Physical Presence, Naturalization

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

(a) Introduction . Section 316(a) of the Act provides that “except as otherwise provided in this title,” applicants for naturalization must have been “physically present” in the United States for at least half the time for which their continuous residence is required. This chapter discusses the physical presence requirement and those classes of applicants for whom the requirement either is reduced, modified, or waived entirely.

(b) “Physical presence”
(c) Reduced physical presence requirement
(d) Constructive physical presence while outside US
(e) Applicants not subject to the physical presence requirement
(f) Documenting physical presence

(b) “ Physical Presence” as a Requirement for Naturalization . Associated with the basic eligibility requirement of at least 5 years of continuous residence within the United States is the condition that “immediately preceding the date of filing [the] application for naturalization” the applicant also must have “been physically present therein for periods totaling at least half of that time”. (See section 316(a) of the Act). The resulting aggregate of 30 months is the minimum physical presence requirement for the great majority of applicants for naturalization.

Bear in mind that although “physical presence” and “continuous residence” are interrelated concepts, each is a separate requirement that must be satisfied in order for the applicant to be admissible to citizenship. For example, an applicant whose aggregate physical presence in the United States during the preceding five years was 40 months could still be ineligible for naturalization if he or she had remained abroad for more than a year without obtaining an approved Form N-470 during the period for which continuous residence is required. On the other hand, an applicant who did procure an N-470 approval for exemption from the continuous residence requirement could nevertheless be inadmissible to citizenship if he or she failed during that time to accrue the requisite amount of physical presence. (See section 316(b) and section 316(c) of the Act)

There are several provisions of the Act that modify or set aside the physical presence requirement for certain classes of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during the three years immediately preceding their application for citizenship the minimum period of physical presence required is reduced to 18 months. (See section 319(a) of the Act)

In addition to provisions in the Act for reduced amounts of physical presence required for certain classes of applicants, there are also exceptions that credit time abroad in certain activities as constructive physical presence in the United States, and still others that exempt special classes of applicants from the physical presence requirement entirely. These exceptions will be discussed in succeeding sections of this chapter.

Prior to 1985, some Interpretations (see Interpretations 316.1(c) and Interpretations 316.1(d)) had applied the Fleuti decision to the evaluation of “physical presence” in some cases. That guidance is no longer valid. See for example Matter of Copeland , 19 I&N Dec. 788 (BIA 1988), holding that in an Application to Preserve Residence for Naturalization Purposes (Form N-470) the year of continuous physical presence required to qualify for its benefits must “follow the plain language of section 316(b).” The physical presence requirement must be strictly applied in naturalization proceedings.

(c) Classes of Applicants Having a Reduced Physical Presence Requirement . Under other provisions of the Act, a lesser amount of physical presence is required for certain classes of applicants:

(1) Spouse Living in Marital Union with a United States Citizen for 3 Years . Applicants who meet the requirements of section 319(a) of the Act are required to establish only 18 months of physical presence over the period of three years immediately preceding their application for naturalization. (See section 319(a) of the Act and the discussions in Chapter 72 and Chapter 74 of this field manual dealing with section 319(a) cases.)

(2) Employee of the U.S. Government . Sections 316(b) and (c) of the Act provide that lawful permanent residents who have been continuously physically present in the United States for at least one year prior to obtaining the permission of the Attorney General (i.e., USCIS approval of an N-470 application) to go abroad on employment by or contract with the Government of the United States will not be subject to the rest of the physical presence requirement of section 316(a). (Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of physical presence at any time prior to applying for naturalization). The spouse and dependent unmarried sons and daughters who are members of the household of such an applicant are entitled to the sa me benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary.

Note that for all other classes of N-470 beneficiaries, the absence is only excused with respect to the continuous residence requirement; the applicant and beneficiary remain subject to the general physical presence requirement. (See section 316(b) and section 316(c) of the Act and Chapter 72 for a discussion of the Form N-470.)

(d) Classes of Applicants Eligible for Constructive Physical Presence While Outside The United States . For certain classes of applicants, time spent outside the borders of the United States may be counted as all or part of the physical presence required by section 316(a) of the Act.

(1) Resident Going Abroad for a Religious Vocation . Section 317 of the Act prescribes conditions by which lawful permanent residents who go abroad temporarily “in connection with or for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister” for a religious denomination organized in the United States may “be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 316(a), notwithstanding any such absence from the United States.” However, a prerequisite for this exception is that the applicant at some time after becoming a lawful permanent resident and before filing an application for naturalization must have been “physically present and residing within the United States for an uninterrupted period of at least one year.” (See 8 CFR 317 .)

(2) Non-citizen National of the United States . Section 325 of the Act provides that in the case of a “person not a citizen who owes permanent allegiance to the United States” and applies for naturalization, and who is otherwise qualified, time spent within any of the outlying possession of the United States will be included in calculating physical presence. (See 8 CFR 325.2 .) A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (See section 308 and section 101(a)(29) of the Act.)

(3) Service for 3 Years in the U.S. Armed Forces . Section 328(d) of the Act stipulates that eligible section 328 applicants who apply later than 6 months after the termination of their qualifying service are subject to the physical presence requirements of section 316(a). However, it also provides that any time spent in U.S. service during the 5 years immediately preceding the application for naturalization will be considered as physical presence within the United States.

(4) Service on Qualified U.S. Vessels . Under section 330 of the Act, any time spent in qualifying honorable service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … physical presence within the United States within the meaning of section 316(a) of this title.”

Note: This section pertains to service other than service as a member of the Armed Forces of the United States.

(e) Classes of Applicants Not Subject to the Physical Presence Requirement . Certain classes of applicants are exempted from physical presence as a requisite for naturalization.

(1) Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States or Is Eng aged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad . Applicant spouses (or former spouses, in the context of battered spouses) of this description who meet the qualifications prescribed by section 319(b) of the Act and by 8 CFR 319.2 are not required to demonstrate any physical presence prior to naturalization. The applicant must, however, declare a good faith intention to take up residence in the United States upon the termination of the citizen spouse’s employment abroad.

(2) Employee of a U.S. Incorporated Nonprofit Communications Media Organizations Which Are Principally Engaged in Disseminating Information That Promotes U.S. Interests Abroad . Applicants of this description who meet the qualifications prescribed in section 319(c) of the Act and 8 CFR 319.2 are not required to demonstrate any physical presence prior to naturalization.

(3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces . Applicants who meet the qualifications prescribed by section 319(d) of the Act and by 8 CFR 319.3 are not required to demonstrate any physical presence prior to naturalization.

(4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II . Section 327 of the Act provides that former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship through an abbreviated process that requires lawful admission for permanent residence but no particular amount of physical presence. (See also 8 CFR 327 )

(5) Service in the U.S. Armed Forces for 3 Years . Section 328 of the Act provides that an applicant who has served honorably in the U.S. Armed Forces for an aggregate of 3 years is exempt from the physical presence requirement, provided that the application is filed either while the applicant is still in the service or within 6 months after the termination of such service. (See also 8 CFR 328 .) For otherwise qualified section 328 applicants who file more than 6 months after separation, see the preceding section at (d)(3).

(6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities . Section 329 of the Act provides complete exemption from the physical presence requirement for aliens and non-citizen nationals of the United States who have served honorably on active-duty in the U.S. Armed Forces at any time during the following specified periods of hostilities:
• April 6, 1917-November 11, 1918 (World War I);
• September 1, 1939-December 31, 1946 (World War II);
• June 25, 1950-July 1, 1955 (Korean hostilities);
• February 28, 1961-October 15, 1978 (Vietnam hostilities);
• August 2, 1990-April 11, 1991 (Persian Gulf conflict);
• September 11, 2001-present (Operation Enduring Freedom); 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 has designated for naturalization benefits by executive order.

Qualified section 329 applicants are not obligated to meet the general section 316(a) requirement of physical presence for a particular period of time. However, any section 329 applicant who on the day of filing the application for naturalization was not in lawful permanent resident status must establish that he or she was physically present in the United States or its outlying possessions at the time of enlistment or induction into the Armed Forces of the United States. (See also 8 CFR 329.2(c) ).

(7) World War II Participant Born in the Philippines . Section 405 of the Immigration Act of 1990 allowed certain natives of the Philippines with active duty service during World War II to be naturalized under section 329 of the Act, provided that they met all other requirements and applied for naturalization no later than February 3, 1995. Any qualified applicant under this law is exempted from the physical presence requirement of section 316(a) of the Act. (See also 8 CFR 329.5 .)

(8) Enlistee under the Act of June 30, 1950 (Lodge Act) . Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization under section 329 of the Act and are entitled to the same exemptions from the physical presence requirement. (See Interpretations 329.2.)

(9) Distinguished Service to National Security . Section 316(f) of the Act allows the Director of Central Intelligence, the Attorney General, and the Director of USCIS to designate annually up to 5 persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities.” Such persons are exempt from the physical presence requirement.

(f) Documenting Physical Presence . In general, the same documentation and evidentiary considerations discussed in the chapter on Continuity of Residence apply in the evaluation of physical presence. Once all the available evidence has been gathered, the determination as to whether the physical presence requirement has been met is a relatively simple matter of mathematical computation. (See Chapter 73.3(c) of this field manual on documenting continuity.)

(g) Conclusion . Physical presence within the United States for 30 months during the 5 years immediately preceding the application is a basic requirement for naturalization under the Act. There are statutory exceptions for certain classes of applicants who are eligible for a reduced period of physical presence, for constructive physical presence while outside the United States, or for exemption from the requirement. Those provisions, however, often prescribe conditions that must be met to qualify for the exception. Applic ants who cannot meet all the stipulated conditions for the exception remain subject to the general physical presence requirement of section 316(a) of the Act in order to be naturalized.
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INA: ACT 316 - REQUIREMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE DISPOSITION TO THE UNITED STATES

Sec. 316. [8 U.S.C. 1427]

(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection 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.

(b) Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a) , shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

Absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence except that in the case of a person who has been physically present and residing in the United States after being lawfully admitted for permanent residence for an uninterrupted period of at least one year and who thereafter, is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or is employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an American firm or corporation, or is employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence, no period of absence from the United States shall break the continuity of residence if-

(1) prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence from the United States, the person has established to the satisfaction of the Attorney General that his absence from the United States for such period is to be on behalf of such Government, or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation, or to be employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence; and

(2) such person proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose.

The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection shall also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person.

(c) The granting of the benefits of subsection (b) of this section shall not relieve the applicant from the requirement of physical presence within the United States for the period specified in subsection (a) of this section, except in the case of those persons who are employed by, or under contract with, the Government of the United States. In the case of a person employed by or under contract with Central Intelligence Agency, the requirement in subsection (b) of an uninterrupted period of at least one year of physical presence in the United States may be complied with by such person at any time prior to filing an application for naturalization.

(d) No finding by the Attorney General that the applicant is not deportable shall be accepted as conclusive evidence of good moral character.

(e) In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period.

(f) (1) Whenever the Director of Central Intelligence, the Attorney General and the Commissioner of Immigration determine that an applicant otherwise eligible for naturalization has made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities, the applicant may be naturalized without regard to the residence and physical presence requirements of this section, or to the prohibitions of section 313 of this Act, and no residence within a particular State or district of the Service in the United States shall be required: Provided, That the applicant has continuously resided in the United States for at least one year prior to naturalization: Provided further, That the provisions of this subsection shall not apply to any alien described in clauses (i) through (v) of section 208(b)(2)(A) of this Act.

(2) An applicant for naturalization under this subsection 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 shall be conducted in a manner consistent with the protection of intelligence sources, methods and activities.

(3) The number of aliens naturalized pursuant to this subsection in any fiscal year shall not exceed five. The Director of Central Intelligence shall inform the Select Committee on Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives within a reasonable time prior to the filing of each application under the provisions of this subsection.

Lawfully Admitted for Permanent Residence, Eligibility Requirements for Naturalization

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

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

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

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

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

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

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

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

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

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

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

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

• becomes a resident of any State, and

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

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

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

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

• World War I (April 6, 1917-November 11, 1918),

• World War II (September 1, 1939-December 31, 1946),

•Korea (June 25, 1950-July 1, 1955),

•Vietnam (February 28, 1961-October 15, 1978),

•Persian Gulf (August 2, 1990-April 11, 1991),
•Operation Enduring Freedom (September 11, 2001-present), or

•any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force, as designated by the President in an executive order and who, if separated from such service, was separated under honorable conditions, may be naturalized provided that all other requirements are met. The terms “served honorably” and “separated under honorable conditions” refer to service or separation from service, which the executive department under which the applicant served has certified to have been honorable.

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

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

• served honorably during the period of September 1, 1939-December 31, and 1946. In an active-duty status under the command of the United States Armed Forces in the Far East or within the Commonwealth Army of the Philippines, the Philippine Scouts, or recognized guerrilla units, and

•resided in the Philippines prior to the service described in bullet number two.

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

Continuity of Residence within US, Naturalization eligibility

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

Continuity of Residence: Continuous residence within the United States for five years immediately preceding the application and until the date of naturalization is a basic eligibility requirement under the Act. There are statutory exceptions for certain classes of applicants eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for exemption from the requirement. Those exceptions, however, often prescribe other conditions that must be met in order to qualify for the exception. Applicants who cannot meet all the stipulated conditions for the exception must meet the general continuous residence requirement of section 316(a) in order to be naturalized.

Continuous residence within the United States for a period of 5 years preceding the application for naturalization is one of the basic eligibility requirements for admission to citizenship.

(b) “ Continuous Residence” as a Requirement for Naturalization . Section 316(a) of the Act prescribes a general rule that applicants for naturalization must have “(1) … resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing …has been physically present therein for periods totaling at least half of that time … and (2) … resided continuously within the United States from the date of the application up to the time of admission to citizenship." “Continuous residence” and “physical presence” are interrelated requirements, but each must be satisfied in order for the application to be approved. Unless specifically exempt, an applicant must also establish that he or she has resided in the state or Service District having jurisdiction over the application. (See section 316(a) of the Act).

The concept of “continuous residence” concerns the maintenance of the applicant’s domicile in the United States over the period of time required by the statute. Regulations provide the general rule that for naturalization purposes the residence in question “is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that lo cation.” (See 8 CFR 316.5(a) ).

Note: Persons applying under section 316(a) or 319(a) of the Act may file a naturalization application up to 90 days prior to the completion of their required period of residence. (See section 334(a) of the Act)

A related consideration is whether the applicant, since admission to lawful permanent residence, has maintained that status up to the time of admission to citizenship. The Act defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” (See section 101(a)(20) and section 318 of the Act). The "not having changed" part of the definition recognizes the fact that at any time after the granting of a lawful permanent residence the person on whom it was conferred may forfeit that status by his or her actions. For example, any departure from the United States under an order of removal terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for naturalization purposes, even if the applicant happened to retain possession of the original PRC. On the other hand, an applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. (See paragraphs (3) and (4) of 8 CFR 316.5(c) .) Other examples of a presumption that an applicant has abandoned lawful permanent resident status would be evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability, or failed to file federal or state income tax returns because he or she considered himself or herself to be a nonresident alien. (See 8 CFR 316.5(c)(2) .) In verifying that the applicant has not relinquished permanent resident status prior to applying for naturalization, it is necessary to consider the entire period from the original admission to lawful permanent resident status until the present.

Certain provisions of the Act reduce the five-year period of continuous residence for some types of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during three years immediately preceding their application for citizenship the period of required continuous residence is reduced correspondingly from five to three years. (See section 319(a) of the Act.) Other provisions in the Act and other laws provide exceptions by which time abroad in certain activities is credited as constructive continuous residence in the United States, and still others that exempt special classes of applicants from the continuous residence requirement entirely. These exceptions will be discussed in succeeding sections of this chapter.

Prior to 1985, some interpretations (See Interpretations 316.1(c) and Interpretations 316.1(d)) had applied the Fleuti decision to the evaluation of “continuous residence” in some cases. That guidance is no longer valid. The continuous residence requirement of section 316(b) must be strictly applied in naturalization proceedings.

(c) Statutorily Defined Breaks in Continuity of Residence . Every applicant has the burden of establishing by the overall context of facts and evidence that he or she has complied with the continuous residence requirement. However, section 316(b) of the Act specifies two types of absence from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization:

(1) Absence of More than 6 Months But Less than 1 Year . If an absence of more than six months but less than one year has occurred during the period for which continuous residence is required prior to the filing of the application for naturalization, or between the filing of the application and the date of any hearing under section 336(a), such absence is presumed to break the continuity of such residence.

However, section 316(b) further provides that this presumption of loss of residence can be overcome if the applicant can “establish to the satisfaction of the Attorney General that he or she did not in fact abandon residence during such period.” Acceptable evidence for this purpose may include, but is not limited to, documentation that during the absence the applicant did not terminate his or her employment in the United States nor obtain employment while abroad; the applicant's immediate family remained in the United States; and the applicant retained full access to his or her United States abode. (See 8 CFR 316.5(c)(1)(i))

(2) Absence for a Continuous Period of 1 Year or More . Section 316(b) of the Act provides that “[a]bsence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of residence.”

An exception in the case of a person who, after having lived in the United States as a lawful permanent resident for an uninterrupted period of at least one year, goes abroad for the purposes of employment by or contract with the United States government or an American institution of research recognized as such by the Attorney General, or employment by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof, or by a public international organization of which the United States is a member, as defined in section 316(b) of the Act. No further period of absence from the United States shall break the continuity of residence if that applicant establishes to the satisfaction of USCIS prior to beginning such employment and prior to the expiration of one year of continuous absence that his or her absence is for the purpose of the qualifying employment and upon return proves to the Attorney General's satisfaction that the absence has been for such purpose.

The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the foregoing exemption are also entitled to such benefits during the period when they were residing abroad as dependent members of the principal applicant's household. (See section 316(b) of the Act).

Regulations provide that the process by which a qualified applicant seeks the required approval of USCIS for the proposed absence is the Application to Preserve Residence for Naturalization Purposes, Form N-470. Unless the applicant applies in accordance with those rules, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under paragraphs (3) and (5) of section 316.2(a) of the Act shall disrupt the continuity of that applicant's residence.

The application of a person who is subject to the continuous residence requirement but has been continuously absent for a year or more without qualifying for the exception benefits of section 316(b), or making a timely application for such benefits, must be denied for failure to meet the continuous residence requirement of section 316(a). In the case of a denied applicant who is subject to the five-year continuous residence period, this means that he or she becomes eligible to overcome that impediment four years and one day following the date of return to the United States to resume permanent residence. If the case of an ineligible applicant who is subject to the three-year statutory residence period, eligibility to overcome the impediment and to file a new application for naturalization will occur two years and one day following the date of return to resume permanent residence. (See to 8 CFR 316.5(c)(1)(ii) and 8 CFR 316.5(d) .) For additional discussion see the relating parts of Chapter 74.2 of this field manual, Part-by-Part Discussion of Form N-400 Data .

(d) Application to Preserve Residence for Naturalization Purposes (Form N-470) . The application process for preservation of residence under section 316(b) of the Act is described in 8 CFR 316.5(c) and 8 CFR 316.5(d) and the N-470 discussion in Chapter 74.2

If a Form N-470 application is based upon a claim that the applicant is going or has gone abroad for employment by an American institution of research, a public international organization, or an organization recognized under the International Immunities Act, the standing of the qualifying organization must be confirmed by referring to the appropriate lists in 8 CFR 316.20 .

An approval of a Form N-470 under section 316(b) that names a qualified spouse and dependent unmarried sons and daughters of the applicant will cover those family members also.

Note that the approval of an Application to Preserve Residence will not shield an applicant or any family members listed on the applicant's Notice of Approval of Application to Preserve Residence (Form N-472) from the presumption of having relinquished lawful permanent resident status while abroad if the applicant or family member claimed special tax exemptions as a nonresident alien. However, the presumption may be overcome with acceptable evidence that establishes abandonment of lawful permanent resident status did not occur.

Section 316(c) of the Act stipulates that the granting of absence benefits under subsection (b) does not relieve an applicant from the physical presence requirement, if any, except in the case of those persons employed by, or under contract with, the Government of the United States.

(e) Classes of Applicants Having a Reduced Continuous Residence Requirement . Under other provisions of the Act, a lesser amount of continuous residence is required of certain classes of applicants:

(1) Spouse Living in Marital Union with a United States Citizen for 3 Years . Spouses of United States citizens who meet the requirements of section 319(a) of the Act are required to establish a continuous residence period of three rather then five years immediately preceding their application for naturalization. (See Chapter 74 of this field manual.)

(2) Classes Subject to a Combination of Actual and Constructive Continuous Residence . See section (e) for other classes of applicants who must establish a limited period of actual continuous residence in order to qualify for constructive residence outside the United States for the balance of the time required.

(f) Classes of Applicants Eligible for Constructive Continuous Residence While Outside the United States . For specified classes of applicants, time spent outside the borders of the United States may be counted as all or part of the continuous residence required by section 316(a) of the Act:

(1) Employee of the U.S. Government, an American Institution of Research, an American Firm Engaged in Development of U.S. Foreign Trade and Commerce or its Subsidiary, or a Public International Organization . Section 316(b) and section 316(c) of the Act provide that lawful permanent residents who have been continuously physically present in the United States for at least one year and who obtain the permission of USCIS (i.e., through the Form N-470 application process) to go abroad on employment by or contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or on employment by an American firm engaged in development of U.S. foreign trade and commerce or its subsidiary, or a public international organization, will not be subject to the rest of the continuous residence requirement of section 316(a). (Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of continuous residence at any time prior to applying for naturalization.)

The spouse and dependent unmarried sons and daughters who are members of the household of a qualified applicant are entitled to the same benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary.

Note: Except for employees of the U.S. Government or those under contract with it, or their dependents as previously described, all other types of N-470 beneficiaries remain subject to the physical presence requirement of section 316(a). (See Section 316(b) and section 316(c) of the Act; and discussion of the Form N-470 in Chapter 74.2 )

(2) Resident Going Abroad for a Religious Vocation . Section 317 of the Act prescribes conditions by which lawful permanent residents who go abroad temporarily “solely for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister” for a religious denomination organized in the United States may “be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 316(a), notwithstanding any such absence from t he United States.” However, a prerequisite for this benefit is that at some time after becoming a lawful permanent resident the applicant must have been “physically present and residing within the United States for an uninterrupted period of at least one year.” (See also 8 CFR 317 .)

(3) Non-citizen National of the United States . Section 325 of the Act provides that in the case of a “person not a citizen who owes permanent allegiance to the United States” and applies for naturalization, time spent within any of the outlying possession of the United States will be counted as continuous residence in the United States. (See also 8 CFR 325.2 .) A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (See section 308 and section 101(a)(29) of the Act.)

(4) Service for 3 Years in the U.S. Armed Forces . Persons eligible for the benefits of section 328 of the Act who apply later than 6 months after the termination of their qualifying service are subject to the continuous residence requirement of section 316(a). However, the statute provides that any time spent in U.S. service during the 5 years preceding the application for naturalization will be considered as continuous residence within the United States.

(5) Service on Certain U.S. Vessels . Under section 330 of the Act, any time spent in qualifying service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … continuous residence within the United States within the meaning of section 316(a) of this title.”

(g) Classes of Applicants Not Subject to the Continuous Residence Requirement . Certain classes of applicants are exempted from continuous residence as a requisite for naturalization.

(1) The Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States, or Engaged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad in Such Employment . An applicant spouse of this description who meets the qualifications prescribed by section 319(b) of the Act and by 8 CFR 319.2 are not required to demonstrate any continuous residence prior to naturalization. The applicant must, however, declare a good faith intention to take up residence in the United States upon the termination of the citizen spouse’s employment abroad.

(2) Employee of a U.S. Incorporated Nonprofit Communications Media Organization Disseminating Information That Promotes U.S. Interests Abroad . Applicants who meet the qualifications prescribed by section 319(c) of the Act and by 8 CFR 319.2 are not required to demonstrate any continuous residence prior to naturalization.

(3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces . Applicants who meet the qualifications prescribed by section 319(d) of the Act and by 8 CFR 319.3 are not required to demonstrate any continuous residence prior to naturalization.

(4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II . Section 327 of the Act provides that former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship through an abbreviated process that requires lawful admission for permanent residence but no period of continuous residence. (See also 8 CFR 327 .)

(5) Service in the U.S. Armed Forces for 3 years . Section 328 of the Act provides that an applicant who has served honorably in the U.S. Armed Forces for an aggregate of 3 years is exempt from the continuous residence requirement, provided that the application is filed either while the applicant is still in the service or within 6 months after the termination of such service. (See also 8 CFR 328 .) For otherwise qualified section 328 applicants who file more than 6 months after separation, see the preceding section at (e)(4).

(6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities . Section 329 of the Act provides complete exemption from the continuous residence requirement for aliens and non-citizen nationals of the United States who have served honorably on active-duty in the U.S. Armed Forces at any time during the following specified periods of hostilities:

•April 6, 1917-November 11, 1918 (World War I);

• September 1, 1939-December 31, 1946 (World War II);

• June 25, 1950-July 1, 1955 (Korean hostilities);

•February 28, 1961-October 15, 1978 (Vietnam hostilities);

•August 2, 1990-April 11, 1991 (Persian Gulf conflict);

•September 11, 2001-present (Operation Enduring Freedom); 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 has designated for naturalization benefits by executive order.

Applicants who apply for naturalization under this section of law are not required to meet the minimum continuous residence requirements of section 316(a). However, any section 329 applicant who was not in lawful permanent resident status on the day of filing the application for naturalization must establish that at the time of enlistment or induction into the Armed Forces of the United States he or she was physically present in the United States or its outlying possessions. (See Section 329 of the Act and 8 CFR 329.2(c) .)

(7) World War II Participant Born in the Philippines . Section 405 of the Immigration Act of 1990 provided that certain natives of the Philippines with active duty service during World War II could be naturalized in compliance with Section 329 of the Act, if they met all its other requirements and applied for naturalization no later than February 3, 1995. Any qualified applicant under this law is exempt from the continuous residence requirement of section 316(a) of the Act. (See 8 CFR 329.5 )

(8) Enlistees under the Act of June 30, 1950 (Lodge Act) . Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization under section 329 of the Act and are entitled to the same exemptions from the continuous residence requirement. (See Interpretations 329.2)

(9) Distinguished Service to National Security . Section 316(f) of the Act allows the Director of Central Intelligence, the Attorney General, and the Director of the USCIS to designate annually up to 5 persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities”. Such persons are exempted from the continuous residence requirement.

(h) Documenting Continuous Residence . The applicant has the burden of establishing by a preponderance of the evidence that he or she meets the continuous residence requirement. At the time of the examination of the application for naturalization, the applicant may be required to establish the lawful permanent resident status by submitting the original evidence, issued by the Service, of lawful permanent residence in the United States, as well as any passports, reentry permits or other documents used to enter the United States at any time afte r the original admission for permanent residence. (See section 318 of the Act, 8 CFR 316.4 (a)(2) and 8 CFR 316.4 (c) .)

Mere possession of a Permanent Resident Card for the period of time required by the law does not in itself establish the applicant’s continuous residence for naturalization purposes; actual maintenance of his or her principal dwelling place in the United States is required. For example, a "commuter alien" may have held and used a PRC, as allowed by 8 CFR 211.5 , for 7 years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period. (See 8 CFR 316.5(b)(3) .)

The A-file of any applicant who at the time of examination claims not to be in possession of his or her PRC card must be carefully reviewed for verification of the claimed status. Checks of the Central Index System (USCIS) and other Service databases may be consulted, as well as other documentation submitted by the applicant. (See Chapter 72.2, Examination Preparation, and section 264(e) of the Act.)

When documentation is inadequate or inconclusive, careful interrogation and use of the applicant's own testimony may be of crucial importance in developing the facts required to make a correct conclusion regarding the continuous residence question. The same testimony can have a bearing on related issues such as the physical presence requirement or the possibility of an applicant's excludability or removability. You should, therefore, conduct an inquiry into such application items as absences, addresses, emp loyment, and tax status with a view to resolving all such issues. (See Chapter 73.5(e) of this field manual on documenting physical presence.)

In preparing to take testimony about these matters, the examiner should review the preliminary application and note any time gaps in United States residence that are not explained by listed absence(s) during such periods. These time gaps may represent undisclosed absence(s) and should be explored by appropriate questions. The same scrutiny should be given to gaps in recorded periods of unemployment. Termination of an applicant’s marriage by divorce in a foreign country could also point to a period of extended absence.
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Residency: Jurisdiction: most applicants for naturalization must establish the 3- months residence in State or Service District requirement. However, there are a few special classes of applicants who do not have to comply with this requirement because of specific exemptions provided by law.

To establish eligibility for naturalization, most applicants must file their application for naturalization with the State or Service District that has jurisdiction over his or her place of residence. In addition, most applicants must have continuously resided in the State or Service District for three months prior to filing the application. However, there are a few special classes of aliens who are exempt from this requirement.

Understanding the Terms “State or Service District” and “Residence” . The term “State” is defined in section 101(a)(36) of the Act. Service District is defined in 8 CFR 316.1 as the geographical area over which an office of the USCIS has jurisdiction. The applicant’s residence is the same as the applicant’s domicile, or principal actual dwelling place, without regard to the applicant’s intent, and the duration of an applicant’s residence in a particular location is measured from the moment the applicant first establishes residence in that location. See section 101(a)(33) of the Act. You must understand the terms State or Service District and residence to be able to determine whether an applicant meets the requirement of having continually resided in the State or Service District for the required time period. You may encounter cases where determining the applicant’s place of residence may not be a straightforward matter. Special cases as cited in 8 CFR 316.5.

The Service District that has jurisdiction over an applicant’s application may not be located within the state where the applicant resides. In addition, some Service Districts may have jurisdiction over more than one state and some states contain more than one District Office. Therefore, it is important that you commit to memory the geographical areas over which your Service District has jurisdiction and have access to information on all other Service Districts. For a complete discussion on how to determine residence, see Chapter 74.2(d)

Burden of Proof of Establishing Residence . 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 the applicant resided in the State or Service District having jurisdiction over the applicant’s place of residence for at least three months prior to filing the application. The applicant may be required to submit evidence of residence for at least three months immediately preceding the filing of the application. Your thorough review of the application and contents in the A-file, documentary evidence provided in support of the application, applicant’s testimony, and understanding of this requirement will help you to adjudicate the application properly.

Applications Filed under Section 334(a) of the Act . Section 334(a) of the Act allows an applicant to file his or her application 3 months before he or she has completed the continuous residence time period. The applicant must still establish that he or she has resided for 3 months immediately preceding the filing of the application in the State or Service District having jurisdiction over the applicant’s actual place of residence. However, in a case where the applicant files the application early pursuant to section 334(a), and the 3 month period to establish jurisdiction falls within the required period of continuous residence, the determination as to jurisdiction will be based on the applicant’s actual place of residence 3 months immediately before the examination on the application.

How to Determine Residence . To make a residence determination, you will need to ask the right questions and possibly request additional documentary evidence from the applicant. In some cases, determining an applicant’s place of residence may not be a straightforward matter.

There are various instances in which the nature and type of employment that the applicant is engaged in may dictate his or her living arrangements. For example, an applicant may work and reside in one state during the weekdays, and go home to be with his or her family in another state on the weekends. Keeping in mind the definition of residence will help you to make the determination of residence in this type of case. In addition, it may be useful to compare the applicant’s employment address, the address of the claimed place of residence, and his or her family’s address for discrepancies that should be addressed during the examination. Finally, you may need to request documentary evidence to make a final determination.

You may encounter cases where the applicant may have provided a bogus address with the intent to mislead. In these types of cases, you must both establish that the applicant does not reside at the claimed place of residence and that he or she intentionally provided false or misleading information to qualify for naturalization. See Part 7 of the N-400 and Chapter 73.6 for a discussion of good moral character.

The applicant’s present residence and not the present temporary abode will fix jurisdiction. An applicant who claims to reside in a hotel, a boarding house, or a rooming house should be further questioned to determine the circumstances involved in his or her living arrangements. In addition, you may need to question the applicant as to whether he or she rents or owns the premises that he or she claims to occupy. In most cases, the applicant may have innocently believed at the time of completing the application that his or her temporary residence would be considered as his or her actual residence to meet the jurisdiction requirement.

Determining Residence in Special Cases . The regulations provide standards that you may use to determine residence in special cases. The following will assist you in determining residence in specific cases that you may encounter:

(1) Military Personnel . For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under section 328 of the Act, 8 CFR 316.5 provides that his or her residence can be:

(A) 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;
(B) The location of the residence of the applicant's spouse and/or minor child(ren); or
(C) 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.

(2) Students . 8 CFR 316.5 provides that an applicant who is attending an educational institution in a State or Service District other than the applicant's home residence may apply for naturalization:

(A) Where that institution is located; or

(B) 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 during the naturalization process.

(3) Commuter Aliens . 8 CFR 316.5 provides that an applicant who is a commuter alien, 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 thereafter acquire the requisite period of residence before eligibility for naturalization may be established. Accordingly, a commuter resident alien may not apply 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. Such an applicant bears the burden of providing evid ence to that effect.

(4) Residence in Multiple States . 8 CFR 316.5 provides that if an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed.

(5) Residence During Absences of Less than One Year . 8 CFR 316.5 provides that

(A) During Absence . An applicant's residence during any absence of less than one year shall continue to be the State or Service District where the applicant last resided at the time of the applicant’s departure abroad.

(B) Upon Return to the United States . If, upon returning to the United States, an applicant returns to the State or Service District where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in section 316.2(a)(5) of the Act when at least three months have elapsed, including any part of the applicant’s absence, from the date on which the applicant first established that residence. If the 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 that new residence to be eligible for naturalization.

(6) Nationals . 8 CFR 325 provides that a non-citizen national of the United States who owes permanent allegiance to the United States and files for naturalization under section 325 of the Act may be naturalized, if he or she becomes a resident of any State and complies with all other naturalization requirements. In these case, residence in an outlying possession of the United States will count as residence and physical presence in the United States. However, these applicants must comply with the three months residence in State or Service District requirement. An applicant who intends to resume residence in an outlying possession after naturalization will be regarded as having establi shed that he or she intends to reside permanently in the United States. A national of the United States is a person born in American Samoa or Swains Island. The Term “outlying possessions of the United States” means American Samoa and Swains Island. See section 101(a)(29) , section 308 and section 325 of the Act, and 8 CFR 325.2 .

(h) Special Classes Exempt from the 3-Months Residence in State or Service District Requirement . There are a few distinct classes of aliens who are exempted from establishing the 3-months residence in State or Service District requirement. Please note that applicants for naturalization under section 316(b) , section 317 , and section 330 of the Act are not exempt from the 3-month residence in State or Service District requirement.

(1) An applicant who can establish that his or her United States citizen spouse is engaged in a certain type of employment as provided in section 319 (b)(1)(B) of the Act, including that his or her spouse is regularly stationed abroad may qualify for naturalization under section 319(b) of the Act. 8 CFR 319.2(a)(6) provides the exception to the 3-month time in State or State District requirement for this class of persons.
(2) Applicants may qualify for naturalization under section 319(d) of the Act as the surviving spouse of a United States citizen who died during a period of honorable service in an active duty status in the Armed Forces of the United States, provided all other eligibility requirements are met. Applicants who qualify under section 319(d) are specifically exempt from the 3-month residence in State or Service District requirement. See 8 CFR 319.3(a)(5) .
(3) Applicants who can establish continuous employment for 5 years by a recognized United States nonprofit organization engaged in disseminating information which significantly promotes United States interests abroad, may qualify for naturalization under section 319(c)(1) of the Act. It is specifically stated at section 319(c)(5) of the Act that these applicants do not have to comply with the 3-month residence is State or Service District requirement.
(4) Section 324 of the Act provides for the naturalization of former citizens of the United States who lost citizenship by marriage and former citizens whose naturalization is authorized by private law. While it is highly unlikely that you may encounter these types of cases, you should know that an applicant who qualifies under this Section of the law is not required to establish the 3-month residence in a State or Service District to be eligible for naturalization. The specific cite that states that these applicants are exempt from this requirement may be found at section 324(a)(1) of the Act.

(5) Applicants who lost United States citizenship through service in the Armed Forces of a foreign country during World War II may be naturalized provided all eligibility requirements are met. It specifically states at 8 CFR 327.1(f) that these applicants are exempt from the residence in State or Service District requirement. See section 327(a) .
(6) An applicant who files an application for naturalization under section 328 of the Act while still in honorable service, or within six months after termination of service, is generally not required to comply with the 3-month residence in State or Service District requirement. However, if the applicant’s military service is discontinuous, the applicant must establish, for periods between honorable service during the five years immediately preceding the date of filing the application, or the examination on the application if he or she filed early under section 334(a) of the Act, that he or she resided in the United States and in the State or Service District in the United States in which the application was filed.

Applicants who file an application more than six months after honorable discharge from the military must satisfy the 3-month residence in State or Service District requirement. See section 328 of the Act and 8 CFR 328.2 (e)(1) .

(7) Applicants who qualify for naturalization under section 329 of the Act, based on active duty Service in the United States Armed Forces during specified periods of hostilities are not required to satisfy the 3-month residence in State or Service District requirement. You may find the specific cite that provides for this exception at section 329(b)(2) of the Act, 8 CFR 329.2(e)(2) and 8 CFR 329.3
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INA: ACT 319 - MARRIED PERSONS AND EMPLOYEES OF CERTAIN NONPROFIT ORGANIZATIONS

Sec. 319. [8 U.S.C. 1430]

(a) Any person whose spouse is a citizen of the United States, 1/ or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this title except the provisions of paragraph (1) of section 316(a) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse 1/ (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

(b) Any person,

(1) whose spouse is

(A) a citizen of the United States,

(B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organization in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States, or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States, and

(C) regularly stationed abroad in such employment, and

(2) who is in the United States at the time of naturalization, and

(3) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required.

(c) Any person who

(1) is employed by a bona fide United States incorporated nonprofit organization which is principally engaged in conducting abroad through communications media the dissemination of information which significantly promotes United States interests abroad and which is recognized as such by the Attorney General, and

(2) has been so employed continuously for a period of not less than five years after a lawful admission for permanent residence, and

(3) who files his application for naturalization while so employed or within six months following the termination thereof, and

(4) who is in the United States at the time of naturalization, and

(5) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon termination of such employment, may be naturalized upon compliance with all the requirements of this title except that no prior residence or specified period of physical presence within the United States or any State or district of the Service in the United States, or proof thereof, shall be required.

(d) Any person who is the surviving spouse, child, or parent 2/ of a United States citizen, whose citizen spouse, parent, or child 2/ dies during a period of honorable service in an active duty status in the Armed Forces of the United States and who, in the case of a surviving spouse, was living 2/ in marital union with the citizen spouse at the time of his death, may be naturalized upon compliance with all the requirements of this title except that no prior residence or specified physical presence within the United States, or within a State or a district of the Service in the United States shall be required. 2/ For purposes of this subsection, the terms “United States citizen” and “citizen spouse” include a person granted posthumous citizenship under section 329A .

(e)(1) 3/ In the case of a person lawfully admitted for permanent residence in the United States who is the spouse of a member of the Armed Forces of the United States, is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member in marital union, such residence and physical presence abroad shall be treated, for purposes of subsection (a) and section 316(a), as residence and physical presence in--

(A) the United States; and

(B) any State or district of the Department of Homeland Security in the United States.

(2) Notwithstanding any other provision of law, a spouse described in paragraph (1) shall be eligible for naturalization proceedings overseas pursuant to section 1701(d) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136; 8 U.S.C. 1443a).

FOOTNOTES FOR SECTION 319
INA: ACT 319 FN 1
FN 1 Language inserted by section 1503(e) of Public Law 106-386, dated October 28, 2000.
INA: ACT 319 FN 2

FN 2 Section 1703(f)(1) of the National Defense Authorization Act for Fiscal Year 2004, Public Law 108-136 , dated November 24, 2003, added a new sentence at the end of paragraph (d) to read: “ For purposes of this subsection, the terms “United States citizen” and “citizen spouse” include a person granted posthumous citizenship under section 329A.

EFFECTIVE DATE- The amendment made by section 1703(f)(1) shall apply with respect to persons granted posthumous citizenship under section 329A of the Immigration and Nationality Act (8 U.S.C. 1440-1) due to death on or after September 11, 2001.

Section 1703(h) further amended paragraph (d) as follows:

(1) by inserting “, child, or parent” after “surviving spouse”;
(2) by inserting “, parent, or child” after “whose citizen spouse”; and

FN 3 Section 674(a) of Public Law 110-181 , dated January 28, 2008, amended section 319 by adding a new subsection (e). EFFECTIVE DATE: The amendments made by this section shall take effect on the date of enactment of this Act (January 28, 2007) and apply to any application for naturalization or issuance of a certificate of citizenship pending on or after such date.
___________________________________________________________

In certain limited situations, a person may be able to preserve residency, previously accumulated for naturalization purposes, even though he or she may be residing outside the United States for longer than one year. Thus the time spent abroad may be counted toward the residency requirement.

These cases involve persons employed in specific jobs in the United States government and private sector as well as religious organizations.

To obtain approval to preserve residency, such permanent residents must file a Form N-470 application before departing from the United States.

The regulations are different for religious workers proceeding abroad to perform religious duties. Religious workers may apply before or after departure, or after return to the United States. They are not required to have lived in the United States for a specific period of time prior to filing Form N-470.

Filing a Form N-470 does not relieve a permanent resident from obtaining a reentry permit, in advance of trips outside the United States for a year or more, nor does it relieve the applicant from the naturalization law's physical presence requirement.

An applicant qualifying for the residency preservation may extend the benefit to his or her spouse and dependent children who are all members of the same household and have lived with the principal applicant while abroad.

Another exception to the residency requirement is made for alien members of the U.S. armed forces. A permanent resident employee of the U.S. government abroad who has filed a Form N-470 is considered physically present in the United States during such employment abroad. He or she does not need to obtain a reentry permit.

NOTE: As a naturalization applicant, you may be eligible for expeditious processing if your U.S. citizen spouse is employed outside the United States as a missionary, or by a U.S. corporation or as a member of the U.S. military.

Generally, applicants for naturalization must reside in the United States for five years (three years if qualifying under the citizen-spouse exemption) immediately preceding the date of filing an application for naturalization. Additionally, naturalization applicants are required to have been physically present in the United States for at least 30 months of those five years (18 months if eligible under the citizen-spouse exemption).

Permanent residents who remain outside the United States for more than one uninterrupted year will disrupt the naturalization residence requirement, unless they are the beneficiaries of an approved Form N-470.

You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes.

Please note that in most cases you must have been physically present and residing in the United States for an uninterrupted period, without any absences whatsoever, for at least one year after your admission as a lawful permanent resident before you can file a Form N-470.

In addition, you must submit the Form N-470 to USCIS before you have been absent from the United States for a continuous period of one year. However, if your absence from the United States is, was or will be solely as a clergyman or clergy woman, missionary, brother, nun or sister of a religious denomination or interdenominational mission organization having a bona fide organization within the United States, you may file this application before or after an absence of one year or more.

Note that your absence from the United States is:

1. On behalf of the U. S. Government.
2. For the purpose of carrying on scientific research on behalf of an American institution of research.
3. For the purpose of engaging in the development of foreign trade and commerce of the United States on behalf of an American firm or corporation or a subsidiary thereof.
4. Necessary to the protection of property rights outside the United States of an American firm or corporation engaged in the development of foreign trade and commerce of the United States.
5. On behalf of a public international organization of which the United States is a member.
6. Soley because of your capacity as a clergyman or clergywoman, missionary, brother, nun or sister of a denomination or mission, having a bona fide organization in the United States.

You may include in your application a qualifying spouse and dependent unmarried children, sons and daughters. These family members must be permanent residents and are or will be residing outside of the United States as members of your household.

NOTE: Your employment cannot have started until after your admission as a permanent resident.

Good Moral Character (GMC), Naturalization N-400 application, Chicago District Office, Citizenship and Immigration Services (CIS)

1. Lawfully Admitted for Permanent Residence
2. Continuity of Residence
3. Residency: Jurisdiction
4. Physical Presence
5. Good Moral Character
6. Attachment to the Constitution
7. English language proficiency and knowledge of United States history and government.

Naturalization applicants are required by law to appear in person before an USCIS District Adjudications Officer (DAO, formerly called an “Immigration Examiner”) for an "examination under oath."

District Adjudications Officers (DAO) must make a determination whether the applicant possesses the requisite Good Moral Character for purposes of naturalization. In making this determination, DAO's will primarily focus on the 5-year statutory period prior to filing of the N-400 application. Part 7 of the N-400, entitled Additional Factors of Eligibility has 15 questions which contain most of the grounds for finding a lack of GMC. In addition, DAOs "should always ask" the applicant the following questions, if applicable:

1. Have you ever failed to pay, or refused to pay, alimony, or failed to comply with a court order to pay alimony?
2. Have you ever failed to pay, or refused to pay, child support or failed to comply with a court order to pay child support?

If an applicant admits to having committed or been arrested, sentenced, or convicted for any crimes or offenses in violation of the law, or if the file contains evidence of any crimes or offenses, DAOs will focus on the number and type of offenses to determine whether the applicant lacks GMC based on this evidence.

A person will always lack GMC if, during the 5-year statutory period, he has committed one or more "crimes involving moral turpitude"(CIMT). The most common definition of a CIMT is "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

If the applicant gives an affirmative response to any of the questions involving GMC in Part 7 (Questions No. 8, 9, 12, and 15) or if the cases involves CIMTs, DAOs will refer the applicant to a secondary officer for a traditional interview format.
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A list of crimes involving moral turpitude: This checklist is designed to provide a quick reference to the types of offenses which the Board of Immigration Appeals has found to be "Crimes Involving Moral Turpitude." This list is not exclusive and DAOs will consult with Service counsel for more in-depth information.

Crimes Against The Person

• Murder/Intentional Homicide
• Voluntary Manslaughter
• Homicide by Reckless Conduct
• Involuntary Manslaughter w/ Reckless Disregard
• Attempted Murder
• Kidnapping Mayhem
• Assault or Attempted Murder Upon Government Officers
• Carrying a Concealed Weapon w/ Intent to Use Against the Person of Another
• Assault w/ a Deadly Weapon
• Assault w/ Weapon Likely to Produce Bodily Harm
• Interfering w/ a Law Enforcement Officer w/ Use of Deadly Force
• Attempting to Obstruct/Impede the Progress of Justice
• Aggravated Assault Against a Peace Officer

Crimes Against Property

• Attempted Arson
• Blackmail/Extortion
• Forgery
• Uttering a Forged Instrument/Forged Prescription
• Making False Statements of Financial Condition
• Robbers'
• Embezzlement
• Larceny/Theft
• Grand theft
• Petty Theft
• Receiving Stolen Property
• Concealing Assets in Bankruptcy
• Encumbering Mortgaged Property w/ Intent to Defraud
• Fraudulently Issuing Check w/ Insufficient Funds
• Fraudulently Issuing Worthless Check
• Illegal use of ATM or Credit Card
• Passing Forged Instrument
• Attempted Fraud
• Using Mails to Defraud
• Making False Statements in Acquisition of Firearm
• Securities Fraud
• Welfare Fraud
• Transporting Stolen Property
• Obtaining Money by False Pretenses
• Bribery
• Malicious Trespass

Sexual and Family Crimes

• Assault w/ Intent to Commit Abortion
• Attempted Assault w/ Intent to Commit Carnal Abuse
• Statutory Rape/Rape
• Indecent Assault/Sexual Battery
• Adultery
• Bigamy
• Prostitution
• Sodomy
• Gross Indecency
• Contributing to the Delinquency of a Minor/Sexual Acts
• Taking Indecent Liberties w/ a Child
• Incest
• Oral Sexual Perversion

Crimes Against the Government

• Falsely Issuing a Narcotic Prescription
• Offering a Bribe
• Making, Passing, or Possessing Counterfeit Coins
• Conspiracy to Violate IRS Laws
• Securities Fraud
• Counterfeiting
• Smuggling Merchandise
• Impersonating Federal Officer
• False Statements/Firearm
• False Statements or Entries
• Harboring a Fugitive
• Using False Names & Addresses to Violate Postal Laws
• Uttering/Selling False/Counterfeit Immigration Documents
• False Statements to Obtain a Passport
• False Statements in LPR Application
• Perjury
• Theft from U.S. Mail
• Taking Kickbacks
• Receiving Funds by False Statements
• Trafficking in Narcotics
• Failing to Report Income
• Union Official Unlawfully Accepting a Loan
• Kickbacks on Government Contracts
• False Statements/Selective Service
• Falsely Representing Social Security Number
• False Statements/Unemployment Benefits

_____________________________
(a) General Criteria . One of the most important basic requirements in naturalization is that of good moral character (GMC). An applicant for naturalization must show that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character. This period includes the time between the examination and the oath of allegiance. Although the law specifies that the good moral character requirement applies to the statutory period, conduct prior to that period may impact the adjudicator’s dec ision regarding whether or not an applicant meets the requirement. Consideration of the applicant’s conduct and acts outside the statutory period is specifically sanctioned by law if the applicant’s conduct during the statutory period does not reflect reform of character or the earlier conduct is relevant to the applicant’s present moral character. See section 316(e) of the Immigration and Nationality Act (the Act) and 8 CFR 316.10(a)(2) . Thus, when addressing the issue of good moral character, the examination should be broad enough and sufficiently detailed to disclose all relevant adverse conduct or activity. Although the focus should be on conduct during the statutory period, the inquiry should extend to the applicant’s conduct during his or her entire lifetime.

Good moral character should be determined on a case-by-case basis. Section 101(f) of the Act and 8 CFR 316.10 specifically provide that certain criminal conduct precludes a finding of good moral character. Section 101(f) also provides that an applicant may lack good moral character for reasons other than those described in 101(f)(1) – (f)(8). The courts have held that good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applica nt resides should be considered, without regard to whether the applicant has been arrested or convicted.

(b) The Record and GMC . Although a GMC issue can arise at any time during the naturalization interview, the N-400 contains questions in Part 7 which are keyed directly to the good moral character requirement. See Chapter 74.2(g) of the AFM for a detailed discussion of each question in part 7. Some offenses which may preclude a finding of good moral character such as controlled substance violations, prostitution, smuggling, gambling, and habitual drunkenness which are not mentioned in this section, are discussed in detail in Chapter 74.2(g) of this manual. In general, these questions represent an effort to obtain a complete record of any criminal, unlawful, or questionable activity in which the applicant has ever engaged, regardless of whether such information eventually proves to be material to the moral character issue. The previous version of the N-400 falls short of this objective in relation to the arrest-related question (question 15B of Part 7). For example, many applicants will not mention arrests in which prosecution was declined or resulted in suspended sentences or not guilty verdicts, based on their own interpretation of what the arrest question means. The arrest-related questions on the revised N-400 were expanded in an effort to obtain a more complete arrest record.

Even with the expanded arrest-related questions, a mere reading of the question to the applicant does not always mean that accurate and complete testimony will be forthcoming. In each case, you should take into consideration the education level of the applicant and his or her knowledge of the English language. Then, based on these factors, you should rephrase the question in simple language, supplementing it with additional questions to the extent required for complete understanding by the applicant. The em phasis should always be in the direction of over-simplification and explanation, and the scope of the inquiry should always be clearly reflected in the record. Examples of clarifying questions include, “Have you ever been arrested, anywhere in the world?” “Has a police officer ever questioned you?” “Have you ever been handcuffed by a police officer?” “Have you ever been in a police station?” “Have you ever been in court?” “Have you ever been in jail, even if just for one night?” “Have you ever had a crimina l record diverted, expunged, or dismissed?” "Have you ever had a record sealed by a judge and been told that you did not have to reveal the criminal conduct?" An applicant, when confronted with a false statement in a subsequent legal challenge, may claim that he or she did not understand what the officer meant when pertinent questions were asked during the interview.

In addition, a well-documented record of proceeding will strengthen the case in the face of a subsequent legal challenge. The record should be clearly and thoroughly documented so that anyone reviewing the file knows exactly what happened at the interview without need for the interviewing officer’s explanation. It is of vital importance that you mark, in red ink, the questions in Part 7 that you ask during the interview. The check or circle marks must be made next to the answers to the questions. In particular, questions (15A) and (15B), relating to criminal history, capture information central to naturalization eligibility and must always be annotated during the interview.

Notations of the applicant’s testimony should be made on the N-400 to provide for a more complete record of the examination. Clear and legible notations will have more probative value in subsequent legal proceedings. For example, you may note, “admits to one arrest for petty theft in (year), one year probation only, states no other arrests” on the application of an applicant who admits to the arrest during the interview. Suppose, in fact, this applicant had an additional disqualifying arrest and conviction for assault and battery two months prior to the interview that he failed to disclose. You learned of the second arrest after the interview. You continued the case for expired fingerprints and the second fingerprint check revealed the additional arrest. Although you should call in the applicant to establish why he failed to disclose the arrest, the notations are objective evidence that can be used in a denial on false testimony grounds. A sworn statement should always be taken if the applicant admits to comm itting a crime for which he or she has not been arrested. See Chapter 74.2(g), question (15A) regarding the admission of crimes for which an applicant has not been arrested. See also Chapter 15.6 regarding sworn statements. A sworn statement should also be taken when an applicant provides false testimony. See Chapter 74.2(g), question (12) part (H) , False Testimony .

(c) Definition of “Conviction ”. Most of the criminal offenses that preclude a finding of good moral character require a conviction for the disqualifying offense. Sometimes, it is difficult to determine if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be “deferred” upon a finding or confession of guilt. Some states have a “diversion” program whereby the case is taken out of the normal criminal proceedings in order to avoid criminal prosecution and so that the person may benefit from a counseling or treatment program.

Prior to the passage of the 96 Act (IIRIRA), Matter of Ozkok , 19 I&N Dec. 546 (BIA 1988) defined “conviction” for immigration purposes. That decision set forth a “3- pronged test” for determining convictions:

•the alien pled guilty or nolo contendere or was found guilty of the charges against him or her.
•the judge ordered some form of punishment, penalty, or restraint of liberty to be imposed.
•a judgment of adjudication of guilt may be entered without further proceeding regarding guilt or innocence if the person violated the terms of probation or failed to comply with the requirements of the court order.

In the 96 Act, Congress broadened the scope of the definition of “conviction” by deleting the “3 rd prong”. The definition of “conviction” in Matter of Ozkok is no longer in effect. Section 101(a)(48)(A) of the Act defines “conviction” as:

1. a judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
2. the judge has ordered some form of punishment penalty, or restraint on the alien’s liberty to be imposed.

By removing the third prong of Ozkok , Congress intended that even in cases where the adjudication is “deferred”, the original finding or confession of guilt and imposition of punishment is sufficient to establish a “conviction” for immigration purposes.

(1) Effect of Expungement . Post-IIRIRA, expungements do not remove the underlying conviction in many cases. In Matter of Roldan , Int. Dec. #3377 (BIA 1999), the BIA held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect. The regulations already provide that an expungement of a controlled substance violation does not affect the conviction. See 8 CFR 316.10(c)(3)(i) . Also, a second crime involving moral turpitude that is expunged is still considered a conviction. See 8 CFR 316.10 (c)(3)(ii) . Post IIRIRA, other expungements will not be given effect. If you are unsure of the effect of a particular expungement, contact your local district counsel .

The USCIS can in all cases require an applicant to bring in evidence of a conviction, even if the conviction has been expunged. It remains the applicant’s responsibility to obtain his or her record, even if it has been sealed by the court. In some cases the USCIS may file a motion with the court to obtain a copy of the record in states where the applicant cannot obtain it.

(d) Finding of a Lack of Good Moral Character . Finding a lack of good moral character may occur as a result of a statutory bar that precludes the applicant from establishing good moral character, or may occur as a result of a discretionary finding of a lack of good moral character by the adjudicating officer. An applicant may commit a certain act or acts that effectively and permanently bar him or her from naturalizing, in all cases and under all circumstances, or may commit a lesser offense during the statutory period that may conditionally bar him o r her from establishing good moral character. Other less serious acts require the adjudicating officer to take into consideration the nature of the offense(s), the applicant’s overall conduct, and other factors relevant to the definition of good moral character.

(1) Permanent Statutory Bars to Establishing Good Moral Character .
• Murder . If an applicant is convicted of murder at any time, he or she can never establish good moral character. See 8 CFR 316.10(b)(1)(i) . If the applicant has ever been convicted of murder, you should deny the naturalization application and consider whether the case should be referred for removal proceedings.
• Aggravated Felony Committed On or After November 29, 1990 . The definition of “aggravated felony” is in section 101(a)(43) of the Act. It is of vital importance that all interviewing officers are very familiar with what crimes constitute an aggravated felony. Some offenses require a minimum term of imprisonment to qualify as an “aggravated felony”. For example, a theft offense and a crime of violence are aggravated felonies if the term of imprisonment is at least one year. Note that the term of imprisonment is deemed to be the period of confinement ordered by the court regardless of whether the sentence was actually imposed. S ee section 101(a)(48)(b) of the Act. In IIRIRA, Congress expanded the offenses considered aggravated felonies and amended the definition to apply to offenses that occurred at any time.

For naturalization purposes, an applicant convicted of an aggravated felony on or after November 29, 1990, regardless of when the crime was committed, is permanently precluded from establishing good moral character. Accordingly, an application for naturalization filed by an individual convicted of an aggravated felony on or after November 29, 1990, must be denied. Moreover, the case should be considered for possible initiation of removal proceedings because an individual convicted of an aggravated felony at anytime is removable. See section 237(a)(2)(A)(iii) of the Act.

(2) Conditional Bars to Establishing Good Moral Character .

(A) Effect of Crime Involving Moral Turpitude (CIMT) Convictions . An applicant who commits and is convicted of or admits to committing one or more crimes involving moral turpitude during the statutory period cannot establish good moral character and is ineligible for naturalization. See 8 CFR 316.10(b)(2)(i) . However, there is an exception to the general rule, which you must consider. See section 212(a)(2)(A)(ii)(II) of the Act. The exception applies if the applicant has committed only one CIMT and the crime is a petty offense. A petty offense is defined as a crime for which the maximum penalty possible for the crime does not exceed imprisonment for one year and , if there is a conviction, the term of imprisonment does not exceed six months, regardless of suspension. Thus, an individual convicted of a CIMT will only qualify for the exception if the two conditions are satisfied. Not only must the sentence imposed have been less than six months, the maximum possible sentence that could have been imposed must not exceed one year.

For example, suppose an applicant commits petty theft in the statutory period. This was his or her only conviction. The applicant was fined and sentenced to one year of probation and community service. The maximum possible sentence for this conviction is 364 days. No term of imprisonment was imposed. The applicant meets both conditions of the petty offense exception and is not precluded from establishing GMC. In the above example, if the applicant had also received a suspended jail sentence of eight months, he or she would not meet the exception because he or she does not meet the second condition of the petty offense exception. The petty offense exception is inapplicable to an alien who has been convicted of or who admits the commission of more than one crime involving moral turpitude, even if only one of the two or more CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense, only one of which is a CIMT, remains eligible for consideration of the petty offense exception.

(B) Definition of a Crime Involving Moral Turpitude (CIMT) . As defined in case law, moral turpitude generally refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed to persons or society in general. See Matter of Flores , 17 I&N, Dec. 225 (BIA 1980), and cases cited therein. It is defined as conduct which is morally reprehensible and intrinsically wrong, the essence of which is an evil or malicious intent.

In determining whether a crime is one that involves moral turpitude, one must look to the nature of the offense itself. Matter of Esfandiary , 16 I&N Dec. 659 (BIA 1979) . Additionally, whether or not a crime is a CIMT often depends on whether or not a state statute includes one of the elements that introduces moral turpitude. A crime with the same name may be a CIMT in one state but not in another if the state statutes define the crime differently. Conspiracy to commit a crime considered a CIMT is also a CIMT in itself. If you are unsure if a crime involves moral turpitude, contact your local district counsel.

The general categories of crimes which involve moral turpitude contained in this reference guide are as follows:

• Crimes against a person . Crimes against a person involve moral turpitude when criminal intent or recklessness is an element of the offense, or when the crime is defined as morally reprehensible by state statute, e.g. statutory rape. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon. Aggravated battery is usually, if not always, a CIMT. Assault and battery is usually not a CIMT.

•Crimes against property. Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or an individual. Certain crimes against property may require guilty knowledge or an intent to permanently take property. Theft (petty and grand), forgery, and robbery are CIMTs in some states. Possession of Burglary Tools and Loan Sharking are usually not CIMTs.

• Sexual and family crimes. It is difficult to discern a distinguishing set of principles which the courts apply to determine whether a particular offense is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent can be a determining factor. Spousal abuse and child abuse can be CIMTs. For example, the Simple Assault, Domestic charge used by some states generally does not rise to the level of being a CIMT. Indecent Exposure and Abandonment of a Minor Child are also not CIMTs in some states.

• Crimes against the authority of the government . The presence of fraud is the main determining factor as to the presence of moral turpitude. Offering a Bribe to a Government Official and Counterfeiting are CIMTs. Possession of Counterfeit Securities (Without Intent) and Contempt of Court are not CIMTs.

(C) Controlled Substance Violations . Per section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(iii) , an applicant who has violated any law of the United States, of any state within the United States, or of any foreign country relating to a controlled substance is precluded from establishing good moral character, unless the violation was for a single offense of simple possession of 30 grams or less of marijuana. See Chapter 74.2(g), question 12 parts (A) and (F) for more details regarding these types of violations.

(D) Incarceration . Per section 101(f)(7) of the Act and 8 CFR 316.10(b)(2)(v) , an applicant who has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more cannot establish good moral character, unless the confinement was outside the United States due to a conviction of a purely political offense committed outside the United States. See Chapter 74.2(g), question 15B for more details regarding incarceration.

(E) False Testimony . An individual who gives false testimony during the statutory period for the purpose of obtaining any benefit under the Act is precluded from establishing good moral character. See section 101(f)(6) of the Act and 8 CFR 316.10(b)(2)(vi) . The most common occurrence of false testimony is failure to disclose a criminal or other adverse record, but false testimony can occur in any area. False testimony may relate to facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, tax filing information, or any of the multitudes of facts that are developed during a naturalization interview. False testimony, in any area, occurs when the individual deliberately intends to deceive the government while under oath in order to obtain citizenship, regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have made the applicant ineligible for naturalization. For example, an applicant may conceal an arrest that occurred outside or within the statutory period, believing that the disclosure of the arrest would bar his or her naturalization, even though the arrest was minor in nature and would not have an adverse effect upon his o r her eligibility. The applicant’s false testimony, in itself, denotes a lack of good moral character and renders the applicant ineligible for naturalization on the present application and on any future naturalization application until the false testimony date is outside of the statutory period.

There are three elements to false testimony that must exist for a naturalization application to be denied on false testimony grounds. In accordance with the Supreme Court decision in Kungys v. United States, 485 U.S. 759, 780-81 (1988) [ Appendix 74-6 ], the elements of false testimony are:

• Oral statements. “Testimony” for the purposes of section 101(f)(6) of the Act must be oral. False statements in an application, whether or not under oath, do not constitute “testimony”. Falsified documents do not constitute “testimony”. Further, the oral statement must be an affirmative misrepresentation. The Kungys decision makes it clear that there has been no false testimony if facts are merely concealed. Thus, incomplete but otherwise truthful answers will not rise to the level of false testimony. Concealment of the existence of a conviction is not false testimony. Fo r example, an individual has two convictions in the statutory period: one DUI conviction and one conviction for Assault and Battery. In response to the “arrest” question, the applicant testifies, “Yes, I was arrested for DUI and given one year probation.” That testimony is not false. It does conceal the existence of the other conviction, but is not an affirmative misrepresentation and is not, therefore, false testimony. To solve this problem, ALWAYS ask a follow-up question after a known concealment, such a s, “Are there any other arrests?” Assuming the applicant answers “no”, he has now provided false testimony.
• Under Oath . The oral statement must be made under oath in order to constitute false testimony. Oral statements to officers that are not under oath do not constitute false testimony.

• With Subjective Intent to obtain an immigration benefit . An individual must be providing the false testimony in order to obtain an immigration benefit. False testimony provided for any other reason does not preclude an individual from establishing good moral character. Subjective intent is often the most difficult aspect of sustaining a false testimony denial. As the government acknowledges in Kungys v. the United States :

“It is only dishonesty accompanied by this precise intent that Congress found morally unacceptable. Willful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character.”

For Illinois applicants read this case: Plewa vs. INS, 77 F. Supp. 2d 905; 1999 U.S. Dist. LEXIS 19652 (1999)

(F) Prostitution . Per section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(vii) , an applicant who has been involved with prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act is precluded from establishing good moral character. Solicitation of a prostitute is not the same as procurement for purposes of prostitution as used in section 101(f)(3) of the Act. See Chapter 74.2(g) question 12 part (D) for additional discussion of prostitution.

(G) Gambling Offenses . Per section 101(f)(4) and section 101(f)(5) of the Act, and paragraphs (2)(x) and (2)(xi) of 8 CFR 316.10 (b) , an applicant who has committed and has been convicted for two or more gambling offenses, or who derives his or her income principally from illegal gambling activities is precluded from establishing good moral character. See Chapter 74.2(g) question 12 part (G) for additional discussion of gambling offenses.

(H) Probation and Parole . The USCIS is precluded from approving an application for naturalization while the applicant is on probation, parole, or under a suspended sentence per 8 CFR 316.10(c)(1) . An applicant who has satisfactorily completed probation, parole, or a suspended sentence during the statutory period is not precluded from establishing good moral character per se. However, the fact that an applicant was on probation or parole, or under a suspended sentence during the statutory period should be considered in determining whether that applicant can establish good moral character.

(3) Discretionary Finding of a Lack of Good Moral Character. In addition to examining the applicant’s record to determine if there are circumstances that preclude the applicant from establishing good moral character, you must determine if an applicant should be denied as a matter of discretion for a lack of good moral character. Discretionary findings should be made on a case-by-case basis, and should include consideration of all factors relevant to the case. The proper exercise of discretion involves considering these relevant factors as they relate to U.S. law, F ederal regulations, precedent decisions and their interpretations, and General Counsel opinions. Political decisions, ideological beliefs, and personal opinions about the strictness or leniency of the law must not be considered while exercising discretion. Although each decision must be made on a case-by-case basis, you should strive for consistency in application of the law while exercising discretion. Chapter 10.15 of this field manual discusses the proper application of discretion during adjudications.

(A) Aggravated Felony Committed Prior to November 29, 1990 . An aggravated felony conviction prior to November 29, 1990, does not preclude a finding of good moral character for purposes of naturalization. See Legal Opinion 96-16 . However, such a conviction would still be relevant to making an overall determination whether the individual has met his or her burden of establishing good moral character during the statutory period. This is especially so in light of Congress' expansion of the offenses considered aggravated felonies, and the fact that an applicant convicted of an aggravated felony at any time after admission is subject to removal pursuant to section 237(a)(2)(A)(iii) of the Act. It is important to note that the agency may not consider an application for naturalization where removal proceedings are pending against the applicant. See section 318 of the Act.

The fact that proceedings are not initiated and the fact that the applicant was not convicted of an aggravated felony on or after November 29, 1990, does not mean that the individual has met the burden of affirmatively establishing good moral character. See section 101(f) of the Act ("the fact that any person is not within (subsections (1) through (8)) does not preclude a finding that for other reasons such person is or was not of good moral character."); see also 8 CFR 316.10(a)(2) . Accordingly, you should consider the seriousness of the aggravated felony conviction committed in the past combined with the applicant's present moral character measured against the standards of the community. If the applicant's actions during the statutory period do not reflect a reform of character, then the applicant may not be able to demonstrate good moral character during the statutory period pursuant to section 101(f) , and section 316(e) of the Act, and 8 CFR 316.10(a)(2) . In such cases, the application for naturalization should be denied.

For example, an applicant may have been a convicted drug dealer prior to November 29, 1990. His or her conviction(s) prior to November 29, 1990, are aggravated felonies pursuant to section 101(a)(43) of the Act. Moreover, while such conviction(s) render him or her removable pursuant per section 237(a)(2)(A)(iii) , the District Director has chosen to exercise prosecutorial discretion in his or her case, and has not initiated removal proceedings (see the November 17, 2000 INS memorandum titled Exercising Prosecutorial Discretion for guidance). Nonetheless, if the record obtained during the naturalization application process shows a continued pattern of drug-related or other criminal activity, other negative factors such as lack of steady employment, home life, or conduct generally showing a lack of rehabilitation, th e applicant may be found to lack good moral character pursuant to section 101(f) and section 316(e) of the Act, 8 CFR 316.10(a)(2) , and possibly 8 CFR 316.10(b)(3)(iii) .

(B) Additional Grounds for Discretionary Denial . The following denial grounds involve a considerable degree of discretion. They are acts which may preclude a lack of good moral character that are specifically contained in the regulations. The regulations provide that you must consider any extenuating circumstances surrounding the commission of these acts:

• Support of dependents. Unless the applicant can establish extenuating circumstances, willful failure or refusal to support dependents precludes a finding of good moral character. See 8 CFR 316.10(3)(i) and Interpretations 316.1(f)(5) . For a detailed discussion of child support issues related to good moral character, see Chapter 74.2(f)(2) of this field manual.
• Adultery - Formerly section 101(f)(2) of the Act. Adultery as a mandatory bar to establishing good moral character was repealed by the Act of December 29, 1981. A detailed historical discussion on adultery as it relates to good moral character is contained in Interpretations 316.1(g)(2). Per 8 CFR 316.10(3)(ii) , an extramarital affair which tended to destroy an existing marriage shall preclude a finding of good moral character, unless the applicant establishes extenuating circumstances. If the lawful marriage ceased to be viable and intact before the commission of the adultery, such sexual misconduct without cohabitation does not support a finding of lack of good moral character.
• Unlawful Acts . [Revised as of 09-19-2005; AD05-35] The regulations provide for a finding of lack of good moral character based on discretionary grounds. An applicant may lack good moral character if he or she has committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, unless the applicant can establish extenuating circumstances. See 8 CFR 316.10(b)(3)(iii) .

Proper application of this regulation requires the examining officer to make an individualized determination as to whether the applicant’s unlawful acts in fact reflect adversely upon the applicant’s moral character. In order to make such a determination, the examining officer must consider not only the nature and magnitude of the unlawful act but also the circumstances surrounding the conduct, including any mitigating or favorable factors (“extenuating circumstances”).

If the officer determines that the applicant’s unlawful acts do adversely reflect upon the applicant’s moral character, the applicant should be given the opportunity during the interview to establish extenuating circumstances. The applicant’s file should be annotated accordingly. The officer will consider evidence of extenuating circumstances if the evidence directly pertains to the applicant’s commission of the unlawful act.

In order to pertain to the commission of an unlawful act, an extenuating circumstance must precede or be contemporaneous to the commission of the unlawful act during the statutory period of required good moral character (“statutory period”). No conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act during the statutory period shall be considered as an extenuating circumstance.

Additionally, any evidence of extenuating circumstances offered by the applicant “must pertain to the reasons showing lack of good moral character, including acts negating good character, not to the consequences of these matters, including the consequence” of ineligibility for naturalization. Jean-Baptiste v. United States , 395 F.3d 1190 (11th Cir.2005), citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y.2003).

This section of the regulation can be used when the unlawful act is not specifically mentioned in paragraph (1) or (2) of 8 CFR 316.10(b) . For example, the commission of a petty theft (a CIMT) in the statutory period should be considered for denial under 8 CFR 316.10(b)(2) , not 8 CFR 316.10(b)(3)(iii) . Conversely, convictions for Disorderly Conduct and basic Driving While Intoxicated do not fall under any category of disqualifying offenses listed in the statute or regulations.

Nevertheless, based on the facts of your particular case, you may decide the applicant’s conduct during the statutory period precludes a finding of good moral character under 8 CFR 316.10(b)(3)(iii) . Discretion must be applied on a case-by-case basis. The statute does not provide that ALL unlawful acts and/or criminal convictions merit a finding of lack of good moral character. Thus, circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance.

- Is this the applicant’s only offense?
- Did the unlawful act occur early or late in the statutory period?
- What was the final outcome of the arrest?
- How long was the applicant on probation?
- Did the applicant comply with all conditions of the probation?

Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case.

Nevertheless, based on the facts of your particular case, you may decide the applicant’s conduct during the statutory period precludes a finding of good moral character under 8 CFR 316.10(b)(3)(iii) . Discretion must be applied on a case-by-case basis. The statute does not provide that ALL unlawful acts and/or criminal convictions merit a finding of lack of good moral character. Thus, circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance. Is this the applicant’s only offense? Did the unlawful act occur early or late in the statutory period? What was the final outcome of the arrest? How lon g was the applicant on probation? Did the applicant comply with all conditions of the probation? Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case.

(4) Other Factors Affecting Good Moral Character . The application also contains other information in a number of areas which, when developed by proper examination, may have an indirect or less obvious bearing upon the issue of good moral character. Questions regarding the applicant’s occupation, method of lawful entry, tax filing, residences, absences, marital status and children may reveal issues that affect the applicant’s good moral character and may indicate areas that need to be explored further. This is the case even if a denial on the basis of oth er grounds, such as under INA Section 318 for not lawfully obtaining LPR status, is more appropriate than a denial for lacking good moral character.

Fraudulent admission . Examine for evidence of past fraud in the immigration process regarding the applicant’s status and the dependent’s status. The applicant may have obtained admission as a lawful permanent resident through a fraudulent marriage. The applicant may have concealed the marriage and entered as an unmarried son or daughter. You may discover this fact when, reviewing the birth certificates of the applicant’s children, you discover that he or she was married at the time of immigration as a second preference unmarried child of an alien resident (P22/F24). Or, when reviewing the N-400, you see that the applicant is now claiming a spouse that appears to make his or her admission as a permanent resident invalid. If he or she acquired permanent residence through an employment-based petition, he or she may never have met the requirements of the petition. The applicant may have obtained lawful permanent residence through a fraudulent legalization application. If a fraudulent admission is established, you may deny the natura lization application pursuant to section 318 of the Act because the applicant was not lawfully admitted for permanent residence. Detailed discussions concerning the above are found in Chapter 74.2, question (1) part (C) , Immigration Status .

The following example emphasizes the importance of examining the validity of the applicant’s status at the time of his/her entry into the U.S.

The following is a summary of the United States Court of Appeals, Ninth Circuit’s decision involving an alien that fraudulently entered the United States as an unmarried son of a legal permanent resident alien.

On October 19, 1984, Raymoundo Montilla Bernal immigrated to the United States, representing himself to be the unmarried son of a lawful permanent resident alien. As it turned out, however, Mr. Bernal had previously married Girlie M. Marty, a citizen of the Philippines, in a civil ceremony in the Philippines on November 16, 1980. The ceremony was performed by the Municipal Mayor of Subic. The marriage was attended by the couple’s parents and was witnessed by them. It was also recorded in the municipal regis try of the city of Subic.

On November 20, 1989, Mr. Bernal applied to become a naturalized citizen of the United States. During his naturalization interview conducted on May 24, 1990, Mr. Bernal stated under oath to the INS examiner that he had not been married in either a civil or a religious ceremony before immigrating to the United States in 1984. In his application for naturalization, he noted that he was married to Girlie M. Marty in the United States on June 3, 1986 in a ceremony in the United States.

Mr. Bernal gave false testimony under oath before a naturalization examiner. During Mr. Bernal’s naturalization examination, he was sworn under oath. Under oath, he misled the INS officer about his marital status at the time of his immigration to the United States. The INS officer recorded Mr. Bernal’s pertinent answers on the interview form and annotated the form in red ink. The officer noted that Mr. Bernal “claims no other wives: subject states he was single and not married in either a religious or civil ceremony prior to immigrating to the U.S.A. in 1984.”

On January 13, 1991, the INS issued an order to show cause charging Mr. Bernal with deportability for being within a class of aliens excludable at the time of entry. The INS charged that Mr. Bernal’s immigrant visa was obtained by fraud or by willful misrepresentation of a material fact concerning his marital status.

In order to be eligible for suspension of deportation, an applicant must be physically present in the United States for seven years prior to the issuance of a notice to appear and must show “good moral character” for the seven-year period. For purposes of the INA, an applicant cannot be regarded as a person of good moral character if “during the period for which good moral character is required to be established,” the applicant gave “false testimony for the purpose of obtaining benefits under this chapter.” 8 U.S.C. § 1101(f)(6).

The IJ found Mr. Bernal had immigrated to the United States by falsely representing himself as an unmarried child of a permanent resident alien. The IJ concluded that Mr. Bernal could not demonstrate good moral character for the required seven years in light of his false testimony before the naturalization examiner in 1990. The IJ denied Mr. Bernal’s application for relief from deportation and for voluntary departure and ordered him deported. Upon appeal by the applicant, the 9 th Circuit Court subsequently upheld the IJ’s decision.

Note that this whole case rested on the adjudicator asking proper questions and making proper annotations on the N-400.

When the adjudicator carefully conducts the examination and properly annotates the N-400, the USCIS has more objective evidence that can be used in any subsequent legal challenge.

For the complete decision please see Bernal v INS , 154 F.3d 1020 (9 th Cir. 1998).

• Legalization or Special Agricultural Worker (SAW) fraud . The legalization regulations at 8 CFR 245a.3(n)(4(ii) and 8 CFR 245a.4(b)(23)(iv) permit information contained in granted legalization files (W16 and W26) to be used at a later date to make a decision on a naturalization application. Naturalization may be denied if the applicant fraudulently gained lawful permanent residence through a legalization application USCIS can establish was fraudulent. You may not use information contained in SAW files (S16 and S26) to make a decision on a naturalization application . 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. Further, Matter of Masri , 22 I&N Dec. 1145 (BIA 1999) states the following:

“Information provided in an application to adjust an alien’s status to that of a lawful temporary resident under section 210 of the Act is confidential and prohibited from use in rescission proceedings under section 246 of the Act, or for any purpose other than to make a determination on an application for lawful temporary residence, to terminate such temporary residence, or to prosecute the alien for fraud during the time of application.”

However, the fact that an applicant was a SAW does not preclude you from questioning that applicant about his or her SAW status and from denying the application based on your findings. A direct admission by the applicant during the naturalization examination that he or she never did agricultural work can be used as a basis for denying his or her application. Additionally, indirect evidence that the applicant obtained SAW status fraudulently or did not meet the conditions for obtaining SAW status may be suff icient basis for denial. For example, if a SAW applicant claims her children were born in her country of origin during the qualifying period for SAW eligibility, then the evidence of her children’s birth indicates that she was not physically present in the U.S. during the qualifying period. This evidence is not “information provided in an application to adjust an alien’s status to that of a lawful temporary resident under Section 210,” hence it can be used as a basis for denial. A detailed discussion on thi s topic is found in Chapter 74.2, question (1) part (C) , Immigration Status .

• Future fraud . Examine for the possibility of future fraud regarding additional beneficiaries never before claimed or acknowledged. Sometimes, in anticipation of obtaining citizenship and the ability to quickly sponsor children on I-130 petitions, some applicants claim relatives on their N-400 who are not their children in the belief that this will facilitate the process. If an applicant also orally testifies to this claim in addition to listing relatives who are not actually his or her children, then this constitutes f alse testimony for the purpose of obtaining benefits under the Act (in this case, a benefit for a relative), and is grounds for denial of the naturalization application.

74.1 General Information and Introduction to Form N-400

74.2 Part-by-Part Discussion of Form N-400 Data

74.2(a) Part 1: Information About You

74.2(b) Part 2 of the N-400

74.2(c) Part 3 of the N-400

74.2(d) Part 4 of the N-400

74.2(e) Part 5 of the N-400

74.2(f) Part 6 of the N-400

74.2(g) Part 7 of the N-400

74.2(h) Part 8: Allegiance to the U.S.

74.2(i) Part 9 of the N-400

74.2(j) Part 10 of the N-400

74.2(k) Part 11 of the N-400

74.2(l) Part 12 of the N-400

74.3 Closing Actions