will need to determine:
• whether the applicant subsequently re-acquired lawful permanent resident status; • whether he or she revealed the removal during the immigration or adjustment process; • whether he or she had permission to reapply. [See section 212 of the Act and chapter 43 of this field manual .]
You should also check the duration of residence after readmission as a permanent resident because only time after that readmission as a permanent resident counts towards naturalization requirements.
(G) Readmission after a Deferred Inspection or Removal Proceeding . If you encounter an applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge after conclusion of removal proceedings, you should calculate the applicant’s time in the United States from the date the applicant applied for admission into the U.S. [See 8 CFR 316.5(c)(4) .]
(H) Summary of Possible Issues to Address When Reviewing Residency Requirements .
[(b)(2) or (b)(7)(E)]
(I) Additional Information . For additional information regarding residency, please refer to the following:
• Interpretations 316.1(a) , (b) , (c) and (d) , for the history of this requirement, definitions, exemptions; commuters; residence computed after an order of deportation and subsequent admission as permanent residence without departing the U.S.; location of serviceman's residence for purpose of filing petition under section 316; continuity; incomplete, misleading, or erroneous advice from a Government official whose duty it is to furnish full and accurate information on the subject; • Sections 316 and 310(b) of the Act; • Form N-470 ; uninterrupted physical presence; representative cases; income tax exemption as a nonresident; • Interpretations 317.1 , for information about temporary absence of persons performing religious duties, including the history; eligible classes; physical presence requirements; state residence requirement; effect of income tax exemption as nonresident alien; • General Counsel Opinion 95–21, which discusses the interpretation of American firm or corporation as it relates to a subsidiary for section 319(b) of the Act. This is also helpful in adjudicating N-470s for 316(b) benefits. • The section on eligibility requirements in Chapter 73.3 of this manual, the special cases section of Part Two of the N-400, Chapter 74.2 of this manual, a discussion of preservation of residence under section 316(b) and section 317 of the Act in Chapter 72.2 of this manual, and Form N-470. • The memo dated June 11, 1996, from the Office of Examinations, “Recent General Counsel Opinions Affecting Eligibility for Naturalization: Section 316(b) and 319(b)” (see Appendix 74-14 ), for information concerning questions of brief and casual absences and their effects under section 316(b), and the meaning of “American firm or corporation or a subsidiary thereof” under sec. 319(b) of the Act,
________________________________________________________________________
(d) Part 4: Information about your residence and employment.
(1) Introduction . This section deals with the applicant’s place(s) of residence and employment. Information provided by the applicant in this part of the N-400, in addition to the applicant’s testimony and information contained in the A-file, will help you to resolve possible physical presence, residence, jurisdiction, and good moral character issues when adjudicating the N-400.
You should always compare the information provided on the N-400 with that contained in the A-file to uncover any discrepancies or issues that may need clarification. Periods and places of residence/employment listed on the N-400 should be compared with residence/employment information contained in the A-file or provided by the applicant during the examination. Contradictions in employment or residence information may indicate inadvertent errors or possible falsification of information. Any contradictions sh ould be addressed before final adjudication of the N-400. By focusing on the information relating to residence, physical presence, absences, and employment you will be able to assess an applicant’s eligibility for naturalization. This chapter covers some of the issues related to residence and employment that you should explore when determining an applicant’s eligibility for naturalization.
(2) N-400 Question Review . The following N-400 questions will be reviewed in this chapter:
1. List your addresses during the last five (5) years or since you became a permanent resident, which ever is less. Begin with your most current address. (Question 1)
2. List your employers during the last five (5) years. List your present or most recent employer first. If none, write “None”. (Question 2)
1. The N-400 reads: List your addresses during the last five (5) years or since you became a permanent resident, whichever is less. Begin with your most current address.
(A) Length of Residence and Physical Presence in the United States . Generally, applicants for naturalization must reside and be physically present in the United States for a certain length of time in order to be eligible for naturalization. For an applicant filing under section 316(a) of the Act, he/she must have resided in the United States for at least 5 years after becoming a lawful permanent resident and been physically present for periods totaling at least half of that time, i.e., 30 months. For an applicant filing under section 319(a) of the Act, he/she must have re sided in the United States for at least 3 years after becoming a lawful permanent resident and been physically present for periods totaling at least half of that time, i.e., 18 months. (see Chapter 74.2(c) of this field manual; section 316(a) and section 319(a) of the Act, and 8 CFR 316.5 and 8 CFR 319.1) Applicants filing under section 316(a) and 319(a) also must have resided for at least 3 months in the State or Service District that has jurisdiction over their place of residence.
By reviewing the periods and places of residence listed by the applicant on the N-400, you will be able to determine whether the applicant has met the required residence and physical presence periods for naturalization.
(B) Determination of Place of Residence . In order for you to have jurisdiction over the applicant’s N-400, the applicant must have continually resided for a period of 90-days within your district or within your State. The applicant must have established residence in the jurisdiction 90 days prior to filing the application. Please keep in mind that some Service districts have jurisdiction over more than one State and some States contain more than one district office. For example, Wisconsin and Indiana are both within the same Service District. If an applicant lived in the State of Wisconsin for 45 days, then moved to the State of Indiana for 45 days that applicant will achieve the 90-day jurisdictional requirement upon residing in Indiana for 45 days. Likewise, if an applicant resided for 45 days in the New York City district and moved to the Buffalo district, upon the completion of 45 more days of residency in the Buffalo district that applicant will achieve the 90-day jurisdictional requirement because both districts are within the same State. Se e section 316(a) and section 319(a) of the Act, 8 CFR 316.2(5), 8 CFR 100.4, and 8 CFR 334.2(b).
An applicant’s residence is defined as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent” (see section 101(a)(33) of the Act). For naturalization purposes, the applicant’s residence is the same as his or her domicile, or principal actual dwelling place, without regard to the applicant’s intent. The duration of an alien’s residence in a particular location is measured from the moment the alien first establishes res idence in that location. (See 8 CFR 316.5(a)) The applicant’s present residence, not the present temporary abode, will determine whether you have jurisdiction over the application.
[(b)(2) or (b)(7)(E)]
You also will need to ask questions to determine whether the applicant resides where he/she claims. [(b)(2) or (b)(7)(E)]
An applicant’s principal place of residence is also important if your district conducts judicial naturalization ceremonies. You will need to verify that the applicant’s residence is within the district court’s jurisdiction. In some districts, every applicant’s residence is not only within the jurisdiction of the Service District but also that of only one district court. In others, there may be more than one district court within the Service District area. Be sure that you are aware of each court’s jurisdict ion, and properly assign the applicant. Note that persons who temporarily reside within the jurisdictional limits of a district court while pursuing an application filed pursuant to section 319(b), section 328(a), or section 329 of the Act are not subject to the exclusive jurisdiction provisions of section 310(b)(1)(B) of the Act.
By reviewing and questioning the applicant about the periods and places of residence listed on the N-400, you will be able to determine whether you have jurisdiction over the N-400 and whether the applicant has established the required principal residence in the United States for naturalization purposes.
(C) Residence in Specific Cases . Military personnel and students who are applicants for naturalization can choose from multiple locations when listing their principal place of residence on the N-400.
The place of residence for applicants serving in the Armed Forces of the United States, who do not qualify for naturalization under section 328 or section 329 can be either:
(i) the State or Service District where the applicant is physically present for at least three months, immediately preceding the filing of an application for naturalization, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or section 319(a) of the Act;
(ii) the location of the residence of the applicant's spouse and/or minor child(ren); or
(iii) the applicant's home of record as declared to the Armed Forces at the time of enlistment and as currently reflected in the applicant's military personnel file.
The place of residence for students attending an educational institution in a State or Service District other than the applicant's home residence may be the place where that institution is located or in the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and until the applicant takes the oath of allegiance.
Commuter aliens, however, are like other naturalization applicants in that they must establish a principal place of residence for naturalization purposes. Commuter aliens, as described in 8 CFR 211.5 must establish a principal dwelling place in the United States with the intention of permanently residing there, and must acquire the required period of residence (e.g., 5 years under INA 316 or 3 years under 319(a)) before eligibility for naturalization may be established. A commuter resident alien may not app ly for naturalization until he or she has actually taken up permanent residence in the United States and until such residence has continued for the required statutory period.
From time to time you may encounter a naturalization applicant who claims residence in multiple states. In this case, the applicant’s place of residence will be determined by reference to the location from which the annual federal income tax returns have been and are being filed. See 8 CFR 316.5(b)(5).
(D) Absences and Disruption of Continuity of Residence . Applicants for naturalization must establish that they have met the required periods of residence and physical presence in the United States. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under section 316(a)(1) of the Act and 8 CFR 316.2(a)(3) and 8 CFR 316.2(a)(6) shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of USCIS . Chapter 74.2(c) of this field manual (“Additional Information About You”) addresses in detail absences and their affect on eligibility for naturalization.
You should review and compare the periods and places of residence listed on this part of the N-400 with the listed absences in Part 3 for any inconsistencies. Contradictory information about absences and places/periods of residence may reveal that the applicant has not met the required physical presence or continuous residence requirements. It also may reveal more significant issues such as the potential loss of lawful permanent resident status, based on extended absences from the United States.
Addresses outside of the United States must be included in Part 4. Foreign addresses not only may indicate absences from the United States but also potential relinquishment of the principal place of residence in the United States. When you see a foreign address, you should also determine whether the applicant filed for and received approval of an application for preservation of residence, Form N-470. You will need to check the foreign addresses to be sure that they are consistent with information on the N-4 70, any supporting documentation from the employer, and tax returns.
After determining whether an applicant’s absence(s) disrupted his/her physical presence or continuous residence, you will also need to redetermine the applicant’s principal place of residence. For applicants who have been outside the United States for less than one year, and upon returning to the United States, return to the State or Service District where they last resided, the applicant’s principal place of residence will continue to be the State or Service District where the applicant last resided. If th e applicant establishes residence in a State or Service District other than the one in which he or she last resided, the applicant must complete three months at the new residence to be eligible for naturalization. See section 316(a)(1) of the Act and 8 CFR 316.5(a)(5). Make sure that the applicant’s current address as listed in Part 4 properly reflects that applicant’s principal place of residence after an extended absence.
2. The N-400 reads: List your employers during the last five (5) years. List your present or most recent employer first. If none, write “None”.
(A) This section of the N-400 requires an applicant to list all places and periods of employment for the last five years prior to filing. As with residence information, review of the places and periods of employment can be a resource for verifying eligibility for naturalization in other areas, such as residence, physical presence, lawful permanent resident status, and good moral character.
[(b)(2) or (b)(7)(E)]
For further discussion of lawful permanent resident status and employment- based visa petitions, see Chapter 74.2(c) (“Information Regarding Permanent Residency”), and Chapter 22 of this field manual, regarding employment-based visas. For a discussion regarding the requirement for demonstrating good moral character, see Chapter 73.6 of this field manual. For additional information regarding employment related issues, please see 8 CFR 319.20 regarding employment at American Institutes of Research and organiz ations that disseminate information abroad.
1. List your addresses during the last five years or since you became a permanent resident, whichever is less.
2. List your employers during the last five years. ________________________________________________________________________
(e) Part 5: Information about Your Marital History .
(1) Introduction . The validity of the applicant’s marital status is a basic naturalization issue when the application is based upon marriage to a citizen of the United States.
Your questions should be designed to examine the validity of the applicant’s marital status. You must consider the manner in which the marriage is legally created and/or terminated. The great majority of marriages will be civil ceremonies, performed pursuant to a license issued in accordance with marriage statutes of the state or country. If the marriage is valid under the law of the jurisdiction in which it is performed, it will be entitled to recognition in all other jurisdictions. Furthermore, where it i s shown that a civil ceremony marriage has been performed, there is a strong prima facie presumption that it was properly and legally performed.
(2) Issues Coinciding with Marital Union .
(A) Filing the N-400 under Section 319(a) . According to section 319(a) of the Act, an alien must have completed three years of marriage at the time of filing the application. 8 CFR 319.1(a)(3) states that the applicant must have been married three years preceding the date of examination on the application. Because the statute and regulations conflict, the statute applies to the case and the applicable date for determining eligibility under section 319(a) is the date of filing.
Example: An applicant filed his application for naturalization pursuant to section 319(a) of the Act on September 28, 1998, and appeared for his examination on September 21, 1999. He was granted permanent residence on November 4, 1994 based on an approved employment based petition. On October 29, 1995, he married a United States citizen. The Service received the N-400 on September 28, 1998, one month before the third anniversary of his marriage to a United States citizen.
By regulation he is eligible, by statute he is not. In this case, the applicant did not have the required three years of marriage to a United States citizen as of the date that he applied for naturalization, and he is not eligible for naturalization under that section of law. He also does not have the required residence to qualify under section 316 and, unless he is eligible under another provisions of law, he is not eligible to naturalize based on this application.
(B) Conditional Residence . If an applicant was admitted to the U.S. as a conditional resident and is a permanent resident at the naturalization examination, check the date on which the Form I-751 was approved. Review the Form I-751, if available, or MFAS to determine the basis for the petition when the applicant was applying for his or her condition to be removed. Note whether the applicant and his or her US citizen spouse filed the petition jointly or the applicant requested a waiver of joint filing.
If the applicant has an approved Form I-751 for a joint petition to remove the conditions on residence, but got divorced while the Form I-751 was pending adjudication, further investigation is needed to conclude whether the I-751 was approved under fraudulent circumstances. If fraud occurred, the applicant would have been ineligible for permanent residence. You should bring this case to your supervisor’s attention and possibly process the applicant for an Notice to Appear and removal proceedings under section 318 of the Act.
For additional information on conditional residence see section 216 of the Act, 8 CFR 216.1 , and Chapter 25.1 of this field manual.
(C) Unrevealed Marriages . Applicants frequently fail to disclose one or more prior marriages, particularly those of the spouse. The omission may result from a lack of exact knowledge rather than a deliberate concealment. However, be aware that some aliens have remarried in the U.S. although they had lawful spouses living in the country or countries of former residence.
If the application reflects children born prior to the date of the current marriage, they may be from a prior undisclosed union. When the applicant and spouse have married late in life, there is more opportunity for earlier marriages. Every married applicant should be specifically asked whether there have been any previous marriages and it should be made clear that the question pertains to marriage abroad as well. The applicant should also be asked whether he or she has married the same person twice and the dates of the marriages, especially in cases where the applicant immigrated as the unmarried son/daughter.
Each allegedly unmarried applicant should be asked whether he/she is now married or has been married at any time in the past. This will eliminate the tendency of some applicants not mentioning marriages that have terminated because of a mistaken impression that information concerning an existing union is all that is sought. Sometimes it is effective to ask an applicant point blank how many times he or she has been married even though his/her application alleges that he or she has never been married. For mor e information on interviewing techniques, see Chapter 15 of this field manual.
Careful analysis of a marriage document is frequently another means of detecting unrevealed prior marriages. The document may reflect that the marriage to which it relates is the second or third marriage for the party. In some instances, the record will classify a party as a divorcee, widow, or widower, implying not only a previous union, but also the manner in which it was terminated.
(D) 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 very inception of the relationship. Some jurisdictions recognize common-law marriages and consider the parties to be married. For more information, search the Department of State website:
http://www.foia.state.gov under “common law marriage” and the country in question.
Note that for a common-law marriage to be valid, the parties must have lived in that jurisdiction and met that definition of common-law marriage for that jurisdiction for it to be recognized. You will need to be familiar with the marriage laws in your jurisdiction in order to determine if the applicant and spouse are indeed married under common-law, if the marriage occurred in your jurisdiction.
Note also that if the applicant and spouse were married under common-law in another jurisdiction, most states recognize the marriage even though the state itself does not recognize common-law marriage as a means for its residents to contract marriage.
If such marriages were valid when and where they were performed, they will be recognized for naturalization purposes even if the application is filed in a jurisdiction that does not recognize and has never recognized the principle of common law marriage. Bear in mind that, by virtue of statutory definition (see section 101(a)(35) of the Act), a marriage may not be accorded validity when it was performed while the parties were not in the presence of each other, unless the marriage has been consummated.
If you live in a jurisdiction that recognizes common-law marriage, or if you examine an applicant who claims that he/she is married by virtue of a common- law marriage which occurred in another jurisdiction, you will have to determine if the applicant is indeed married. Since there is no official registration of the marriage, and therefore no marriage certificate, you will have to establish the validity of the common law marriage by developing information during the course of the examination. If there is li ttle documentary evidence to support the claimed marriage and testimony develops information that would prove or disprove the claim, you should discuss the possibility of requesting an investigation to confirm the facts you develop. For information on common-law marriages in foreign states, link to the Foreign Affairs Manual (FAM). The FAM is available through the DOS web site. See 9 FAM Appendix C for a list of countries and their accepted practices.
You should develop not only when and where the relationship began, but also the intent of the parties with respect to what the relationship was to be. Since intent is a mental state, you will need to examine objective facts. To this end, you should consider and address the following:
• Were the parties generally known as husband and wife by neighbors, friends, the community? • Did the one introduce the other as the wife or husband? • The purchase of a life insurance policy describing one or the other as beneficiary husband or wife would be material. • Birth registration or school registration of the children reflecting the parties as parents.
• A credit account describing one party as the wife or husband of the other. • The naming of one as the beneficiary wife or husband of the other’s pension rights. • In fact, any information that would tend to demonstrate that the parties have, from the beginning, lived the type of existence that would be normal for a lawfully married couple would be of evidentiary importance.
See also Appendix 21-1 : List of States Recognizing Common Law Marriages and their Requirements
(E) Divorce or Annulment . A person’s marital status may be terminated by a judicial divorce or by an annulment. The effect of a judicial divorce is to terminate the status as of the date on which the final decree of divorce is entered. The result of annulment is to destroy the status as if the marriage never existed and therefore it must be concluded that there has never been a valid marriage. A court's jurisdiction to grant a decree of divorce is set forth in the various divorce statutes and, generally speaking, requires residenc e or domicile of the parties in that jurisdiction. The extent to which foreign divorce decrees are recognized is complex. Each case presenting the issue must be reviewed carefully to arrive at a correct legal conclusion. A mail order divorce granted in accordance with statute without either party being resident within the jurisdiction of the court is not acceptable for naturalization purposes. When the parties to a marriage live apart voluntarily or pursuant to a judicial decree of separation, cohabitation ends but the marriage does not. An interlocutory decree of divorce does not finally terminate a marriage.
See General Counsel Opinion 97-9 titled Validity of Foreign Divorces and Subsequent Remarriage.
When a prior marriage is terminated by divorce, the termination is entered by the court and is documented by a copy of the final divorce decree. Every such document should be carefully examined to determine that it is the final decree and not the interlocutory decree. You must also consider whether the decree is of questionable legality, in the sense that the court lacked jurisdiction to order the divorce. You must determine the former spouse’s domicile and applicant's domicile and/or residence and the exte nt to which such were maintained within the geographical area of the court's jurisdiction. Once these essential facts have been established, you must read the judicial and administrative decisions to arrive at a correct conclusion.
Frequently, factual discrepancies already will have made their appearance as a result of earlier testimony regarding residence, absences and employment.
The applicant may have alleged residence in one place and yet during the same period he or she may have claimed residence in an entirely different place for divorce purposes. The same condition may prevail with employment vis-a-vis divorce. An equivalent situation will exist when the naturalization record does not reflect the applicant's absence during the period he or she was allegedly residing abroad in connection with foreign divorce proceedings. Whenever contradictory facts such as these make their appe arance, close questioning will be in order. Your questions should develop and stress the impossibility of concurrent residence in two widely distant locales.
(F) Death . If the applicant is applying pursuant to section 319(a) or section 319(b) of the Act, he or she will no longer be eligible to apply for naturalization as the spouse of a United States citizen if the marital union ceases to exist due to the spouse’s death. If the marital union ended as a result of death, divorce or the expatriation of the U.S. spouse, before or after the filing of the naturalization application the applicant is no longer eligible to apply under these sections of the law. See 8 CFR 319.1(b)(2)(i) and 8 CFR 319.2(c) . Under section 319(a) and 319(b) of the Act, if prior to becoming a citizen, the applicant remarries another U.S. citizen, his or her eligibility will not be restored.
(G) Separation.
(i) General . When an application is filed based upon marriage it is essential under the statute to determine whether the applicant is living apart from the citizen spouse or has been separated from the spouse at any time during the statutory period. Applicants sometimes think of a marital separation only in judicial terms. You must specifically ask if the applicant and spouse have at any time resided apart, for any reason, no matter how long the separation lasted. In completing the application, an applicant will frequ ently insert the city of his or her residence in the space provided for the residence of the spouse.
(ii) Legal Separation . Should a separation be admitted, it is important to ascertain as nearly as possible the specific dates of its duration. You must ascertain the complete circumstances that brought it about in order to determine whether the requisite continuity of living in marital union has been breached. When an applicant is applying for citizenship pursuant to section 319(a) of the Act, any legal separation will break the continuity of the marital union and render the applicant ineligible under this section of the law. S ee 8 CFR 319.1(b)(2)(ii)(A) .
(iii) Informal Separation . In addition, any informal separation that suggests marital disunity will be evaluated on a case-by-case basis to determine if there is sufficient evidence to signify the dissolution of the marital union. See 8 CFR 319.1(b)(2)(ii)(B) . Occasionally, an applicant will attempt to conceal a marital separation by claiming that the citizen spouse was away on a business trip for an extended period. This is especially apt to occur when the couple has reconciled and resumed living together during the statutory period. Accordingly, whenever it is alleged that the citizen spouse has been away on business for a protracted period of time, the matter should be explored thoroughly. Your questions should cover details of travel, correspondence with th e spouse, and details the applicant might be expected to know under the circumstances.
(iv) Involuntary Separation . When an applicant and spouse live apart as a result of circumstances beyond their control (i.e.) service in the military or essential business or occupational demands, the resulting separation, even if prolonged, will not preclude naturalization under this part. See 8 CFR section 319.1(b)(2)(ii)(C). It is essential to determine whether the decision resulting in the separation, was driven by a true economic need or simply driven by a comfort level that the couple prefers. If the decision made was not drive n by a true economic need or required military service, the applicant applying under this section may not qualify.
• Example of involuntary separation: A husband and wife met while working towards PhDs at the University of California, Santa Barbara. The USC husband accepted a tenure track position at Hamilton College in Rome, New York. The LPR wife was offered a Post-Doctorate Fellowship at the Smithsonian. The husband and wife had been living apart for most of the three years. She had telephone bills, copies of e-mails to each other, stubs from some airline tickets from vacations and school breaks, and credible testimony that her husband sometimes drove back and forth on three or four day weekends. The adjudicator approved this case at the time of the examination for having qualified the separation as an involuntary separation.
(3) Marital History . The N-400 reads: Information about your marital history.
Total number of times you have been married ____. If you are now married, complete the following regarding your husband or wife.
If the applicant has been previously married, the 1991 version of the N-400 requires a supplemental page which should contain the following information:
• name of prior spouse(s) • date of marriage(s) • date marriage(s) ended • how marriage(s) ended • immigration status of prior spouse(s)
The current version of the N-400 includes these questions on the form:
1. Family Name
The spouse’s complete name will help you establish the US citizen spouse’s identity. You should make sure that the spouse’s first, middle and family names are accurate on the N-400. The name on the marriage certificate should relate to the name on this line of the N-400. If the name on the marriage certificate does not match the information on the application ask for the documents that support the name. There may be prior marriages that have not been terminated, either for the applicant or the spouse. You m ust explore this with the applicant until you determine whether the marriage is valid or not.
It is important to check the applicant’s answers against the information in the file, as well as the spouse’s identification, if the spouse is present. Resolve any differences by questioning the applicant and asking for documentation.
2. Given Name
You should make sure that the spouse’s name is accurate on the N-400. See the discussion under Family Name above.
3. Middle Initial
You should make sure that the spouse’s name is accurate on the N-400. See the discussion under Family Name above.
4. Address
This answer should be checked against the applicant’s address, as well as against any supporting documents such as employment letters, tax returns, and identity documents.
This will be a key issue when the applicant seeks to naturalize under section 319(a) of the Act, as the applicant and spouse will have to establish that they have been living in marital union during the three years immediately preceding the date of filing the application. In most cases, this means that the applicant and spouse have lived and are living at the same address. For more information on the effect of separations, see Interpretations 319.1(d)(1) and Interpretations 319.1(d)(2) .
5. Date of Birth
This is another piece of information that further identifies the spouse. As with the family and given names and middle initial, be sure to check the information in the file, on the application, on the marriage certificate, and on the spouse’s identity document against the testimony of the applicant.
6. Country of Birth
As with the previous items in this section, this is an important identifier. As with the family and given names, middle initial and date of birth, be sure to check the information in the file, on the application, and on the spouse’s identity document against the testimony of the applicant.
If the applicant seeks naturalization under section 319(a) of the Act, it is vital that you verify the information on this line and document any claim to U.S. citizenship by the spouse.
7. Citizenship
If the applicant seeks the benefit of section 319(a) , section 319(b) , or section 319(d) of the Act the information in this section of the N-400 is crucial to your adjudication. You will need to verify the spouse’s U.S. citizenship in order to determine the applicant’s eligibility for naturalization under the specified section of law. If the applicant’s spouse claims U.S. citizenship you will have to verify the documents that support the spouse’s claim. The spouse may give you a variety of documents to support his or her claim, including a U.S. birth certificate or passport, a naturalization o r citizenship certificate, or evidence of birth abroad to U.S. citizen parent(s).
If the applicant is not seeking the benefit of section 319 of the Act, you will use this information in verifying the spouse’s identity and in determining whether the applicant’s children (if any) will derive citizenship upon the applicant’s naturalization. Please see Chapter 72.4(f) “children” and Chapter 71 of this manual for a discussion of acquisition and derivation of citizenship.
8. Social Security #
This is another identifier and you should check it against the applicant’s tax returns, any employment letters listing the spouse and dependents for insurance or tax purposes, and against information in the file on petitions and affidavits of support.
9. A # (if applicable)
This would not apply if the applicant’s spouse is a U.S. citizen by birth in the United States.
If the spouse is not a U.S. citizen and he/she is in the U.S., you will need this information to determine the spouse’s status.
10. Immigration status (If not a U.S. citizen)
The section identifies the spouse’s status: legal permanent resident, legal nonimmigrant, or illegal.
11. Naturalization (if applicable)
In this section you must review the spouse’s naturalization information, including the certificate number, the date, and name and marital status. Again, check that the marital status is consistent with the information you have already developed about the applicant’s marital history and spouse’s marital history. If the applicant does not have the spouse’s naturalization certificate with him/her, you can verify the spouse’s naturalization information in USCIS on the 9101 screen.
12. Place
In this section the applicant should have listed the place where the spouse was naturalized. This should include information regarding the court, if the naturalization was judicial, as well as the USCIS district. If the naturalization was fairly recent, this is another way of verifying the spouse’s correct address. The majority of applicants must be naturalized in jurisdiction where he/she is currently living. However, you should keep in mind that depending on the section of law the spouse had applied under (i.e. military) the jurisdictional requirement may not have been necessary for him/her.
Total number of times you have been married ______. If you are now married, complete the following regarding your husband or wife: Family name, given name, middle initial; Address; Date of birth; Country of birth; Citizenship; Social Security Number; A#; Immigration status (if not a U.S. citizen); Naturalization date and place (if applicable) If you have ever previously been married or if your current spouse has been previously married, please provide the following on separate paper: Name of prior spouse; Date of marriage; How marriage ended Immigration status of prior spouse ________________________________________________________________________
(f) Part 6: Information about Your Children .
(1) Introduction . Part 6 of the N-400 contains information about the applicant’s children. The applicant’s answers to this part of the N-400 can give you additional information about his or her residence, physical presence, and admission for permanent residence. Examining information regarding the applicant’s children is also important when addressing good moral character issues and possible areas where fraud may be involved.
(2) Definition of a Child . The definition of a child that generally applies for nationality and naturalization is defined in section 101(c)(1) of the Act. This definition of a child does not include stepchildren; for nationality and naturalization purposes, a stepchild is not considered the child of a stepparent. Similarly, for nationality and naturalization purposes, a child born out of wedlock is not considered the child of his or her father if the father has not legitimated him or her or if he or she was not in the father’s custody when he legitimated him or her. However, the N-400 does ask the applicant to list all of their children which wou ld include listing stepchildren and children born out of wedlock.
Be sure that the applicant understands this question as meaning ALL children, whether or not they are legitimate or in the U.S. Illegitimate children should not be identified as "illegitimate" on the application. You will need to make sure that the applicant understands that “children” includes: children in or out of the United States, children who have been to the United States but are not here now, children who have never been to the United States, and children who are or have been in the United States il legally. Also, if the child is deceased, the child should still be listed and “deceased” should be written in the address column. Insert "no children" if this is in fact the case.
(3) Issues to Address . As the adjudicator, you should ask about the applicant’s children for several reasons relating to the question of the applicant’s moral character. You should :
• Verify compliance with marriage and divorce laws • Verify compliance with court orders • Verify support of dependents
(A) Policy Regarding Support . You should also review Interpretations 316.1(f)(5) for a discussion of good moral character and the effect of support payments on a finding of good moral character. This discussion includes support of spouse and children; effect of unemployment or financial inability; attempts to comply with court ordered support.
A finding of good moral character is precluded where there is a willful failure or refusal to provide support unless extenuating circumstances exist (see 8 CFR 316.10(b)(3)(i) ). Unemployment and financial inability should be taken into account when examining the applicant on this issue. In considering such factors, you should also take into account the cause of the unemployment and financial inability to support dependents. For instance, if an applicant was unemployed because of incarceration, then the reason for incarceration must be determined as it may affect the applicant’s ability to establish good moral character.
Another factor to consider would be whether the applicant had the opportunity to support the children. Example: the spouse had custody of the children. He or she took the children to a new residence, prevented the applicant from learning of the children’s whereabouts, and made no provision for receiving support payments through a third party or financial institution. Depending upon the circumstances in this last example, it would be important to know why the spouse prevented contact between the applicant an d the children. You would need to consider if the applicant had in any way threatened the spouse or children, or defied a custody order. You would have to ask enough questions about the circumstances, on a case-by-case basis, to determine if the conduct of the applicant met the standards for a finding of good moral character.
If the documentation indicates that the applicant is in arrears for court-ordered child support, you will need to find out how long the applicant has failed to provide support and why. If the circumstances surrounding the applicant’s failure to provide support have already been reviewed by the court, and the court still continues to order payment, the application should be denied for lack of good moral character. If the applicant tells you that he or she cannot provide support and provides an explanation an d documentation to support that explanation, you will have to determine whether the applicant willfully refused or failed to support the dependents. An applicant who is unable to provide documents that establish that he or she did not willfully fail or refuse to support his or her child (children) has failed to establish good moral character. See 8 CFR 316.10(b)(3)(i) .
(B) Questions to Ask . If children are minors but do not reside with the applicant, he or she must show evidence of support.
When it is established that the minor children are residing apart from the applicant, the following questions should be asked and addressed appropriately:
• How long has each minor child resided separate and apart from the applicant? • What are the circumstances of the separation? • Has the applicant been providing for the care and support of each of his/her children who were minors during the statutory period? • What type of documentary evidence can the applicant provide to establish support? • Did the applicant list on the N-400 all of his or her children? Are the names of children who were claimed on prior applications submitted to INS or USCIS listed on this application? • Has the applicant listed all children anywhere in the world? • Has the applicant listed all children, whether legitimate or not; of the present marriage or not; known or unknown to his or her spouse? • Has the applicant willfully failed or refused to support his or her children?
8 CFR 316.10(b)(3)(i) requires that during the statutory period, unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant willfully failed or refused to support dependents.
(C) Documents to Examine . Be sure to examine income tax returns, cancelled checks, money orders to each child’s caretaker, receipts from the court, spouse, or caretaker of each of the children, and/or an affidavit from the other parent or caretaker of each child. Be sure to check signatures against any other documents in the file, such as an immigrant visa petition (I-130), marriage or divorce certificates, previously-filed affidavits of support, or the G-325 (Biographic Data Form).
If there is a custody agreement, you must ask to see that. If there is a divorce decree you must review that to determine what support, if any, was ordered by the court. If the applicant cannot provide documentary evidence to establish financial support at the time of the examination, be prepared to continue the case and give the applicant an N-14, Form Letter for Additional Information. The documentary evidence must establish that the payments were made to the person caring for the child (or children).
(4) Derivative Citizenship of Applicant’s Children . Inform the applicant whether any of the applicant’s children will derive citizenship under Section 320 of the Act or will become eligible for naturalization under Section 322 of the Act .
For additional information see Appendix 74-20 of this field manual for a copy of Policy Memorandum 75-A, AMENDED-Update of the Implementation Instructions for Title I of the Child Citizenship Act of 2000, Public Law 106-395 (CCA). Please note that the CCA amends sections 320 and 322 of the Act and repeals section 321 of the Act. The CCA does not affect other provisions of the Act (e.g., sections 301 through 309), under which an individual may request a certificate of citizenship. You should be familiar with the sections of law regarding derivative cit izenship so that you know whether an applicant’s child will benefit, should he or she be naturalized.
(5) The N-400 reads :
1. Full name of child.
In this section you must ask specific questions regarding the first, middle, and last names of each child. Be sure to ask about nicknames, pet names or other “call” names. People frequently give children “official” names on birth certificates, but then use another name when dealing with the child (for example, a son may be named on the birth certificate for his father, but the family may use the child’s middle name to avoid confusion when speaking with family members). From time to time, an applicant will f orget that the child’s “official” name is not the same as the name used by the family. To avoid confusion, be sure that you ask for the full official name and any nicknames.
2. Date of birth
The date of each child’s birth must be determined. Note the dates of birth of the children relative to the applicant’s immigration history. In some cases, the dates of birth will raise questions about the applicant’s immigration status at the time of the child’s conception or at the time of the child’s birth if the birth certificate reveals that the applicant was outside the U.S. at the time of the birth. Depending on the date of birth of each child, questions may also arise regarding the applicant’s suppor t of children living in another country.
Reviewing the birth certificates of children also may reveal that the applicant concealed his or her marital status at the time of admission to permanent residence. If the applicant stated that he or she was unmarried at the time of admission, and birth certificates for children born before the date of admission show that he or she was married, further examination is warranted. Bring this case to the attention of your supervisor for guidance on local policy and procedures in these circumstances.
The date of birth will not only identify each child for immigration benefits, but may also serve as a means of determining eligibility for other benefits, such as Social Security, education, public assistance, and tax deductions.
3. Country of birth
This information is important as it will assist you in determining the identity of the child, and will also assist you in determining whether the child is already a citizen of the United States. If the child is not a citizen of the United States, you will have to further examine the applicant regarding the child’s nationality, immigration status in the United States and eligibility for derivation benefits upon the parent(s)’ naturalization.
4. Citizenship
This section is important because part of your responsibility as an Adjudications Officer conducting naturalization examinations is to determine whether the applicant’s children are eligible to derive citizenship upon the parent’s naturalization.
5. Alien number
You must pursue this information to determine the immigration status of each child. This information will assist you in determining whether the applicant has attempted to comply with the immigration laws. It may also help resolve any questions regarding relationships when situations arise where relationships are complicated.
If a complicated relationship arises, you should request the files for all children to assist in determining whether a relationship exists and whether the child will derive citizenship upon the applicant’s naturalization.
This will also assist other adjudicators in the future should the applicant seek additional benefits for his or her children.
6. Address
Ask the applicant about the whereabouts of all minor children, including the length of time each child has resided at that address, and with whom the child resides. If the applicant reveals that a minor child is residing at a different address you must ask questions to resolve this issue. This piece of information is very important when determining whether the applicant has established good moral character. Some suggested questions to ask the applicant are:
• Is he/she living with the child (or children)? • Is the residence in your jurisdiction? • Is he/she supporting all the dependents?
You can ask to see school records if there is any question regarding whether the children reside with the applicant and whether the applicant resides in your jurisdiction.
When children are residing with the applicant, show the child's address as "with me" on the application for naturalization. If the children are not residing with the applicant, show the full address at which each child resides on the application.
For more information on this topic, please see Chapter 73.6 of this manual, “Eligibility Requirements-Good Moral Character”.
Total number of children _______. Complete the following information for each of your children. If the child lives with you, state “with me” in the address column; otherwise give the city/state/country of the child’s current residence. If deceased, write ”deceased” in the address column. Full name of child Date of birth Country of birth Citizenship “A” Number Address ________________________________________________________________________
(g) Part 7: Additional Eligibility Factors .
In Part 7 of the N-400, the questions are based primarily on section 101(f) of the Act and 8 CFR 316.10 . You should ask questions in this part of the N-400 based on 8 CFR 316.10(b)(1) and (2) . Note that the regulations state that the applicant shall be ineligible if he or she has done anything discussed in this section.
(1) Are you now, or have you ever been a member of, or in any way connected or associated with the Communist Party, or ever knowingly aided or supported the Communist Party directly, or indirectly through another organization, group or person, or ever advocated, taught, believed in, or knowingly supported or furthered the interests of communism?
(A) General . Section 313(a)(2) of the Act specifically bars the naturalization of a person who has been or is a member of the Communist Party. See also section 316(a)(3) of the Act and 8 CFR 316.11 which require that the applicant, during the statutory period, “has been and still is 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.” An applicant cannot be naturalized if he or she has been or is a member of the Communist Party, unless he or she falls under sections 313(d) or 313(e) of the Act. For further information regarding Communism and attachment to the Constitution or favorable disposition towards good order and happiness refer to Interpretations 313.1 and 313.2 .
Generally, an applicant is ineligible for naturalization if he or she was a member of the Communist Party, unless he or she qualifies for an exception. Section 313 of the Act and 8 CFR 313.2 describe ineligibility for naturalization resulting from Communist Party membership. Except as provided in section 313(d) of the Act and 8 CFR 313.3 , no applicant for naturalization shall be naturalized as a citizen of the United States if, within ten years immediately preceding the filing of an application for naturalization or after such filing but before taking the oath of citizenship, such applicant:
• Is or has been a member of or affiliated with the Communist Party or any other totalitarian party; or • Is or has advocated communism or the establishment in the United States of a totalitarian dictatorship; or • 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; or • Is or has been a subversive, or a member of, or affiliated with, a subversive organization; or • Knowingly is publishing or has published any subversive written or printed matter, or written or printed matter advocating communism; or • Knowingly circulates 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 • 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.
If an applicant reveals, during the examination, that he/she has been a member of the Communist Party you will need to ask specific follow-up questions based on the particulars of the applicant’s past life. You will need to review the file carefully to see if such membership was disclosed at the time of admission for permanent residence, and to see if any additional information regarding the applicant’s membership was provided by other agencies. It is very important that you take a moment to review the info rmation in the file and on the application before developing your follow-up questions.
You should look at the applicant’s entry visa, both nonimmigrant and immigrant. At the time of issuance, the State Department official may have made a determination that the applicant’s Communist Party membership did not make him or her inadmissible. If this is the case, there will be a notation after the visa classification referring to the exception under the current section 212(a)(3)(D) of the Act. The Department of State representative who issued the visa is in the best position to make the determination on this, and, if the notation is there, you can usually rely on that determination.
Sections 313(a)(2) and 316(a)(3) of the Act and 8 CFR 313 and 316.11(c) describe this prohibition. Review these sections for further information that will guide you in developing your questions.
(B) Exceptions . If the applicant admits to membership in the Communist Party or any other totalitarian organization you will need to ask further questions concerning that membership. You should not grant an application for an applicant who is or has been a member of or affiliated with the Communist Party or any other totalitarian organization unless the applicant's membership meets the exceptions described in sections 313(d) and (e) of the Act and 8 CFR 313.3 and 316.11(c) . See Chapter 73.7 of this manual regarding the eligibility requirement for attachment to the Constitution.
For information on what the applicant needs to provide with regard to his/her membership or affiliation with the Communist Party, see 8 CFR 313.4 , which describes the procedure to follow in this instance. For further information regarding Communism and Attachment to the Constitution; favorable disposition towards good order and happiness please refer to Interpretation 313.1 (entitled “Subversives”), Interpretation 313.2 (entitled “Immigration and Nationality Act”), and Interpretation 316.1(h) (entitled “Attachment, favorable disposition”).
(C) Former Membership . Former membership in the Communist Party can sometimes affect an applicant's ability to establish attachment to the Constitution. The most frequent situation involving an applicant’s inability to establish attachment to the Constitution or favorable disposition towards the good order and happiness of the United States is when the applicant was a member of the Communist Party in his or her foreign residence, but now seeks naturalization and does not fall under the exception at section 313(d) or 313(e) of the Act.
(D) Groups Included as Part of Communist Party . See section 313 of the Act and 8 CFR 313.1 . These groups include:
• The Communist Party of the United States; • The Communist Political Association; • The Communist Party of any state of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; • Any section, subsidiary, branch, affiliate, or subdivision of any such association or party; and • The direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt.
8 CFR 313.1 also contains the definitions below. This information will help you determine what follow-up questions to ask the applicant, depending on his or her responses to your initial question: • Organization includes, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation, or fund, and any group of persons, whether incorporated or not, permanently or temporarily associated together for joint action on any subject or subjects. • Publication or Publishing of a Work includes writing or printing a work; permitting, authorizing, or consenting to the writing or printing of a work; and paying for the writing or printing of a work .
(E) Subversive Individuals . See 8 CFR 313.1 . A subversive is any individual who advocates or teaches: • Opposition to all organized government; • The overthrow, by force or violence or other unconstitutional means, of the Government of the United States or of all forms of law; • The duty, necessity, or propriety of the unlawful assaulting or killing, either individually or by position, of any officer or officers of the United States or of any other organized government, because of his, her, or their official character; • The unlawful damage, injury, or destruction of property; or • Sabotage.
Using the definitions in the regulations, and the principles contained in these decisions, you should be able to formulate follow-up questions that will allow you to elicit all of the information necessary to make a determination on the applicant’s eligibility for naturalization. You should also refer to Chapter 73.7 of this manual, Attachment to the Constitution , for more information regarding this eligibility requirement.
(F) Association with the Communist Party . 8 CFR 313.1 provides the following information that will help you formulate questions relating to association with the Communist Party:
• Advocate includes, but is not limited to, advising, recommending, furthering by overt act, or admitting a belief in a doctrine, and may include the giving, lending, or promising of support or of money or any thing of value to be used for advocating such doctrine. • Advocating Communism means advocating the establishment of a totalitarian communist dictatorship, including the economic, international, and governmental doctrines of world communism, in all countries of the world through the medium of an internationally coordinated communist revolutionary movement. • Affiliation with an organization includes, but is not limited to, the giving, lending, or promising of support or of money or any thing of value, to that organization to be used for any purpose. • Circulate includes circulating, distributing, or displaying a work.
(2) During the period March 23, 1933 to May 8, 1945, did you serve in, or were you in any way affiliated with, either directly or indirectly, any military unit, paramilitary unit, police unit, self-defense unit, vigilante unit, citizen unit of the Nazi party or SS Government agency or office, extermination camp, concentration camp, prisoner of war camp, prison, labor camp, detention camp or transit camp, under the control or affiliated with: a. The Nazi Government of Germany? b. Any government in any area occupied by, allied with, or established with assistance or cooperation of, the Nazi Government of Germany?
(A) General . The following sources provide most of the information contained in this paragraph: section 212(a)(3)(E) of the Act, 8 CFR 240.65 .
Refer to section 212(a)(3)(E) of the Act which defines those who were or are Nazis, or who participated in persecution or genocide, as ineligible for admission to the United States. Note that in addition to being ineligible at the time of admission as a permanent resident, such person may be removable, and will not be eligible for suspension of deportation under 8 CFR 240.65(a) or cancellation of removal under 8 CFR 240.66(a) .
(B) Ineligibility for Naturalization . If you have reason to believe the applicant is ineligible for naturalization as a former Nazi, first, be sure that you ask the question in full as it appears on the N-400 and mark the answer on the N-400. You must ask follow-up questions; you should probably start with general questions regarding membership or activities, then move to specific questions about the applicant's employment during the time period, and activities during the Nazi era. If the file contains specific information, be sure to get the applicant’s responses in writing in a formal affidavit as described in Chapter 15.6 of this manual.
(C) Cooperation with OSI . Once you have identified an applicant who may have been involved in Nazi activities requiring further investigation bring the case to your supervisor’s attention. You or the appropriate supervisor or manager should then contact the Office of Special Investigations (OSI) at the Criminal Division of the Department of Justice (DOJ).
In most instances, the OSI Investigator will ask you to fax him or her a copy of the N-400 with any pertinent supporting documents. Supporting documents include any information in the file that indicates the applicant was involved in these activities, or documents where the applicant should have revealed this involvement, but did not, such as an immigrant visa application on which the applicant disavowed such activities. Other documents that will be helpful to the OSI Investigator include any sworn statem ents that you have taken, records of the applicant’s military service, records showing detention as a Prisoner of War (POW), and discharge papers.
Note that upon receipt of the information, OSI will initiate background checks into the applicant’s wartime activities. The review can take several months. You will not hear immediately from OSI. You will receive a letter when OSI has completed its review. The letter will tell you how to proceed.
While initial investigation by name check may be negative, name check alone is not conclusive. OSI can provide information on how to further question the applicant to make sure he or she was not involved, including whether he or she entered the United States using another name, and questions to help determine whether he or she was a member of the Nazi Party or took part in these persecutions.
For example, suppose an applicant admits he worked for the Nazi SS in Dachau concentration camp but claims he was a cook for the SS officers. On review, the immigrant visa from the 1950's does not reflect the applicant’s military service or indicate that he was questioned about any WWII activities.
You should immediately advise your supervisor of the situation, and carefully question the applicant about the circumstances surrounding his work at the camp and about the visa issuance process. Make a written record of his statement in an affidavit. The concealment of this information at the time of entry, and its materiality, will be the crucial issues not only in the adjudication of the naturalization application, but also in any action to remove the applicant. Your questions should:
• allow those reviewing the record in future proceedings to determine whether there is a basis for removal or not, and • address the applicant’s ineligibility for naturalization.
It will make your and the OSI Investigator’s job easier if you ask the applicant if he/she has any evidence or documentation to support a claim that he or she is not ineligible based on involvement in the Nazi Party, service, etc.
If the applicant is removable, you must not take any further action on the application, as discussed in Chapter 72.4 in this field manual , “Step-by-Step Discussion of the Decision Process.”
Please be aware that some types of activities or participation are not enough to make an applicant ineligible, especially if the applicant was truthful in prior dealings with INS or USCIS and the Department of State.
(D) Prior Concealment of Nazi Involvement . Check for inconsistencies between the information contained on the applicant’s original immigrant visa and the relevant response in the N-400. For example, the applicant states that he was drafted into the Nazi Army and served from November 1944 to May 1945, and that he was given "amnesty by the U.S. Military Command in May 1945". He entered the U.S. on 12/20/1955, at NYC as an employment-based immigrant (a pastry chef). On his Immigrant Visa and Alien Registration document he did not reveal his service i n the Nazi Army in answering question #37, of which, subsection (21) pertains to anarchists, Communists, subversives, but does not specifically mention Nazis.
You must address two issues: concealment or falsification and Nazi affiliation.
Regarding the contents of the immigrant visa and the applicant’s answers to questions about affiliation not relating specifically to Nazis, you should contact your district counsel for an advisory opinion whether there was any concealment or falsification. See the information in the previous paragraph for instructions on how to contact the Office of Special Investigations (OSI) to verify the applicant’s story of amnesty or his ineligibility because of his service in the German Army.
(3) Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?
An individual who has engaged in persecution is not eligible for asylum or refugee status (see the last sentence of section 101(a)(42) of the Act). Accordingly, an applicant for naturalization whose lawful permanent resident status was based on asylee or refugee status may be ineligible to naturalize because they were not lawfully admitted for permanent residence in accordance with all applicable provisions of the Act (see section 318 of the Act). Moreover, an applicant who has engaged in persecution may be either denied naturalization or ineligible for naturalization as a matter of discretion.
See section 212(a)(3)(E)(ii) of the Act regarding participation in genocide and section 237(a)(4)(D) of the Act regarding assisting in Nazi persecution or engaging in genocide. Also see Chapter 73.6 of this manual.
Any alien described in clause (ii) of section 212(a)(3)(E) is deportable (see section 237(a)(4)(d) of the Act).
(4) Have you ever left the United States to avoid being drafted into the U. S. Armed Forces?
(A) Background . President Franklin Roosevelt signed the Selective Training and Service Act of 1940, which created the country’s first peacetime draft and formally established the Selective Service System as an independent Federal agency. From 1948 until 1973, during both peacetime and periods of conflict, men were drafted to fill vacancies in the armed forces which could not be filled through voluntary means. In 1973, the draft ended and the U.S. converted to an all-volunteer military. The registration requirement was su spended in April 1975. It was resumed again in 1980 by President Carter in response to the Soviet invasion of Afghanistan. Registration continues today as a hedge against underestimating the number of servicemen needed in a future crisis.
The obligation of a man to register is imposed by the Military Selective Service Act. The Act establishes and governs the operations of the Selective Service System.
Registration is the process of providing the Selective Service System with personal information, such as name, address, date of birth, Social Security Account Number and other related information. It is a civic and legal responsibility. Even though no one is currently being drafted, men are required to register with Selective Service as soon as they reach age 18. Registering with Selective Service does not mean that you are joining the military. Registration provides the United States with a means to develo p and maintain an accurate list of names and addresses of men who might be called upon if a return to the draft is authorized (see the “History/Records” page of the Selective Service website)
The fact that a man is required to register does not mean that he will be drafted. No one has been drafted since 1973. No one can be ordered for induction by Selective Service unless Congress and the President determine that inductions are necessary. This would most likely occur only in the event of war or a national emergency (see the “Selective Service and You” page of the Selective Service web- site).
For more information about the Selective Service System, refer to that agency’s Internet site: www.sss.gov.
(B) Distinction Between Avoiding the Draft and Failing to Register for the Draft . While a conviction for avoiding the draft bars an individual from naturalizing pursuant to INA 314, failure to register for the draft does not necessarily preclude eligibility for naturalization, though it may be considered for purposes of a discretionary denial for lack of attachment to the Constitution. If you did have an applicant who knowingly and willfully failed to register for the draft, this necessarily happened well outside the statutory period. Unless he still would fail to register, or there w ere subsequent actions or omissions that failed to demonstrate his attachment and favorable disposition, what occurred more than twenty-five years ago would probably not affect his eligibility now. You should ask him if he still would fail to register if he were still required by law to do so. If so, prepare an affidavit that covers your questions and his answers and the reasons for the failure, and his continued unwillingness to register. This could lead to a finding that he does not meet the requirement o f attachment and favorable disposition of section 316(a)(3) of the Act.
A denial based on the applicant’s failure to register focuses on the applicant’s unwillingness to serve. This could be evidence that the applicant has failed to demonstrate the statutorily required attachment during the statutory period. If the case is denied for this, you should have sufficient evidence to support the denial.
Where the applicant was convicted of leaving the United States to avoid the draft, it is a different concept. Being convicted of leaving the country to avoid the draft is specifically enumerated as a bar to naturalization. [See section 314 of the Act.] Not only has the applicant failed to meet the statutory requirement of section 316(a)(3) of the Act, but he is permanently ineligible under section 314.
The difference in these two cases is the difference between something the applicant failed to do (register) and something the applicant should not do (avoid the draft by leaving the country). For additional discussion of this issue, please see General Counsel Opinion 98-6, Failure to Register for Selective Service as a Bar to Naturalization.
(C) Documentation . Once an applicant is found to be within the classes of aliens barred under section 314, he cannot establish eligibility for naturalization. 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, shall preclude naturalization. You would get information to establish such ineligibility from either the N-426, the applicant’s testimony, or both. Depending upon the circumstances, either action may also denot e a lack of attachment and favorable disposition. [See also 8 CFR 316.2(a)(8) .]
(D) Additional References . See Chapter 72.2 of this manual for information on Form N-426 and G-325B. The information these forms provide from military records will assist you in evaluating the applicant’s attachment and favorable disposition required under section 316(a) of the Act.
For further information regarding avoidance of the draft refer to Chapter 73.7 of this manual. See Interpretation 315.3 Post World War I Conscription Statutes . See also Interpretation 314.1 regarding deserters and draft evaders and Interpretation 349 regarding expatriation and draft evasion.
(5) Have you ever failed to comply with the Selective Service Laws? If you have registered under the Selective Service laws, complete the following information: Selective Service Number Date Registered If you registered before 1978, also provide the following: Local Board Number Classification
(A) General . Failure to register for the selective service is a very important indication that the applicant lacks the attachment required for naturalization. This is particularly the case if the applicant failed to register during the five-year period during which the applicant must establish attachment and favorable disposition (see section 316(a)(3) of the Act). If the applicant knowingly and willfully failed to register, but the failure to register occurred outside the attachment and favorable disposition period, the failure to register is not an absolute bar to naturalization. However, you may consider the failure to register in determining whether the applicant has demonstrated the required attachment and favorable disposition. When making these determinations it is important to consider the applicant’s age. See General Counsel Opinion 98-6 dated A pril 27, 1998. See also the memorandum Corrections to a Guide to Naturalization and the Effect of Failure to Register for the Selective Service on Naturalization Eligibility dated February 16, 1999, located in Appendix 74-7.
If you have reason to believe the applicant may have failed to comply with Selective Service laws there are several steps you should take:
• Ask the applicant at what age he immigrated to the U.S. or adjusted status. • Check the file to see if there is evidence that at the time he obtained LPR status he signed a statement during the immigrant visa interview or adjustment interview acknowledging that he was advised to register. • Ask the applicant about the circumstances surrounding the reasons for his failure to register to determine if he knowingly and willfully failed to register. • Ask the applicant to provide the status information letter from Selective Service described in the memo from William Yates, Corrections to a Guide to Naturalization and the Effect of Failure to Register for the Selective Service on Naturalization Eligibility , dated February 16, 1999, in Appendix 74-7.
(B) Applicant Under Age 26. Male applicants who are younger than 26 at the time of filing for naturalization must provide evidence of having registered prior to the adjudication of the application. If the applicant has not registered you should determine if the applicant knowingly and willfully failed to register. If this is the case, and the applicant refuses to register for the Selective Service, he should be denied for lack of attachment and not being well disposed to the good order and happiness of the United States. [See section 316(a)(3) of the Act.] If the applicant has not registered with Selective Service, but this failure to register was not knowing or willful, you should continue the case until the applicant demonstrates that he has registered with Selective Service. [See General Counsel Opinion 98-6 and Chapter 72.4 of this manual.] Advise the applicant to register with the Selective Service and provide USCIS with a copy of the registration letter or status information letter discussed in the memorandum Corrections to a Guide to Naturalization and the Effect of Failure to Register for the Selective Service on Naturalization Eligibility , dated February 16, 1999, located in Appendix 74-7.
(C) Applicant Between the Ages of 26 and 31 . In cases where the applicant has filed for naturalization between the ages of 26-31, he no longer has a duty to register with Selective Service [50 USC 453(a)]. However, you can still deny the application if the applicant knowingly and willfully failed to register with Selective Service when he was younger than 26 [50 USC 462(g)]. Note that the burden of proof falls on the applicant to establish that the failure to register was not knowing and willful. See General Counsel Opinion 98-6 and Chapter 72.4 of this manual. The applicant should provide USCIS the status information letter discussed in the memorandum located in Appendix 74-7.
These applicants must establish that they did not knowingly and willfully fail to register, and should be advised to:
• Contact the Selective Srevice and complete the Selective Service's Questionaire Form (Males born after March 29, 1957); • Receive a 'status information letter' from the Selective Service; • Send the status information letter to the USCIS as discussed in Appendix 74-7.
(D) Applicant Older than 31 . If the applicant files after his 31 st birthday, more than five years will have elapsed since his failure to register. Therefore, the failure to register will have occurred outside the period during which the applicant must show that he is of good moral character. This means that even if the applicant willfully and knowingly failed to register with the Selective Service, this fact would not, in and of itself, be a bar to eligibility so long as the applicant has currently satisfied the good moral character requirements of section 316(a)(3) of the Act. However, if the failure to register was willful and knowing, you can consider this fact with other evidence concerning the applicant’s compliance with section 316(a)(3). The applicant should provide the status information letter discussed in the memorandum located in Appendix 74-7.
These applicants must establish that they did not knowingly and willfully fail to register, and should be advised to:
• Call the Selective Service's toll-free number (1-888-688-6888) and complete the Selective Service System's Questionnaire Form (Males born before March 29, 1957 should call 703-605-4047); • Receive a 'status information letter' from Selective Service; • Send the status information letter to the USCIS , as discussed in Appendix 74-7.
(E) Additional References . For further information regarding Selective Service registration, see Interpretations 315.3 Post World War I Conscription Statutes .
You may also try the Selective Service System web site at: www.sss.gov . This web site contains information regarding who must register, how to verify a selective service registration, and how to register for selective service on-line.
See General Counsel Opinion 98-16 , Eligibility for Naturalization Under INA 329, 8 U.S.C. 1440, When Honorable Discharge is Followed by Dishonorable Discharge . A discharge or desertion from the military forces may, on occasion, reflect a lack of good moral character. Failure to register in accordance with the Selective Service laws carry with them criminal penalties and, under certain circumstances, may affect an applicant's ability to establish good moral character.
(6) Did you ever apply for exemption from military service because of alie nage, conscientious objections or other reasons?
(A) General . Any alien who has requested, applied for and obtained an exemption from military service on the ground that he or she is an alien is ineligible to naturalize, except as specifically provided for by the regulations at 8 CFR 315.2(b) . Exemption and exceptions are discussed in 8 CFR 315 . See also Chapter 73.7 of this manual. See 8 CFR 315.2 , “Ineligibility and Exceptions.”
An exemption from military service is either a permanent exemption from induction into the armed services or release or discharge from military training or service in the armed forces [see 8 CFR 315.1 (“Definitions”) and Chapter 73.7 of this field manual (“Attachment to the Constitution”)].
Induction means compulsory entrance into military service of the United States whether by conscription or, after being notified of a pending conscription, by enlistment. Please note that induction into the military ceased in1973, so this will not apply to every male applicant, but you should be careful to check on those who were required to register until 1975. The failure to comply with induction notice is relevant to the determination of whether the applicant was liable for military service and therefore if the claimed exemption based on alienage renders the applicant ineligible under section 315 of the Act (see Chapter 74.7 of this field manual ).
(B) Consideration of Exemption of Treaty Nationals . Treaty national means an alien who is a national of a country with which the United States has a treaty relating to the reciprocal exemption of aliens from military training or military service. A list of countries currently and previously having effective treaties providing reciprocal exemption from military service is contained in 8 CFR 315.4 and discussed in Chapter 73.7 of this manual.
(C) Evidence of Exemption from Military Service . See 8 CFR 315.3 “Evidence,” and Chapter 73.7 of this manual.
If you have an applicant who sought and was granted an exemption or release from military service at any time, the applicant is barred permanently from naturalization. In all cases, Form N-426 shall be used to obtain conclusive evidence showing that the applicant applied for and was actually relieved or discharged from service because of his application. See 8 CFR 315.3 , “Evidence,” and Chapter 73.7 of this field manual , “Attachment to the Constitution.”
The following additional questions are based on section 315 of the Act and 8 CFR 315. These questions cover the most common situations. You may need to ask additional questions to address other aspects of eligibility set forth in those sections which are not covered here:
• Did the applicant apply for or request an exemption from military training or service? • Was the request for exemption based on his alienage? • Do you have Form N-426 in the file to evidence this exemption? [See Chapter 72.2 of this manual.] • Was he actually relieved of service or training due to his alienage? • Was the applicant liable for the training or service? • Did the applicant seek the exemption after having served in the Armed Forces of a foreign country of which he was a national? • If so, did the U.S. have a treaty with that country at the time the applica nt served?
(D) Exemption Granted but Not Requested . During the draft, some people were granted exemptions for reasons other than alienage (e.g., medical disability, conscientious objector, etc.). An applicant may present a draft registration card with an exempt classification; in these cases, prepare Form N-426, with a cover letter explaining the importance of the accuracy of the answer to the applicant’s status in the U.S., and include a photocopy of the draft registration card. If, after reviewing the file, you are satisfied that no request was ever m ade, take an affidavit from the applicant to support the applicant’s claim that he was unaware of the exemption.
When the N-426 comes back, review the response to Question 11, which contains the following:
STATEMENT REGARDING ALIENAGE. (Complete this item on ALL cases.)
___ Record shows this person WAS NOT discharged on account of alienage.
___ Record shows this person WAS discharged on account of alienage.
Details: _____________________________________________
This is the confirmation referred to in section 315(b) of the Act.
If the applicant claimed and was granted exemption based on alienage, he is permanently barred from naturalization under section 315. If he left the U.S. after claiming the exemption, he may have been inadmissible at the time he last entered the U.S., and may be removable now.
Section 212(a) of the Act states that...”Any immigrant who is permanently ineligible to citizenship is inadmissible.” There are currently no exceptions or waiver authorizations to this ground of inadmissibility as an immigrant. You should bring this case to the attention of your supervisor for the consideration of a Notice to Appear. For more information on the issuance of a Notice to Appear, see Chapter V, in the Interim Enforcement Procedures .
(E) Additional References . For additional information regarding applying for exemption from military service please refer to the following sections of Interpretations:
Interpretation 315.1 – General application of section 315
Interpretation 315.2 – World War I conscription statutes
Interpretation 315.3 – Post World War I conscription statutes
Interpretation 315.4 – Effect of service by previously barred alien
Interpretation 315.5 – Treaty nationals
Interpretation 315.6 – Findings in denial cases
(7) Have you ever deserted from the military, air or naval forces of the United States?
(A) General . Under section 314 of the Act, a conviction in a military or non- military court for either desertion, or a departure from the United States to avoid a military draft, precludes naturalization. Short of a conviction, these actions may be relevant to a determination of the applicant’s lack of good moral character as a discretionary matter, a lack of attachment and favorable disposition. See 8 CFR 316.2 .
(B) Additional References . For additional information regarding desertion from the military, refer to Interpretations 314.1 – Deserters and draft evaders, Interpretation 314.2 – Effect of pardon and amnesty, and Interpretation 349.8 – Expatriation by military desertion.
(8) Since becoming a permanent resident, have you ever failed to file a federal income tax return?
(A) General . Failure to file and pay tax returns can be a basis for finding a lack of good moral character as a matter of discretion. An applicant may overcome this finding by submitting a letter from the tax authority indicating the applicant has filed the appropriate returns and paid the required taxes (or made arrangements for payment). If the applicant has paid what was owed, and there is no evidence of fraud, there is no bar to naturalization. If the applicant is on a plan to repay what is owed, and is making reg ular payments, this also does not, by itself, bar the applicant’s naturalization.
If an applicant tells you that he or she owes federal income taxes, you must obtain full details, preferably at the time of the examination. If it appears that an applicant has failed to file a Federal income tax return or to pay a Federal tax, although apparently liable, consult your supervisor about making a prompt report of the facts developed to the appropriate District Director of Internal Revenue. Your adjudication should be deferred pending receipt of a report from the Internal Revenue Service unle ss you are affirmatively able to determine that the applicant is in violation of the applicable tax provisions.
Resident aliens are generally taxed in the same way as U.S. citizens. This means that their worldwide income is subject to U.S. tax and must be reported on their U.S. tax return. Income of resident aliens is subject to the same graduated tax rates that apply to U.S. citizens. IRS Publication 519, U.S. Tax Guide For Aliens contains useful information.
(B) Tax Fraud . If you develop facts that establish fraud that would be punishable as a violation under the tax code, this can be the basis for a finding of a lack of good moral character. Then merely paying the owed money would not suffice.
For example, an applicant may have mistakenly underpaid his or her taxes. He or she claimed a dependent to whom he or she was not entitled; the child was not a United States citizen or permanent resident, and was not residing in North America. The applicant claims that he or she thought he or she was entitled to claim the dependent because the applicant was supporting the dependent. The facts of the family relationship in other sections of the N-400 support the claim. If you are satisfied that this is the c ase then this is probably not a good moral character issue once the applicant corrects the tax return and comes to an agreement with the IRS regarding repayment. Based on these facts, despite the applicant’s violation of the tax code, this case does not warrant denial for lack of good moral character as a matter of discretion.
On the other hand, an applicant who clearly misrepresented the facts of the case on his or her tax return and attempted to defraud the IRS should be denied naturalization based on lack of good moral character on discretionary grounds. Moreover, the applicant would have to wait the statutory period from the date that he or she paid the IRS the money owed or IRS accepted a repayment plan before applying for naturalization again. An example that you might encounter would be an applicant who claimed the earned income credit for children he or she does not have. Information in the file and the applicant’s testimony on other sections of the N-400 clearly show that the applicant has no children.
If the applicant knowingly misled the IRS on signed tax returns, you would have reason to believe that he or she may have committed fraud. For example, if the applicant claimed children and had none, that is a violation under the tax provision. If the applicant claimed earned income credit for he or she does not have, that also is a violation under the tax provision. You will have to ask to see the returns for the years involved. (see Appendix 74-18 of this field manual for a copy of the Earned Income Credit Form).
(C) Additional References . For additional information regarding updated tax forms and current tax information refer to www.irs.gov.
(9) Since becoming a permanent resident, have you filed a federal income tax return as a nonresident or failed to file a federal return because you considered yourself a nonresident?
(A) General . An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims 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 nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. See 8 CFR 316.5(c)(2).
An affirmative answer to the questions of owing Federal taxes or claiming nonresident alien status, or failure to file a current return, requires that you obtain full details, preferably at the time of examination. An applicant’s nonresident alien status could indicate that he or she has abandoned his or her LPR status and is not eligible under INA 318. It could also affect the applicant’s eligibility under INA 316 because of the residence and physical presence requirements. An applicant's negative answe r to having claimed nonresident alien status shall not be accepted as satisfactory resolution where the circumstances suggest the possibility that the applicant may have, in fact, claimed such status. Where it is indicated that the applicant, whether before or during the statutory period, has been employed abroad or had business, financial, or other interest aboard from which he/she derived income, the possibility is always present that he/she may have claimed nonresident alien status for income tax purpose s, as well as may have abandoned LPR status, and may thereby have terminated his/her status as a lawful permanent resident under the immigration laws.
When it has been determined that an applicant has claimed nonresident status for tax purposes, you must develop information pertinent to a determination of whether the claim resulted in the loss of the applicant's status as a lawful permanent resident. See 8 CFR 316.5(c)(2) regarding a claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident and 8 CFR 316.5(d)(2) regarding Form N-470.
(B) Use of IRS Form 2555. The use of IRS Form 2555 by an applicant should be a warning to you that the alien might not be eligible for naturalization. You will need to develop facts pertaining to the applicant’s residence, absences, continuity of residence, and physical presence.
IRS Form 2555 can be used by an applicant to exclude all or part of his or her income, up to $76,000, from being taxable income of the United States Government. To qualify the alien must meet the following three IRS criteria:
• Has foreign earned income; • Has his or her tax home in a foreign country, and either:
– Has declared to be a bona fide resident of a foreign country for an uninterrupted period that includes an entire tax year. (This declamation will be clearly articulated by the alien under part 2 on the IRS Form 2555); or
– Has declared to be physically present in a foreign country for at least 330 full days during any period of 12 consecutive months. (This declamation will be clearly articulated by the alien under part 3 on the IRS Form 2555).
If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] The applicant applying for naturalization after openly declaring residence in a foreign country on an official United States Government form will most likely be unable to fulfill the residence requirement for naturalization (see 8 CFR 316(c)(2) ).
If the legal permanent resident declared himself or herself to be physically present in a foreign country on IRS Form 2555, it only means that the applicant met the IRS’s physical presence test to have a proportion of his or her income excluded form United States taxes. The applicant has not declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] Eligibility for naturalization purposes may be affected if the applicant fails to establish that he or she meets the physical presence requirements or fails to establish that the absence of more than six months but less than one a year did not re sult in abandonment of LPR status. If the applicant applying for naturalization has sufficient physical presence in the United States for naturalization purposes or can establish that his or her LPR status was not abandoned, then the applicant can still be eligible for naturalization (see Part 3 of the Form N-400 ).
(C) Additional References . For updated tax forms and current tax information please refer to www.irs.gov .
For additional information regarding the effect of a claim of nonresident alien status for income tax purposes upon prior lawful admission for permanent residence, refer to Interpretations 318.4 .
(10) Are deportation (now “removal”) proceedings pending against you, or have you ever been deported (or removed), or ordered deported (or removed), or have you ever applied for suspension of deportation (or “cancellation of removal”)?
For more information on this topic see Chapter 72.4 of this field manual, “Step-by- Step Discussion of the Decision Process”.
(A) General . Deportation/removal proceedings commence when an Order to Show Cause or a Notice to Appear is filed with the Immigration Court. (See 8 CFR 240.40 regarding proceedings commenced by an Order to Show Cause, issued prior to April 1, 1997, and 8 CFR 239.1 for proceedings initiated by a Notice to Appear after that date.)
For the purposes of section 318 of the Act, a Notice to Appear issued under 8 CFR part 239 (including a charging document issued to commence proceedings under sections 236 or 242 of the Act prior to April 1, 1997) shall be regarded as a warrant of arrest.
For information regarding the effect of deportation/removal proceedings upon naturalization eligibility, please refer to Interpretations 318.2 and 318.3.
(B) Handling Naturalization Applications When There Is an Order to Show Cause or Notice to Appear in the File . Each district has its own local procedures regarding what you should do if you encounter an applicant for whom a Notice to Appear has been issued and filed with the court. Note that a person is not in proceedings until the NTA is issued and filed with the court. If there is a basis for the NTA, but it has not been issued, or has been issued but not yet filed, the applicant is not yet in removal proceedings, and you must take steps to place the applicant in proceedings. Discuss the situation with your supe rvisor. (see Appendix 14-6 of the Special Agent’s Field Manual for a copy of the “Exercising Prosecutorial Discretion” memo dated November 17, 2000).
Following filing of an Order to Show Cause or a Notice to Appear with the immigration court, no further action can be taken on the application pending final adjudication in the deportation or removal proceeding (see Interpretations 318.2 ).
The authority of a district director, acting district director, or deputy district director, to withhold the institution of deportation proceedings is discussed in the Commissioner’s memorandum entitled, Exercising Prosecutorial Discretion , dated November 17, 2000 and located in Appendix 14-6 of the Special Agent’s Field Manual. The memo provides general principles for the exercise of favorable prosecutorial discretion. [See also the discussion on prosecutorial discretion in Chapter 17.8 of the Detention and Deportation Officer’s Field Manual,.]
(11) Have you ever claimed in writing, or in any way, to be a United States citizen? Have you ever registered for or voted in any election in the United States?
(A) General . As part of the naturalization examination, you are now required to ask whether the applicant has ever registered to vote or voted in an election in the United States. If the applicant answers yes, follow-up questions should be asked to determine whether the voter registration or voting was, in fact, unlawful and as a result would render the applicant inadmissible under section 212(a)(10)(D) , and/or section 212(a)(6)(C)(ii) of the Act. You are also required to determine whether the applicant would be subject to criminal penalties of 18 USC 611, 18 U.S.C. 1015.
An applicant who makes a false claim to citizenship or votes illegally may be found to lack good moral character as a matter of discretion. In addition, an applicant who makes a false claim to U.S. citizenship or votes illegally may be removable. Please note that in some cases illegal voting or a false claim to U.S. citizenship may not make the applicant removable (see Title II of the Children’s Citizenship Act (CCA), P.L. 106-395 ). Consequently, it may be appropriate to deny or continue a naturalization application where there is evidence that the applicant made a false claim to U.S. citizenship or voted illegally. Consult with district counsel before denying an application on these grounds.
Note that in some cases illegal voting or a false claim to U. S. citizenship may not make the applicant removable (see Child Citizenship Act of 2000, Pub. L 106- 395 ).
(B) Additional References . For more information see the memorandum: Advisory Memorandum: Legal Consequences of Voting by an Alien Prior to Naturalization , dated February 13, 1997 located in Appendix 74-9 ; see also the memorandum Voter Registration and Standardized Citizenship Testing , HQ 70/33.2-P dated May 13, 1997 located in Appendix 74-10 .
For information about false claim to United States citizenship, voting issues, and issues relating to entry as a United States citizen, see the memorandum Section 212(a)(6)(C)(ii) Relating to False Claims to U.S. Citizenship , file HQIRT 50/5.12, 96 Act #059, dated April 6, 1998, contained in Appendix 74-8 .
(12) Have you ever: Been a habitual drunkard? Advocated or practiced polygamy? Been a prostitute or procured anyone for prostitution? Knowingly and for gain helped any alien to enter the U.S. illegally? Been an illicit trafficker in narcotic drugs or marijuana? Received income from illegal gambling? Given false testimony for the purpose of obtaining an immigration benefit?
(A) General . The information in Question 12 of the N-400 deals with eligibility requirements set out in section 101(f)(1) , (f)(3) , (f)(4) , (f)(5) , and (f)(6) of the Act and 8 CFR 316.10(b)(2) .
Questions regarding the applicant's employment and income will be one of the principal means by which you will become aware of his or her engagement in unlawful activities. Similarly, you must ask yourself whether the number and length of absences suggest illegal activities, such as smuggling, narcotics, etc,
Inquiries concerning gambling, addiction, assisting aliens to enter illegally, prostitution, and the use of narcotic drugs intrude upon an extremely sensitive area, and must be kept within the bounds of propriety and good taste. Nonetheless you must make certain that the applicant understands the meaning of the essential questions, and that his or her responses are clear and unequivocal. The utmost tact and good judgement on your part will be required in this area, to avoid giving offense while at the same time gaining information to make a decision.
False testimony to obtain a benefit under the Act is another basis upon which a finding of good moral character is statutorily precluded. Do not attempt to associate the application of this provision only to a situation in which the applicant fails to disclose a criminal or other adverse record in naturalization proceedings, without first reading the information on false testimony in Chapter 73.6 of this manual.
(B) Been a Habitual Drunkard ? 8 CFR 316.10(b)(2)(xii) and Interpretations 316.1(e) deal with the issue of good moral character where the applicant is an habitual drunkard. Chapter 73.6 of this manual also contains more information on this aspect of eligibility.
First, be sure to ask the question, and any follow-up questions needed to ensure that you have the applicant’s full response. Examine any divorce decrees, as well as other documents submitted for information that would lead you to believe that the applicant was a habitual drunkard. Some divorce decrees will state that the cause of the divorce was the applicant’s alcoholism. You might also consider any termination from employment or unexplained periods of unemployment as a possible indication that the applic ant was unable to work because he or she was an habitual drunkard. The rap sheet may show arrests or convictions for public intoxication, or the motor vehicle bureau may report arrest for driving under the influence of alcohol/intoxication. Depending on the State in which the applicant resides, you may have to request this directly from the motor vehicle bureau.
You should be careful in asking the follow-up questions regarding this issue, as it may be an area in which the applicant is extremely sensitive. Please remember that if the applicant fails to reveal this information when you first ask the questions, this is not in and of itself false testimony. [See discussion of false testimony in Chapter 73.6 of this manual.]
(C) Advocated or Practiced Polygamy ? See Matter of G , 6 I&N Dec. 9 (BIA 1953); see also sections 101(f)(3) and 212(a)(9)(A) of the Act, 8 CFR 316.10(b)(2)(ix) and Chapter 73.6 of this manual for a discussion of this ineligibility.
Examine the documents in the file, the documents that the applicant gives you regarding marriages, divorces, children’s births, tax returns, and any letters of employment that mention the applicant’s marital status, and ask the applicant the question on the N-400.
When you review the applicant’s file, be sure to look at the information in the file about the applicant’s marital history. Check any visa petitions or applications, as well as any documents in the file, especially marriage and divorce certificates, and birth certificates of the applicant’s children as well. Review the answers on the N-400 that pertain to the applicant’s marital history. Explore any discrepancies between what is on the N-400 and what is in the file. Be sure to check the applicant’s passport and tax returns to make sure that these documents agree with the file information, N-400 answers, and the applicant’s oral testimony.
See Interpretations 316.1(f)(6) and (g)(2)(v) , which discuss applicants who, although free to marry, married a person who was not free to marry.
(D) Been a Prostitute or Procured Anyone for Prosecution or Procured Anyone for Prostitution ? If during the statutory period, an applicant was involved in prostitution or commercialized vice he/she is considered ineligible for naturalization. Section 101(f)(3) of the Act discusses persons described in 212(a)(2)(D) of the Act and 8 CFR 316.10(b)(2)(vii). See also Chapter 73.6 of this manual.
Solicitation of a prostitute is not the same as procurement for purposes of prostitution as used in INA 101(f)(3). See Matter of Malone , 11 I&N Dec. 730 (BIA 1966) (citing U.S. ex rel. Mittler v. Curran, 8 F.2d 355 (2 nd Cir. 1925); Mirabal-Balon v. Esperdy, 188 F. Supp. 317 (S.D. NY 1960); Matter of T , 6 I&N Dec. 474 (BIA 1955).
As in every N-400 question, you should ask follow up questions and carefully record the answers on the application if:
• you believe that the applicant’s testimony is not credible when answering this question, or • there is a rap sheet or indication in the file that the applicant has been involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act.
(E) Knowingly and For Gain Helped Any Alien to Enter the U.S, Illegally ? Section 101(f)(3) of the Act describes persons who fall under section 212(a)(6)(E) of the Act and 8 CFR 316.10(b)(2)(viii) , smuggling of a person or persons into the United States. Chapter 73.6 of this manual also contains more information on this issue.
You will have to ask the following questions if you believe that the applicant may have violated this section:
• Did the applicant knowingly encourage, induce, assist, abet, or aid any other alien to enter or to try to enter the United States in violation of law? • Did the applicant do this during the statutory period?
Statutory references governing the entry of aliens include: section 101(a)(15) of the Act, definitions of nonimmigrants; section 211 of the Act, documentary requirements; section 212 of the Act, general classes of aliens ineligible to receive visas and ineligible for admission; waivers of inadmissibility; section 214 of the Act, admission of nonimmigrants; section 217 of the Act, visa waiver program for certain visitors; section 234 of the Act, designation of ports of entry for aliens arriving by civil aircraft; and, section 235 of the Act, inspection by immigration officers; expedited removal of arriving aliens; referral for hearing.
Regulatory references governing the entry of aliens include: 8 CFR 207 , admission of refugees; 8 CFR 209 , adjustment of status of refugees and aliens granted asylum; 8 CFR 210 special agricultural workers; 8 CFR 211 documentary requirements – immigrants; waivers, 8 CFR 212 , documentary requirements – nonimmigrants; waivers, admission of certain inadmissible aliens, parole; 8 CFR 214 ,nonimmigrant classes; 8 CFR 216 , conditional basis of lawful permanent residence status; 8 CFR 217 , visa waiver program; 8 CFR 221 , admission of visitors or students; 8 CFR 234 , designation of ports of entry for aliens arriving by civil aircraft; 8 CFR 235 ,inspection of persons applying for admission; 8 CFR 244 , temporary protected status for nationals of designated states; 8 CFR 245 , adjustment of status to that of person admitted for permanent residence; 8 CFR 245a ,adjustment of status to that of persons admitted for lawful temporary or permanent resident status under section 245A of the Immigration and Nationality Act; 8 CFR 247 , adjustment of status of certain resident aliens; 8 CFR 249 , creation of records of lawful admission for permanent residence.
Refer the applicant for removal if you develop information indicating that the applicant is ineligible for this reason. Consult with your supervisor and consider the issuance of a Notice to Appear.
(F) Been an Illicit Trafficker in Narcotic Drugs or Marijuana . An applicant who has violated any law in or out of the United States relating to a controlled substance will not be able to establish good moral character. An applicant who commits and is convicted of a crime related to a controlled substance cannot establish good moral character during the statutory period. A conviction for a crime related to a controlled substance may also be an aggravated felony. However, note that not all drug convictions are considered illegal trafficking.
If the adjudicator knows or has reason to believe that the applicant is an illicit trafficker in any controlled substance, the applicant cannot establish good moral character. Section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(iii) discuss controlled substances. Also see Chapter 73.6 of this manual.
(G) Received Income from Illegal Gambling . 8 CFR 316.10(b)(2)(x) describes those convicted of two or more gambling offenses (during the statutory period), as set forth in section 101(f)(5) of the Act. 8 CFR 316.10(b)(2)(xi) describes the ineligibility of those who derive their principal income from illegal gambling, as set forth in section 101(f)(4) . Also see Chapter 73.6 of this manual
Because the applicant is ineligible only if convicted, you will need to ask the applicant for disposition of arrests in accordance with NQP, if you have any reason to believe that the applicant is ineligible for this reason.
(H) Given False Testimony for the Purpose of Obtaining an Immigration Benefit ? An individual who gives false testimony for the purpose of obtaining any benefit under the Act during the statutory period is precluded from establishing good moral character [see section 101(f)(6) of the Act and 8 CFR 316.10(b)(2)(vi) ]. In accordance with the Supreme Court decision in Kungys v. United States, 485 U.S. 759, 780-81 (1988) (see Appendix 74-6 ), false testimony applies only to:
• affirmative misrepresentations , (it does not apply to omissions or concealment); • oral statements (it does not apply to falsified documents); • testimony made under oath ; • testimony made for the specific purpose of obtaining an immigration benefit (not for other reasons such as embarrassment, fear, or desire for privacy). Therefore, inaccurate responses that result from poor memory or because the applicant did not understand the particular question are not false testimony within the meaning of section 101(f)(6).
The prohibition against establishing good moral character applies only to those people motivated to lie during the naturalization interview, or other immigration proceeding, by the desire of obtaining naturalization, or other benefit under the Act. Therefore, determining whether or not a naturalization applicant is prohibited from establishing good moral character on account of false testimony requires determining the person’s intent in giving the false testimony.
Section 101(f)(6) does not distinguish between material and immaterial misrepresentations. “Literally read, it denominates a person to be of bad moral character on account of having given false testimony if he has told even the most immaterial of lies with the subjective intent [emphasis added] of obtaining immigration or naturalization benefits.” Kungys , at 779-780 (see Appendix 74-6 ). Regulations are consistent with the court’s interpretation of section 101(f)(6). Title 8 C.F.R. 316.10(b)(2)(vi) dictates that an applicant be found to lack good moral character if the applicant has given false testimony with an intent to obtain an immigration benefit, regardless of whether the information provided in the false testimony was material. However, as the Supreme Court also noted, it will inevitably be more difficult for the Government to prove that the individual made the misrepresentation for the purposes of obtaining an immigration benefit where the misrepresentation is regarding an immaterial fact. Kungys , at 780-83.
The determination of whether or not a naturalization applicant gave false testimony with the intent of obtaining naturalization will be based entirely on statements made under oath by the applicant in the course of the naturalization interview. Where it appears that an applicant may be providing false testimony, the interviewing officer must ensure that the applicant understands the particular question as asked. Where there is uncertainty, the question should be restated in a manner that the applicant is ab le to understand. It is appropriate to remind the applicant that they are under oath, and that the consequences of providing false testimony under oath are denial of the naturalization application. It is also appropriate to advise the applicant of the scope of the particular question. The applicant should be confronted with the adverse evidence only after, despite having been given reasonable opportunity to recant, he or she persists with the false testimony. In the end, the interviewing officer must ask en ough questions, in different forms, to give the applicant ample opportunity to understand the intent and scope of the particular question.
If, after giving the applicant every opportunity to cooperate in the examination, he or she still does not give a truthful response to the inquiry, see Chapter 73.6 of this manual for more details regarding your actions.
If it appears that the applicant understands the particular question posed, and the applicant continues to provide false testimony, the interviewing officer should be prepared to take a statement under oath regarding the issues about which there is evidence that the applicant is misrepresenting facts. After confronting the applicant, the interviewing officer should attempt to determine whether the false statement was made because the applicant believed that the truth would have precluded, delayed, or otherw ise complicated naturalization. If the interviewing officer determines that the applicant’s intent was to obtain naturalization by deceit, the officer should attempt to obtain an admission from the applicant. When an admission is obtained, it must be placed in the record and the application should be denied for failure to establish good moral character. If the applicant does not admit that the false testimony was given with the intent to obtain naturalization, a full statement of the applicant’s claimed mot ivation for the false testimony must be taken and placed in the record. If the statement does not credibly establish an innocent motive for the false testimony (e.g. misunderstanding, poor memory, etc.) the application can be denied for failure to establish good moral character only after it is submitted to a supervisor for review and concurrence. If the statement does credibly establish an innocent motive for the false testimony, the application may be approved, also subject to supervisory review and concu rrence.
(13) Have you ever been declared legally incompetent or have you ever been confined as a patient in a mental institution?
(A) Legal Competence . If the applicant is legally competent at the time of the examination on the naturalization application and of the administration of the oath of allegiance, and is otherwise eligible, he or she may be admitted to citizenship, provided that the applicant fully understands the purpose of naturalization and the responsibilities of U. S. citizenship. Title 8 CFR 316.12 deals with an applicant's legal incompetence during the statutory period. You must ask the applicant the question on the N-400 concerning his or her legal competency during the statutory period.
If an applicant was legally incompetent or confined to a mental institution during part of the statutory period he or she may still establish eligibility for naturalization. [See 8 CFR 316.12(b) ] There is a presumption, however, that the applicant's good moral character, attachment, and favorable disposition that existed prior to the period of legal incompetence continued through that period. USCIS may, however, consider an applicant's actions during a period of legal incompetence, as evidence tending to rebut this presumption. [See 8 CFR 316.12(b)(1) ] The burden of proof is on the applicant to establish that no crimes were committed during the period of legal incompetence. [See 8 CFR 316.12(b)(3) ]
If the applicant has been declared legally incompetent, the applicant has the burden of establishing that he or she is legally competent and can participate in the naturalization proceedings. The applicant shall submit legal and medical evidence to determine and establish whether legal competency has been restored. [See 8 CFR 316.12(b)(2) .]
Question 13 focuses on the applicant’s current competence and ability to take a meaningful oath. This is distinct from the oath waiver which is for an applicant who is not currently able to understand or to communicate an understanding of the meaning of the oath because of a disability not directly related to the illegal use of drugs. See Chapter 73.6 of this manual, Public Law 106-448 and section 337(a) of the Act for further information on the oath waiver. The determination of legal competency addresses a broader question of the applicant’s ability to understand the entire naturalization process, represent himself or herself, and make legally binding decisions during such proceedings.
You may need to further question an applicant regarding his or her mental competence when:
• the applicant has been in proceedings based on mental illness grounds; • the applicant has been a patient in a mental institution; • you observe irrational behavior by the applicant; • you notice evidence, such as a medical report indicating mental illness, contained in the applicant’s file.
Some people are reluctant to admit mental illness and will avoid its admission. You should be careful when you question an applicant on this so you develop all the facts. A person of limited education frequently will not understand what the statements mean and unless you are particularly careful in questioning, the person’s response may be less than accurate and complete. It should also be recognized that examination concerning this issue falls within a sensitive area and every precaution should be taken to avoid giving offense while still obtaining the information necessary to make a determination on the application.
(B) Collecting Evidence of Legal (In)competence . When possible you should videotape your examinations with applicants who have legal competency issues. The videotape should be made a permanent part of the file to assist in determining whether the applicant understands the nature and significance of the naturalization proceedings and can assume the obligations of citizenship.
Ask for any documents that the applicant can produce regarding his or her present legal competence. These might include discharge records from a mental hospital, or a court order terminating another’s guardianship.
You should also talk to the applicant. A reasonable test for determining whether an applicant is mentally incapable of filing an application involves questions which seek to ascertain:
• whether he or she understands the character of the proceedings; • whether he or she understands the nature and consequences of his or her statements and actions during the proceedings; • whether he or she understands his or her rights, privileges, duties, and obligations bestowed upon a grant of citizenship; • whether he or she understands the purpose of naturalization and that he or she is applying for citizenship; • whether he or she realizes the significance of testifying under oath; • whether he or she feels a duty to tell the truth and what does he or she believes will happen if he or she furnished false testimony; • if he or she wishes to become a citizen; • whether he or she understands that when he or she takes the oath of allegiance and renunciation he or she solemnly promises to perform certain obligations; • if he or she is familiar with these obligations and what their fulfillment will entail on his or her part; • whether he or she responds with lucid and rational answers to your questions.
You may not need to ask questions in each of these areas to determine that the applicant understands the nature of the proceedings and can take a meaningful oath. You should not have unrealistic expectations that all applicants will provide sophisticated responses to your questions, nor are they required to do so. Keep in mind that this line of questioning rarely will be appropriate.
The questions you ask should explore the applicant's ability and capacity to observe, comprehend, reason, remember, communicate, and recount, with respect to matters that are pertinent and material in the naturalization proceeding. However, you should be careful to distinguish between lack of knowledge and lack of mental capacity. An applicant may lack knowledge and still possess mental capacity.
You should ask for any documents that the applicant can produce regarding his or her present legal competence. These might include discharge records from a mental hospital, or a court order terminating guardianship over the applicant.
Where an applicant has a history of mental illness and treatment, the related medical history should be obtained in proper form and made a part of the record. The medical evidence may include certifications from qualified physicians reflecting diagnosis and treatment, similar records of mental hospitals and institutions, including case histories and reports showing the results of clinical test of personality and mental condition. Where there has been a legal determination of mental incompetence, the process of the court adjudication and decision such as its order of commitment, appointing a guardian, etc. will form a part of the record.
When possible, you should also request the opinions of medical experts. Such opinions may be based upon the expert's personal observation and examination of the applicant upon the case history of the applicant which would include records reflecting the results of clinical tests and psychiatric examinations conducted by the expert himself/herself or other qualified experts in the field, upon testimony of lay witnesses developed in the record, and upon data descriptive of the applicant's attitude, behavior, and conduct during the proceeding which may have been made a part of the record. Depending on whether it is a question of the applicant’s current or past mental competency, you should request an opinion that focuses on the applicant’s mental condition at the time he or she was examined (date specified) in connection with his or her application for naturalization or whether he or she currently lacks the mental capacity to participate in the naturalization proceeding as required. No attempt need be made t o obtain an opinion as to the applicant's mental competency in the general sense.
(C) Additional Information . For additional information regarding legal incompetence, please refer to Interpretations 316.1(j) Naturalization requirements – Requirements as affected by petitioner’s legal incompetence during the statutory period.
(14) Were you born with, or have you acquired in same way, any title or order of nobility in any foreign State?
(A) General . See section 337(a) and (b) of the Act and 8 CFR 337.1(d) , for information renunciation of title or order of nobility and Chapter 73.6 of this manual. For additional information regarding titles that have been abolished by the country that conferred them and any names associated with the abolished title, refer to Interpretations 337.8 .
(15A) Have you ever: knowingly committed any crime for which you have not been arrested?
(A) General . Even if the applicant was never formally charged, indicted, arrested, or convicted of a crime covered in section 212(a)(2)(A) of the Act as referenced by section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(i) , (b)(2)(ii) , or (b)(2)(iii) , whether in or out of the United States, he or she is ineligible to naturalize if he or she admits committing such crimes. However, to effectively constitute an “admission” under 212(a)(2)(A), the particular elements of the offense must be admitted. Matter of G – M – , 7 I&N. Dec. 40 (BIA 1956). The area of admissions is particularly difficult. If there is any doubt regarding the adequacy or effectiveness of the admission, it is advised that after taking the relevant sworn statement, the case be continued for supervisory concurrence prior to decision. Whenever possible, a sworn statement should be taken at the initial examination. If the facts warrant, the DAO should contact Investigations for referral to the appropriate law enforcement agency.
If an applicant tells you, during the examination, that he or she has done something that makes him or her ineligible under the last sentence of INA 101(f) or 8 CFR 316.10(b)(2)(iv) you must take a sworn statement (see Chapter 15.6 of this field manual regarding sworn statements). The statement must cover the specifics of the act or acts that prevent a finding of good moral character. You must ask the applicant to give all particulars of the act or acts that make him or her ineligible under this section. If there is any doubt regarding the adequacy or effectiveness of the applicant’s statement, it is advised that after taking the relevant sworn statement, continue the case for supervisory review.
When an applicant appears uncertain regarding the scope of a particular question, to ensure that an applicant understands the questions being asked, you should further explain both the scope of the question and the information that is expected in response. There are an infinite variety of questions that you can ask to accomplish the objective of complete disclosure. Of necessity, the extent and substance of the questions asked will depend upon the circumstances in each individual case and your good judgem ent.
(15B) Been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance excluding traffic regulations?
(A) General . Section 101(f) of the Act specifically provides that certain criminal conduct precludes a finding of good moral character, one of the basic prerequisites for naturalization eligibility. Section 101(f) provides that conduct outside the particular classes outlined at 101(f)(1) – (f)(8) may disqualify an individual from establishing good moral character. See also 8 CFR 316.10 . Because criminal activity is particularly important in determining good moral character, false testimony regarding criminal history also may be an independent consideration in determining good moral character. As Question 15(b) captures information central to establishing eligibility to naturalize, it must always be asked during the interview.
In general, the applicant is responsible for demonstrating good moral character for the statutorily required period. See Part 2 of the Form N-400 Review in this chapter and Chapter 73.6 in this field manual .
For the factors that need to be included during the examination for naturalization, see section 335 of the Act and 8 CFR 335.2 regarding the examination of applicants.
For additional information regarding good moral character, refer to Interpretation 316.1 , Naturalization Requirements; Interpretation 316.1(e) , Good Moral Character; Interpretation 316.1(f) , Good Moral Character required during the statutory period; Interpretation 316.1(g) Good Moral Character under section 101(f) of Act.
Where an applicant appears uncertain regarding the scope of a particular question, you should further explain both the scope of the question and the information that is expected in response. There are an infinite variety of questions that you can ask to accomplish the objective of complete disclosure. Examples include "Have you ever been in trouble with the police officer?" "Did a policeman ever take you to jail", "Have you ever been at a police station?" "Have you ever been in court?" "Did a judge ever qu estion you?” etc. These questions are merely representative of the innumerable ones that you can and should ask if the need arises. Of necessity, the extent and substance of the questions asked will depend upon the circumstances in each individual case and your good judgement.
When the preliminary review of the file has revealed an arrest record which has been undisclosed in the application, or when upon some other basis there is a reason to believe that the applicant is concealing an arrest record, it is appropriate to remind the applicant that he or she is under oath and that false statements may result in denial of the application. Where it still appears that the individual does not understand the scope of the question and the expected response, leading questions may be effec tive. In these situations, it may be appropriate to ask questions such as "How many times have you been arrested?", "Have you been arrested on more than one occasion?”, or "Have you been arrested more than once?". Such questioning is appropriate when asked in conjunction with your review of the file, and after reminding the applicant that he or she is under oath, even though these questions might suggest that you have knowledge of an existing criminal record.
In some cases, it may matter if an offense was committed outside the United States. You must ask if the offense was committed outside the United States. If it was, you must determine whether it was a purely political offense. If you determine that it was a purely political offense, the conviction and sentence to incarceration cannot be used as one of the convictions to find a person lacks good moral character under section 101(f)(3) of the Act as it applies to sections 212(a)(2)(A) and (B) of the Act.
If, during the statutory period, the applicant is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions, he or she is precluded from establishing good moral character and is ineligible for naturalization. The application for naturalization must be denied. [See section 101(f)(7) of the Act and 8 CFR 316.10(b)(2)(v) .]
There is an exception. Be sure to ask the applicant if the confinement was outside the U.S. and the result of a conviction for a purely political offense. If the applicant can document that the conviction and confinement were outside the U.S. and were for a purely political offense, the applicant should not be found to lack good moral character under this section.
An applicant may be denied for lack of good moral character if he or she has committed unlawful acts that adversely affect his or her good moral character, or if he or she was convicted or imprisoned for such acts even if they do not fall under INA 101(f)(1) through (8). Because denial of naturalization under these provisions is not required, you will need to be able to justify your finding in any particular case.
(B) Murder . If an applicant has been convicted of murder, he or she can never establish good moral character. See 8 CFR 316.10(b)(1)(i) and section 101(f)(8) of the Act. If the applicant has ever been convicted of murder, you should deny the naturalization application. He or she is permanently precluded from establishing good moral character and is not eligible to naturalize. You should also consider whether the case should be referred for removal proceedings.
(C) Aggravated Felonies . There are several General Counsel legal opinions which give guidelines for determining if an offense is an “aggravated felony” and how to deal with the situation. Following is a list of those opinions:
• General Counsel Opinion 91-25 "Aggravated felony": Applicability to convictions prior to Nov. 18, 1988 ; • General Counsel Opinion 92-49 Overview: Immigration Consequences of Aggravated Felony Conviction ; • General Counsel Opinion 93-14 Whether Burglary Is A "Crime of violence" Under 101(a)(43) of the Act (Aggravated Felony) ; • General Counsel Opinion 96-16 Amended definition of "aggravated felony" and the section 101(f)(8) bar to good moral character. If the applicant has been convicted of an aggravated felony on or after November 29, 1990, refer to section 101(a)(43) of the Act and Chapter 73.6 of this manual. The applicant is permanently precluded from establishing good moral character and is not eligible to naturalize. You should also consider whether the case should be referred for removal proceedings. Also, see General Counsel Opinion 96-16 and the Section 101(f)(8) bar to good moral character. The following guidelines are discussed in that opinion: • Conviction of an aggravated felony before Nov. 29, 1990 should be considered in determining an applicant’s good moral character, along with the other facts you develop during the course of the examination. • A conviction for an aggravated felony mandates a finding that the person is not of good moral character if the person was convicted on or after November 29, 1990. • An applicant convicted of an aggravated felony at any time after entry is amenable to deportation (removal). A final order of removal would bar the applicant’s naturalization under section 318 of the Act (see Chapter 74.7 of this field manual) .
(D) Suspended Sentences . The fact that a sentence was suspended does not affect whether the sentence was actually imposed. [See section 101(a)(48)(b) of the Act.]
(E) Effect of Probation or Parole . See 8 CFR 316.10(c)(1) . You may discover during the course of the examination that an applicant has been on probation, parole, or suspended sentence during all or part of the statutory period. This does not mean that he or she is automatically ineligible for naturalization. You will need to ask whether the probation, parole, or suspended sentence has been completed. If it has not been completed by the time of the adjudication, the application should be denied. If probation, parole, or suspended sentence was satisfactorily compl eted, the fact that the applicant was on probation, parole, or suspended sentence does not in and of itself disqualify him or her. See Chapter 73.6 of this manual for a discussion of the eligibility requirements relating to this question.
(F) Effect of Pardon . The pardon must be a full and unconditional executive pardon. It may be granted before the statutory period, or during the statutory period. [See 8 CFR 316.10(c)(2)(i) .] Certain conditions must be met in either case:
• the applicant will have to demonstrate reformation and rehabilitation from before the start of the statutory period if the pardon was granted before; or • the applicant will have to demonstrate extenuating or exonerating circumstances if the pardon was granted during the statutory period.
You will need to examine the applicant’s behavior, conduct, and actions to make a determination regarding reformation and rehabilitation. See Interpretations 316.1(g)(4)(i) and (iv) and Chapter 73.6 in this manual for a discussion of these factors.
If the applicant claims extenuating and/or exonerating circumstances exist that would establish his/her good moral character, he or she would need to provide supporting documentation, unless it is already present in the file. [See 8 CFR 316.10(c) (2)(ii) .] Chapter 73.6 of this manual and Interpretations 316.1(g)(4)(i) and (iv) contain discussions of extenuating and exonerating circumstances.
(G) Expungement . See 8 CFR 316.10(c)(3) regarding record expungement in certain cases. Also see Chapter 73.6 of this manual . See section 101(a)(48) of the Act: In light of the new statutory definition of conviction, an expungement will not effectively remove the underlying conviction in many cases. The regulations already provide that an expungement of a controlled substance offense does not affect the underlying conviction, 8 CFR 316.10(c)(3)(i). Moreover, a second crime involving moral turpitude that is expunged is still considered a conviction, 8 CFR 316.10(c)(3)(ii). Post-IIRIRA, other expungements will not be given effect. Matter of Roldan , Int. Dec. 3377 (BIA 1999). An individual who obtains an expungement pursuant to the Federal First Offender Statute, or a state counterpart, is not considered convicted under INA 101(a)(48). Lujan- Armendariz v. INS, 222 F .3d 728 (9 th Cir. 2000). If you are unsure of the effect of a particular expungement, contact your local district counsel office.
(H) Release of Rap Sheets to Applicant . USCIS cannot provide the applicant with a copy of a report from another agency. You can advise the individual to contact the originating agency (in this case, the FBI) and to follow that agency’s request procedure if an actual copy of the report is desired. ________________________________________________________________________
(h) Part 8: Allegiance to the U.S.
(1) Introduction. Part 8 of the N-400 contains the questions that focus your examination on the applicant’s attachment to the principles of the Constitution, favorable disposition to the good order and happiness of the United States, and ability to take the oath of allegiance to the United States.
The requirement that during the statutory period the applicant has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States, can be found at INA 316(a)(3) . The requirement that the applicant take the Oath of Allegiance to the United States can be found at INA 337 .
The regulations at 8 CFR 316.2(a)(7) and 316.11 and 8 CFR 319.1(a)(7) , 319.2(a)(5) , 319.3(a)(4) , 319.4(g) and 337.1 form the basis for the questions in this part of the N-400. INA 337 also is important. If the applicant cannot demonstrate attachment to the principles and form of government of the United States, and favorable disposition to the good order and happiness of the United States, he or she will probably not be able to take a meaningful oath. You also should consider the applicant’s responses to other parts of the N-400 when determining the applicant’s eligibility. For instance, the applicant’s answers to questions in Part 7 relating to Selective Service and title of nobility i ssues may indicate that you should closely examine the applicant on the applicant’s attachment and favorable disposition raised in this section, Part 8 of the N-400.
Whether an applicant has established attachment to the Constitution shall be determined on a case-by-case basis. In determining whether an applicant has established attachment to the principles of the Constitution, favorable disposition to the good order and happiness of United States, and ability to take a meaningful oath, you should review all the evidence in the file and consider the applicant’s testimony. Some facts or evidence may indicate that an applicant might not have the requisite attachment. Thes e can include: • membership in a proscribed organization or totalitarian party; • participation in persecution of any individual because of race, religion, nationality, membership in a particular social group, or political opinion; • involvement in espionage or sabotage or terrorism as described in INA Section 212 ; • evasion of military service in the United States while the applicant is a lawful permanent resident during time of war or declared national emergency; • claimed exemption from U.S. military service due to alienage.
Part 8 of the N-400 is one of the parts where INA 316(e) is particularly important. INA 316(e) says that when you are making your determination about the applicant’s eligibility, you are not limited to his or her conduct during the statutory period. You also may consider the applicant’s acts and conduct at any time prior to the statutory period. The questions in this section may lead you to develop information that occurred outside the statutory period, but which demonstrates the applicant’s current beliefs, principles, and attitude toward the United States and its good order and happiness. For exam ple, an applicant may tell you that he knowingly and willfully did not register for Selective Service, but that he passed his 31st birthday several years ago. While this willful failure to register occurred outside the statutory period, it can be indicative of his attachment to the Constitution, his disposition toward the good order and happiness of the United States, and his ability to take the oath of allegiance. Unless the applicant can establish that he or she supports the Constitution and good order an d happiness of the U.S. you would have to take his previous action regarding Selective Service into consideration when determining his attachment to the principles of the Constitution of the United States, favorable disposition to the good order and happiness of the United States, and ability to take the full oath of allegiance.
See Interpretations 316.1(h) for information about attachment and favorable disposition, including a discussion of Congressional intent, (316.1(h)(1) ); membership in Communist groups (316.1(h)(2)) ; and 316.1(h)(3) about mental attitudes and principles, including change of the Constitution by prescribed methods, civil rights, liberty and property, representative government, and hostility to dictatorship and minority rule. It also discusses attachment, the term "well disposed," advocacy of peaceful change, conscientious objector status, and the applicant’s intention to disobey any law.
(2) Exception to Attachment Requirement. There has been a major change in the statutory requirement for some applicants to demonstrate attachment and favorable disposition. In certain instances, USCIS may waive the oath requirement for applicants who have a physical or developmental disability or mental impairment that prevents them from being able to understand the meaning of the oath. For those applicants who receive such an oath waiver, the law provides that they will be presumed to have met the attachme nt requirement under section 316(a)(3). Please see Pub. L. 106-448 .
You probably won’t know that an applicant qualifies for this exception until you ask him or her these questions. You need to make a determination whether the applicant understands the oath, and in most cases you can’t tell this until you talk to the applicant.
(3) Question-by-Question Review. The following N-400 questions will be reviewed in this chapter:
• Do you believe in the Constitution and form of government of the U.S.? ( Question1 ) • Are you willing to take the full Oath of Allegiance to the U.S.? ( Question 2 ) • If the law requires it, are you willing to bear arms on behalf of the U.S.? ( Question 3 ) • If the law requires it, are you willing to perform noncombatant services in the Armed Forces of the U.S.? ( Question 4 ) • If the law requires it, are you willing to perform work of national importance under civilian direction? ( Question 5 )
(1) Do you believe in the Constitution and form of government of the U.S.?
(A) Familiarize Yourself with the Constitution and Form of Government of the U.S. See http://www.nara.gov/exhall/charters/constitution/constitution.htm for a transcription of the Constitution, and Form M-289 Appendix B. Knowing what is in the Constitution will help you know whether an applicant supports it. For additional information about the Constitution and immigration, see An Immigrant Nation: U.S. Regulation of Immigration, 1798-1991 (Appendix 1 of http://www.ins.usdoj.gov/graphics/aboutins/history/cover.htm ).
Form M -289 and Form M -291 are good sources of information about the form of government of the U.S.
(B) Attachment to the Constitution and Favorable Disposition. See 8 CFR 316.11 which says:
(a) General. An applicant for naturalization must establish that during the statutorily prescribed period, he or she has been and continues to be attached to the principles of the Constitution of the United States and favorably disposed toward the good order and happiness of the United States. Attachment implies a depth of conviction that would lead to active support of the Constitution. Attachment and favorable disposition relate to mental attitude, and contemplate the exclusion from citizenship of applica nts who are hostile to the basic form of government of the United States, or who disbelieve in the principles of the Constitution.
Note: There has been a major change in the statutory requirement for some applicants to demonstrate attachment and favorable disposition. Those who are incapable of doing so because of a physical or developmental disability or mental impairment described in Pub. L. 106-448 amending section 337 of the Act, are considered to have demonstrated favorable disposition and attachment. You should question the applicant on this section of the application to determine if they qualify under Pub. L. 106-448.
(C) Demonstrating Attachment to the Constitution. The regulations at 8 CFR 316.11(b) require that at a minimum, the applicant should demonstrate an acceptance of the democratic, representational process established by the Constitution. He or she should also demonstrate a willingness to obey the laws that may result from the democratic representational process. The applicant must also understand the means for change that are prescribed by the Constitution. The right to work for political change must be consistent with the standards above and the changes advocated should not seek to totally change the form of the current Government or establish an entirely different form of government.
If you develop initial information that leads you to believe that the applicant may not be able to demonstrate the required attachment, ask questions about specific actions or attitudes that demonstrate that the applicant is hostile to the basic form of government of the United States, or disbelieves in the principles of the Constitution. These questions might include whether the applicant complies with all the laws of the United States, not merely those he or she considers “right.”
You should consider the applicant’s response to the questions from Part 7 of the N-400 when making a determination about whether the applicant has been and still is attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.
The applicant cannot support the Constitution or be favorably disposed to the good order and happiness of the United States if he ignores or disobeys laws with which he does not agree. See Interpretations 316.1(h)(3)(iv) .
(2) Are you willing to take the full Oath of Allegiance to the U.S.?
(A) The Full Oath of Allegiance. The concepts included in the full oath of allegiance are found in section 337(a) of the Act. The text of the oath is found at 8 CFR 337.1(a) . The oath is the applicant’s stated commitment to the United States as a citizen.
The applicant must take the full oath of allegiance unless he or she is eligible under section 337(a)(1) of the Act to be admitted to citizenship by taking a modified oath, or is eligible for a waiver of the oath under Pub. L. 106-448 . The applicant’s inability to take the full oath must be based on "religious training and belief”; if that is the case, the applicant may be eligible to take a modified oath. See section 337(a) of the Act.
For more information about the oath, see:
• Interpretations 337.1 Statutory terms of oath; • Interpretations 337.2 Obligations of oath; • Interpretations 337.3 Oath in relationship to petition filed before December 24, 1952; • Interpretations 337.6 Special provisions relating to disabled petitioners; • Interpretations 337.7 Affirmation in lieu of oath; and • Interpretations 337.8 Renunciation of hereditary titles.
See Chapter 72.4 of this field manual, “A Step-by-Step Discussion of the Decision Process,” (Part 4. Granting an Application, Oath of Allegiance Section).
Note: Remember, do not continue an application for evidence that is not necessary for determining eligibility for naturalization. If you are not satisfied concerning an applicant’s eligibility, see Chapter 72.3 of this field manual, “A Step-by-Step Discussion of the Decision Process.”
(B) The Modified Oath of Allegiance. Section 337(a) of the Act provides for a modified oath under certain circumstances. For more information about the modified oath, see:
• Interpretations 337.1 Statutory terms of oath; • Interpretations 337.2 Obligations of oath; • Interpretations 337.6 Special provisions relating to disabled petitioners; and • Interpretations 337.7 Affirmation in lieu of oath.
8 CFR Section 337.1(b) , states:
In those cases in which a petitioner or applicant for naturalization is exempt from taking the oath prescribed in paragraph (a) of this section in its entirety, the inapplicable clauses shall be deleted and the oath shall be taken in such altered form.
If an applicant indicates a desire to take a modified oath, you must determine whether he or she is eligible to take such an oath. To be eligible, the applicant must establish that based on his or her “religious training or belief” he or she is eligible to take a modified oath. The term “religious training and belief” is defined in section 337(a) of the Act as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation but does not include essentially political, sociological, or philosophical views or a merely personal moral code.”
The language in the law and the regulations supports the modified oath deletions. You should create a record of the oath that the applicant will take. At present, the applicant must initial and date the sections to be omitted because the modified oath in all of its variations has not been printed. By initialing and dating the modified sections, the applicant acknowledges the modifications to the oath, and you have a record of the form of oath the applicant will take. When the applicant signs the oath, he/sh e is actually signing the oath he/she will take during the oath ceremony.
There are several modifications that are possible and all require that the applicant meet the three-step test set out in Interpretations 337.2(b)(2), except if the only modification sought is for (1) and/or (2). For an applicant seeking modification of “on oath” or “so help me God,” the applicant can meet either the three-part test or establish that he or she is entitled to the modification based on a finding of other good reasons of conscience:
• The applicant may verbally state that he/she wishes to omit the phrase “on oath” and instead use “and solemnly affirm. • The applicant may verbally state that he/she wishes to omit the phrase “so help me God.” • The applicant may verbally state that he/she wishes to omit the phrase “willing to bear arms on behalf of the U.S. • The applicant may verbally state that he/she wishes to omit the phrase “willing to perform noncombatant services in the Armed Forces of the U.S.”
Applicants are not required to believe in God or to belong to a specific church or religious denomination. However, applicants must have a sincere and meaningful belief that has a place in his or her life that is equivalent to the role of one with traditional religious convictions. (U.S. v. Seeger, 380 US 163 (1965) and Welsh v. U.S., 398 U.S. 333 (1970)). Therefore, you cannot require that the applicant submit a church letter as evidence to support his or her claim. However, you may request additional evid ence on a case-by-case basis to establish that the applicant has the “religious training or belief” or its equivalent that would permit him or her to take a modified oath. If the applicant’s testimony in other areas of the application conflicts with his or her testimony in this area, you should ask for evidence. For example, if the applicant says that he or she is not willing to bear arms on behalf of the United States because of religious training and belief, but has borne arms in the past in another count ry, you should ask for evidence that supports the change in religious training and belief.
An applicant may be eligible to take a modified oath with one or more of the above modifications. No part of the oath other than those listed above can be modified. See Interpretations 337.2(b)(2)(v) .
An applicant may complete the application and submit it without actually understanding the intent of the questions. You should assist the applicant in understanding the questions in this section.
Is the applicant opposed to bearing arms in the U.S. Armed forces? If the answer is “yes,” the officer must consider the analysis below. If the answer is “no,” the applicant is not eligible to become a citizen by means of a modified oath. To qualify for the exemption from the promise to bear arms and/or to perform noncombatant service, the applicant must meet the three-step test set out in Interpretations 337.2(b)(2) and satisfy EACH of the following three steps:
Step 1
Is the applicant opposed to fighting against any possible opponent of the United States? If the answer is “yes” the officer may proceed to the Step 2. If the answer is “no,” the applicant does not need a modification to the oath.
Step 2
Is the applicant’s opposition based on a relation to a Supreme Being involving duties superior to those arising from any human relationship or is the applicant’s opposition based solely on a personal moral code that has no relation to a Supreme Being (or sincere belief parallel to that held by an applicant who qualifies for exemption based on belief in a Supreme Being). If the answer to the question is “yes” the officer may proceed to Step 3. If the answer is “no,” the applicant does not need a modification to the oath.
Interpretations 337.2(b)(2)(iii) states in part, "The 'personal moral code' that excludes eligibility for the exemption relates to a moral code which is not only personal but which is the sole basis for the claimant's belief and is in no way related to a Supreme Being. If the claimed religious beliefs meet the test of Seeger and Welsh, those beliefs cannot be said to be based on a merely personal moral code..."
Step 3
Is the applicant’s belief sincere, meaningful and deeply held? If the answer is “yes,” to this step, he or she is eligible to be admitted to citizenship by means of a modified oath. If the answer is “no,” the applicant is not eligible to be admitted to citizenship unless he/she can establish he/she is willing to take the full oath of allegiance.
Interpretations, 337.2(b)(2) states that the 3 steps of this test are cumulative and each must be satisfied.
If the applicant tells you that he cannot bear arms because of his religious beliefs, and that he is a member of a religious organization that requires church attendance as a mandatory requirement to belong to that religion, you may ask for a letter from the pastor. For example, a Jehovah’s Witness whose required church letter from his pastor said he hadn't been to church in the past year and so was no longer an active member of the congregation, cannot be found to have a sincere, meaningful, deeply held be lief and cannot be found to be eligible for a modified oath on the strength of his membership in that particular religion.
Note: You must examine the applicant’s beliefs; the individual may not seek a modified oath on the basis of what his family has always done, or the religion of close family members.
In the past, when petitioners (petitions were filed with the court before October 1, 1991) were naturalized by the authority of the court (judicial naturalization), INS was required to notify the court if an applicant was to take a modified oath. Please note that except for the very few petitions filed before October 1, 1991 still pending with the court, we are no longer required to do so. This is because under administrative naturalization, the court conducts an oath ceremony when it has exclusive jurisdic tion as provided under section 310(b) of the Act to conduct the oath ceremony. This information is not pertinent to the administration of the oath. See Chapter 75 of this manual for additional information. You must continue to mark the file indicating that the applicant is taking a modified oath at the time that you make this determination. You must explain to the applicant that when he or she takes the oath, he or she may omit the appropriate clause(s).
(C) Waiver of the Oath Requirement. There has been a major change in the statutory requirement for some applicants to demonstrate attachment and favorable disposition. In certain instances, USCIS may waive the oath requirement for applicants who have a physical or developmental disability or mental impairment that prevents them from being able to understand the meaning of the oath. For those applicants who receive such an oath waiver, the law provides that they will be deemed to have met the attachment requ irement under section 316(a)(3) of the Act. You have to ask these questions in order to determine whether the applicant understands them. See INA 337 as amended by Pub. L. 106-448 .
(3) If the law requires it, are you willing to bear arms on behalf of the U.S.?
The answer to this question has a bearing upon the applicant's attachment and favorable disposition to the good order and happiness of the United States, and ability to take the oath of allegiance.
(A) Willingness to Bear Arms. You must determine whether or not the applicant can take all provisions of the oath in good faith and without mental reservation. If the applicant indicates a desire to take a modified oath, you must decide whether or not he or she is eligible to be admitted to citizenship upon the taking of such oath, and the full facts must be entered on the record in a supplementary memorandum.
If the applicant is not willing to bear arms on behalf of the U.S., you should ask the question again, to be sure that he or she understands what you have asked. If necessary, re-phrase the question as many times as necessary for the applicant to understand what you are asking.
Once you are sure that the applicant understands the question, you need to determine why the applicant is not willing to bear arms.
If the applicant is eligible to take a modified oath because of religious training and belief, and you determine that he or she is eligible to be admitted to citizenship upon the taking of such oath, you must record the full facts in the file. If you are satisfied based on evidence and testimony that the applicant has the required “religious training or belief,” put your reasons in writing in the file.
You cannot require that the applicant submit a church letter as evidence to support his or her claim. However, you may request additional evidence on a case-by-case basis to establish that the applicant has the requisite “religious training or belief” that would permit him or her to take a modified oath.
In some cases, an applicant may be reluctant to answer “yes” to this question regarding willingness to bear arms because he or she believes that he or she is too old to bear arms. In that case, you should take the time to explain to the applicant that this question is about his or her willingness to fight for the United States if the law requires him or her to do so. You might say to the applicant, “You do not have to volunteer to serve in the military, but if the law requires a person of your age to bear a rms, would you obey the law?” If appears to you that the applicant does not understand what you are saying, your question to the applicant should be repeated in a different form and elaborated, if necessary, until you are satisfied that the applicant fully understands what you are asking. Your explanation should make it clear to the applicant that it is a matter of willingness to support the United States if the law requires it. Usually, if you adequately communicate these points, the applicant will realize that he or she can take the full oath of allegiance, without mental reservation or evasion.
(B) Failure to Register for Military Service. Be aware of the applicant’s Selective Service registration. His actions regarding registration give you information concerning his disposition toward the good order and happiness of the United States, and his support of the laws and Constitution of the United States, as well as his ability to take the oath of allegiance to the United States.
The Presidential Pardon of non-violent violators of the Vietnam era Selective Service laws relieves from prosecution any person whose violation occurred between August 4, 1964 and March 28, 1973. Violators of Selective Service laws during other time periods are barred by the five-year statute of limitations. While no criminal charges may be brought, the applicant’s past actions may be considered as an indication of mental attitudes or principles that are contrary to the principles of the Constitution of the United States. Males born after 1959 are required by law to register with Selective Service. For more information see Chapter 74.2(g) of this field manual, Part 7.
If the applicant willfully and knowingly fails to comply with the Selective Service laws, you should consider denying the application because he has failed to demonstrate favorable disposition.
(C) Exemption from Military Service. Exemption from military service may be a bar in itself to naturalization (see section 315 of the Act and Part 7 of the N-400 Review chapter in this field manual). The applicant’s exemption is one factor to consider in determining whether he or she can demonstrate favorable disposition toward the good order and happiness of the United States.
(4) If the law requires it, are you willing to perform noncombatant services in the Armed Forces of the U.S.?
(See Interpretations 337.2 and the discussion of Question 2 above)
(5) If the law requires it, are you willing to perform work of national importance under civilian direction?
The answer to this question has bearing upon the applicant's attachment and favorable disposition to the good order and happiness of the United States, and ability to take the oath of allegiance. If the applicant has already answered “yes,” to the other questions in this part of the N-400, he or she will probably answer “yes,” to this question, as well. However, if the applicant has answered “no,” to any of the previous questions in this section, his or her answer to this question is crucial. If the applica nt cannot answer “yes,” to this question, he or she will not be eligible for naturalization.
This question relates to the applicant’s willingness to support the United States in a role that is not military or combat related. An example of this type of work might be performing support duties at a civilian hospital. See Interpretations 337.2(b)(2)(v) .
________________________________________________________________________
(i) Part 9. Memberships and Organizations.
(1) General. The N-400 reads:
List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place. Include any military service in this part. If none, write “none”. Include the name of organization, location, dates of membership and the nature of the organization.
The organizations of which the applicant is or has been a member are important because they may have a bearing upon his/her ability to demonstrate attachment to the principles of the Constitution of the United States and favorable disposition toward the good order and happiness of the United States. See section 316(a)(3) of the Act and 8 CFR 316.11 . The term "attachment" is a stronger term than "well disposed" and implies a depth of conviction that would lead to active support of the Constitution. See Interpretations 316.1(h)(3)(i) . A membership or an affiliation with any organization or group should not affect the applicant’s ability to demonstrate:
• An acceptance of the democratic, representational process established by the Constitution, • A willingness to obey the laws which may result from that process, and • An understanding of the means for change which are set by the Constitution.
The right to work for peaceful, political change is acceptable as long as the changes advocated do not abolish the current Government and establish an entirely different form of government. Advocacy of government overthrow by force and violence is not within any interpretation of the right to work for change, nor is the advocacy of Nazism. See Interpretations 316.1(h)(3)(ii) .
It is important that when conducting the examination, you question the applicant as to whether he/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
In addition, membership in certain organizations may raise potential issues concerning the applicant’s ability to establish good moral character, and may raise the possibility that the person is removable. For example, membership in a terrorist organization may evidence a lack of good moral character under section 101(f) of the Act and 8 CFR 316.10(a)(2) . It may also render the applicant removable pursuant to section 212(a)(3) and section 237(a)(4) of the Act. Because membership in certain organizations may raise potential issues concerning national security (regarding admitted or suspected membership in an organization described here), you should contact your local National Security Unit through your local chain of command, and await a definitive response.
In naturalization examinations, the burden at all times rests upon the applicant to establish his/her qualifications in every respect rather than upon USCIS to prove his/her disqualification. In meeting this burden, the applicant must undergo examination upon any matter affecting his/her admissibility to citizenship. He/she cannot, without risk of having his/her application denied for failure to establish his/her eligibility in the manner prescribed by the Act, remain silent or decline to offer evidence in support of his/her application. He/she carries this burden not only in relation to establishing eligibility for naturalization, such as character and attach ment, but in showing that he/she is not within proscription of section 313. See Interpretations 313.2(c) .
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. US INS, 962 F.2d. 836 (9 th Cir. 1992), for a discussion of a case involving an applicant who refused to list any memberships because he claimed that it hampered his First Amendment rights. The court found that the Attorney General did not exceed his/her statutory authority in asking about membership in organizations and that the plaintiff’s first amendment rights were not violated.
(2) Membership in Certain Organizations .
(A) Membership or Affiliation with the Communist Party or Other Totalitarian Party . When it is shown in a naturalization examination that an applicant joined the Communist Party or was carried on its rolls or his/her conduct otherwise supports the conclusion that he/she was a member, such proof, without more, brings the applicant within the debarring provisions of section 313 of the Act. Establishing whether his/her membership was without awareness is a burden that the applicant must meet by the presentation of probative evidence. Then, only, is USCIS required to go forward with evidence to overcome his/her evidence of lack of awareness. See Interpretations 313.2(c) .
For additional information regarding the Communist Party/totalitarian party, refer to Chapter 74.2(g) , part 7 of the N-400.
(B) Membership or Affiliation with Terrorist Organizations . Information concerning an applicant’s membership in a terrorist organization may implicate national security issues. Such information is extremely important when determining the applicant’s eligibility for naturalization, both in terms of attachment to the Constitution and favorable disposition towards the good order and happiness of the U.S., as well as ability to establish good moral character. Membership or affiliation with a terrorist organization also renders an applicant subject to removal pursuant to sections 212(a)(3) and 237(a)(4) of the Act. Finally, it cannot be stressed enough that membership or affiliation with a terrorist organization implicates issues concerning national security. Accordingly, admitted or suspected membership in such an organization must be brought to the attention of a supervisor and to the national security unit through your local chain of command. After notifying the NSU prior to issuance of a decision on the naturalization application, you will need to receive a definitiv e response from the NSU before proceeding further. For information regarding the designation of a foreign terrorist organization see section 219 of the Act.
For a list of terrorist organizations described at section 212(a)(3)(B)(vi)(I) of the Act see www.state.gov/s/ct/rls/fs/2003/17067.htm . These are Foreign Terrorist Organizations designated by DOS under section 219 of the Act. This link is particularly helpful as it explains the designation process and its ramifications and includes the relevant subsections of 212(a)(3)(B) of the Act.
For a list of terrorist organizations described at section 212(a)(3)(B)(vi)(II) of the Act see www.state.gov/s/ct/rls/fs/2002/15222.htm . These are organizations on the Terrorism Exclusion List, designated by DOS in consultation with the AG, under section 411 of the Patriot Act. Persons who solicit funds for, solicit members for, or provide material support to, any group, on either of the two previously mentioned lists, are inadmissible. See paragraphs (IV)(bb), (V)(bb) and (VI)(bb) of section 212(a)(3)(B)(vi) of the Act.
Executive Order 13224, signed by President Bush on September 23, 2001, blocks the assets of organizations and individuals linked to terrorism. There are now 189 such groups, entities, and individuals covered by the Executive Order. For a list of Foreign Terrorist Organizations and for a comprehensive list of terrorists and groups identified under Executive Order 13224 at http://www.treas.gov/offices/enforcement/ofac/sanctions/terrorism.html . This link is a list of Specially Designated Global Terrorists designated by the Department of Treasury, Office of Foreign Assets Control (OFAC) under Executive Order 13224. This link is constantly updated and the most comprehensive, including hundreds, if not thousands, of entities. Unlike the organizations of the first two lists, this list is not specifically referenced by the Act. However, persons who solicit funds for, or provide material support to, any terrorist organization, if he knew or should hav e known it was a terrorist organization are inadmissible. See paragraphs (IV)(cc), (V)(cc) and (VI)(dd) of section 212(a)(3)(B)(iv) of the Act.
________________________________________________________________________ (j) Part 10. Complete only if you checked block “c” in Part 2 .
(1) General . This section will help you determine if the applicant already has a claim to United States citizenship. The N-400 reads:
1.How many of your parents are U.S. citizens? Give the following about one U.S. citizen parent 2.Family Name 3.Given Name 4.Middle Name 5.Address 6.Basis for citizenship 7.Relationship to you You should ask enough questions as part of the N-400 review to be sure that the person is an foreign national or immigrant. You need to be sure that the applicant is not a United States citizen by birth in the United States. If this is not the case, you should then verify that the applicant did not derive or acquire citizenship through his or her parent(s).
The parent’s complete name will help you establish the US citizen parent’s identity. Any difference in name should be resolved with documents such as birth, marriage, and death certificates, or court orders including divorce decrees. The parent’s address will be useful if you need to contact the parent for additional information.
Answers concerning the parent’s citizenship may range from “Birth in the United States” to “Not sure.” You will have to go over the information in this section carefully to develop all the information known to the applicant. You should compare the information against the citizenship charts in Appendix 71 to help you determine if the applicant is ineligible to apply for naturalization since he or she acquired or derived citizenship.
You are looking not only for information about whether the applicant’s mother or father is a US citizen, but also whether the applicant was adopted, legitimated, legitimate, or born out of wedlock. If the applicant’s parents were not married at the time of the applicant’s birth, this may have an affect on the applicant’s citizenship. Section 101(c)(1) of the Act defines a child for the purposes of citizenship and naturalization.
Where documentary and other evidence establish an applicant's United States citizenship within any of the classes specified in section 320 , section 322 , and section 341 of the Act, advise him or her to apply for a certificate of citizenship, and continue the N-400 pending the disposition of the application.
Please refer to section 301, section 302, section 303, section 304, section 305, section 306, section 307, section 309, section 320, and section 322 of the Act. In addition see Interpretations 301.1 , Interpretations 302.1, Interpretations 303.1, Interpretations 304.1, Interpretations 305.1, Interpretations 306.1, Interpretations 307.1, and Interpretations 309.1.
You can also find guidance on this subject in the Nationality Charts contained in the following appendices to this field manual:
Appendix 71-1 Nationality Chart # 1 - Children Born Outside U.S. in Wedlock
Appendix 71-2 Nationality Chart # 2 - Children Born Outside U.S. out of Wedlock
Appendix 71-3 Nationality Chart # 3 - Derivative Citizenship of Children
Appendix 71-4 Nationality Chart # 4 – Children’s Citizenship Through Application (Guidelines for all Section 322 adjudications on or after 2/27/01)
Note: Please see Chapter 71 of the AFM for a discussion of persons who acquire or derive citizenship. ________________________________________________________________________
k) Part 11: Signature
(1) Name and Signature on the Application . The N-400 reads:
Signature and Date Please Note: If you do not completely fill out this form, or fail to submit required documents listed in the instructions, you may not be found eligible for naturalization and this application may be denied.
An applicant must legibly sign his or her full, true and correct name without abbreviation or initials, in his/her own handwriting, if physically able to do so. Applicants with disabilities may need an accommodation when signing his or her application. See Appendix 74-21 of this field manual for a copy of Policy Memo 92: Guidance on Making the Naturalization Process Accessible to Applicants with Disabilities, dated January 21, 2003. See Appendix 72-13 of this field manual for a copy of Policy Memo 47: Section 312 Disability Naturalization Adjudications, dated April 07, 1999. Unless the applicant is eligible for the general exemption from the English literacy requirements, he/she must sign the naturalization application in the English language. Part 11 of the N-400 should be completed prior to the applicant filing the application. When the applicant signs Part 11, he or she is certifying (or if outside the United States swearing or affirming,) under pena lty of perjury under the laws of the United States of America, that his or her N-400 application, and the evidence submitted with it, is all true and correct. Also, by signing this section of the N-400, he or she is authorizing the release of any information from his or her records which the USCIS may need to determine eligibility for the benefit he or she is seeking. See section 334 of the Act.
A “preparer” may complete the application for someone who is physically unable to do so and who has requested that this person assist him or her with the application. The “preparer” would then sign his or her name in the space provided in Part 12 of the N-400 (see Chapter 74.2 (l) ) as the person preparing the form and to 8 CFR 334.2(a) . ______________________________________________________________
(l) Part 12. Signatures.
Note: This section will also include information pertaining to the applicant’s signature and officer’s signature at the naturalization examination.
(1) Signature of Person Preparing Form If Other than Above . The N-400 reads:
Signature – Print your Name – Date – Firm name and address
This section of the N-400 is completed if someone other than the applicant completed the application. In many cases, a family member, a member of a Community Based Organization or an attorney will prepare the application for the applicant.
If you notice a significant amount of errors with how the application was prepared, without criticizing the preparer to the applicant, courteously ask the applicant if anyone assisted him or her in preparing the application. If the preparer does not routinely prepare applications, this would explain some or all of the discrepancies. If the preparer regularly prepares N-400 applications for others, bring this situation to the attention of your supervisor. The supervisor or other management representatives ma y be able to work with the preparer to improve the quality of the applications submitted, thereby assisting future applicants and officers examining applicants for naturalization.
(2) The Jurat . The N-400 Reads:
Do Not Complete the Following Until Instructed to do so at the Interview
(A) Signing the Jurat . The jurat serves as evidence that everything in the application is now true and correct. The application is one of the primary bases for your decision. At the conclusion of the examination, all corrections made on the application and all supplemental material should be consecutively numbered and listed in the space provided on the applicant's affidavit contained in the application. You should review the numbered changes that have been made to the application with the applicant so that you and the applican t are both certain that the application now contains a full and accurate record of the applicant’s testimony. For a discussion of how to decide a case, refer to Chapter 72.3 of this field manual.
If you believe that the applicant has provide false information, remind him or her of the need for the truth and that part your decision on the application will be based on whether the applicant has demonstrated good moral character. Knowingly providing false information can result in denial of the application and is also punishable by criminal statute. False testimony provided in order to obtain naturalization may lead to a separate finding of a lack of good moral character. If you believe that the applica nt has willfully misrepresented facts you will need to proceed carefully. See Interpretations 316.1(g)(3) regarding false testimony, good moral character, and materiality. Also, see Chapter 74.2(g) , question 12 regarding false testimony.
If an applicant will not swear to an oath but will affirm, you must substitute the word "affirm" for the word "swear" in the related affidavit, and the word "affirmed" should be substituted for the words "sworn to" in the related jurat. Where the quoted alternatives are already printed on the form, strike through the words "swear" and "sworn to.” Any other verbiage inconsistent with an affirmation should be deleted or modified as appropriate (example: omit the words "SO HELP ME (US) GOD").
When the applicant signs the N-400 he or she is acknowledging that what is on the form is now true. The applicant, if physically able to do so, should legibly sign his or her full, true and correct name. See section 334 of the Act. He or she must sign all of the letters of each part of their name, no abbreviations, no initials, and in cursive script if they can do so on the jurat. Hand printing is also an acceptable signature. (See Interpretations 334.1(b)(2) and 8 CFR 334.2(a) .) The applicant’s signature should be in English, unless they qualify for an exception under one of the 312 exceptions. See Appendix 72-13 of this field manual for a copy of Policy Memo 47: Section 312 Disability Naturalization Adjudications, dated April 07, 1999, (including attachments) for a discussion of signatures and reasonable accommodations. Also see Appendix 74-21 of this field manual for a copy of Policy Memo 92: Guidance on Making the Naturalization Process Accessible to Applicants with Disabilities.
If the applicant requests a name change, he or she must sign the jurat in his or her full, true name as it exists at the time of the examination.
(B) Officer’s Signature . Once the application is subscribed and sworn to, or affirmed, by the applicant, you, as the adjudicator, must also sign the application. Your signature bears witness to the applicant’s testimony as recorded on the application and in the amendments and attachments listed.
An officer’s full name signature is defined as the signature they consistently use when signing the approval stamp on official immigration documents, or when signing an application/petition as the USCIS official.
[(b)(2) or (b)(7)(E)]
The official signature to each officer bearing the approval stamp with the officer’s official signature, and current date, is to be completed upon issuance of the approval stamp. The signature card is then to be forwarded to the FDL for retention. Officers may not record more than one official signature, and only the current signature maintained on record, may be used by the officer for signing official immigration documents.
In those instances where the officer’s signature has been altered (i.e., abbreviated as discussed above,) form that which appears on the original signature card, a new signature card must be completed and forwarded to the FDL. For further discussion see Appendix 74-22 of this field manual for a copy of the policy memo dated December 26, 2002, on “Use of Adjudications Officer’s Full Name/Signature on Official Immigration Documents.
Sometimes the adjudicator conducting the initial examination and the adjudicating officer are not the same person. If you examined the applicant, you must sign as the examining officer on the application. If you approved the application, you must sign your name in the approval stamp.
When you approve the naturalization application, you must inform the applicant of his or her choice to take the Oath of Allegiance in an administrative hearing before USCIS or in the appropriate court having jurisdiction over his or her place of residence. (See 8 CFR 337.7 .) No person who has applied for naturalization can be admitted to United States citizenship without having taken the Oath of Allegiance to the United States in a public ceremony either before USCIS or the court. (See 8 CFR 337.1(a) .) For additional information about the oath administration ceremony, please see Chapter 75 of this field manual, Oath Administration.
Labels: Discussion of Form N-400, Eligibility for Naturalization, Good Moral Character, N-400 application, Naturalization N-400, Physical Presence
View Michael Baker's profile
