Sunday, January 17, 2010

Ortega v. Holder: Declaration of nationality

Individuals can file an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. section 1503(a). In an action for a declaration of nationality pursuant to 8 U.S.C. section 1503(a), district court's grant of the government's motion to dismiss for lack of subject matter jurisdiction is reversed and remanded as the language of section 1503(a)(1), read within the context of section 1503(a) and also read in conjunction with related provisions of Title 8, makes it clear that Congress intended individuals to pursue one of two routes to establish claims for nationality.

No. 08-3642 (01/15/2010):

Ortega v. Holder (Ripple)
Oral Argument | Full Text

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Wednesday, January 28, 2009

Direct Filing N-400 Application for Naturalization

The Direct Mail Program for Form N-400, Application for Naturalization, took effect on January 22, 2009. As of that date, all nonmilitary applicants must submit Form N-400, and any related supplements, to one of two lockbox addresses, based on where the applicant resides. N-400s will be processed by the National Benefits Center, which will complete national security checks, conduct various processing steps, and maintain applicant files waiting for adjudicative interview by USCIS field offices. Previously these tasks were performed by the USCIS service centers.

Applicants who reside in: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, or the Northern Mariana Islands must submit Form N-400 to:

U.S. Postal Service Address:
USCIS Lockbox Facility, USCIS
P.O. Box 21251
Phoenix, AZ 85036

Private Courier (non-USPS) Address:
USCIS, Attn: N400
1820 E Skyharbor Circle
S. Floor 1, Phoenix, AZ 85036

Applicants who reside in: Alabama, Arkansas, Connecticut, Delaware, DC, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, or the U.S. Virgin Islands must submit Form N-400 to:

U.S. Postal Service Address:
USCIS Lockbox Facility, USCIS
P.O. Box 299026
Lewisville, TX 75029

Private Courier (non-USPS) Address:
USCIS, Attn: N400
2501 S. State Hwy 121, Bldg. 4
Lewisville, TX 75067.

USCIS will only forward incorrectly filed N-400s to the correct location for 30 days after the effective date of the change. After this 30-day period, the agency will reject cases that are not filed according to the new policy.

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Wednesday, October 8, 2008

Citizenship, Acquisition and Derivation, Child Citizenship Act

Citizenship: Acquisition and Derivation.

(a) Introduction. (revision dated 07/18/2005) In addition to the naturalization process, the United States recognizes the U.S. citizenship of individuals gained through other means. A Certificate of Citizenship documents citizenship that is obtained other than through birth in the United States or naturalization under section 310 of the Act.

Form N-600 Application for Certificate of Citizenship is used to request the Certificate of Citizenship provided for in section 341 of the Act. Form N-643 was created after Congress provided for the naturalization of adopted children in 1986. The Child Citizenship Act of 2000 (CCA), P.L.106-395 , became effective on February 27, 2001 and led to revisions to the forms to apply for Certificates of Citizenship.

Application and petition forms, and documents issued to support an application or petition, such as Form I-130 Petition for Alien Relative, labor certifications, Form DS 2019, medical examinations, affidavits, formal consultations, letters of current employment and other statements, must be submitted in the original unless previously filed with USCIS. Official documents issued by the USCIS need not be submitted in the original unless required by USCIS. Unless otherwise required by the applicable regulation or form's instructions, a legible photocopy of any other supporting document may be submitted. (This paragraph added 07/18/2005.)

USCIS may, at any time, request submission of an original document for review. The request will state a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying application or benefit. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an origi nal document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document by submitting a properly completed and signed G-884 to the adjudicating USCIS office. (This paragraph added 07/18/2005.)

Please note that it is up to the applicant to establish eligibility for the Certificate of Citizenship. In general, issuance of the certificate provides evidence of U.S. Citizenship vested in the applicant. Denial of an application does not necessarily mean that the applicant is not a citizen. The evidence submitted in support of the application may not have been sufficient. Proper evidence may establish otherwise.

(b) Definition of Child for Naturalization and Citizenship . The definition of “child” for naturalization and citizenship is more restrictive than that used for immigration or adjustment of status. The definition for child as used in naturalization and citizenship (Title III) is found at section 101(c) of the Act. This definition does not include stepchildren. Adopted children are provided for when they are included specifically in any section of the INA that applies to citizenship. Before February 27, 2001, section 321of the Act governed citizenship for children born out of wedlock.

Legitimation is a concern when determining acquisition or derivation of citizenship. You must also be aware of the specific rules requiring the child’s legitimation under section 101(c) of the Act and determine the citizenship status of the father. If the natural father was a citizen at the time of the child’s birth, then section 309 and section 301 of the Act may apply, depending on the child’s date of birth.

Generally, the child must be legitimated while under 16 years of age, unless another section of the Act refers to a specific age. For example, under section 309 of the Act, the child needs to be legitimated by his or her father before age 18.

(c) “Acquisition” of U.S. Citizenship . Prior to the effective date of the CCA (February 27, 2001), “acquisition” referred to citizenship acquired at birth. The relevant statutory provisions dealing with acquisition are section 301 , section 303 , section 309 , and section 324 of the Act. You will find Naturalization Charts 1 and 2 (at Appendix 71-1 and Appendix 71-2 of this field manual) helpful in adjudicating acquisition claims.

Sections 301 and 309 of the Act provide for citizenship at birth.

Section 320 of the Act, as amended by the Child Citizenship Act, provides that the child “acquires” citizenship when certain conditions are met. Section 320 will be discussed under the “derivation” of citizenship, as it more closely resembles derivation statutes.

Section 324 of the Act provides for reacquisition of citizenship under certain conditions and was amended in 1994 to provide for the reacquisition of citizenship by certain section 301 citizens.

(1) Sections 301 and 309 of the Act . Form N-600 is used to apply for a certificate of citizenship when citizenship is acquired at birth under section 301 and section 309 of the Act. When adjudicating applications under these sections, the Act and conditions that exist at the time of birth of the applicant govern. Because these sections have been modified extensively over the past century, officers adjudicating these applications must be familiar with the Naturalization charts, with the issues that are covered in the Interpretations and changes in terminology through public laws. For example, P. L. 104-51 changed the term “illegitimate” to “out of wedlock” in section 101(b)(1)(D) of the Act.

Children Born in Wedlock. The provisions of section 301 of the Act have governed the acquisition of citizenship at birth by children born in wedlock since 1952. Prior laws and statutes are extensively covered in the Interpretations. Most issues that have arisen pertain to cases where only one parent is a U.S. citizen and the other is an alien. Keep in mind the definition of child and that stepchildren are not eligible for citizenship through this process.
Children Born Out of Wedlock. Prior to the Act of October 1, 1978, children born out of wedlock acquired citizenship through the mother if the mother had resided in the U.S. for one year. To acquire citizenship through his or her father, a child born out of wedlock needed to be legitimated or to meet other requirements depending upon when the child was born and when the child turned 16, 18 or 21. It should be noted that section 309 of the Act provides that section 301 of the Act applies to a child born out of wedlock when citizenship is claimed through the father. Therefore in adjudicating an application under section 309, it is not enough to establish that the father meets the requirements stated in section 309(a) or section 309(b) of the Act. Once it is established that the father and child qualify under section 309(a) or 309(b), the father must then establish that he had the required physical presence and residence under section 301(g) of the Act at the time of the child’s birth.


The general requirements for “Acquisition” are:


• Citizenship: The parent must be a citizen of the United States at the time of the child’s birth.
•Residence and Physical Presence: The Act has consistently required residence and physical presence in the United States or outlying possessions prior to the birth of the child. Officers should be aware that the definition of outlying possession has not been constant. For example, the Philippines were considered an outlying possession from 1899 to July 4, 1946. See section 101(a)(29) of the Act. Currently, the Act defines outlying possession as American Samoa and Swains Island.

Officers should also review section 301(g) of the Act for the conditions under which time spent outside the U.S. as a member of the military or working for certain U.S. government or international organizations may qualify as residence and physical presence in the U.S.

• Certificate: If approved an “AA” or “AB” certificate is issued. The date of citizenship is the birth date of the applicant.
• Retention Requirements: Until the Act of October 1, 1978 U.S. citizens who had acquired citizenship through birth outside the U.S. to one U.S. citizen parent had to meet residence and physical presence requirements in order to retain U.S. citizenship. Although the Act eliminated retention requirements for those born after 1952, it may be possible that a person born in 1952 and subject to the provisions of the 1940 Act would have failed to retain citizenship. For those born before 1952, consult Interpretation 301.1(b)(6) for a com plete discussion of the retention requirements.

(2) Section 324 of the Act: Resumption of Citizenship . The Act of October 24, 1994, Pub. L. 103-416, amended section 324 of the Act effective April 24, 1995 to provide that an alien who was formerly a citizen under section 301 or a preceding statute, but had failed to meet the retention requirements and had lost citizenship, could regain citizenship by taking the oath of allegiance. Section 324 does not change the period of time during which the person was considered an alien. Children born to such a person during the time they were not a citizen are considered to be born to an alien parent. Upon approval of an application under Section 324(d) the effective dat e will be the date of oath. The N-600 should be noted with the period of time that the applicant was not to be considered a citizen.

In preparing the Certificate of Citizenship (“AA” or “AB”) for such an applicant the following shall be noted on the Certificate:

• The effective date of citizenship is the date of oath. The date of citizenship must be marked with an asterisk.

• The reverse side of the certificate shall be endorsed in clear bold type : “(applicant’s name), a citizen of the United States by birth, from date of birth (DOB), to the present, excluding the periods of noncitizenship from to .”

(d) “Derivation” of U.S. Citizenship . Prior to the enactment of the CCA on February 27, 2001, “derivation” applied to citizenship that is obtained through an action after birth, such as naturalization of a parent. Derivation statutes are section 320 and section 321 of the Act in effect prior to Feb 27, 2001(see Appendix 71-6). You will find Naturalization Chart 3 (at Appendix 71-3) helpful in adjudicating derivation claims.

Because of changes in the Act, officers adjudicating these applications must have available to them prior sections 320, 321, and 322 of the Act. Applications for Certificates of Citizenship may deal with events that occurred prior to the current law, and officers must be aware of the prior standards for acquisition or derivation. The Interpretations will most often provide guidance on such issues as residence and physical presence. It should be noted that the Interpretations section 320 also covered prior s ection 321 and should be referred to when needed in cases involving derivation prior to the CCA.

(1) Child Citizenship Act, Pub. L. 106-395, Revised Section 320 of the Act . The Child Citizenship Act (CCA), effective February 27, 2001, amended section 320 of the Act and removed section 321. Although the CCA uses the term “acquires,” it is sufficiently similar to sections 320 and 321 in effect before February 27, 2001 to be considered a derivation statute. Officers adjudicating applications filed after February 27, 2001 should review the regulations at 8 CFR 320 which were published after the implementation of the CCA. The revised section 320 became the only method for children in the U.S. under the age of 18 to acquire citizenship. See also Appendix 71-7.

The CCA applies to adopted children and certain foreign-born natural children. A child adopted by a U.S. citizen parent is eligible for the CCA if the child satisfies the requirements applicable to adopted children under section 101(b) of the Act, including children described in section 101(b)(1)(E) and section 101(b)(1)(F) of the Act.

The CCA also applies to children who meet the requirements of section 101(c) of the Act. This includes unmarried children born in wedlock and legitimated children. An alien child who was born out of wedlock and has not been legitimated is eligible for derivative citizenship when the mother of such a child becomes a naturalized citizen under section 320 and 322 of the Act. Section 321 , in effect until February 26, 2001, had a specific reference to children born out of wedlock who were not legitimated.

A child of a naturalizing parent is also covered by the CCA provided that the child meets the definition of section 101(c) or section 101(b)(1)(E) or (F) of the Act. The CCA only requires one U.S. citizen parent to confer automatic citizenship. The naturalization of a single alien parent, regardless of his or her marital status or the immigration status of the other parent, is sufficient for a child to be eligible for citizenship under CCA.

The CCA applies to children residing in the U.S. pursuant to a lawful admission for permanent residence. Children who had previously been granted lawful permanent residence but were outside the U.S. temporarily on February 27, 2001 became citizens upon their return to the U.S.

For children who acquired citizenship on the date the CCA went into effect, the Certificate of Citizenship reflects February 27, 2001 as the date of acquisition. Children whose date of citizenship is February 27, 2001 are those who were still under age 18 and who met all the other requirements of section 320 of the Act (i.e., lawful permanent residence, living with and in the legal and physical custody of the U.S. citizen parent) on February 27, 2001.

After February 27, 2001, the date reflected on an individual’s certificate of citizenship will be the date when the last requirement needed to acquire citizenship automatically under section 320 of the Act is met. This date can be either:

• the date on which an alien parent of a qualifying child naturalizes, or
• the date on which a qualifying child is lawfully admitted for permanent residence, or
• if adopted, the date on which a qualifying child, who has been lawfully admitted as a permanent resident, has been finally adopted by a U.S. citizen or had such an adoption recognized by the state where the child resides.

Upon approval of the application the applicant is issued an “A” certificate.

(2) Derivation prior to the enactment of the CCA (before February 26, 2001) . Until the effective date of the CCA (February 27, 2001), derivation was dependent upon the naturalization of a parent. Prior to February 27, 2001, section 320 of the Act applied to a child who was born to a U.S. Citizen parent and an alien parent, while section 321 of the Act applied to a child born in wedlock to two alien parents and a child born out of wedlock to an alien mother (See old sections 320 and 321 in Appendix 71-6 of this field manual). Over the years, the citations concerning adopted childre n changed. Be sure to review the dates of adoption and the law in effect at the time. See Interpretations 320.1(d)(1), Interpretations 320.1(d)(1)(2) and Interpretations 320.1(d)(1)(3).

• Requirements: The basic requirements for both sections were the naturalization of an alien parent or parents, as applicable, the lawful admission for permanent residence of the alien child, and the satisfaction of these and any other statutory requirements before age 18. Since the order in which the requirements were satisfied was not stated in the statute, as long as the applicant meets the requirement of the statute before age 18 the applicant derives U.S. citizenship.

The exception was an adopted child during certain time periods. Therefore, for example, under the prior INA section 321(a)(3), citizenship would be derived when a divorce occurred after naturalization of one parent and the naturalized parent obtained legal custody of the child. The date of derivation would be the date of divorce.

• Legitimation and Legal Custody: Although the common application was based upon the naturalization of two alien parents, two important issues when adjudicating claims for derivation under section 321 of the Act are legitimation and legal custody. Section 321 allowed derivation when the two alien parents had a legal separation and the parent having legal custody naturalized. Interpretations 320.1(a)(6) contains a discussion of legal custody and legal separation which were valid for certain time periods. Officers should become familiar with the law of the states in their office’s jurisdiction with respect to legal custody. Generally, legal custody is custody granted by a competent governmental authority or by a statute. See also the current definition of legal custody in 8 CFR 320.1 and 8 CFR 322.1.

Provided all other statutory requirements are met, a child whose paternity has not been established by legitimation before the age of 16 may derive citizenship through the mother (see section 101(c) and section 321(a)(3) of the Act) . Remember that the age for legitimation has varied over the years from 16, 18 or 21 depending on the period and statute in effect.

Early volumes of the published decisions contain many decisions on legitimation and foreign legitimation. You may also consult the Foreign Affairs Manual or inquire with the Library of Congress if there are questions that still need to be resolved regarding the legitimation requirements of a particular country. Check the Library of Congress opinions on the Intranet before sending a request for an opinion. See Chapter 14.10 of this field manual regarding procedures for requesting Library of Congress research .

• Date of Citizenship: The date of citizenship for most applicants will be the date of the last action to occur before age 18. This will be one of the following:

– naturalization of parent(s).

– legal custody when there has been a legal separation.

–death of an alien parent when the other parent has naturalized

–naturalization of a surviving parent

– lawful admission for permanent residence.

For an adopted child, the date of citizenship will be the date of naturalization for the adopting parent if the other conditions are met.

(3) Other Persons Eligible for Certificates of Citizenship . The CCA amended section 322 of the Act to cover foreign-born children not eligible under section 320 of the Act who are residing outside the United States with a United States citizen parent.

Note: Until the Form N-600K, Application for Citizenship and Issuance of a Certificate under section 322, is available, a parent seeking naturalization for a foreign born child under this section may apply on the Form N-600; parents of an adopted child may also use Form N-643.

In order for a child born and residing outside the United States to acquire citizenship under section 322 of the Act, the United States citizen parent must apply for naturalization on behalf of the child. (See Appendix 71-7 of this field manual and 8 CFR 322.)

As of November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act, P.L. 107-273, amended section 322 of the Act to allow the addition of U.S. citizen grandparents and U.S. citizen legal guardians as eligible to apply for naturalization on behalf of a child born and residing outside the United States. Under this amended provision, application by the U.S. citizen grandparent or U.S. citizen legal guardian can be made within 5 years of the death of a U.S. citizen parent of a child who could otherwise have been the beneficiary of an application pursuant to section 322. The law does not authorize applications pursuant to section 322 by any person other than a U.S. citizen parent except in cases in which a U.S. citizen parent has died. (See Appendix 71-8 of this field manual.)

The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance. The naturalization process for such a child cannot take place overseas. The application is filed with the U.S. office where the child and applicant wish to appear for the interview. The U.S. office reviews the application, and if it appears to be approvable, will send the applicant and the child an appointment notice. The appointment letter should be taken to a U.S. Consulate or the consular section of a U.S. Embassy in order to obtain a nonimmigrant visa for the child, if a visa is required for entry. The child may be admitted under any nonimmigrant classification. “Admission” is defined under section 101(a)(13) of the Act; “parole” is not considered an admission. (See also 9 FAM 41.31 Note 11.6).

You will need to determine if the child is maintaining lawful status. A child is considered to have maintained lawful status if his or her nonimmigrant classification has not expired or been revoked if he or she has not violated the terms of his or her visa.

If the child qualifies under section 101(b)(1)(E) of the Act as having been adopted and has been in the legal custody and resides with the U.S. citizen parent for two years, documentation establishing the legal custody and residence must be submitted with the application. If the application is based upon a child as defined in section 101(b)(1)(F) of the Act, the application must be supported by an approved Form I-600 or evidence that the child has been admitted for lawful permanent residence with the immigr ant classification of IR-3 or IR-4.

Particular care should be taken to ensure that the U.S. citizen parent or U.S. citizen grandparent has the required residence and physical presence in the United States to transmit citizenship. Unlike in other sections of law, the U.S. citizen’s grandparent’s residence could have been before or after the birth of the child and application. Assuming the alien child meets all other requirements of section 322 , an alien child remains eligible after the death of the citizen parent's own citizen parent, so long as the citizen parent's own citizen parent met the physical presence requirement in section 322(a)(2)(B) at the time of death. (See LINK) to Policy Memorandum 94, dated April 17, 2003, "Effect of Grandparent's Death on Naturalization under INA Section 322.")

A child becomes a citizen under section 322 of the Act as of the date of the approval of the application and the takes the oath of allegiance, unless the oath is waived due to young age. The application must be approved and the oath taken before the child reaches his or her 18 th birthday. The child will receive an “A” certificate.

(e) Filing the Application and Initial Processing . Forms N-600 and N-643 are filed with the USCIS office in the United States having jurisdiction over the place of residence of the applicant. Overseas applicants may file the application with any office of the USCIS within the United States.

Upon receipt of the form, the application must be examined to assure that it is complete, presents a prima facie case of eligibility for the issuance of a certificate of citizenship and has the required fee and photographs. Applicants must submit any additional documentary evidence necessary to support their citizenship claim. Any document in a foreign language requires an English translation.

Further clerical operations will be necessary: obtaining or creating the applicant’s “A” file, verifying the naturalization of parent(s), verifying the military service of a parent, securing additional necessary documentation and other related files.

Former Form N–601, Status N-600 Application, was the processing worksheet for all N–600 cases. The N–601 has since been eliminated, but is exhibited in Appendix 71-9 to provide elements for a locally developed processing worksheet. Offices should use either Form N–601 or a locally developed processing sheet to record the status of the application. The processing sheet shall be maintained on the right side of the A-file.

You will need to determine if an interview is required. See 8 CFR 341.2(a)(1) to determine if the interview can be waived. All applications for certificates of citizenship filed under section 322 of the Act require an interview with the applicant and the child. See also Appendix 71-7 of this field manual.

• N-643 waiver of child's appearance: If the child is under 14 years of age on the date of the scheduled interview, and there are no circumstances in the case giving rise to the suspicion that the child is an impostor, or has abandoned residence in the United States, the child shall not be required to appear before an officer if the parent or guardian is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2, and to identify a photograph of the child as that of his/her son or daughter. If the child’s appearance before the officer in connection with the N-643 application is waived, the oath requirement shall be regarded as also waived, and the words "oath and personal appearance waived" shall be noted in the report section provided on Form N-643.

• N-600 waiver of child’s appearance: When the person(s) through whom citizenship was acquired or derived is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2 and to identify a photograph of the child as that of his son or daughter, the child's appearance before the officer in connection with the N-600 application, and the oath requirement in his case, shall be regarded as waived as long as there is no suspicion that the child is an impostor and no other s uch consideration.

(1) Initial Documentation . The documentary evidence in support of the N-600 application is not required if such evidence is available for use in other files. The instructions of the Form N-600 state that if the required documents are available, you should request the file to obtain them before asking the applicant to submit duplicate copies.

An unexpired United States passport issued for 5 or 10 years is now considered prima facie evidence of U.S. citizenship. Because it does not provide the actual basis upon which citizenship was acquired or derived, the submission of additional documentation may be required or the passport file may be requested. If after review there are differences or discrepancies between the USCIS information and the Passport Office records which would indicate that the application should not be approved, no action should be taken until the Passport Office has an opportunity to review and decide whether to revoke the passport.

If the applicant indicates that he or she did apply for some sort of documentation from the State Department, you may send a completed Form N-602 to the Director of the Washington District office. Clearly describe the document requested. Similarly, if documents requested are unusual in nature, they should be described in reasonable detail. Furthermore, if there appears to be a question concerning the legitimacy of the applicant, the validity of his parents’ marriage, or some other matter which may be expect ed to be resolved upon the basis of the documents requested, this fact should be appropriately stated in Form N-602. If there is some reason to believe that the applicant or parent has expatriated, briefly explain the facts on the form. You may attach supplementary sheets if there is not enough room on the Form N-602. Washington Investigations will verify the information or document requested with the Department of State. You should review the Foreign Affairs Manual Volume 9 Appendix C to determine the avai lability of documents from the applicant’s country of birth. The manual can be found on the Internet at:

http://foia.state.gov/FAMDIR/fam/fam.asp

A record of admission on Form I-94 may have been created during the period that retention requirements existed for some U.S. citizen children born abroad. These Forms I-94 are maintained in Headquarters Records for a United States citizen born abroad and entering the United States for the first time. Many are stored on microfiche and microfilm; in 1983, HQ Records started automating the I-94s. To request information about these files, you will need to send a fax to the Office of Records Management Certifica tion Unit at (202) 305-1737. You will need to include the name of the person or applicant, the date of birth, date of entry and the Form I- 94 number or admission number.

(2) Assumed name/Signature . When the applicant has assumed, or is known by a name other than a true name, but has not changed the name in accordance with the law of the jurisdiction where it was assumed, the certificate of citizenship shall be issued in the applicant's true name followed by the words "also known as" and the assumed name. However, in such a case the applicant shall be required to sign only the true name on the certificate and on the photographs submitted with the application. The certificate shall be signed by the ap plicant unless the applicant is a child unable to sign his/her name, in which case the certificate shall be signed by the parent or guardian, and the signature shall read "(insert name of child) by (insert name of parent or guardian, indicating which)."

(3) Assembling the Record of Proceeding . It is required that the officer properly identify and assemble the record material so that the record will be complete, that it may be read without taking the file apart, and that the papers in it are in the same order in every case handled. If an affidavit or sworn statement is taken, or a supplementary report is prepared by the officer to clear up a discrepancy or establishing that a discrepancy defeats the claimed citizenship, this affidavit, statement, or report should be attached to and remain a part of the file.

The order of the various papers shall be, to the extent possible, as follows:

(A) Form N-600 and supplementary sheets.
(B) Officer’s memo(s), if any.
(C) Affidavits or recorded statements taken by officer examining applicant or the person(s) acting in applicant’s behalf
(D) Documents from the applicant
(E) Other evidence, such as verification of naturalization, reports from Department of State

Form N-601 or the processing sheet shall be maintained as the uppermost piece of material on the right-hand side of the A-file.

(f) Adjudicating the Application .

(1) The Interview . Information gathered by the examiner during the review or examination may form a basis for revocation of the basic naturalization, or for criminal prosecution, or a basis of action upon similar applications in later years. You should review every answer in Form N-600, Form N-643, and Form N-600 Supplement A for completeness, accuracy, veracity and understanding by the applicant (or his parent or guardian if he is under 14). Each and every correction or change on the application or supplementary sheets, in cluding changes to improve legibility, shall be consecutively numbered, even though several changes may form a part of a single item within an answer. All changes and the numbers must be made in red ink.

The officer should quickly determine the identity of the person appearing for examination and his competency. The officer must be satisfied before administering the oath (or affirmation) that all persons understand the nature of the oath (or affirmation) and the significance of their testimony and of testifying under oath or affirmation.

The officer and all persons who are to be placed under oath or affirmation shall stand, if physically able, and have his right hand raised during the administration of the oath. The applicant, or his parent or guardian if he is under 14, shall be examined first.

Where it is necessary to develop and explain inconsistencies or discrepancies as a part of the record, every effort shall be made to obtain complete details in the form of a brief summary indicating what the applicant or witness said, rather than the officer’s conclusions, and if the matter is deemed important, a sworn (affirmed) statement shall be obtained. (See Chapter 15.6 of this field manual)

All documents shall be carefully examined and all persons interviewed with regard to all of the matters bearing on not only whether citizenship was derived or acquired as claimed but also whether the applicant is currently a citizen of the United States. In cases in which primary documentary evidence cannot be obtained, secondary evidence may be used.

The examination should cover such matters as identity and relationship; marital history; legitimacy or legitimation, where material; residence of the person(s) through whom claiming, both before and after naturalization; residence and physical presence before the applicant’s birth on the part of the person(s) through whom claiming; retention requirements; and expatriatory acts, including, where women are concerned, loss of citizenship by marriage to an alien.

Allegations as to naturalization may be supported by the Naturalization Certificate. If the certificate is unavailable or suspect, the allegations shall be checked against the relating file, other USCIS records, court records, or other verification of naturalization, and a determination made regarding whether the record of naturalization found relates to the applicant’s case.

Full details shall be set out for each link in the chain of citizenship for both the applicant and the person(s) through whom citizenship is claimed, and all elements essential to such citizenship shall be proved. Where a parent is a non-citizen national of the United States and that status is material to the applicant’s claim, this element shall also be fully developed.

Keep in mind the definitions of the terms “United States” and “outlying possessions” under the applicable section of law and clearly distinguish between “residence” and “physical presence” where necessary. (See section 101(a)(38), section 101(a)(29) and section 101(a)(33) of the Act).

All essential information furnished by the applicant or the person acting in his behalf which cannot be inserted in the application shall be made a part of the record by a separate detailed statement under oath or affirmation from the applicant or that person. If the nature and extent of military service in the Armed Forces of the United States are material to the claim of citizenship, Form N-426, or DD Form 214 issued to personnel at the time of discharge, shall be used to verify the information, unless th e verification relates to a person on active duty with the armed forces. In such event, a certification from the serviceman’s commanding officer, satisfactory in form and content, may be accepted.

(2) A Review of a Number of Important Data Elements on the Forms .

• PRC Number : Check the information on the Permanent Resident Card (PRC), if any, with the information in the appropriate box on the application and against the file number. This may reveal that a new file may have been created upon receipt of the application, even though an A-file previously existed. The examining officer must determine whether files should have been consolidated.
• Name : The applicant’s present full, true and correct name without abbreviation (and maiden name, if any) shall be shown. Any variation in name from that which is supported by the documents available shall be explained as part of the record.
•Birth data : The date and place of birth are especially important when derivation is through a parent, as they bear materially on identity of the applicant, legitimacy, requisite age to derive or retain citizenship, and relationship. They may also be material factors in considering whether particular conduct resulted in expatriation. The date of birth must be accurate and must be checked against all data in the file, such as the birth certificate, visa or other record of entry data, and alien registration record. Tran slations should be checked if possible with regard to dates, against the document translated, since translators may mark down an incorrect date in the translation. Where the date of birth is material, any variation in the record shall be fully explained as a part of the record and the examiner’s conclusion regarding which date is correct shall be supported by a memorandum containing his reasoning.
• Arrival data : Allegations regarding arrival shall be checked against arrival data in the file. If the applicant traveled on a United States passport and was admitted as a United States citizen, the passport number, together with the date and place of issuance, shall be shown.

If a lawful admission to the United State for permanent residence is material to the applicant’s citizenship, the officer must determine whether applicant’s entry constituted such an admission; whether the visa or record verified relates to the applicant; and whether entry on that date brings the applicant within the terms of the relevant statute. If retention requirements are applicable, the officer shall also determine whether they have been satisfied so far as timeliness of entry into the United States a nd residence or physical presence are concerned.

If the applicant claims United States citizenship at birth (“AA” or “AB” certificate), but was admitted to the United States as an alien, the facts shall be fully developed, particularly to ascertain whether expatriation has occurred. The explanation shall be included in a sworn (affirmed) statement made by the applicant, or, if time does not permit the taking of a statement, a memorandum shall be prepared by the examining officer setting forth the applicant’s explanation. Such sworn (affirmed) statement or memorandum shall be made a part of the record. If it appears the State Department has a relating file which should be consulted, a report indicating what the file shows should be obtained and included in the record.

When the applicant arrived before July 1, 1924, and lawful admission for permanent residence is material, the information set forth should be compared with data in official verifying records to determine that the record of arrival found relates. The verifying record should be carefully checked against data supplied by the applicant, since it may reveal discrepancies as to name, age, parentage, absences of parents or a prior application, possibly of another person, on which the same arrival record was used. Material discrepancies shall be explained in a memorandum made a part of the record, and where the discrepancies indicate possible fraud, a sworn (affirmed) statement should be taken and made a part of the record.
• Absences : The information in this item is essential to determining whether the applicant may have expatriated, or whether there was a failure to comply with applicable retention requirements. The date of an absence may be significant in itself if it occurred during a war period when service in the armed forces of the foreign state might reasonably be expected to have been performed with expatriative effect. It should be thoroughly explored with the applicant, parent to elicit all relevant facts bearing upon the iss ue. If you have determined expatriation occurred, develop a written summary of the facts.

After admitted absences have been recorded appropriately, the applicant shall be asked whether there were any other absences and, when the information in that respect is complete, the words “No other” shall be written in this space. The word “None” shall be written in the space for this item if there have been no absences.

• Required evidence of residence, physical presence : Documentary evidence of residence or physical presence required for acquisition or retention of citizenship must be submitted. Prior to 1978 records of admissions at ports of entry were often prepared by inspecting officers for United States children born abroad, upon the occasion of their first arrival in the United States. Such arrivals can be verified by consulting Headquarters records.

Public Law 95-432, effective October 10, 1978, repealed the retention requirements of former section 301(b) of the Act. The amending legislation was prospective only and did not restore citizenship to anyone who, prior to October 10, 1978, had lost citizenship by failure to retain it in accordance with former section 301(b) of the Act. The Act of October 10, 1978 also redesignated section 301(a)(1) to (7) as section 301(a) to (g).

Public Law 103-416, effective April 24, 1995, provided that aliens who had lost citizenship by failure to meet the retention requirements could regain their citizenship by taking the oath of allegiance. (See section 324 of the Act.) That provision, though, states that the effect is prospective only and during the period between loss and reacquisition the citizen was an alien. See discussion in section (c)(2) of this field manual chapter.


•Person through whom citizenship claimed : Only one block should be checked.
• Information about parents : The information called for is that relating to the natural or adoptive parents, as pertinent.
•Photographs and name shown on certificate : A person’s name may have been changed by a common law change, which permits the adoption of a name at will, provided it is not done for a fraudulent purpose. In many states, however, the right of common law change has been abrogated, or permitted only before a certain date. When it is found that a person may validly claim a name other than that given at birth, the space for name on the form shall be corrected to show such name other than the name at birth if not already shown. When it cannot be establishe d there has been a change of name by any legally valid method, the “also known as” procedure for including the assumed name in the citizenship certificate should be employed.
• Relating files : Relating files of other family members may be examined in cases where there is only secondary documentary proof, or where there is reason to suspect fraud, or where the relating file contains a document which should be made available to the applicant which bears upon the eligibility of the applicant.
• Prior application : If a prior application was denied, unless the denial was because of a ruling which has since been changed or abrogated, the evidence supporting the new application shall be carefully checked by the examining officer to determine whether it is sufficient to warrant a change in the previous determination. Any change shall be supported by documentary evidence.
•Signature : Be certain the application is properly signed by the applicant if he or she is 14 years of age or older; otherwise by his parent or guardian.
•Affidavit : The affidavit is found at the end of the application. Insert the proper word to designate the person executing the application. Draw a line through the words “and of attached supplementary pages numbered ( ) to ( ), inclusive” if there are no supplementary pages; otherwise, if any answers have been continued on supplementary sheets, number the pages and insert the numbers in the parenthesis.

Number any corrections and insert the numbers in the parenthesis. If there are no corrections draw a line through the words “and that corrections numbered ( ) to ( ) were made by me or at my request.” Make certain that the person executing the affidavit fully understands the allegations and corrections in the application and supplementary sheets before he signs the affidavit.

•Examination of Person(s) Through Whom Claiming and Other Witnesses . A witness shall be called to testify at the examiner’s option only if that person’s testimony is needed to prove a particular point, and only if alternative proof is unavailable or more difficult to produce than the witness.

When required by the examiner, the best witness is usually a close relative of the applicant, since generally such a relative, particularly an older one, is well qualified to testify to the relationship between the applicant and the person(s) through whom citizenship is claimed.

Unless there are material discrepancies, an issue of fact to be resolved, a question of expatriation, possibility of revocation of naturalization, or criminal prosecution, the written testimony of the person(s) through whom citizenship is claimed, or that of the witness(es) is not required. When material discrepancies or other circumstances require that the testimony be taken and recorded (written), a supplemental report clarifying the discrepancies, explaining the circumstances, or establishing that such d o in fact defeat the claim to citizenship shall accompany the application

(3) Supplementary Actions .


(A) Question-and-Answer Statements and Affidavits . When the evidence of applicant’s eligibility or ineligibility for a certificate of citizenship consists largely of testimony rather than of primary or secondary documentary evidence, it is necessary to record the testimony in a sworn (or affirmed) question-and-answer statement, or an affidavit, preferably the former. Such sworn (affirmed) statements shall be taken also where there is a complex or controversial question of fact, as for example, with regard to applicant’s age or identity. (See Chapter 15.6 of this field manual.)

(B) Blood Tests . The burden is upon the applicant to establish relationship to a United States citizen and ordinarily such proof is easily adduced in the form of primary documentary evidence. In many cases this solid documentary evidence is lacking, and although oral evidence may be received in such cases, it may be appropriate to require reinforcement of such evidence with less fallible proof in the form of blood tests. The officer should follow the policy as set forth in Chapter 21.2(d)(1) of this field manual.

(4) Making a Decision . The burden of proof is upon the applicant to establish his right to the certificate.

(A) Review of Evidence. All of the evidence of record must be reviewed to determine whether the applicant has satisfactorily established all the links in the claim to citizenship. Although this is an administrative proceeding not circumscribed by the rules of evidence applicable to judicial proceedings, it should be kept in mind that the record may subsequently be reviewed in judicial proceedings. The decision on the application, therefore, should be supported by evidence in the record of proceeding.

The evidence submitted by the applicant may be primary or secondary. Essential facts relating to birth, death, marriage, and divorce shall be established by official public records, if available. Only if the officer is satisfied that the applicant has made a reasonable but unsuccessful effort to procure such a record, or has official knowledge that it is unobtainable, may the officer accept as sufficient other secondary evidence that the applicant presents.

A document is most valuable when it is a record created contemporaneously with, or reasonably proximate to, the happening of the event recorded. A delayed or nunc pro tunc record created long after the event does not have the evidentiary value that attaches to a record created contemporaneously with the event. Such a delayed record must be shown to be based upon probative supporting evidence. Where the record contains little or no corroborative evidence, the applicant must produce further, more convincing e vidence. Inquiry should also be made not only into the manner in which the delayed record was created, but also into the reasons for the delay. The likelihood that the facts are as alleged should also be considered in relation to all information developed.

(B) Failure to Appear . The notice to appear for an examination shall be given not less than 2 weeks before the scheduled date of interview. If the applicant fails to appear for the examination, or to otherwise explain his/her absence, or does not request an alternative examination or does not respond to Form N-14 within the allotted time, the application shall be denied in accordance with 8 CFR 103.2(b)(13).

(C) Continuing a Case . Form N-14 may be used to request submission of documentary evidence or additional information from an applicant at any stage of the proceedings. The applicant shall be given a date by which to submit the documentation in accordance with 8 CFR 103.2(b)(8).

(D) Approval . Upon completion of the examination of the applicant (or of the person acting on behalf of an underage applicant) if one is conducted, the officer conducting the examination shall complete the affidavit of the application.

If the appearance of the child has been waived under the words “upon personal appearance” shall be stricken from the opening sentence in the “Report and Recommendation on Application.” No conditional or contingent recommendation is to be made therein. The recommendation shown is to be unqualifiedly either to grant or to deny the application.

The delivery of the certificate shall be withheld until the Form I-151/I-551 (PRC) is surrendered. Be sure to obtain PRC, reentry or other Service or USCIS-issued document. If it is alleged such documents were lost or destroyed, the applicant’s (or his parent’s or guardian’s) claim in this regard should be recorded on a lost PRC affidavit, Record of Sworn Statement (Missing PRC).

You must complete the stipulation regarding the manner in which citizenship has been acquired or derived. For example, if the applicant claims citizenship at birth, the item shall reflect the manner in which the person through whom citizenship is claimed acquired citizenship; whether such person was a United States citizen at the time of the applicant’s birth; whether such person resided or was physically present in the United States prior to the applicant’s birth and, where applicable, the period of such r esidence or physical presence. Appendix 71-5 of this field manual contains sample stipulations representative of cases in various categories. These stipulations do not exhaust the factual situation in which citizenship may be derived or acquired, but they are to be used verbatim when appropriate to the case and will serve as guides in drafting other stipulations to meet different factual situations.

(D) Denial . If the application is denied, notice of the denial and an opportunity to appeal therefrom shall be given to the applicant on Form I-292. If the applicant wishes to appeal the denial, he or she must file the appeal within 30 days of the date of the decision with the office that made the original decision. The notice of appeal must be filed on Form I-290B, Notice of Appeal to the Administrative Appeal Office (AAO). The appeal will be decided by the AAO.

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Monday, March 24, 2008

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.

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