Chicago Immigration Court, Deportation and Removal

• Immigration updates-New Legislation
• Supreme Court cases
• Deportation Handbook, 7th Circuit
• 7th Circuit updates: Opinion Summaries for U.S. 7th Circuit Court of Appeals, Aliens, Immigration
• BIA case law summaries
• EOIR Chart: Court Decisions Relating to Board Precedents
• BIA Precedent Table (Revised 3-26-08) BIA cases published from March 30, 1995 to the present.
• Immigration Court Practice Manual: Beginning on July 1, 2008, the Practice Manual will go into effect nationwide, and local operating procedures for immigration courts will no longer be used. The requirements set forth in this manual are binding on the parties who appear before the Immigration Courts, unless the Immigration Judge directs otherwise in a particular case.
• Immigration Judge Benchbook (October 2001 | 542 pages 7.8 MB pdf)
• Relief Pre-IIRIRA/AEDEPA
• Relief from Deportation
• Crimes and Immigration Waivers
• Immigration Consequences of Criminal Activity (CRS Report-updated 10-23-2006)
• Immigration Consequences of Convictions Summary Checklist
• Removal Defense Checklist in Criminal Cases
• Aggravated Felony practice aid
• Immigration consequences of certain Illinois Offenses
• Immigration Defense for Defense Counsel, by Lory Diana Rosenberg. January 2003-August 2004.
• Immigration Handbook (59 pages | 34 MB pdf)
• Submitting I-589, I-485, EOIR-40, EOIR-42A, EOIR-42B with Immigration Court;
• Post-Order Instructions for Individuals granted relief from removal by the Immigration Court.
• Chicago Deportation Phone Numbers & Officer Dockets (10/18/2006-subject to change).

Naturalization application Form N-400

Discussion of Form N-400 (Part-by-Part)

(a) Part 1: Information About You.

(1) Introduction. Part One of the application contains applicant biographic information that you must verify during the examination. In this part of the examination you must determine that the applicant is who he or she claims to be. You must be satisfied that you know to whom you are speaking. You must also establish that the file and all its contents relate to the person before you. Once you are sure of those facts, you must determine whether you have jurisdiction over the application. The information in this section of the N-400 review will help you in these important tasks.

Before beginning your review of the Form N-400, please note that there might be reasons to ask the questions on the form in an order other than that in which they are printed. For example, to the extent that information in Part 1, relating to mailing address, and Part 4, relating to residence and employment, are inter related, it may be preferable to review those sections together.

Prior to beginning any oral examination on the application, you must place the applicant under oath. During the examination, you may also need to ask questions that do not appear on Form N-400, to bring out all the facts that establish the applicant’s eligibility. Before starting the examination, you should inform the applicant that you will ask additional questions about his or her answers on the application. You should also rephrase or repeat questions to the applicant until you are satisfied that he or s he understands your questions or is unable to comprehend English. See 8 CFR 335.2(c) Procedure.

(A) Identification. 8 CFR 103.2(b)(17) states “Verifying claimed citizenship or permanent resident status. The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States will be verified from official records of the Service.”

You must verify an applicant’s identity before examining him or her for naturalization eligibility. In relation to naturalization, identification can be viewed as a three-step process. First, review the applicant’s A-file, paying close attention to personal identifying information and old photographs contained in the file. Second, review the pending naturalization application itself. Ensure that the latest information and photographs on the application match the previous information and photographs containe d in the file. Third, physically verify the applicant’s identity after you have called the applicant into your office but before you begin the examination. You should ask the applicant for any identification documents that he or she has brought to the examination. This documentation should match the information in both the A-file and on the application.

Note: The term identification document means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, when completed with information concerning a particular individual, which is of a type intended or commonly accepted for the purpose for identification of individuals. An officer should consider the identity document(s) satisfactory if the document(s) identify the applicant. See Chapter 51 of this field manual.

(B) Evaluate the Documents. The Examination Notice (Form N-430) directs the applicant to bring his or her permanent resident card and any immigration documents to the naturalization examination. If the case is scheduled in CLAIMS 4, Form I-797C (Request for Applicant to Appear for Naturalization Initial Interview) will be sent to the applicant instructing him/her where to go and what to bring to the examination, including permanent resident card (PRC) and other INS or USCIS-issued documentation. At the time of examination or promptly thereafter, the applicant shall surrender all entry documents in his or her possession for which he/she has no use prior to naturalization, such as an immigrant identification card, border crossing card, certificate of registry or lawful entry, reentry permit, alien registration receipt card (other than Form I-551) or similar documents. Form I-551 shall be exhibited but retained by the applicant until naturalization, at which time he or she must surrender said document. All docum ents surrendered or presented by the applicant will need to be evaluated to make sure that the individual in front of you is the rightful holder of the permanent resident card and not an imposter (See Chapter 17.3 of the Inspector’s Field Manual regarding fraudulent documents). A thorough knowledge of the security features on the current permanent resident cards and knowledge of detection techniques for photo substitutions will help you detect counterfeit and altered cards. DHS provides numerous aids, such as document alerts, to assist you in developing proficiency in this area. See Chapter 32.5 of the Inspector’s Field Manual. When you are faced with a potential imposter, it may also be useful to question the applicant regarding the basis for his or her original immigration or adjustment of status. Codes and explanations of current and past immigrant classifications are included in Appendix 13-1 of the Inspector’s Field Manual. The nationality code included on each permanent resident card can also be helpful in verifying if the bearer is the rightful holder. (See Appendix 13-2 of the Inspector’s Field Manual.)

(2) Review of Part One. There are 6 questions listed in Part One:

• Family name, given name, and middle name ( Question 1 ) • U.S. Mailing Address-Care of, Street Number and Name, Apt. #, City, County, State, and Zip Code ( Question 2 )

• Date of Birth (month/day/year) ( Question 3 ) • Country of Birth ( Question 4 ) • Social Security # ( Question 5 ) • Alien Registration # ( Question 6 )

1. Name (Family, Given, Middle Initial) .


(A) Full, True and Correct Name . The applicant’s full, true and correct name (or legal name) is the name that must be written on the application. The legal name is either: 1) the applicant’s name at birth; 2) the applicant’s name following a legal name change or 3) the recognized, anglicized version of the applicant’s legal name. You must question the applicant and amend the application in red ink to reflect the applicant’s full, true, and correct name without abbreviation. In all cases, you must verify the spelling of the applicant’s na me. An initial is not a complete given name unless it is entered as such on an official birth or legal record. Check the name on the application against the name on the file, PRC, reentry documents, passports, birth certificates or recognized documentation from their prior country, as well as other identification such as driver’s license and social security card. Compare these sources with the applicant’s testimony. The applicant’s name should be a complete full name. The applicant should demonstrate that h e/she has a legal right to use the name he/she is using. If the applicant has no evidence of a name change but believes that his or her name has been changed, indicate that the applicant must have his or her name changed through a naturalization ceremony administered by the court.

An applicant’s legal name may be changed through a formal legal proceeding undertaken specifically to change his or her name. A legal name change may also occur through other legal proceedings, such as annulment or divorce. The Foreign Affairs Manual can be used for guidance as to what would be accepted as a legal document by any given country. See www.foia.state.gov/famdir/Fam/fams.asp?level=2&id=10&fam=0 . Scroll down to 9 FAM appendix C.

In addition, a name change can occur under principles of the common law recognized in some jurisdictions. Marriage, for example, may result in a legal name change absent a court order.

When it appears that a name has been assumed without formal legal proceedings, ask the applicant how and when he or she changed names. Ask the applicant for evidence that his place of residence authorized this change of name. You must then determine whether the appropriate jurisdiction allows for common law name changes, including through common law marriage. If you are not sure, speak with your supervisor or district counsel. Also, see Appendix 21-1 for a list of states recognizing common law marriages and their requirements. Where available, you can do initial research by checking the Internet for the civil procedures of your state. See Chapter 14 of this field manual, Sources of Information/Conducting Research.

If the jurisdiction allows common law name changes, you must then determine the circumstances of the name change to ensure that this was properly done. That name will only be considered the individual’s legal name under common law if adopted for other than illegal or fraudulent purposes. To determine this you should ask the applicant to explain why he or she changed names.

When questioning the applicant about the name, it is essential to ask him/her why, when, and where he/she assumed the name. You should explore the extent and nature of the usage of the assumed name. For example, was the applicant employed and issued licenses under the assumed name, did he/she pay taxes under the assumed name, did the applicant use the name for legitimate purposes throughout an extended period of time? These questions will help resolve any issues. If the name has been adopted for illegal pur poses or to commit fraud, it would not be a name change under the common law. [During this questioning, the applicant may also disclose information pertinent not only to the name issue but also to other aspects of naturalization eligibility. For example, an applicant may have used another name when working “off the books;” this would be pertinent to the questions in Part 7 regarding payment of income taxes. (See Part 7, question 8)]

Please note that a correct Anglicization of a name can be used by a naturalization applicant as their legal name. See Interpretations 334.1(b) for a discussion about names, including Anglicization and name changes. You should use a table of foreign names and titles, and their English equivalents, to determine whether a correct Anglicization is used. If it is not correctly used, then the non-Anglicized name must be used as the legal name on the naturalization application, and in this instance a formal name change petition is necessary.

Once you are satisfied that the name listed in Part 1 is the full, true and correct name, you should use this information as a reference for other areas of testimony. For example, does the name on Part 1 match the name on the most recent marriage certificate? Also, verify the applicant’s signature at the end of the examination (the jurat, found in Part 12 of the application); the signature there should also be the full true and correct name.

The 1991 edition of the N-400 only asked for a middle initial. The current version, however, now requires the applicant to provide his or her full middle name (if any). If there is a change from what is on the N-400 at the time the application was data-entered into CLAIMS 4, you must follow local procedures to update the system, including spelling out the full middle name. See Chapter 72.3 , Step-by- Step Discussion of the Decision Process in this Field Manual. See Chapter 72.3 , Decision, part 4, “Granting an application,” subsection “Naturalization Case Management System.” This will allow the system to print an accurate naturalization certificate, if the applicant is eligible for naturalization.

(B) Name Change . If the applicant wants to change his or her name as it will appear on the certificate of naturalization, then the applicant must petition the court for a name change. You should assist the applicant with preparing the name change petition at the examination. However, USCIS does not have the authority to grant any name changes. See 8 CFR 337.4 and 8 CFR 338.2 .

2. U.S. Mailing Address.

(A) After verifying identity, the first questions you ask should address this issue .

[(b)(2) or (b)(7)(E)]


3. Date of birth .

Section 334(b) of the Act and 8 CFR 316.2 require applicants filing for naturalization to be at least 18 years of age. You should confirm the applicant’s date of birth first with the PRC and file information, and then on a driver’s license or other government or state-issued identification, employment identification, and/or other similar documents. In general, even if other documents support one date, the official date of birth is that recorded on the birth record. If there is a discrepancy between dates that cannot be clearly explained, check wit h your supervisor on which date should be used. You would not usually change a date of birth that is already established in the file unless the applicant presents irrefutable evidence that another birth date is correct. Such cases would include a file where there is clear and convincing evidence that the translation was incorrect, or the applicant’s date of birth was erroneously determined on a calendar different from the Gregorian calendar not calculated on the basis of the standard conversion system. Wher e proof of birth, marriage, divorce or death is required, an official civil record shall be requested; if such proof cannot be produced secondary evidence may be accepted. The applicant may present copies of official records as provided under 8 CFR 103.2(b)(4) and USCIS has the right to request the original as provided under 8 CFR 103.2(b)(5) . If there is doubt as to the authenticity of the record produced, you can verify the information using official records.

You can check document availability in the Department of State’s (DOS) Foreign Affairs Manual (FAM). The FAM is available through the DOS web site. See 9 FAM Appendix F, 700, titled Guides on Proper Names and Name Citing. The address is: www.foia.state.gov/refer.asp


You may encounter cases where the documents (such as refugee processing documents), list the date of birth as “5 Jun, 1973” but when the data was entered into USCIS or on the PRC listed the date of birth as 05/06/1973, (“May 6, 1973”). After verifying the correct date of birth from official records, provided there is a clear discrepancy, you should update the N-400, USCIS and CLAIMS 4 before the naturalization certificate is prepared so that it will reflect the correct date of birth.

You must record any corrections in red ink on the application and in CLAIMS 4 before the applicant is naturalized. The recorded date of birth cannot be changed after naturalization, except to correct a clerical error on the certificate. See 8 CFR 338.5 .

See Interpretations 334.1(c) for the history and a discussion regarding the age of an applicant. See General Counsel Opinion 93-81 regarding an applicant who used an assumed name and date of birth to obtain Permanent Resident status, and sought to resume his true identity during the naturalization examination.

4. Country of Birth.

To determine country of birth, check any available birth certificate, the visa and underlying documents, other documents in the file, and any entry documents such as a passport for information relating to place of birth.

The country of birth and the country of nationality are not always the same. An applicant may have acquired nationality/citizenship in a country other than his or her country of birth. The applicant may hold a passport from the country of acquired nationality/citizenship, and another from the country of birth.

Applicants who have legitimate claims to dual or multiple nationalities must pick one of those nationalities for certificate purposes. You should stress to the applicant that upon taking the oath of allegiance he or she is renouncing allegiance to all former countries of nationality/citizenship, not merely the one listed on the application and certificate.

No one can have “stateless” listed on the certificate of naturalization. In some cases, applicants, such as refugees, may wish to sever all ties or completely disassociate themselves from their country of birth and may not complete this item or respond to your question until you explain that the information is necessary for identification and statistical purposes. See the Oath Ceremony discussion in Chapter 75 of this field manual.

You may encounter a situation where the applicant, asks you to record a different country of former citizenship than the country that issued the applicant’s last passport (e.g., a refugee from the former USSR). As the USSR no longer exists, the “country of last citizenship or nationality” would no longer have that name. The applicant can have their choice of listing the country name that existed when the applicant was born or the current name of the country that includes the place where the applicant was bo rn. For example, an individual who was born in the section of Ethiopia now recognized as the independent country of Eritrea can list either Ethiopia or Eritrea as the country of birth.

5. Social Security Number.

(A) Verify the number on the Social Security Card against any documents in the file, such as previously filed affidavits of support; tax and employment records; financial statements; and identification cards such as a driver’s license. You may also check USCIS to verify the applicant’s Social Security number. If there is a discrepancy, explore it and depending on the circumstances, you may need to contact your supervisor.

6. A Number

(A) The applicant should bring his or her permanent resident card and any immigration documents to the examination. Compare the information on the PRC with information on this line and with the name and number on the file folder. Also check the contents of the file, including the visa packet if there is one, to be sure that there is no other relating file that has not yet been consolidated into the file containing the application. If there is a relating file, you should finish the examination, request the r elating file, and continue the case until you receive and review the relating file. The relating file may contain information that has a bearing on the applicant’s eligibility.

If the applicant claims loss or destruction of Form I-551 or any other entry document, carefully question him or her to determine the validity of the claim. Check the file to see if there is a history of lost Permanent Resident Cards. If you are satisfied that there is no fraud, and that the applicant is not attempting to retain the PRC after naturalization, you should complete the NQP4 affidavit regarding the loss of the I–551 (See NQP4 TOC in Appendix 72-1 ). You do not need to continue the case if you are satisfied that the applicant is telling the truth regarding the loss of his or her PRC. If you believe that the applicant is engaged in fraud, or is not telling the truth, discuss the situation with your supervisor. Local resources may be available to investigate the circumstances surrounding repeated loss of the PRC.

If the applicant’s PRC is about to expire, or has expired, you will need to take additional steps. Please see Chapter 73.1(a) of this field manual concerning Residency: Lawfully admitted as permanent resident, and requirements when the PRC is not available at the time of scheduled initial examination. _________________________________________

(b) Part 2: Basis for Eligibility . (check one)

(1) Introduction to Part 2 . Part 2 of the N-400 should clearly note the section of law under which the applicant is filing his/her application. You should review the case for eligibility under any provisions of the law rather than to deny a case under the strictest provisions of the law. In other words, if an applicant can establish eligibility under any section of law, then you should adjudicate the application under that section of law. If the applicant in ignorance or error overlooked a section of law favorable to him/herself, yo u are responsible for correcting that error.

The applicant bears the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization. See 8 CFR 316.2(b) . Remember, as you examine applicants for eligibility, to conduct the examination so that you determine eligibility under any provision applicable, covering all aspects of eligibility under the appropriate section. For example, if an applicant is not eligible under section 329 but appears eligible under section 319, ask the appropriate questions for that section.

For a complete discussion of the eligibility requirements please refer to Chapter 73 of this field manual.

(2) Filing the Application for Naturalization . The filing date of the application controls the eligibility of the applicant. The date of filing a naturalization application is the date when the application is properly received by the Service Center having jurisdiction, which requires that the application be signed and accompanied by the appropriate fee, 8 CFR 103.7 . The application will be stamped to show the date of actual receipt and unless otherwise specified, should be regarded as properly filed when so stamped, if it is signed and executed and the required filing fee is attached or a waiver of the filing fee is granted.

By statute good moral character must be established throughout the requisite periods of continuous residence in the United States. Issues such as residence and good moral character will be affected by the filing date. Therefore you will need to be aware of the filing date from which to start counting when determining eligibility. If the applicant was not eligible for naturalization at the time of filing, the applicant will continue to be ineligible on any request for a new or de novo hearing. There are two exceptions to this. The first exception is when an applicant’s case is administratively closed because the applicant failed to appear for his or her initial examination and failed to notify the Service or USCIS of the reason for not appearing. If the applicant submits a written request to reopen his or her case within one year, the case will be reopened and the date of the request for reopening will be considered the new filing date. In this situation, an applicant initially ineligible may become eligible u pon reopening. The second exception is when the applicant files an application three months or less before meeting the residence and jurisdiction requirements. See section 334 of the Act.

Section 316(a) of the Act requires the applicant, immediately preceding the filing of the application, to have resided continuously in the U.S. for at least 5 years after having been lawfully admitted for permanent residence. Section 319(a) of the Act requires the applicant, immediately preceding the filing of the application, to have resided continuously in the United States for at least 3 years after having been lawfully admitted for permanent residence. Section 334 of the Act provides that an application for naturalization may be filed up to 3 months prior to the completion of the required period of residence for applicants filing under section 316(a) or 319(a). Even though applicants may file their applications up to three months early pursuant to section 334(a) of the Act, the statutory period must be fulfilled prior to the time of examination. This rule applies to section 316(a) and section 319(a) cases. ( 8 CFR 310.2 ; 8 CFR 316.2(a)(5) ). Only applicants filing under section 316(a) or 319(a) may file 3 months early. An applicant under any other section of law must complete the requisite residency period prior to filing.

(4) Application Based on Having Five Years of Residence in the United States . The N- 400 reads:

a. I have been a permanent resident for at least five (5) years.

(A) Section 316(a) of the Act . Most applicants fall into this category. Eligibility requirements under this section of law are:

• at least 18 years of age • at least 5 years as a lawful permanent resident • continuous residence, no trip of six months or longer that disrupt the continuity of residence • physical presence, at least half the required time (i.e. 30 months under section 316(a) of the Act) • at least 3 months residence in Service District or State • knowledge of English and civics, unless the applicant qualifies for an exception • during the statutory period, has been and continues to be a person of good moral character • during the statutory period, has been and is attached to the principles of the Constitution of the United States and favorably disposed toward the good order of happiness of the United States

For additional information pertaining to the general eligibility requirements for naturalization, see 8 CFR 316 .

(B) Section 316(b) of the Act . This section of the Act provides exemptions to the general physical presence requirements. For specific requirements and guidelines when determining eligibility under this section of law, refer to Chapter 73.3 , Residency: Continuity and Chapter 73.5 , Residency: Physical Presence . See also Appendix 74-24 of this field manual regarding the Form N-470 , “Application to Preserve Residence for Naturalization Purposes”.

(C) Section 317 of the Act . This section refers to the temporary absence of applicants performing religious duties and obligations during the statutory period. For further discussion refer to Chapter 73.3 , Residency: Continuity and Chapter 73.5 , Residency: Physical Presence of this field manual for specific requirements and guidelines when determining eligibility under this section of law. See Appendix 74-24 of this field manual regarding the Form N-470 , “Application to Preserve Residence for Naturalization Purposes.”

(5) Application Based on Being the Spouse of a U.S. Citizen . The N-400 reads:

b. I have been a permanent resident for at least three (3) years and have been married to a United States Citizen for those three years

(A) Section 319(a) of the Act . An applicant whose spouse is a United States citizen may be naturalized upon compliance with all the requirements of Title III except paragraph (1) of section 316(a) if such a person immediately preceding the date of filing his/her application has satisfied the following:

• resided continuously, after being lawfully admitted for permanent residence, within the U.S. for at least three years, and • has been living in marital union with the citizen spouse during the three years immediately preceding the date of filing his/her application, and • the citizen spouse must have been a U.S. citizen for those three years. • been physically present in the U.S. for periods totaling at least half of that time (18 months) and • resided within the State or district in the United States in which the applicant filed his/her application for at least three months.

Public Law 106-386 amended section 319(a) of the Act by extending the benefit of this section to persons who obtained status as a lawful permanent resident by reason of being a spouse or child of who was subjected to battering or extreme cruelty by a United States citizen. For further guidance please see Appendix 74-25 for a copy of Policy Memorandum 89 dated October 15, 2002, “Instructions Regarding the Expanded Meaning of Section 319(a)”.

See Interpretations 319.1 , naturalization based upon citizenship of spouse for a discussion of the history of this provision, and whether the applicant must be married to the same USC, marital union, separations and related topics. For further discussion refer to Chapter 74.2(e) of this field manual, Part 5 of the N-400.

(6) Application Based on Being the Child of a U.S. Citizen . The N-400 reads:

c. I am a permanent resident child of United States citizen parent(s)

(A) Question of Citizenship . For a complete discussion see Chapter 71 : Citizenship: Acquisition and Derivation.

(7) Application Based on Military Service . The N-400 reads:

d. I am applying on the basis of qualifying military service in the Armed Forces of the U.S. and have attached completed Forms N-426 and G-325B

(A) Military Service . In cases involving military service, whether the applicant is or is not applying under a military service-related section of law, you will still have to check his/her military record. For applicants who have ever served, or are serving in the Armed Forces of the United States during the statutory period, you must check their military record. This information can be found in Form G-325B, which should be filed with the naturalization application regardless of what section of law the applicant is applying un der. In cases where the Form G-325B has not been filed, the applicant must complete Form G-325B after the interview and you must continue the case until a response has been received. See Chapter 72.2 on Preparation.


(B) Form G-325B: Biographic Information . Those applicants who have ever served in the armed forces of the United States, must file Form G-325B, Biographic Information. Regardless of what section of law the applicant is applying under, this form must be completed. It is used to confirm honorable service in the military, and will show whether the applicant has/had any derogatory information in his/her military record. Applicants with military convictions, and or disciplinary actions, may be found to lack good moral character (GMC). (See to Chapter 73.6 ).

This form contains questions regarding the applicant’s biographic information, places of residence, places of employment, past and present memberships, and military disciplinary actions. Military disciplinary proceedings are not conducted by the judicial systems, and the records from those proceedings are housed at military record holding centers. Under the facilitated military N-400 filing procedure, the military will front-end the processing of the Form G-325B check. For additional ways to submit the Form G-325B refer to memo dated April 7, 2000, on Military G- 325B Processing contained in Appendix 72-21 of this field manual.

(C) Form N-426: Request for Certification of Military or Naval Service . Only those applicants who are applying under section 328 or section 329 of the Act must submit, in addition to the Form G-325B, Form N-426 Request for Certification of Military or Naval Service. See 8 CFR 328.4 , and 8 CFR 329.4 . This form is used to obtain a certified copy of the applicant’s service record to determine whether he/she served honorably in an active duty status, and to determine whether he/she was excused or released from military service based on a claim of alienage. As in the case of the Form G-325B, a copy of this form, containing the results of the investigation, should be in the file. For information discussing the streamlined processing of naturalization applications filed under sections 328 and 329 see Appendix 72-19 of this field manual for a copy of the memo dated February 3, 2000, on Facilitated Military Service Member Naturalization.

The Adjudicator must review this form very carefully to determine if there are any issues pertaining to GMC. See Chapter 73.6 of this field manual. In addition, you should carefully examine the form to determine if the applicant was excused or released from service in the United States Armed forces based on a claim of alienage. If this occurred you must deny the application under section 315 of the Act, which states that no person shall be naturalized if they were discharged from the military on the grounds that he/she was an alien. Refer to 8 CFR 315.2(b) for specific exemptions to this rule. Moreover, the records from the Selective Service and the military department in which they served are considered conclusive evidence of service and discharge. (See 8 CFR 315.3 and Chapter 73.6 on Good Moral Character, Chapter 72.3 on Interview Preparation, and the discussion in Chapter 74.2 (g) , part 7, Question 6 concerning discharge due to alienage.)

For additional information regarding military service please see the following:

• 32 CFR, Part 41, sets forth the types of discharges from military service, the basis therefor, and procedures for effecting discharges. (D) Section 328 of the Act . Applicants filing their applications under section 328 of the Act must meet the following criteria: • Be in the U.S. Armed Forces and have served for at least 3 years (or will be filing his/her application within 6 months of an honorable discharge) • Be a LPR at the time of examination, • Have the ability to demonstrate English and civics knowledge; • Have been, during any period within the 5 years preceding the filing of the naturalization application and continue to be, of good moral character, • Be attached to the Constitution of the United States, and • Be favorably disposed to the good order and happiness of the U.S.

Note: All continuous residence, physical presence, and time in the District or state requirements are waived.

For additional information, please see 8 CFR 328 , Special Classes of Persons Who May Be Naturalized: Persons with Three Years Service in Armed Forces of the United States.

If an applicant was in the U.S. Armed Forces for less than 3 years or if he or she was in the U.S. Armed Forces for 3 years or more but was discharged more than 6 months ago, he or she must apply under section 316(a) and must be a LPR for 5 years. If an applicant was out of the country as part of their service, this time out of the country does not break their “continuous residence.” It is treated like time spent in the U.S. Time in the U.S. Armed Forces counts as time “physically present” in the United Sta tes, no matter where. For applicants who are serving in the Armed Forces of the United States but do not qualify under section 328, the applicant’s residence may be:

• The location where he or she had been physically present for three months preceding filing (see 8 CFR 316.5 (b) ), • The home of the applicant’s spouse or minor children, or • The home of record as indicated by official military records.

See paragraphs (i), (ii) and (iii) of 8 CFR 316.5 (b) .

(E) Section 329 of the Act . Section 329 of the Act provides that special classes of persons may be naturalized based upon active duty service in the United States Armed Forces during specific periods of hostilities. This law allows any person who, while an alien or non-citizen national of the United States, has served honorably in an active duty status in the military, air or naval forces of the United States during:

• World War I (11/11/16-4/6/17), • World War II (9/1/39-12/31/46), • Korea (6/25/50-7/1/55), • Vietnam (2/28/61-10/15/78), • Grenada Conflict (10/25-11/3/83), • Persian Gulf (8/2/90-4/11/91), • Operation Enduring Freedom (9/11/ 01- a date yet to be determined), or • any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force that the President designates by executive order and who, if separated from such service, was separated under honorable conditions. Honorable service and separation means service and separation from service which the executive department under which the applicant serviced determines to be honorable.

An applicant who applies for naturalization under this section of law is not required to meet the lawfully admitted for permanent residence requirement to qualify for naturalization. However, to be exempt from this requirement, the applicant must establish that he or she, at the time of enlistment or induction into the Armed Forces of the United States, was physically present in the U.S. or its outlying possessions. See section 101(a)(29) of the Act for outlying possessions of the U.S. An applicant who cannot meet this requirement must be a lawful permanent resident on the day he or she files an application for naturalization. For additional information see 8 CFR 329 – Special Classes of Persons Who May Be Naturalized: Naturalization Based upon Active Duty Service in the United States Armed Forces During Specified Periods of Hostilities.

(F) Section 405 of the Immigration and Nationality Act of 1990 . Section 405 of the Immigration and Nationality Act of 1990 (IMMACT90) provides for another special class of aliens who have served honorably in the U.S. Armed Forces during a certain time period to naturalize provided certain requirements are met. In accordance with section 405 of the IMMACT90, natives of the Philippines with active duty service during World War II may naturalize in compliance with 8 CFR 329.5 provided that they meet all other requirements that are unique to this special class of aliens. This special class of aliens are also exempt from the lawfully admitted for permanent residence requirement as with other applicants that file for naturalization under 8 CFR 329.5. However, in order for an application for naturalization under section 405 of IMMACT90 to be considered, the application must have been filed with the Service no earlier than November 29, 1990, and no later than February 3, 1995. To qu alify for naturalization under Section 405 of IMMACT90, an applicant must, in addition to meeting the eligibility requirements stated in 8 CFR 329.5, establish that he or she:

• Was born in the Philippines; • Served honorably during the period of September 1, 1939-December 31, 1946, in an active duty status under the command of the United States Armed Forces in the Far East or within the Commonwealth Army of the Philippines, the Philippine Scouts, or recognized guerrilla units; and • Resided in the Philippines prior to the service described in bullet number two

Regulations require these applicants to submit certain documents to establish eligibility. Also, the examination on an application filed under Section 405 of IMMACT 90 may be conducted in the United States or in the Philippines depending on the applicant’s place of residence. In addition, the administrative oath ceremony for these applicants may be held within the geographical limits of the Philippines, provided the examination on the application was conducted in the Philippines.

(8) Application Based on Other Provisions of Law . The N-400 reads:

e. Other. (Please specify section of law)

(A) Special Cases . In certain cases involving confidentiality or national security, some A-files will not be released to the field. This situation is covered in the Naturalization Quality Procedures; please refer to Appendix 74-23 of this field manual for a copy of Policy Memo 35 dated June 2, 1998, “NQP compliance for Cases Requiring Special Handling” for further guidance.

(B) Section 316(f) of the Act . This section of law concerns the naturalization of an applicant otherwise eligible for naturalization who has made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities.

• An applicant may be naturalized without regard to the residence and physical presence requirement of section 316: – He or she is not held to the prohibitions of section 313 of the Act. – He or she is not required to reside within a particular State or district in the United States. • The applicant must have resided continuously in the United States for at least one year prior to naturalization. • The provision in this subsection will not apply to any alien described in clauses (i) through (v) of section 208(b)(2)(A) of the Act. • The applicant may be administered the oath of allegiance under section 337(a) by any district court of the United States without regard to the residence of the applicant. • Proceedings under this subsection must be conducted in a manner consistent with the protection of intelligence sources, methods and activities. • The number of aliens naturalized under this subsection in any fiscal year must not exceed five.

(B) Section 319(b) of the Act . This section of law requires that the applicant be a LPR (no set period) and that he or she is the spouse of a United States citizen who is assigned overseas with one of the following:

• U.S. military or U.S. government, • U.S. firm engaged in the development of foreign trade and commerce of the US international organization of which the U.S. participates by treaty or statute, • U.S. institution of research, or • Religious ministry In addition, the applicant must:

• Submit his/her application to any USCIS office; • Be present in the U.S. at the time of naturalization; • Declare in good faith an intention to take up residence within the U.S. immediately following the termination of employment abroad of the U.S. citizen spouse; • (Generally) submit an affidavit from the spouse's employer itemizing the nature of the employment, length of time the spouse will be employed abroad, the ownership of the organization and the nature of the organization along with the naturalization application; • Naturalize upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the U.S. or within a District or state shall be required; and • Establish that he or she will depart to join the citizen spouse within 30-45 days after the date of naturalization.

See 8 CFR 319.2(b)(1) . See also 8 CFR 319.5 for additional information regarding public international organizations in which the U.S. participates by treaty or statute.

For additional information see 8 CFR 319.2 , Person whose United States citizen spouse is employed abroad. Also see Interpretations 319.2(a-e) for a discussion of the history and requirements for naturalization based upon citizenship of spouse employed abroad including: Statutory development, residence (physical presence) exemption, other eligibility requirements, Military dependents, the meaning of the phrase “regularly stationed abroad" and specific types of qualifying employment.

(C) Section 319(c) of the Act . When applying under section 319(c) of the Act, an applicant must:

• Be a legal permanent resident;

• Be employed by a bona fide United States incorporated nonprofit organization which is involved with disseminating information abroad via communication media which in turn promotes United States interest abroad and which is recognized as such by the Attorney General; • Have been employed continuously for a period of not less than five years after a lawful admission for permanent residence; • Have filed their application for naturalization while so employed or within six months of the termination of employment; • Be present in the U.S. at the time of naturalization; • Have a good faith intention of taking up residence in the U.S. immediately following the termination of such employment; and • Be naturalized upon compliance with all the requirements of 8 CFR 316 except that no prior residence or specified period of physical presence within the U.S. or any State or district in the U.S. is required.

See 8 CFR 319.4 for additional information on persons continuously employed for 5 years by United States organizations engaged in disseminating information.

See 8 CFR 319.6 for additional information regarding United States nonprofit organizations engaged abroad in disseminating information which significantly promotes U.S. interests.

(D) Section 319(d) of the Act . If an applicant was married to a U.S. citizen who died during a period of honorable active duty service in the U.S. Armed Forces and was living with his or her U.S. citizen spouse at the time of the death of that spouse, then he or she is eligible for naturalization under section 319(d) of the Act. The applicant must:

• Be a LPR at time of examination; • Be a person of good moral character, attached to the principles of the U.S. Constitution, and favorably disposed to the good order and happiness of the United States; and • Comply with all other requirements as provided in 8 CFR 316 , except for those contained in paragraphs (3) through (6) of 8 CFR 316.2(a) ;

Note: If the surviving spouse remarries, he or she still remains eligible for naturalization under section 319(d) of the Act. See 8 CFR 319.3(b) .

See 8 CFR 319.3 , for information on surviving spouses of U.S. citizens who died during a period of honorable service in an active duty status in the Armed Forces of the U.S.

(E) Section 325 of the Act . Under this section any applicant who owes permanent allegiance to the U.S. (i.e., is a non-citizen national), and who is otherwise qualified, may be naturalized if he or she:

• Has a birth certificate or other evidence of national status; • Becomes a resident of any State (but is not required to be an LPR); • Complies with all of the applicable requirements in 8 CFR 316 or 8 CFR 319, as appropriate, except as modified in 8 CFR 325.

For purposes of applying the residence and physical presence requirements in parts 316 and 319 of this chapter, except as they relate to the required three months’ residence in a State or Service District, an non-citizen national applicant’s residence and physical presence in an outlying possession of the United States will count as residence and physical presence in the United States. An applicant resuming residence in an outlying possession, after naturalization, will be considered to have established tha t he/she intends to reside permanently in the United States.

(F) Section 326 of the Act . This section of law refers to resident Philippine citizens excepted from certain requirements. An applicant eligible to file under this section of law is any person who:

• Was a citizen of the Commonwealth of the Philippines on July 2, 1946; • Entered the United States prior to May 1, 1934; and • Has since, such entry, resided continuously in the U.S.

An applicant is regarded as having been lawfully admitted to the U.S. for permanent residence for the purpose of applying for naturalization under this section.

(G) Section 327 of the Act . To be eligible for naturalization under section 327 of the Act the applicant must establish that he or she:

• On or after September 1, 1939, and on or before September 2, 1945:

– served in the military, air or naval forces of any country at war with a country with which the United States was at war after December 7, 1941, and before September 2, 1945; or

– took an oath of allegiance or obligation for the purpose of entering or serving in the military, air or naval forces of any country at war with a country with which the United States was at war after December 7, 1941, and before September 2, 1945;

• Was a U.S. citizen at the time of the service or oath specified; • Lost U.S. citizenship as a result of the service or oath specified; • Has been lawfully admitted for permanent residence and intends to reside permanently in the U.S. • Is and has been for a period of at least five years immediately preceding the oath, a person of good moral character, attached to the principles of the Constitution of the U.S. and favorably disposed toward the good order and happiness of the U.S. • Complied with all other requirement for naturalization as provided in 8 CFR 316 , except sections 316.2(a)(3) through (a)(6).

The naturalization application must be accompanied by a statement describing the applicant’s eligibility under paragraphs (a), (b), or (c) of 8 CFR 327.1 and any available documentation to establish those facts.

Once naturalized, the applicant will take a copy of the oath of allegiance to the Department of State.

See section 327 of the Act and 8 CFR 327 – Special Classes Of Persons Who May Be Naturalized: Persons Who Lost United States Citizenship Through Service In Armed Forces Of Foreign Country During World War II.

Note: This section does not apply to any person who during WWII served in the armed forces of a country while such a country was at war with the U.S.

(H) Section 330 of the Act . To be eligible for naturalization under section 330 of the Act, an applicant must establish that he or she:

• Has been a legal permanent resident for five years; • Has served honorably or with good conduct, during such period of lawful residence, in a capacity other than as a member of the Armed Forces of the U.S., on board:

– a vessel operated by the U.S., or

– a vessel registered in the U.S. (in this case, the vessel must be owned by U.S. citizens of a U.S. corporation).

• Served in the capacity mentioned above within five years immediately preceding the date on which the applicant filed the application of naturalization (or on which the alien is examined, if the application was filed early pursuant to section 334(a) of the Act); • Has been during the five years preceding the filing of the application for naturalization (or the examination if the application was filed early under section 334(a) of the Act) and continues to be, of good moral character, attached to the principles of the Constitution of the U.S. and favorably disposed toward the good order and happiness of the U.S. • Has complied with all other requirements for naturalization as provided in section 316 of the Act, in addition to certain conditions regarding continuous residence and physical presence in the U.S.:

– has been a LPR for 5 years without leaving the U.S. for trips of six months or longer (If the applicant was out of the country while serving on a vessel, that time out of the country does not break his/her “continuous residence.” It is treated just like time spent in the U.S.)

– has been physically present in the U.S. for at least 30 months (time served on the vessel counts as time “physically present” in the United States no matter where).

Proof of service on a vessel operated by the U.S. may be duly authenticated copies of the records of the executive departments or agency having custody of records of such service. Proof of service on a vessel registered in the U.S. may be certificates from the masters of such vessels.

For further information see 8 CFR 330 – Special Classes of Persons Who May Be Naturalized: Seamen. ________________________________________________________________________

(c) Part 3: Additional Information about You . Generally, an applicant must have been lawfully admitted to the United States for permanent residence to be eligible for naturalization. After an applicant has been admitted for permanent residence, he or she must reside in the United States continuously for at least five years and have been physically present for at least 30 months before filing the application for naturalization. However, there are special classes of persons who are not required to meet the above requirements. See Chapter 74.2(b) of this manual for more information on these special classes of applicants.

The topics listed below are discussed in this subsection:


• Information regarding permanent residency ( Question 1 ) • Information regarding port of entry where admitted as immigrant or office where granted adjustment of status ( Question 2 ) • Information regarding citizenship ( Question 3 ) • Information regarding the applicant’s name ( Question 4 ) • Information regarding other names used by the applicant ( Question 5 ) • Information regarding the applicant’s sex ( Question 6 ) • Information regarding the applicant’s height ( Question 7 ) • Information regarding the applicant’s current marital status ( Question 8 ) • Information regarding the English and Civics requirements for naturalization ( Question 9 ) • Information regarding residency and absences from the U.S. ( Question 10 )

More detailed information on the law, regulations, and policies regarding the naturalization eligibility requirements may be found in the links contained within each of these topics.

(1) Date you became a permanent resident

(A) General . Naturalization eligibility generally requires a lawful admission to the United States for permanent residence. Section 316 (a)(1) of the Act states that: No person, except as otherwise provided in this title, shall be naturalized unless such applicant: ...immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence... [See 8 CFR 316.2(a)(2) and section 318 of the Act.]

The date of admission for lawful permanent residence is important because you must use that date to determine whether the applicant has continuously resided in the United States for the required period of time. This is also important for determining whether the applicant is eligible for a section 312 exemption at the time of filing his/her naturalization application.

Information concerning entry must be carefully checked and a determination must be made as to whether the applicant was lawfully admitted to the U.S. for permanent residence and had the required residence and physical presence for naturalization. Every claim of lawful admission for permanent residence must be verified from official records, as defined in 8 CFR 103.2(b) , unless an applicant presents documentary evidence establishing that his or her admission to the United States is presumed to be lawful under 8 CFR 101 .

You must determine that the applicant is actually the person he/she claims to be, namely the individual whose entry is shown on the application, by comparing the file, application, and visa petition or other entry record to determine if they all relate to the same person. At a minimum, review and compare the applicant’s permanent resident card to be sure that the photo matches the applicant. Make sure the date the applicant was granted permanent residence and all other biographic information are the same on the card, file and application. You will have a number of sources available to you: the visa petition or other record of admission, other file information, passport, and state-issued identification such as a driver’s license. If you detect a discrepancy in the identification or other details of the applicant’s history and circumstances, you will have to carefully question the applicant, take an affidavit and speak with your supervisor.

Question the applicant regarding detailed information in the administrative file to make a determination that it relates to the person appearing for the examination. In phrasing questions, be careful not to disclose the substance of the information. In other words, do not give the applicant any information in your questions or ask the applicant leading questions.

When a comparison of the testimony and the information of record reveals discrepancies, you must determine whether they are sufficiently material and extensive enough to support a finding that the applicant has failed to establish identity.

Studying the file prior to the examination gives you the needed information and makes the applicant aware that you have a reliable source of information. If the applicant consistently answers in a way that shows he or she is not familiar with the information in the file, there are good reasons to question his or her identity.

As a secondary approach to this determination, questions may be addressed to the details and sequence of travel, marital history and the number of children. Repetitive examination along these lines may develop inconsistencies and contradictions that may be revealing. If you believe that the person at the examination is not the person who immigrated or adjusted status to a permanent resident, you should take a sworn statement from the applicant to record the testimony that is different from the record; you s hould speak with a supervisor, and proceed accordingly.

You must also consider whether an applicant for naturalization may have applied for the document and entered the United States under the identity of another person. When there is an indication that a visa petition or adjustment of status may have been procured under an assumed identity through fraud or misrepresentation you will need to fully explore that possibility. Again, a sworn statement and a consultation with your supervisor are recommended.

The applicant has the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that he or she was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of initial entry or any subsequent reentry. [See 8 CFR 316.2(b) .]

(B) No Record of Admission . When there is no record of the applicant’s admission for permanent residence and the applicant maintains that he/she has been admitted for permanent residence, you may ask the applicant to provide secondary evidence to establish that his or her admission is presumed lawful under 8 CFR 101. Documentary evidence to establish a presumption of lawful admission may consist of family bible entries, immigration documents, passports, deeds, leases, wills, insurance polices, bank books, employment records, receipt s, school records, church records, baptismal certificates, census records, or city directories. If documentary evidence cannot be submitted, the applicant may present witnesses for examination. When witnesses are unable to appear, detailed affidavits of at least two witnesses may be accepted if their contents raise no question as to the truthfulness of the statements made. Exercise extreme caution when affidavits are the sole evidence presented. The affiants may be called upon to present documents to suppor t their statements. In practice, USCIS would not usually proceed with the application for naturalization until the applicant’s status as a permanent resident had been recorded. Also, 8 CFR 264.2 and chapter 23.4 of this field manual address procedures for documenting the status of aliens who are eligible for presumption of lawful permanent residence under 8 CFR 101 . See your supervisor if you encounter this type of case.

(C) Immigration Status . In addition to the date on which the applicant acquired permanent residence, your file review should determine the basis upon which such status was gained. In reviewing this section of the application and questioning the applicant about his or her immigration status, you may determine that the applicant was not entitled to permanent resident status at the time he or she immigrated or adjusted status. If the applicant unlawfully acquired LPR status via an immigrant visa you can place the applicant in remov al proceedings. If the applicant unlawfully adjusted status in the United States and has been a LPR for less than five years, you can rescind his/her LPR status under section 246 of the Act (see chapter 26 of this field manual). If the applicant unlawfully adjusted status in the United States and has been a permanent resident for more than five years, a five-year statute of limitations prevents you from rescinding the LPR status under section 246. However, you can still deny the naturalization application under section 318 if the applicant did not lawfully acquire permanent resident status. You should also speak to your supervisor about placing the applicant in removal proceedings. [See sections 212 , 237 , 238 , 239 , and 240 of the Act and 8 CFR 239 and 240 .]


The type of questions you ask the applicant to determine whether the applicant acquired LPR status lawfully, depends on how the applicant obtained LPR status. The following are typical examples of how an applicant may have obtained LPR status.


• Through An Employment Based Petition – An applicant obtained permanent residence through employment with a U. S. company. You should review the employment history section of the N-400 application to ensure that the I-140 petitioning employer is listed. If the petitioning employer is not listed, you should prepare questions to address this issue. Such questions might include:

– Did you ever work for the petitioner? – How long did you work for the petitioner? – In what capacity did you work for the petitioner? – Why did you leave the position? – What were you paid? – Where did you work for the petitioner (location)? – Where did you go or work after you left your job with the petitioner or instead of working for the petitioner? – When did you first learn that there would not be a long-term position for you?

You should also determine whether the applicant met all of the eligibility requirements of the employment classification under which he/she was granted status. For example, did the applicant have the necessary training or experience that the labor certification required for that classification? The labor certification, which seeks to classify the applicant’s occupation as a shortage occupation, must be filed with the U. S. Department of Labor for most employment-based immigrant petitions. [See 8 CFR 204.5 . and Chapter 22 of this manual.]

• Through Marriage – In cases where the applicant obtained status through marriage you would review the marital history section of the N-400, the list of addresses, and children to determine whether the applicant had a qualifying relationship at the time of immigration or adjustment and, for section 319 applicants, is living in marital union with the petitioner.

If the applicant acquired status through marriage and he/she is now divorced from the U. S. citizen or resident alien spouse, you must develop questions to address this issue. You should ask these applicants to provide a copy of their divorce decrees, and findings of fact, conclusions of law, bill of complaint, petition for dissolution of marriage, or separation agreement to explain when the parties to a divorce were separated. These documents must be reviewed carefully, especially for those applicants who were granted conditional permanent residence, and claimed to be residing with the United States citizen or resident alien spouse when the Petition to Remove Conditions on Residence, Form I-751 was filed, yet they were separated at the time. These applicants were classified as conditional permanent residents because they had less than two years of marriage to their spouse at the time they were granted resident alien status. [See 8 CFR 319 , 216.1 , 216.2 . ]

• Through a Relative: Unmarried Sons or Daughters – U.S. citizens or aliens lawfully admitted for permanent residence may file a petition on behalf of an unmarried son/daughter. The son or daughter must be unmarried at the time the I-130 is filed and at the time he/she is granted LPR status. You should review the marital history section of the application very carefully in these cases. If the applicant lists a spouse on the application, you should develop questions to determine when the marriage took place, and request a copy of the marriage certificate fo r review. See 8 CFR 204.2(d) and sections 203(a)(1) and 203(a)(2) of the Act.

If there is evidence that the applicant was married at the time he or she acquired permanent residence, you should discuss the matter with your supervisor and consider institution of removal or rescission proceedings.

• Through Legalization or Special Agricultural Worker Program (SAW) . Caution should be exercised when reviewing SAW files. The Headquarters Office of the General Counsel has determined that information contained under the red sheet should be used for limited purposes only. [See General Counsel Opinion 89-74 for a detailed discussion on this issue. See 8 CFR 245a(2)(t)(5) authorizing the use of information contained in approved Legalization applications in connection with benefits including naturalization.]

For aliens who became permanent residents under Pub. L. 99-603, the Immigration Reform and Control Act of 1986, there are two dates on the Permanent Resident Card, Form I-551, that relate to alien’s status: the date that the alien became a temporary resident and the date that the alien became a legal permanent resident. Be careful when you determine eligibility for naturalization that you use the correct date. The card clearly shows the temporary date, while the permanent residence adjustment date is the fi rst item on the left on the bottom line of the numerical information on the reverse of the card.

Note: You may encounter Legalization cases with incorrect Permanent Resident Cards where the date of permanent residence may have been computed incorrectly. These cards can be easily detected because the time difference from the date temporary residence was granted to the date that permanent residence was granted is less than eighteen months. If you encounter such a case, compute the time between the temporary residence date and the permanent residence date in the A-file (eighteen months or less), and check the Central Index for the permanent residence date. This only applies to Legalization cases (see section 245(A) of the Act), not SAW cases (see section 210 of the Act).

If you determine that you have an applicant with an incorrect card, after checking these two sources, you can determine the adjustment date from the Central Index System (USCIS) or the file. Check both sources to be sure that they agree. If they don’t, see your supervisor or training officer. These Permanent Resident Cards with incorrect dates must be replaced whenever they are encountered by CBP, USCIS, or ICE. The alien will be required to submit Form I-90, fee exempt, through the usual Form I-90 processi ng procedures for the replacement of incorrect Form I-551s. However, under certain conditions, the applicant may keep the incorrect card temporarily. All of these conditions must apply:

– applicant meets the residence and all other requirements, and you approve the application that day, and – the oath of allegiance will be administered before a replacement card will be issued. To determine processing times on I-90s, check with your supervisor.

Information furnished by persons who filed applications pursuant to an application for legalization cannot be used for anything other than:

– to adjudicate the Legalization application, – to prosecute for fraud under section 245A(b)(6) of the Act, – to prepare reports to Congress under section 404 of the Immigration Reform and Control Act of 1986.

You cannot use the information furnished by persons who filed applications pursuant to an application for Legalization to:

– make any publication whereby the information furnished by any particular applicant can be identified; or – permit anyone other than the sworn officers and employees of the Department or Bureau or Agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications. See section 245A(c)(5)(A) of the Act.

You are permitted to use information in the Legalization application as it relates to the naturalization application to validate information on the N-400 such as identity, marital history, and family relationships. See 8 CFR 245(a).2(t)(5) and General Counsel memorandum Request for Guidance: Institution of Deportation Proceedings/Legalization or SAW Applicants: Naturalization of Persons Who Filed Fraudulent Legalization or SAW , from the Office of the General Counsel, dated September 6, 1996, found in Appendix 74-11 for a full discussion of these issues. The summary conclusions expressed in this memo are:

Legalization Considerations : Naturalization may be denied if an applicant fraudulently gained lawful permanent residence through a legalization application that USCIS can establish was fraudulent. Regulations permit information contained in granted legalization files to be used by USCIS at a later date to make a decision on a naturalization application. The basis for denial would be the applicant’s inability to establish that he or she was admitted to the United States for permanent residence pursuant to section 318 of the Act. [See 8 CFR 245a.3(n)(4)(ii) and 8 CFR 245a.4(b)(23)(iv) .]

Removal proceedings cannot be instituted against persons who obtained lawful permanent resident status through a fraudulent legalization application except in two instances: where the person has been convicted of legalization fraud and is charged with removal based on the fraud conviction, or the person volunteers a detailed admission of fraud, which would render the person removable on the same ground, namely inadmissible at the time of adjustment in violation of section 237(a)(1)(A) of the Act on the basis of section 212(a)(6)(C)(i) , misrepresentation or fraud in the procurement of an immigration benefit. The use of the fraud conviction to support a charge of removal does not violate legalization confidentiality provision.

SAW Considerations . Removal proceedings cannot be instituted against persons who obtained lawful permanent resident status through a fraudulent SAW application, except in two instances: where the person has been convicted of fraud and is charged with removal based on the fraud conviction, or the person volunteers a detailed admission of fraud, which would render him or her removable on the same ground, namely as inadmissible at the time of adjustment in violation of section 237(a)(1)(A) on the basis of section 212(a)(6)(C)(i) , misrepresentation or fraud in the procurement of an immigration benefit.

Information provided by a person pursuant to a SAW application that is contained in the A-file may not be used for any purpose other than to:

– make a determination on the SAW application, including a determination under subsection (a)(3)(B), Termination of Temporary Residence Status , or – for enforcement of paragraph (7) Penalties For False Statements In Applications . Information that is contained in the A-file that was provided by a person pursuant to a SAW application may not be used to: – make any publication whereby the information furnished by any particular individual can be identified; – permit anyone other than the sworn officers and employees of the Department or Bureau or Agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.

The confidentiality clause prohibits you from questioning an applicant regarding any information provided by the applicant relative to his or her SAW application (see section 210(a)(6)(A) of the Act).

Evidence Before Placing in Removal Proceedings. Placing an applicant into proceedings is an extraordinary event, not the norm. You should only consider it where you have evidence and can clearly articulate the marriage or other fraud. [For more information see Chapters 25 and 26 of this manual.] Take no further action on the N-400 until the rescission process is completed. The N-400 application can ultimately be denied pursuant to section 318 of the Act because the applicant was not lawfully admitted for permanent residence.

(2) Port admitted with an immigrant visa or INS office where granted adjustment of status

(A) General . The statute places the burden of proof upon the applicant not only to show that he/she entered lawfully but also to establish the time, place, and manner of his/her entry into the United States. However, in sustaining such burden, he or she is entitled to the production of records not considered confidential pertaining to the alleged entry, which are in the custody of USCIS . In the majority of cases, after you have determined the applicant’s identity, the applicant's entry may be established by his or her visa or by a verification of entry from other USCIS records if he or she has lost his or her permanent resident card.


The port of entry information on the applicant’s permanent resident card should match the information on the application and in the ‘A’ file; if it does not, check that you have the correct person in front of you, and that the card is valid. Note that many persons who enter the United States as refugees will list on their applications the port at which they arrived as their port of entry. The card will show the office at which they adjusted status to that of resident alien. A similar situation will occur fo r some people who adjust status in the U.S.; they may indicate the port at which they entered as a nonimmigrant. You should question the applicant about:

• his or her adjustment application or immigrant visa application, and • the petition underlying the immigrant visa or adjustment application.

This will help you to determine if the card is bona fide and if the permanent resident status is valid, or if there is a problem. See your supervisor and take a sworn statement from the applicant if there is a problem.

(B) Additional References . See Interpretations 318.1 for a discussion regarding lawful entry for permanent residence, including:

• Congressional purpose, • Definition relevant to current requirement, • Inapplicability, • Certificate of arrival, • United States-born children of foreign diplomats considered permanent residents, • Entry under military orders, and • Entry of inhabitants of the Bonin Islands.

See Interpretations 334.1(d), regarding previous requirements for evidence of arrival in the United States.

(3) Citizenship

(A) Stateless Persons . Many times, applicants will write “STATELESS” in this item. If a person claims that he/she is stateless, you should ask the applicant for his/her country of nationality before they became stateless. After verifying the answer against information in the file and on documents presented, amend the application. When amending the application, be sure to number the amendments as required by NQP, located in Appendix 72-1 .

(B) Additional Information . See Interpretations 334.1(f) for a discussion on nationality and statelessness.

(4) Name on Permanent Resident Card

(A) General . In most instances, the Permanent Resident Card shows the applicant’s correct, legal name. There are certain rare instances where the card may not reflect the correct legal name. For example, if the applicant has a three-part Asian name, the Permanent Resident Card may have the first and middle names reversed. You should look at the documents supporting the immigrant visa or the refugee application and supporting documents and discuss this with the applicant. Placing the names in the correct order is not a legal name change and does not require court authorization. If the case will not be granted or if there is a substantial amount of time between the examination and the oath ceremony, the applicant could apply for a replacement card with the corrected name.

The name on the card in most cases will be the legal name at the time the applicant became a lawful permanent resident. Check that the name on the application is the same. If not, you must ask the applicant about the difference. In some cases, the applicant will have changed names legally, for example by marriage. You must ask the applicant to document the name change. In other cases, the Permanent Resident Card may not show the correct name; you must make this determination based on the documents in the fi le and any documents (including passport and birth certificate) that the applicant presents at the examination. If the legal name is not the same as the name on the Permanent Resident Card, make sure the application and the certificate preparation sheet show the legal name. Also, be sure that the naturalization case management system has the applicant’s legal name. If the applicant has changed his/her name pursuant to common law practice, then be sure to keep copies in the file of all documentation showing the name recognized under common law. When you accept the validity of a common law name change, USCIS should be updated to show the new name as being the subject’s name, and the previous name should be shown as an alias. This action must be completed prior to the oath ceremony being closed. If you have a question about the common law governing the place where the applicant claims the common law name change occurred, see your supervisor or district counsel. Also see the discussion on names in Part One of the N-400 application, located in Chapter 74.2(a) .

(5) Other names used since you became a permanent resident

(A) General . The applicant must show every name he or she has used at any time, including nicknames, whether in the United States or any other country, and, if a married woman, both the married and maiden names. If the applicant has never used another name, enter the word "none” on the application. If any other names have been used, the applicant should list all of the names and testify that those are all of the names that he/she has ever used including nicknames. See also the discussion on name changes in Parts One a nd Twelve of the N-400, located in Chapter 74.2(a) and Chapter 74.2(l) , respectively.

(6) Sex

This information will be recorded on the certificate of naturalization, and will be used for statistical purposes.

(7) Height

This information will be recorded on the certificate of naturalization, the document that the applicant will receive as evidence of his or her United States citizenship. It will serve as an identification feature.

(8) Marital Status

When adjudicating most applications or petitions for benefits, all persons who are not currently married, for whatever reason (never married, divorced, marriage annulled), are defined as being unmarried. [See section 101(a)(39) of the Act.] But for purposes of the personal description called for by section 338 of the Act, when there are the series of choices offered for the preparation of the Naturalization Certificate, single, unmarried, married, divorced, widowed, separated are all proper descriptive terms, even if some of them overlap legally. If the person has never been married, "single" is the preferred description, for certificate preparation purposes. You are responsible for obtaining the information that will appear on t he certificate, and it is your responsibility to make sure the N-400 reflects the correct information. Get the documents needed to support the claimed status, and verify that status against information in the file and the applicant's passport, tax returns, and other supporting documentation. This is especially important in section 319(a) cases.

(9) Can you speak, read and write English?

(A) General . This paragraph provides guidance on the standardized procedures for testing naturalization applicants on English and civics based on 8 CFR 312 . This citizenship test is probably the matter of greatest concern to the majority of applicants. As part of the USCIS ’s good customer service policy, remember to use a calm voice. Administering the test in this manner will do much to calm the nervous and excited applicant and help to get through the testing process. See also Chapter 2 of this manual which discusses customer service policy and techniques.

You may administer the tests at any given time throughout the course of the examination, keeping in mind any locally mandated procedures.

(B) Testing Requirements and Exemptions . Section 312(a)(1) of the Act imposes the English language requirement on naturalization applicants. This general requirement is clarified in 8 CFR 312.1 , Further, section 312(a)(2) of the Act imposes a U. S. history and civics requirement, clarified in 8 CFR 312.2 . Some persons are exempt from the literacy requirement under 8 CFR 312.1(b)(1) and (2), but they must still satisfy the history and civics requirements.

The following persons are not required to demonstrate an ability to read, write and speak words in ordinary usage in the English language:

• A person who, on the date of filing of his or her application for naturalization, is over 50 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence;

• A person who, on the date of filing his or her application for naturalization, is over 55 years of age and has been living in the United States for periods totaling at least 15 years subsequent to a lawful admission for permanent residence;

• A person who is unable to demonstrate knowledge of the English language because of a medically determinable physical or mental impairment or combination of impairment that has lasted or is expected to last at least 12 months. The loss of any cognitive abilities based on the direct effects of the illegal use of drugs will not be considered in determining whether a person is unable to demonstrate an understanding of the English language.

The following persons are required to demonstrate a knowledge of the history principles and form of government of the United States, but they are allowed to do so in the language of their choice :

• A person who, on the date of filing of his or her application for naturalization, is over 50 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence; • A person who, on the date of filing his or her application for naturalization, is over 55 years of age and has been living in the United States for periods totaling at least 15 years subsequent to a lawful admission for permanent residence.

The following persons are required to demonstrate knowledge of the history and government of the United States, but they are allowed to do so in the language of their choice and are entitled to special consideration under Section 312(b)(3) of the Act:

• A person who, on the date of filing his or her application for naturalization, is over 65 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence.

See also Appendix 74-15 , Policy Memo 69A: Hmong Veterans’ Naturalization Act of 2000 , which addresses Pub. L. 106-207 as amended by Pub. L. 106-415 relating to the eligibility of certain Hmong applicants for special consideration when demonstrating requirements.

The following person is not required to demonstrate knowledge of history or government. Any person who is unable to demonstrate knowledge of history or government because of a medically determinable physical or mental impairment or combination of impairment that has lasted or is expected to last at least 12 months. The loss of any cognitive abilities based on the direct effects of the illegal use of drugs will not be considered in determining whether a person is unable to demonstrate an understanding of Un ited States history and government.

(C) Literacy Test . The literacy examination consists of verbal, reading and writing skills. Verbal skills are the applicant’s ability to speak English. Reading and writing skills include the applicant’s ability to read and write words in simple words and phrases in ordinary usage in the English language.

An applicant’s verbal skills must be determined from the applicant’s answers to questions normally asked in the course of an examination [ 8 CFR 312.1(c)(1) ]. In addition, 8 CFR 335.2(c) requires officers to repeat and rephrase questions until the officer is satisfied that the applicant either fully understands the question or does not understand English. Although the applicant must be able to communicate in English about his or her application and eligibility for naturalization, the applicant does not need to understand every term, word or phrase on the N-400 application. If the applicant generally understands and can respond meaningfully to questions relevant to the determination of elig ibility, the applicant has sufficiently demonstrated his or her ability to speak English. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000].

Note that those applicants who have already passed the civics/history and the English language proficiency tests at the time of adjustment for lawful permanent status under section 245A(b)(1)(D)(iii) of the Act are still required to demonstrate the ability to speak English at the time of the examination on the N-400 application. [See 8 CFR 312.3(b) ].

Also note that 8 CFR 312.2(c)(1)(ii) provides that the applicant may be examined regarding the other elements of eligibility in his or her native language, with the assistance of an interpreter selected in accordance with 8 CFR 312.4, if:

• the applicant has satisfied the English literacy requirement under 8 CFR 312.1(a), and • you examine the applicant's knowledge of the history and form of government of the United States orally in the English language, and he or she satisfies the requirement, and • you determine that an inaccurate or incomplete record of the examination would result if the examination on technical or complex issues were conducted in English. An applicant’s ability to read English is tested using the following resources: • Excerpts from one or more parts of the authorized Federal Textbooks on Citizenship (Publications M-289 and M-291, which are reproduced in Appendices 73-2 and 73-4 ) written at the elementary literacy level [ 8 CFR 312.1(c)(2) ]. Although the Constitution of the United States appears as an appendix in Publication M-289, it is not written at the elementary literacy level; its use as a test of reading would usually fall within the “extraordinary or unreasonable conditions” barred under section 312(a)(1) of the Act. • USCIS currently uses other bodies of knowledge that have expanded the regulatory sources. Many offices’ reading and writing tests no longer focus exclusively on material dealing with U.S. history and government, but are drawn from vocabulary more ordinarily used in everyday situations. These alternative sources are widely available to the public. Therefore, officers are strongly encouraged to select sentences from the “Sample Sentences for Written English Testing”, available in the back pocket of A Guide to Naturalization , Publication M-476 . The sentences from the “Everyday Life” column of the Sample Sentences are also available in the CLAIMS4 program. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]

Each applicant must be given an opportunity to read up to three sentences, if necessary, but no applicant shall be required to read more sentences than necessary to demonstrate reading ability. An applicant’s ability to read should be sufficiently demonstrated if the applicant can read one sentence in a manner suggesting to you that the applicant appears to understand the meaning of the sentence at a general level. When you make a positive determination after hearing the first sentence, the applicant does not need to read a second or third sentence. Applicants shall not be failed because of their accent when speaking English.

An applicant’s ability to write English is tested using the following resources:

• Using excerpts from one or more parts of the authorized Federal Textbooks on Citizenship (Publications M-289 and M-291) written at the elementary literacy level [ 8 CFR 312.1(c)(2) ]. • As noted in the reading section, you may also select sentences from the “Sample Sentences for Written English Testing,” available in the back pocket of A Guide to Naturalization , Publication M-476. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]

Each applicant must be given up to three opportunities to write (either in block printing or in cursive script) a sentence, if necessary, but no applicant shall be required to write more sentences than necessary to demonstrate writing ability. You must repeat each sentence clearly if asked or if necessary to ensure that the applicant understands the sentence. An applicant’s ability to write should be sufficiently demonstrated if the applicant can write one sentence that would be understandable as written to a reasonable person. An applicant must not be failed because of poor penmanship or spelling, capitalization or punctuation errors unless the penmanship or errors would prevent a reasonable person from understanding what the sentence means.

When you dictate a sentence to be written by the applicant, you must be sure that the applicant understands the meaning of the sentence and he/she must write the words that were dictated to him/her. The officer shall repeat each sentence clearly if asked or if necessary to ensure that the applicant understands the sentence. There may be times when an applicant may write a totally different sentence than the one that you dictated to him/her even after being given three opportunities to write the dictated sen tence. This does not satisfy the requirement. In these cases, it is important that you make a note of the sentence that was dictated to the applicant.

(D) Civics Test . Except as noted in paragraph B, applicants must demonstrate a knowledge and understanding of the fundamentals of the history, and of the principles and form of government of the United States. The scope of the examination must be limited to subject matters covered in the authorized Federal Textbooks on Citizenship, except for the identity of current officeholders [8 CFR 312.2(c)(2)]. You are encouraged to use the list of 100 questions available as attachment to the Guide and in CLAIMS4. Because the list o f ten questions in CLAIMS 4 are randomly generated, you must review each set of questions to determine if the list contains questions that are too complex or advanced for the applicant, taking into consideration the factors in 8 CFR 312.2(c)(2) , such as the applicant’s education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the knowledge.

You should continue to test applicants who qualify for 65/20 “special consideration” by using the list of 25 questions developed for this purpose. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]. A person who, on the date of filing his or her application for naturalization, is over 65 years of age and has been living in the United States for periods totaling at least 20 years subsequent to a lawful admission for permanent residence shall be entitled to special consideration pursuant to section 312(b)(3) of the Act.

All applicants shall be given 10 questions to complete either orally or in writing. An applicant’s knowledge of civics is demonstrated if the applicant can correctly answer six or more questions. Applicants meeting 65/20 requirements demonstrate sufficient knowledge with six correct answers. [See Appendix 74-12, Policy Memo #73 dated on 12/26/2000.]

(E) Advising Applicant of Test Results . You are required to complete and provide to each applicant Form N-652, recording the results of the English and civics tests at the end of each examination, unless you will be serving the applicant with a denial notice before he or she leaves the office. Offices should be using exclusively the N- 652 revised on 12/7/99.

In general, an applicant has two opportunities to pass the English and/or civics tests. An applicant for naturalization who fails the English literacy and/or history and government test at the first examination will be afforded a second opportunity to pass the test(s), not earlier than 60 days after the first examination but within 90 days after the first examination. See 8 CFR 335.3(b) , 8 CFR 312.5(a) and Appendix 74-12, Policy Memo #73 dated 12/26/2000).

If an applicant fails the test a second time, you will have to deny the application based on failing to speak, read, write or understand English, or understand civics/history of the United States, or both. USCIS can accept the applicant’s withdrawal on his/her N-400 application at his/her request.

It is only appropriate to accept a withdrawal if the applicant has been fully informed and understands the consequences of withdrawing the application from consideration, including the fact that he or she gives up the right to request a hearing under section 336 of the Act ( 8 CFR 335.10 ). You must not offer or accept withdrawals from applicants who do not understand English unless they have an interpreter with them and are able to clearly understand the consequences of withdrawing their applications. See also Chapter 72.4 of this manual concerning withdrawals. You should already have noted the name of interpreter, relationship to applicant and driver license/ID number in the file in case the applicant challenges the withdrawal in future.

If you decide to administer the tests at the beginning or during the examination process, and you determine that the applicant is unable to pass either test, then stop the testing process and proceed with the examination. Do not stop the examination process unless the applicant is unable to understand English after several attempts to rephrase the questions on the application.

If an applicant submits a Form N-648 for medical exception at any scheduled examination, and that Form N-648 is insufficient, refer to Policy Memo 47: Section 312 Disability Naturalization Adjudications, dated 4/7/99 (see Appendix 72-13 of this field manual).

(10) Have you been absent from the U.S. since becoming a permanent resident? If yes, complete the following: Date left U.S. Date returned Did absence last 6 months or more? Destination Reason for trip

(A) General . Part 2 of the application describes the required period of residence in the United States under various statutory provisions. Based on the applicant's current length of residence, determine which section of law is applicable to the applicant's case.

Most applicants must be physically present in the United States for a certain number of months to be eligible for naturalization. Applicants filing under section 316(a) of the Act must have been present in the United States for at least 30 months. Applicants filing under section 319(a) of the Act must have been physically present in the U.S. for at least 18 months.

For example, if a person, filing under section 316(a), takes eleven trips over the five year statutory period and each trip lasted three months, this would total 33 months that the applicant had been absent from the United States. He/she would be ineligible for naturalization because the trips (even though each trip was under six months) totaled more than 30 months. The applicant would have to stay in the United States until a date on which he or she has been physically present for at least a total of 30 mo nths of the last five years immediately before filing an application for naturalization.

You should make sure that the applicant has listed any absences of less than six months. Frequent short absences may be included in one concise statement giving the longest absence, such as "Visits to Canada for not more than two weeks at a time, the applicant’s last visit having been for one week ending (date)." When an issue arises regarding physical presence or continuous residence, exact dates must be obtained.

Be sure to ask for and look at all travel documents issued by any authority, as well as the applicant’s Permanent Resident Card and Re-entry Permit(s). The applicant may have additional evidence of travel: ticket stubs, boarding passes, and/or any other receipts for transportation. Once you have these items, compare them to the information listed in this section. This review is important because determining that an applicant has met the continuous residence and physical presence requirements depends on this information.

Some applicants do not realize that the dates of travel can significantly affect eligibility and as a result you will have to determine if the answer the applicant provides is accurate. You will also have to determine if the applicant has established continuous residence and physical presence.

To determine whether the applicant has met the requirements, you will have to add up the days the applicant was present in the United States to see if the applicant has the required physical presence and continuous residence. When you count, give the applicant credit for each day in the United States, including full credit for the day the applicant left the United States and the day the applicant returned to the United States. See A Guide to Naturalization . Calculating the actual time is important because it is an eligibility requirement that must be fulfilled by almost every applicant. [See also paragraph 74.2(b) of this chapter.]

Note that applicants who frequently visit contiguous territory often do not think of such visits as being absences. Keep this in mind as you do your examination. On occasion, the only available evidence of a period of absence will be an admission by the applicant on the application or during the examination. Remind the applicant that visits outside the United States, no matter how brief, need to be listed on the application. It may help the applicant to remember absences if you ask if he or she has any fami ly outside the United States. You may also ask whether he or she has visited them since immigrating to the U.S. to determine how frequently and for how long the applicant visited. The applicant should complete a list when there appears to be an issue regarding the physical presence or continuous residence particularly for absences raised for the first time during the examination. If it appears that this will take more than a few minutes, you should ask the applicant to prepare the list in the waiting room, and call the next applicant. After you finish the intervening examination, call the applicant, ask if he or she has finished the list and is sure that it is accurate, and resume the examination or take another applicant as appropriate.

(B) ‘Physical Presence’ vs. ‘Continuous Residence’ . ‘Physical presence’ is the time the applicant actually is physically in the geographic United States. It involves the total number of days the applicant was in the United States. ‘Continuous residence’ involves whether the applicant has actually established a residence and maintained such residence in the United States for a certain period. The applicant must ensure that he/she fulfills both the physical presence and the continuous residence requirements. See section 101(a)(33) of the Act regarding the term ‘residence’.

An applicant disrupts the continuity of continuous residence if he or she:

• is absent from the United States for a continuous period of one year or more, or • is absent for a period of more than six months and less than one year and the applicant fails to demonstrate he/she did not disrupt the continuity of residence.


Continuous Residence Example

The applicant filed Form N-400 on September 8, 1999. He met the physical presence requirements during the statutory period. However, on June 15, 1999, he was sent overseas on an assignment by his employer, which is not an American corporation. He appeared for his interview on January 24, 2001. He informed the examining officer that he was on temporary work assignment in the U.K. and Russia. He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England. He was not gone for more than six months at any time, but his trips back to the U.S. from June 1999 to January 2001 were brief and sporadic. He cited several rulings from the 1940’s to support his claim that he had met the continuous residence requirement.


The application should be denied for lack of continuous residence under Section 316 of the Act. He failed to reside continuously in the U.S. from the date of application for naturalization up to the time of admission to citizenship.

INA 316(a) says: No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, . . . (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship,

The definition for “residence” is at INA 101(a): As used in this Act: (33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.

Even though the applicant may have met the requirements of section 316(a)(1) or section 316(b) of the Act, the applicant in this case has not been residing in the USA from June 1999 until the time of the initial examination.

101(a)(33) was added to the INA in the 1940 Act, but without the phrase "without regard to intent." Prior to the 1940 Act, the INA did not have a definition for “residence”. As a result, various court decisions interpreted the term "residence" differently, some equating the term with mere physical presence in the United States, others making the term synonymous with "domicile" which requires intent. While the pre-1952 decisions are relevant to understand the history of the term “residence,” the 1952 Act an d subsequent rulings created a different standard. The 1952 Act clarified the definition of residence and created an objective standard for determining residence not based on the applicant's intent.

For a detailed explanation of the requirements of continuous residence see Chapter 73.3 of this manual. For a detailed explanation of the requirements for physical presence, see Chapter 73.5 of this manual

(C) Absences of Between Six Months and One Year . Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under 8 CFR 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence unless the applicant can establish otherwise to the satisfaction of USCIS . This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws.

If the applicant claims that he/she did not disrupt the continuity of residence you must ask additional questions about the absence and the nature of his/her claimed continuous residence in the United States. Some of the things that you should ask for are:

• Evidence that the applicant did not terminate his or her employment in the United States; • Evidence that the applicant's immediate family remained in the United States; • Evidence that the applicant retained full access to his or her United States abode; or • Evidence that the applicant did not obtain employment while abroad. Also, this would normally include evidence of how he/she supported him/herself during the absence.

You should ask for other evidence if the items listed above do not cover the issue fully in a specific case.

If the applicant is unable to establish that he/she did not disrupt residence, he/she will be ineligible for naturalization. The applicant will be eligible to re-apply for naturalization, four years and one day (two years and one day if applying under section 319(a) of the Act) from the most recent date that he/she returned to the United States. See the letter from the Headquarters Office of Naturalization and Special Projects to Messr. Kiblan and Battles dated September 22, 1993, located in Appendix 74-13 .

The information contained in this area is particularly important in determining if there has been any break in the applicant's residence for naturalization purposes and in determining if the applicant has the required physical presence. The statute provides that the requisite continuity of residence for naturalization purposes shall be conclusively broken by any continuous absence of a year or more during the statutory period. Occasionally, an applicant will admit an absence just short of one year and there will be nothing in the related file to confirm or refute this testimony. Under such circumstances, an especially detailed interrogation should be conducted to determine the exact dates of departure and reentry. Under the statute, the requisite continuity of residence is also broken by an absence abroad of more than six months but less than a year, unless the applicant establishes that he did not in fact abandon his residence.

[(b)(2) or (b)(7)(E)]

Unless the applicant demonstrates that the absence did not disrupt the continuity of residence, he or she will have to wait at least four years and one day before he or she can be eligible to apply again for naturalization. [See 8 CFR 316.5(c)(1)(ii) and the memorandum dated 9/22/93 located in Appendix 74-13 .].

(D) Absences in Excess of One Year . Unless an applicant applies for benefits in accordance with section 316.5(d) of the Act, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required shall disrupt the continuity of the applicant's residence.

When you question the applicant about absences, keep in mind that an applicant who has been absent for a period totaling more than one year, may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resu me permanent residence.

(E) Non-resident Tax Status . [(b)(2) or (b)(7)(E)]

(F) Removal and Return . On rare occasions you will encounter an applicant who was a resident alien and departed from the United States while under an order of removal (including previously issued orders of exclusion or deportation). That departure terminates the applicant's status as a lawful permanent resident. You will need to determine:

• whether the applicant subsequently re-acquired lawful permanent resident status; • whether he or she revealed the removal during the immigration or adjustment process; • whether he or she had permission to reapply. [See section 212 of the Act and chapter 43 of this field manual .]

You should also check the duration of residence after readmission as a permanent resident because only time after that readmission as a permanent resident counts towards naturalization requirements.


(G) Readmission after a Deferred Inspection or Removal Proceeding . If you encounter an applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge after conclusion of removal proceedings, you should calculate the applicant’s time in the United States from the date the applicant applied for admission into the U.S. [See 8 CFR 316.5(c)(4) .]

(H) Summary of Possible Issues to Address When Reviewing Residency Requirements .

[(b)(2) or (b)(7)(E)]

(I) Additional Information . For additional information regarding residency, please refer to the following:

• Interpretations 316.1(a) , (b) , (c) and (d) , for the history of this requirement, definitions, exemptions; commuters; residence computed after an order of deportation and subsequent admission as permanent residence without departing the U.S.; location of serviceman's residence for purpose of filing petition under section 316; continuity; incomplete, misleading, or erroneous advice from a Government official whose duty it is to furnish full and accurate information on the subject; • Sections 316 and 310(b) of the Act; • Form N-470 ; uninterrupted physical presence; representative cases; income tax exemption as a nonresident; • Interpretations 317.1 , for information about temporary absence of persons performing religious duties, including the history; eligible classes; physical presence requirements; state residence requirement; effect of income tax exemption as nonresident alien; • General Counsel Opinion 95–21, which discusses the interpretation of American firm or corporation as it relates to a subsidiary for section 319(b) of the Act. This is also helpful in adjudicating N-470s for 316(b) benefits. • The section on eligibility requirements in Chapter 73.3 of this manual, the special cases section of Part Two of the N-400, Chapter 74.2 of this manual, a discussion of preservation of residence under section 316(b) and section 317 of the Act in Chapter 72.2 of this manual, and Form N-470. • The memo dated June 11, 1996, from the Office of Examinations, “Recent General Counsel Opinions Affecting Eligibility for Naturalization: Section 316(b) and 319(b)” (see Appendix 74-14 ), for information concerning questions of brief and casual absences and their effects under section 316(b), and the meaning of “American firm or corporation or a subsidiary thereof” under sec. 319(b) of the Act,

________________________________________________________________________

(d) Part 4: Information about your residence and employment.

(1) Introduction . This section deals with the applicant’s place(s) of residence and employment. Information provided by the applicant in this part of the N-400, in addition to the applicant’s testimony and information contained in the A-file, will help you to resolve possible physical presence, residence, jurisdiction, and good moral character issues when adjudicating the N-400.


You should always compare the information provided on the N-400 with that contained in the A-file to uncover any discrepancies or issues that may need clarification. Periods and places of residence/employment listed on the N-400 should be compared with residence/employment information contained in the A-file or provided by the applicant during the examination. Contradictions in employment or residence information may indicate inadvertent errors or possible falsification of information. Any contradictions sh ould be addressed before final adjudication of the N-400. By focusing on the information relating to residence, physical presence, absences, and employment you will be able to assess an applicant’s eligibility for naturalization. This chapter covers some of the issues related to residence and employment that you should explore when determining an applicant’s eligibility for naturalization.

(2) N-400 Question Review . The following N-400 questions will be reviewed in this chapter:

1. List your addresses during the last five (5) years or since you became a permanent resident, which ever is less. Begin with your most current address. (Question 1)

2. List your employers during the last five (5) years. List your present or most recent employer first. If none, write “None”. (Question 2)

1. The N-400 reads: List your addresses during the last five (5) years or since you became a permanent resident, whichever is less. Begin with your most current address.

(A) Length of Residence and Physical Presence in the United States . Generally, applicants for naturalization must reside and be physically present in the United States for a certain length of time in order to be eligible for naturalization. For an applicant filing under section 316(a) of the Act, he/s