Nat Guide

NATURALIZATION: A GUIDE FOR
LEGAL PRACTITIONERS AND OTHER

COMMUNITY ADVOCATES
)
1663 Mission Street
Suite 602
San Francisco
California 94103
Tel 415.255.9499
Fax 415.255.9792
Email ilrc@ilrc.org
IMMIGRANT LEGAL RESOURCE CENTER

March 15, 2002
Naturalization: A Guide for Legal Practitioners and Other Community Advocates

2002 Edition
TABLE OF CONTENTS
Chapter 1 Introduction
1.1 Introduction to Citizenship...............................................................................................................1-1

1.2 Overview of the Basic Requirements for Naturalization .................................................................1-2
1.3 How to Use this Manual...................................................................................................................1-3
1.4 Contents of the Manual ....................................................................................................................1-5
1.5 Key Definitions ................................................................................................................................1-6
Chapter 2 Initial Discussions with Clients
2.1 Overview of Working with Clients to Complete the Naturalization Process...................................2-1

2.2 Explaining Naturalization ................................................................................................................2-3
2.3 Advantages and Disadvantages........................................................................................................2-7
2.4 Reasons Why Some People Want to Naturalize ..............................................................................2-8
2.5 Reasons Some People Do Not Want to Apply .................................................................................2-9
Chapter 3 Overview of Naturalization, the Legal Requirements, and the

Application Process
3.1 What is Naturalization?....................................................................................................................3-1

3.2 Considerations in Naturalizing.........................................................................................................3-1
3.3 The Nine Basic Requirements for Naturalization ............................................................................3-2
3.4 Lawful Permanent Resident Status ..................................................................................................3-4
3.5 Age ...................................................................................................................................................3-5
3.6 Good Moral Character, Bars to Naturalization, Permanent Ineligibility
for Citizenship, and Discretion ........................................................................................................3-5
3.7 Attachment to the Principles of the Constitution .............................................................................3-7
3.8 English Language.............................................................................................................................3-7
3.9 U.S. History and Government ..........................................................................................................3-7
3.10 Residence in the U.S. .......................................................................................................................3-8
3.11 Physical Presence in the U.S. ...........................................................................................................3-9
3.12 Discontinuity of Residence ............................................................................................................3-10
3.13 Belief in the Principles of the U.S. and Oath of Allegiance...........................................................3-11
3.14 Overview of the Application Process.............................................................................................3-11
Chapter 4 Lawfully Admitted For Permanent Residence
4.1 Introduction ......................................................................................................................................4-1

4.2 Exception: People Who Have Served in the U.S. Armed Forces
During Certain Wars or "Hostilities" ...............................................................................................4-2
4.3 Children Who Naturalize .................................................................................................................4-3
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4.4 Ineligible for Admission as a Lawful Permanent Resident..............................................................4-3

4.5 Inadmissible at Reentry and Now Removable .................................................................................4-4
4.5(a) Excludable at Reentry and Now Deportable ...................................................................................4-6
4.6 Waiver Under 212(k) .......................................................................................................................4-8
4.7 Fraud Waiver While in Removal Proceedings ...............................................................................4-10
4.8 Abandonment of Residence - Losing One's Permanent Residence Status .....................................4-12
4.9 Reentry Permits..............................................................................................................................4-17
4.10 Becoming Removable ....................................................................................................................4-18
Chapter 5 Residence And Presence Requirements
5.1 Introduction ......................................................................................................................................5-1

5.2 First Residence Requirement: Five Years of Continuous Residence..............................................5-2
5.3 Exceptions to the Five Year Continuous Residence Requirement...................................................5-4
5.4 Disrupting Continuous Residence....................................................................................................5-7
5.5 Exceptions to Disruptions of More than One Year ........................................................................5-12
5.6 Second Residence Requirement: Three Months of Local Residence............................................5-13
5.7 Third Residence Requirement: Continuous Residence After Application....................................5-14
5.8 Fourth Residence Requirement: Physical Presence ......................................................................5-15
5.9 The Effect of Deportation/Removal Orders and Deferred Inspections ..........................................5-16
Chapter 6 Good Moral Character and Statutory Bars to Eligibility
6.1 Introduction ......................................................................................................................................6-1

6.2 The Good Moral Character Requirement.........................................................................................6-2
6.3 Bars to Proving Good Moral Character............................................................................................6-5
Statutory Bars to Proving Good Moral Character.......................................................................6-5
Non-Statutory Automatic Bars to Establishing Good Moral Character
Affairs, Unlawful Acts, Failure to Support Dependents; Probation, or Parole.........................6-10
Failure to Pay Child Support ....................................................................................................6-10
Receipt of Public Benefits ........................................................................................................6-11
Failure to Register for the Selective Service.............................................................................6-11
Failure to File Taxes .................................................................................................................6-15
Dealing with Clients who may have a Criminal Record: Obtaining Records...........................6-16
6.4 Temporary Ineligibility to Naturalize ............................................................................................6-16
6.5 Permanent Ineligibility to Naturalize .............................................................................................6-18
6.6 Deportability Issues........................................................................................................................6-19
Grounds of Deportation ............................................................................................................6-19
Aggravated Felonies .................................................................................................................6-20
Effect of State Relief from a Conviction, such as Expungement or Diversion.........................6-23
Possible Defenses for Deportable Naturalization Applicants ...................................................6-24
Termination of Removal/Deportation Proceedings ..................................................................6-24
Cancellation of Removal or Other Waivers of Deportation .....................................................6-26
212(c) Relief .............................................................................................................................6-26
Political Asylum, Family Immigration, and Other Relief.........................................................6-26
6.7 Discretionary Bars to Proving Good Moral Character...................................................................6-27
Balancing the “Good” and the “Bad” .......................................................................................6-27
Factors that may show “Bad” Moral Character ........................................................................6-28
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Chapter 7 Requirement: English, History and Government
7.1 Introduction ......................................................................................................................................7-1

7.2 English Requirements ......................................................................................................................7-1
7.3 Exceptions to the English Language Requirement...........................................................................7-2
7.4 U.S. History and Government ..........................................................................................................7-3
7.5 Special Rules on U.S. History and Government Requirement.........................................................7-6
7.6 Retesting...........................................................................................................................................7-8
7.7 Introduction to the Disability Exceptions to the English & Civics Requirements ...........................7-9
7.8 Definitions of Qualifying Disabilities ............................................................................................7-10
7.9 Applying for the Disability Exceptions: Preparing the N-648 Form .............................................7-14
7.10 How Advocates, Doctors, and Social Workers Can Work Together .............................................7-16
7.11 Applying for the Disability Exceptions: Procedural Issues...........................................................7-17
7.12 Appeals of Denials of Disability Exceptions .................................................................................7-19
7.13 The INS Must Make Reasonable Accommodations to the
Naturalization Process for Applicants with Disabilities.................................................................7-20
7.14 Waiver of the English Requirement and
Modification of the US History/Civics Testing for Hmong Veterans ...........................................7-25
7.15 Signature on Naturalization Form ..................................................................................................7-26
7.16 The Oath of Allegiance and People with Disabilities ....................................................................7-26
7.17 Expedited Ceremonies for Persons with Serious Illness or Disabilities.........................................7-27
7.18 Resources .......................................................................................................................................7-28
Chapter 7-5 Requirements for Special Categories: Spouses, Children, People in the
Military, and U.S. Nationals
7-5.1 Introduction .................................................................................................................................7.5-1

7-5.2 Spouses of United States Citizens...............................................................................................7.5-1
7-5.3 Spouses of United States Citizens Abroad ..................................................................................7.5-3
7-5.4 Children of United States Citizens ..............................................................................................7.5-3
7-5.5 Basic Requirements for Citizenship for Children .......................................................................7.5-4
7-5.6 Definition of Legal Custody for Citizenship for Children who are Legitimate ..........................7.5-6
7-5.7 Definition of Legal Custody for Citizenship for Children for those Children
Born out of Wedlock ...................................................................................................................7.5-8
7-5.8 Documenting a Claim under § 322 Citizenship ........................................................................7.5-10
7-5.9 How to Apply for § 322 Citizenship .........................................................................................7.5-12
7-5.10 How to Appeal a Denial of a § 322 Citizenship Application ....................................................7.5-14
7-5.11 Exception: People Serving in the U.S. Armed Forces .............................................................7.5-15
7-5.12 Exception: People Who Have Served in the U.S. Armed Forces
During Certain Wars or “Hostilities” ........................................................................................7.5-17
7-5.13 Filipino War Veterans ...............................................................................................................7.5-19
7-5.14 Nationals of the United States...................................................................................................7.5-19
Chapter 8 The Application Process and Interview
8.1 Introduction to the Naturalization Process ......................................................................................8-1

8.2 The Application ...............................................................................................................................8-1
8.3 Documentation ..............................................................................................................................8-15
8.4 Applications of People With Disabilities ......................................................................................8-19
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8.5 Expedited Naturalization Application Processing .........................................................................8-21

8.6 Amending the Application.............................................................................................................8-22
8.7 Transferring to Another District ....................................................................................................8-22
8.8 Withdrawing the Application ........................................................................................................8-23
8.9 Preparing For The INS Interview ..................................................................................................8-23
8.10 The Interview.................................................................................................................................8-25
8.11 What Happens After the Interview ................................................................................................8-27
8.12 Problems in the Process.................................................................................................................8-27
Chapter 9 Loyalty Oath and Naturalization Ceremony
9.1 Introduction .....................................................................................................................................9-1

9.2 Oath of Allegiance...........................................................................................................................9-1
9.3 The Text of the Oath........................................................................................................................9-1
9.4 The Meaning of the Oath.................................................................................................................9-1
9.5 Exceptions to Taking the Oath of Allegiance..................................................................................9-3
9.6 The Oath and People with Disabilities ............................................................................................9-4
9.7 Expedited Ceremonies for Persons with Serious Illness or Disabilities ..........................................9-6
9.8 Changes in the Naturalization Process ............................................................................................9-7
9.9 Jurisdiction - INS or the Courts.......................................................................................................9-8
9.10 Judicial Ceremonies.........................................................................................................................9-9
9.11 Name Changes.................................................................................................................................9-9
9.12 INS Ceremonies.............................................................................................................................9-10
9.13 Failure to Attend a Naturalization Ceremony................................................................................9-10
9.14 Procedures During an INS or Judicial Ceremony..........................................................................9-11
9.15 Applying for a U.S. Passport .........................................................................................................9-12
9.16 Gaining Knowledge from Clients..................................................................................................9-12
Chapter 10 Group Processing
10.1 Introduction ..................................................................................................................................10-1

10.2 Overview of Naturalization Group Processing ............................................................................10-5
10.3 The Introductory Workshop .........................................................................................................10-6
10.4 Introductory Workshop: Logistics ..............................................................................................10-6
10.5 Introductory Workshop: Getting Started.....................................................................................10-6
10.6 Introductory Workshop: Agenda.................................................................................................10-7
10.7 Introductory Workshop: Discussion of Advantages and Disadvantages ....................................10-7
10.8 Introductory Workshop: Discussion of Requirements for Naturalization...................................10-8
10.9 Introductory Workshop: Application Review .............................................................................10-9
10.10 Introductory Workshop: Set Up Second Workshop....................................................................10-9
10.11 Introductory Workshop: Optional Presentations.........................................................................10-9
10.12 Applicant's Preparation for the Application Workshop .............................................................10-10
10.13 The Application Workshop ........................................................................................................10-10
10.14 Application Workshop: Logistics and Supplies ........................................................................10-11
10.15 Application Workshop: Checking People In.............................................................................10-11
10.16 Application Workshop: Application Review ............................................................................10-12
10.17 Application Workshop: Checking the Application ...................................................................10-12
10.18 Application Workshop: Preparing the Applications to Send ....................................................10-13
10.19 Application Workshop: Volunteers, Evaluations & Planning Next Workshop ........................10-13
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10.20 Application Workshop: Resources for Interview Preparation...................................................10-13

10.21 Follow-Up on Applications........................................................................................................10-13
10.22 The Interview Preparation Workshop: Introduction .................................................................10-15
10.23 The Interview Preparation Workshop: Logistics and Supplies .................................................10-15
10.24 The Interview Preparation Workshop: Getting Started .............................................................10-15
10.25 The Interview Preparation Workshop: Agenda.........................................................................10-16
10.26 The Interview Preparation Workshop: Description of the Interview ........................................10-16
10.27 The Interview Preparation Workshop: Discussion of Ways to Handle an Interview................10-16
10.28 The Interview Preparation Workshop: Role Plays ....................................................................10-17
10.29 The Interview Preparation Workshop: Review of Documents..................................................10-18
10.30 The Interview Preparation Workshop: Request for Feedback on the Interviews,
the Process, and Follow-Up Arrangements .......................................10-18
10.31 Request for Volunteers and Evaluations ....................................................................................10-19
Chapter 11 Denials, Appeals, and INS Inaction
11.1 Introduction ..................................................................................................................................11-1

11.2 Denials..........................................................................................................................................11-2
11.3 The Appeal Process......................................................................................................................11-5
11.4 Other Options ...............................................................................................................................11-7
11.5 INS Inaction .................................................................................................................................11-9
11.6 Writ of Mandamus .....................................................................................................................11-10
Chapter 12 Acquisition and Derivation of Citizenship
12.1 Overview of Acquisition and Derivation of Citizenship..............................................................12-1

12.2 Introduction to Acquisition of Citizenship...................................................................................12-2
12.3 Who Can Acquire Citizenship at Birth Outside of the U.S.? .......................................................12-2
12.4 How to Use the Charts .................................................................................................................12-3
12.4A "Legitimate" Children Born Outside of the U.S...........................................................................12-3
12.4B Children Born Out of Wedlock and Outside of the U.S...............................................................12-5
12.5 Documenting a Claim of Acquisition of Citizenship ...................................................................12-7
12.6 Derivation of Citizenship .............................................................................................................12-9
12.7 Who Can Derive Citizenship......................................................................................................12-10
12.8 Using the Chart to Determine Derivative Status ........................................................................12-10
12.9 Child Citizenship Act of 2000....................................................................................................12-13
12.10 Legal Custody for Purposes of Derivative Citizenship For Children
Who Do Not Qualify Under the Child Citizenship Act of 2000 ................................................12-13
12.11 Definition of Legal Custody For Purposes of Derivation of Citizenship For Children
Who Qualify Under the Child Citizenship Act of 2000 and Who Are Legitimate ....................12-14
12.12 Definition of Legal Custody For Derivation of Citizenship For Children Qualifying
Under the Child Citizenship Act of 2000 and Who were Born Out of Wedlock .......................12-16
12.13 Submitting an Application for and Documenting a Claim of Derivative Citizenship................12-19
12.14 How to Appeal a Denial of a § 320 Citizenship Application .....................................................12-21
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Chapter 13 Loss of United States Citizenship
13.1 Introduction ..................................................................................................................................13-1

13.2 Revocation of Naturalization .......................................................................................................13-1
13.3 Illegal Procurement of Naturalization ..........................................................................................13-2
13.4 Material Concealment or Misrepresentation ................................................................................13-4
13.5 Communist or Other Proscribed Membership..............................................................................13-6
13.6 Citizenship Unlawfully Procured .................................................................................................13-6
13.7 Refusal to Testify before a Congressional Committee.................................................................13-7
13.8 Less than Honorable Discharge from the Armed Forces .............................................................13-7
13.9 Denaturalization Proceedings.......................................................................................................13-7
13.9A Judicial Proceedings.....................................................................................................................13-8
13.9B Administrative Proceedings .........................................................................................................13-9
13.10 Effect on Derivative Citizens .....................................................................................................13-13
13.11 Expatriation and Renunciation ...................................................................................................13-13
13.12 Naturalization in a Foreign Country...........................................................................................13-15
13.13 Oath of Allegiance to Foreign State...........................................................................................13-15
13.14 Service in Foreign Armed Forces...............................................................................................13-16
13.15 Employment by Foreign Government........................................................................................13-16
13.16 Renunciation of Citizenship .......................................................................................................13-17
13.17 Treason or Forceful Overthrow..................................................................................................13-18
13.18 Expatriation Procedures .............................................................................................................13-19
13.19 New Ground of Inadmissibility for Citizenship Renunciation...................................................13-20
Chapter 14 Other Immigration Remedies-Gaining Legal Status for Family Members,

Outreach, and Community Organizing
14.1 Introduction ..................................................................................................................................14-1

14.2 Family Visa Petitions -- "Immediate Relatives" of U.S. Citizens ................................................14-2
14.3 Family Visa Petitions -- The Preference System for Relatives
of U.S. Citizens and Permanent Residents ...................................................................................14-3
14.4 Self-Petitioning Visas for Battered or Abused Spouses or
Children of U.S. Citizens or Lawful Permanent Residents ..........................................................14-4
14.5 Becoming a Permanent Resident: Adjustment of Status and Consular Processing .....................14-8
14.6 Family Unity Program................................................................................................................14-12
14.7 Asylum and Restriction of Removal ..........................................................................................14-13
14.8 Cancellation of Removal for Non-Permanent Residents ...........................................................14-14
14.9 Cancellation of Removal for Long-Term Permanent Residents ................................................14-16
14.10 Diversity Visas ...........................................................................................................................14-17
14.11 Temporary Protected Status (TPS) and Delayed Enforced Departure (DED) ...........................14-17
14.12 Legalization Extension Cases.....................................................................................................14-18
14.13 Other Immigration Remedies .....................................................................................................14-18
14.14 Community Information Sessions: Publicizing Naturalization
and Other Immigration Remedies ..............................................................................................14-19
14.15 Know Your Rights Sessions.......................................................................................................14-20
14.16 Lay Advocates............................................................................................................................14-21
14.17 Community Organizing: Organizing Immigrants to Educate Policy Makers
and Improving INS Procedures ..................................................................................................14-22
14.18 Organizing Suggestions .............................................................................................................14-22
14.19 Family Fairness/Family Unity: An Organizing Campaign Example ........................................14-23
14.20 A Network of Immigrant-Based Committees Suggestions ........................................................14-25
14.21 Working with the Media ............................................................................................................14-25
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Appendices
2-A. Naturalization Application “To do List” (English & Spanish)

2-B. Naturalization Flyers (English, Spanish, Chinese, plus more)
2-C. Dual Citizenship Rules: Country by Country
4-A. Checklist to Determine if a Naturalization Applicant Might Be Deportable

Handout for Applicants on Grounds of Deportation (English & Spanish)
4-B. Comparative Charts on New and Old Grounds of Inadmissibility and
Deportation under IIRAIRA
4-C. Handouts for Applicants on Abandonment of Residence (English & Spanish)
5-A. INS Policy Memorandum #54: “Interim Procedure to Remedy Prematurely Filed
Naturalization Applications”
6-A. Requesting Criminal Records

6-B. Example of Positive Equities for Determining Good Moral Character
6-C. Handouts for Applicants on Good Moral Character (English & Spanish)
6-D. Summary of the Grounds of Deportability
6-E. Effects of Welfare Benefits to Applicants for Naturalization
6-F. (2 part) INS Memorandum from General Counsel Paul Virtue on Failure to Register for
Selective Service as a Bar to Naturalization, April 27, 1998; and Executive Office of
Naturalization Operations, Policy Memorandum No. 11, “Reiteration of Service Policy
regarding §334 of the INA,” June 18, 1999.
7-A. Sample 100 Questions (English, Spanish, Russian, Korean, Japanese, and
Vietnamese) and Sample Sentences for Written English Test
7-B. Packet on Submission of FOIA Request
7-C. U.S. History and Government Questions for Applicants Over 65 and Living in
the U.S. as Permanent Residents for 20 Years or More
7-D. Disability Waiver Regulations
7-E. Memo from INS regarding Section 312 Disability Naturalization Adjudications
7-F. N-648 – Disability Waiver Form (Blank & Completed Sample)
7-G. Sample Letter Requesting Accommodation at Interview
7-H. Sample Sentences for Written English Testing
7-5-A, 7-5-B. Memos from INS regarding Naturalization of Children

7-5-C. Outreach Flyer for Naturalization of Children
8-A. N-400 Naturalization Application (blank & completed samples plus

explanations to volunteers on how to complete the form)
8-B. Intentionally left blank
8-C. Continuation Pages for N-400
8-D. N-400 Direct Mail Service Center Addresses
8-E. Legal Worker Checklist for Naturalization Cases
8-F. Letter Regarding Delay of Application Due to File Lost by INS
8-G. Order Form for Naturalization Instructional Resources from Los Angeles Technology
Center
8-H. Resources for Preparing for the Naturalization Interview
8-I. N-400 Application Review Information
8-J. ILRC Sample Fee Waiver Packet
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8-K. Sample Letters Contesting INS Decision to Recommend Denial of

Naturalization Application
8-L. San Francisco INS Examiner Complaint Profile Regarding Naturalization
Interviews
8-M. INS Memorandum on “Fingerprint Waiver Policy for All Applicants for Benefits under
the Immigration and Nationality Act and Procedures for Applicants whose Fingerprint
Responses Expire after the Age Range during which Fingerprints are Required.”
8-N. Expeditious Processing of Naturalization Applications
9-A. Sample Letter to INS Regarding Homebound Swearing-In Ceremonies

9-B. Filing Discrimination Complaint Forms
9-C. San Francisco INS Policy Guidance on “Making the Citizenship Process Accessible to
Persons with Serious Illnesses and Mental Disabilities”
10-A. Group Processing Packets

10-B. Sample Green Cards
10-C. Outreach Flyers on What Must be Sent with a N-400
10-D. Naturalization Group Processing List of Participants
11-A. Rule on Private Immigration Bills to Congress for Naturalization

11-B. Blank and Sample Completed N-336, Naturalization Appeal
11-C. Sample Briefs in Support of Administrative Naturalization Appeal
12-A. Acquisition of Citizenship Charts

12-B. Derivation of Citizenship Charts
12-C. M-300 Instructions for Applying for a U.S. Passport Abroad
12-D. Sample N-600 Application and Cover Letter
14-A. Outreach Flyers Describing Ways to Immigrate (English & Spanish)

14-B. Know Your Rights Flyers (English & Spanish)
14-C. Long Term Options Sheet
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Naturalization: A Guide for Legal Practitioners & Other Community Advocates
March 15, 2002
CHAPTER 1
INTRODUCTION
§ 1.1 Introduction to Citizenship
There are four ways one can become a United States citizen. First, the Fourteenth
Amendment to the U.S. Constitution provides that anyone born in the United States and subject
to the jurisdiction of the U.S. is a U.S. citizen.1 Second, people who are born in another country
to parents who are U.S. citizens may, depending on certain rules explained in Chapter 12 of this
manual, become U.S. citizens at birth through acquisition of U.S. citizenship. Third, people can
become U.S. citizens through a process called "Naturalization." Fourth, people who are lawful
permanent residents of the U.S. and whose parent or parents naturalize may, depending on
certain rules explained in Chapter 12 of this manual, become U.S. citizens through derivation of
citizenship.
There are many advantages to becoming a U.S. citizen. Some of these include: the right
to vote in U.S. elections, the right to travel with a U.S. passport, the right to help some relatives
immigrate to the U.S. more quickly, the right to obtain certain government jobs, the right to
obtain certain government benefits, the right not to be excluded or removed (deported) from the
U.S., and the right to live in another country without losing the right to legally return to the U.S.2
Becoming a citizen of the U.S. is not necessarily the right path for everyone who is a
lawful permanent resident. For some, U.S. citizenship may mean they have to give up
citizenship in their own country. This is something many people are not willing to do. For
others, the naturalization application may actually start an Immigration and Naturalization
Service (INS) investigation that could lead to the applicant losing her green card and being
deported. Still others may feel reluctant to go through what can be a difficult and, at times,
unpleasant process. Both the advocate and the client must thoroughly consider all of the facts in
order to make an informed decision about whether or not to apply for naturalization. Such a
discussion between the advocate and client cannot take place until the advocate gives a complete
and understandable explanation of the legal requirements to the client and together they decide
whether or not the client is eligible to naturalize.
A record number of immigrants applied for naturalization during the mid and late 1990s.
In California, and throughout the entire United States, hundreds of thousands more immigrants
either are already eligible to apply or will soon become eligible.
1
INA § 301(a). The exception to the rule that everyone born in the U.S. is a U.S. citizen applies to children born
to high-ranking foreign diplomats while in the U.S. See 8 CFR § 101.3(b) and INS Interpretations 301.1(a)(4).
2
Green card holders (i.e., lawful permanent residents) can lose their permanent residence status and be removed
(deported from the U.S.) if they have "abandoned their residence" due to having moved to live in another country
while still a permanent resident of the U.S. For more information on this subject, refer to Chapter 4.
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There are four major reasons why there was a large increase in the number of
naturalization applicants and why there are still hundreds of thousands more who will apply
soon. First, close to three million people who legalized their status through the amnesty program
have become eligible to apply for naturalization. Second, the INS has several programs to get
people to renew their green cards3 that encourage many green card holders to apply for
naturalization rather than go through the renewal process. Third, a few years ago the INS
publicly stated that it intended to make naturalization a priority. Thus, during the Citizenship
U.S.A. program of the mid 1990s, the INS made naturalization adjudications and outreach a
priority. Now, although naturalization is not as big a priority at the INS as it was a few years
ago, the INS has been devoting more resources and attention to naturalization cases than it did
prior to the mid 1990s. Fourth, the increased anti-immigrant hysteria of the mid and late 1990s
encouraged many immigrants to become citizens so they can vote and better organize to combat
the anti-immigrant sentiments.
§ 1.2 Overview of the Basic Requirements For Naturalization
To become a naturalized citizen, an applicant must meet nine basic requirements. These
requirements are found in the Immigration and Nationality Act (INA) §§ 312 through 337, and 8
Code of Federal Regulations (CFR) §§ 310 through 331.4 The nine requirements are that an
applicant must:
- be a lawful permanent resident (see Chapter 4);

- be at least 18 years old (see Chapter 7-5);
- have good moral character, keeping in mind certain specific "bars" to naturalization (see
Chapter 6);
- be able to have a fairly simple conversation in English (see Chapter 7);
- be able to pass a test on U.S. history and government (see Chapter 7);
- have made a home in the U.S. for at least five years (except in certain circumstances --
see Chapter 5);
- not have disrupted the continuity of her residence (also called "abandoned her residence
for naturalization purposes") in the United States for any of the last five years (see
Chapters 4 and 5);
3
INS has instituted a program requiring everyone to renew his or her green card every ten years. Additionally,
everyone with an I-151 "green card" (generally the permanent resident cards issued prior to 1978) instead of an 1-
551 green card was supposed to apply for a new green card by March 20, 1996. It is important to note that even if
s/he did not apply for a new green card by this date, s/he does remains a permanent resident. Starting in the late
1980s, all new green cards issued by the INS expire ten years after issuance. The dates are written on the card itself.
Thus, many green cards have been expiring and more people are naturalizing instead of renewing their green cards.
See Chapter 8 for more information on the subject of expiring green cards and naturalization.
4
Practitioners should become familiar with both the INA and 8 CFR when helping clients prepare naturalization
applications. The INA is the immigration law passed by Congress, and 8 CFR contains the regulations used to carry
out the law. Often the INA and 8 CFR have analogous section numbers. Thus, if a practitioner finds a part of the
INA which is relevant to her client's case, chances are she can find the relevant 8 CFR section under the same
number as the INA section dealing with the same topic. For instance, the requirements for good moral character can
be found in INA § 316 and 8 CFR § 316.
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- have been physically present in the U.S. for at least half of the five year period (except in
certain circumstances - see Chapter 5); and
- swear loyalty to the U.S. by taking a loyalty oath (see Chapter 9).5
When a client wants to apply for naturalization, one of the first things the advocate
should do is explain the legal requirements for naturalization. There is obviously not a single
correct way to explain the requirements, but any explanation must be thorough and easily
understood. For an example of one way to explain the legal requirements to a client, please see
Chapter 2, § 2.2. It is also useful to give the client something in writing that explains
naturalization. For sample sheets in English, Chinese, Spanish, and other languages, please see
Appendix 2-B. The ILRC has videos in English and Spanish explaining the legal requirements
for naturalization which agencies can show to their clients.
One very efficient and effective way to explain the requirements for naturalization is in a
group setting, often called an information session. This way all the potential applicants can
listen to the requirements together and can learn from each other's questions. Additionally, it
saves the advocate time because she doesn't have to explain the requirements to each person
individually. For a more complete discussion of information sessions and group processing of
naturalization applications, please see Chapter 10.
§ 1.3 How To Use This Manual
This naturalization manual is designed to assist paralegals, clerical workers, volunteers,

and lawyers working at non-profit agencies. Additionally, private lawyers with varying degrees
of experience in naturalization cases will find this manual extremely useful. Although this
manual was written with the intent of focusing on naturalization applications submitted in
California, practitioners from anywhere in the U.S. will find it extremely useful.
This manual is fashioned in a manner that can guide you through the entire process of
handling a naturalization case, beginning with the first time you meet a potential applicant
through the completion and filing of the N-400 (the Naturalization Application), the
naturalization interview, the appeal (if necessary), and the swearing-in ceremony.
This manual is not simply a discussion of legal requirements and procedures. Because
the input and work of the naturalization applicant is so essential to the success of the case, this
manual is also filled with many ideas about how to make sure applicants understand the legal
requirements and procedures as well as some of the different ways they can help make their
cases as strong as possible. Applicants, their families, and friends can help legal workers by
doing much of the work while applying for naturalization. For instance, most applicants can
complete the N-400, collect the necessary documentation, and prepare for their naturalization
interview and exam.
5
There are some exceptions to these nine requirements for several "Special Classes" of people who may be
naturalized. Some of these exceptions are discussed in this manual in Chapters 5 and 7-5, but others are beyond the
scope of this manual. For more information on these "Special Classes," please see 8 CFR §§ 319 through 331.
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Working with applicants is not just more efficient for a legal worker. The client's active
and informed participation actually helps to build a stronger case. A client who has a handle on
the requirements and the process will be more helpful in gathering relevant information for the
legal worker and in organizing the answers to the questions on the application. Additionally, it
will be likely that she will be better prepared to deal with the stress of the naturalization
examination, answer the questions more accurately, and have a higher possibility of success if
she knows the legal requirements and what to expect.
In the appendix, there are checklists, sample explanations of the legal requirements, and
outreach flyers containing a list of the legal requirements that will facilitate the applicant's
participation in building her case. We encourage you to use these appendices as much as
possible. Feel free to copy them onto your own letterhead and make any changes you feel are
necessary.
Parts of this manual are dedicated to presenting and discussing the basic legal
requirements for naturalization. Some of the legal requirements are clear cut and probably
inflexible. Yet others are murky, not clearly defined, and probably flexible depending on which
INS office you are working with and which INS naturalization examiner is reviewing the
applicant's case. We strongly encourage you to investigate challenging the INS' interpretation of
any legal requirement that is not grounded in the Immigration and Nationality Act (INA) or in
case law. Our legal staff would be more than happy to discuss any ideas you have about INS'
interpretations or conduct that you think is unfair or wrong.
Although we have thoroughly researched the legal requirements presented in this manual,
we do not suggest that you use it as a substitute for your own research and knowledge.
Immigration law changes constantly and can be complex. Further research must be done on
issues not discussed in this manual or new developments in the field. Additionally, each INS
jurisdiction (and even to some extent, each INS naturalization examiner) has different procedures
and different interpretations about some of the legal requirements. It is very important for you to
research the interpretation that the INS office in your jurisdiction has for each legal requirement.
To do this, ask other, more experienced local practitioners.
Another way to obtain information about how the INS handles specifics issues in your
jurisdiction is to set up a periodic INS citizenship branch liaison meeting between local
community agencies and the local INS office. The meetings will give you an opportunity to ask
the INS officials what their interpretations are on each of the specific legal requirements. These
meetings are presently occurring in many INS districts and at least one INS Service Center. The
meetings have been a valuable asset to legal workers handling naturalization cases. For more
information on how to set up such a meeting, feel free to call the Naturalization Attorney of the
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Day (AOD) between 10:00 - 3:00 (PST) at the ILRC (415-255-9499, extension 400). The ILRC
is distributing a packet on how to set up such meetings. To order a packet, send a request to:
ILRC
1663 Mission St., Suite 602
San Francisco, CA 94103
Attention: Naturalization Liaison Meetings Packet
The ILRC first published this manual in 1995. We have continued to update it annually.
We use input from our readers as one source of information to help us improve this manual every
year. We plan to update this manual again in 2003. Thus we encourage you to read it with a
critical eye and give us any input about any changes in or differences of opinion about the law,
the application procedures, how to work with clients, or anything else in this manual. Specific
tendencies of how the different INS offices treat certain situations would also be greatly
appreciated. Please send any suggestions to:
Eric Cohen
ILRC
1663 Mission St., Suite 602
San Francisco, CA 94103
§ 1.4 Contents of the Manual
This manual is divided into 15 chapters. Chapter 3 is an overview of the legal

requirements and the procedures when applying for naturalization. Chapters 4, 5, 6, 7, and 9
contain detailed explanations of the legal requirements. Chapter 7-5, discusses requirements for
“special categories,” spouses and children of U.S. citizens, and people in the military. Chapters
2, 8, and 10 explain application procedures and suggest ways to work with clients when helping
them apply for naturalization. Chapter 10 is especially interesting because it outlines Group
Processing, which is an efficient and very effective way to help a group of naturalization
applicants at the same time. Chapter 11 discusses what to do if a naturalization application is
denied. Chapter 12 covers the ever-important issues of Acquisition and Derivation of
citizenship, and Chapter 13 provides a summary of how a naturalized citizen can lose his or her
citizenship. The ways one can lose citizenship status are especially important for advocates and
clients to know so that applicants do not do anything which may cause them to lose the benefits
of naturalization for which they worked so hard. Chapter 14, the last chapter, is a collection of
information that is extremely valuable to everyone helping naturalization applicants. We
strongly encourage you to read Chapter 14 very carefully because it covers many of the ways
people can immigrate to the U.S. Additionally, Chapter 14 discusses ways to work with
immigrants in trying to improve the naturalization process. The chapter includes suggestions
about how to use the media, organize with the immigrant community, and train and work with
lay advocates around naturalization issues.
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§ 1.5 Key Definitions
Although we have attempted to remove unnecessary legalese or technical words from this
manual, some are unavoidable. The technical terms you encounter frequently in this manual are
defined below.
INS: The Immigration and Naturalization Service is the federal government agency in charge of
adjudicating naturalization and other immigration applications.
Lawful Permanent Resident: Someone who has an immigrant visa, or a "green card", is a
lawful permanent resident. Lawful permanent residents have immigrated lawfully to the United
States.
Green Card: A green card is proof of status as a lawful permanent resident. It is an I-551 and it
is not green. (As of March 20, 1996, all I-151 “green” cards are no longer valid.)
Grounds of Inadmissibility: The new immigration law (the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, or IIRIRA) which was signed by President Clinton on
September 30, 1996, changed some key terms of law for immigrants. Now, the "grounds of
inadmissibility" is the name of the group of acts that may bar persons from being admitted into
the U.S. These grounds used to be called the "grounds of exclusion." The grounds of
inadmissibility can be found in INA § 212(a). For more information on this topic, please see
INA § 237 and the ILRC's manual, A Guide for Immigration Advocates.
Grounds of Deportability: The grounds of deportability are the laws that Congress passed to
determine what types of people can be "removed" (i.e., forced to leave the U.S.). The term
"removed" has combined into one what used to be called "deported" and "excluded" from the
U.S. Immigrants can now be "removed" if they fall within the grounds of deportability or
inadmissibility. For more information on this topic, please see INA § 237 and the ILRC's
manual, A Guide for Immigration Advocates.
Removed: The term now used to describe what happens when the U.S. government makes an
immigrant leave the U.S. is "removed" instead of "deported." Immigrants can be "removed" if
they fall within the grounds of deportability or inadmissibility. For more information on this
topic, please see INA § 237 and the ILRC's manual, A Guide for Immigration Advocates.
INA: The Immigration and Nationality Act (INA) is the complete law which Congress passed
dealing with all issues of immigration and naturalization. The law changes frequently. Everyone
should have a copy of the law. Copies may be purchased at government bookstores. These laws
may also found in Title 8 of the United States Code (8 USC).
8 CFR: Volume 8 of the Code of Federal Regulations (8 CFR) contains the INS' interpretation
and implementation of the law. These codes change frequently. Everyone should have a copy of
8 CFR and learn how to use it. If a provision in the 8 CFR conflicts with the intent of the INA or
with the U.S. Constitution, it may be challenged in court and be declared wrong and void.
Copies of 8 CFR may be purchased at government bookstores.
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INS Operations Instructions: The INS Operations Instructions (OIs) provide useful insight
into the internal guidelines and procedures to be followed by INS personnel when doing their job
and implementing the law. These Instructions are not the law and if the INS is following
Operations Instructions that go against the U.S. Constitution, the INA, or the 8 CFR, they can
and should be challenged.
INS Interpretations: The INS Interpretations are the internal INS policies about what the law
is. They act as guidance for the INS. These Interpretations are not the law and if the INS is
following Interpretations that go against the U.S. Constitution, the INA, or the 8 CFR, they can
and should be challenged.
Executive Office for Immigration Review (EOIR), Board of Immigration Appeals (BIA),
and Federal Circuit Courts of Appeal: The EOIR is the court system set up to adjudicate
certain immigration issues. The trial court is called the immigration court. The Board of
Immigration Appeals (BIA) is the appeals court of the EOIR court system. The BIA, the
immigration court, and the INS are part of the Department of Justice. Often cases decided at the
BIA can be appealed to the federal circuit courts (9th Circuit Court of Appeals in California, for
instance) and even to the U.S. Supreme Court. A naturalization applicant can appeal a denial to
the Federal District Court.
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CHAPTER 2
INITIAL DISCUSSIONS WITH CLIENTS
§ 2.1 Overview of Working with Clients to Complete the Naturalization Process
Imagine how you would feel if, at the beginning of an important project that concerned
you directly, someone told you: "This project is too complicated for you to handle. I'll
take care of it from here." In some ways, you might feel relieved that someone else was
taking responsibility for your problems, but at the same time you might also feel a
discouraging sense of helplessness, incompetence and dependence. Imagine then that the
person who took over your project sat down with you and asked you questions, out of the
blue, like "Have you ever knowingly committed a crime for which you have not been
arrested?" or "If the law requires it, are you willing to perform work of national
importance under civilian direction?"
On the other hand, what if you were told, "This important project can be completed
successfully but it will take the two of us working together to do it. Let's talk about what
we have to get done, and why." Being approached in this manner would probably make
you feel more confident and competent, more in control of yourself and your situation.
This sense of self-confidence would presumably carry over into your performance when
you were eventually asked to contribute to the project.
The naturalization application gives the INS the information they use to determine
whether an applicant is eligible to naturalize. A naturalization applicant wins or loses her case at
the naturalization interview, where in addition to questions about U.S. history and government,
an INS examiner asks her questions about her application -- that is, her eligibility for
naturalization. An applicant who understands the naturalization requirements and takes an active
role in answering questions about how she meets those requirements will be more successful in
her interview. As educators know, active and participatory learning is more effective.
Involving clients as much as possible in their cases may be the most efficient way of
getting the work done -- an important consideration for busy attorneys and legal workers. It is
more efficient, for example, for a client to gather the information required in the application
before her meeting with the advocate. Some of the questions on the N-400 application, like
where the applicant has lived and worked for the past five years often require searching through
rent receipts, paycheck stubs, and other documents to determine the right dates and addresses.
Writing down every absence the applicant has ever had from the United States can require
making lots of phone calls to relatives, checking calendars, letters, and a great deal of
remembering. The advocate can help with this when the applicant has tried everything else, but
it makes more sense for the applicant to think about these things when she's at home, rather than
when she's sitting in a strange office.
Clients can be effective collaborators on their cases in other ways as well. They know
more about their own circumstances, and therefore how they meet the naturalization
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requirements. Clients are also often likely to come up with new ways to document, for example,
continuity of residence or good moral character.
Collaborating with a client will also help her gain self confidence and skills she'll need in
other contexts in her life -- which is important, because a legal worker won't always be there to
help. For example, if the client is accidentally billed twice for the same medical service, it will
be easier for her to prove it if she has learned to keep all of her papers organized in files.
Additionally, by having confidence in the client and respecting her skills and abilities,
you can help her learn to help others as well as herself. Her knowledge of the immigration
process will allow her to serve as a resource for others in need of immigration assistance in her
community. Encouraging this type of participation is a good way of modeling the civic
responsibilities required of a new U.S. citizen.
Clients can take significant responsibility for much of the decision-making and work in
nearly all immigration cases. Naturalization clients can do even more. The requirements are
pretty simple, the application is relatively straightforward; complex arguments are required in
only a handful of cases and the major preparation for the INS interview consists of the client
herself learning English and U.S. history and government. Most potential applicants can learn
almost everything they need to about naturalizing from comprehensive outreach -- through
information workshops or through presentations in the media. The only significant element of
legal counseling in most naturalization cases is helping the client determine whether she is
eligible to apply.
When establishing a relationship with the client, it is useful to underscore the importance
of her active participation in her case right from the outset. You must communicate this point
clearly and emphatically. Many people who are raised in more traditional and hierarchical
societies are taught to adopt a somewhat passive and subservient manner when dealing with
professionals such as attorneys, or others working in law offices. Then, in your ongoing work
with your client, continue to encourage her to be part of a team with you that is trying to get
something very important for her and her family.
Once a proper understanding is reached with the client about the collaborative nature of
your working relationship, you will have laid a solid foundation for working effectively together.
To successfully develop this sort of relationship with the client, you might need to rethink some
of your own preconceptions concerning the nature of the advocate/client relationship.
Different advocates interact effectively with their clients in different ways. Still, certain
methods of working and interacting will be particularly effective if you really want to get your
clients to take charge of their own cases, highlight and make good use of their skills, and teach
them new ways of helping themselves and others within their communities. Some of the ideas
discussed below are not new to legal practice, but they are not always thought of within the
context of the advocate/client relationship. This manual explores some of these ideas in detail,
as an integral part of the work that is necessary in preparing successful naturalization cases.
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§ 2.2 Explaining Naturalization
As in any client relationship, there are several important elements that must be covered in
initial discussions with people who may be eligible to apply for naturalization. First, the client
needs to know the legal requirements so she'll know whether she's eligible to apply. Explaining
the requirements of naturalization at the outset will make discussions about any complex aspects
of the client's case more productive. The client is also probably anxious to know whether she
can apply, so that any other topics will seem unimportant and frustrating.1 Explaining the law
also sets the tone for a working relationship that recognizes the importance of the client's input,
and makes her feel more confident and competent.
Second, she needs to understand the naturalization process so that she feels confident
working her way through it and so that she can prepare well for each step. Third, she needs to
know about the benefits and risks involved in applying so that she can decide whether or not to
pursue the application for naturalization. Fourth, you must communicate that you and your client
are working together to prepare her for naturalization. She should know that she has the most
important role to play in applying and preparing for naturalization, but that she can depend on
you to carry out your responsibilities, as well.
These four elements can form the basis of both individual meetings with potential
naturalization applicants and a workshop where many potential applicants learn about and begin
the naturalization process. Workshops (discussed in detail in Chapter 10) provide an excellent
way to do the work of a normal initial interview -- to convey information about naturalization
and prepare potential applicants to successfully complete the naturalization process.
When explaining laws and procedures to a client, always try to speak as clearly and
straightforwardly as possible. Be sure to explain the requirements of naturalization to the client
in understandable terms and use drawings and hand gestures to help demonstrate and emphasize
your points.
During their meetings, clients and advocates may determine that the client needs to gather
more information and documents before she submits her application. Because applicants, like
advocates, have lots of things to remember, they can benefit from preparing a "to do list"
together, which will help guide the applicant in finishing the work on her application. See
Appendix 2-A for a model "to do list" for applicants.
Different methods of explanation will, of course, be more or less effective with different
clients. Your explanations of legal requirements and procedures should always take account of
the education level and language abilities of the particular client with whom you are working.
Remember that the better informed a client is, the greater her ability to do her own preparation
and succeed in her interview.
1
Note, however, that if an agency can publicize the requirements through outreach flyers, media messages and
presentations, the client may already have a good idea about whether she is eligible. In addition, a discussion of
advantages and disadvantages of naturalizing might be a good way for participants to get acquainted before a
discussion of the requirements.
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The following suggestions for discussions about naturalization or other laws may help
demystify the law and thereby make your client a more empowered and effective partner on his
or her case.
1. Give the client (if the client is literate) a list of the requirements and note each one
as you explain them.
2. Provide more explanation for requirements or procedures that are confusing or
complex.
3. Encourage the client to ask questions about anything she does not understand.
4. Break down each element of the law or requirement into smaller sections that can
be more easily understood.
5. Give concrete examples illustrating the law or requirement.
6. Discuss the rationale behind the law or requirement.
The first three suggestions should be used in every discussion of legal requirements.
What follows is an example of a basic explanation of requirements and procedures for
naturalization, which includes more detail for the more challenging requirements of good moral
character, continuous residence and knowledge of English and U.S. history and government.
"To apply for naturalization you must meet the eight legal requirements on this
sheet of paper.2 Be sure and stop me and ask questions if these things don't make
sense, or if you think you might have a problem with any of them. You have to:
- have been a lawful permanent resident for at least five years;3

- be at least 18 years old;
- have good moral character. Usually this means you haven't done the things that
the application asks you about, including committing certain crimes (especially
drug crimes or crimes that show that you are dishonest), being a drunkard or
gambler, making a living off of prostitution, evading or deserting military service,
lying to get immigration benefits or helping people cross the border illegally.4 If
you have committed any type of crime or helped anyone enter the U.S. illegally,
we should talk about it. It might not be a problem at all, or we might be able to
explain it, or get a pardon or erase your record. On the other hand, it might cause
big problems for your application, so we need to know that. Also, you must not
have done certain things the INS thinks are immoral, like failing to support your
children, failing to file tax returns if you were supposed to, or committing fraud to
receive, or continue to receive, welfare of other public benefits.
2
See Appendix 2-B for lists (in English, Chinese, and Spanish) of requirements and the steps in the naturalization
process that you can copy for your clients.
3
If she has been married to a United States Citizen for three years, she is required to be a lawful permanent
resident for just three years. 8 CFR § 319.1(a).
4
People who have "smuggled" relatives face problems naturalizing, but they may be able to obtain a waiver. See
Chapter 6.
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- be able to have a fairly simple conversation in English.5 At some point (probably

between 10 months and 30 months6) after you send in your application, you will
have an interview with someone from the Immigration and Naturalization
Service. At the interview, they will ask you questions about your answers on your
application and things about U.S. history and government that you will be
studying in the next year. All these questions will be in English. (The advocate
may give the client referrals to English as a Second Language classes if needed.)
- be able to answer simple questions at your interview about U.S. history and
government. I can give you a list of questions, and their correct answers, that the
INS has to choose from when they ask you U.S. history and questions at your
interview. Usually, the INS officer asks about 10 questions. You may want to
take a citizenship class, too. (The advocate may give the client referrals to
citizenship classes.)
- have made the U.S. your home for at least five years,7 and lived in this area for
three months; and
- have actually been here in the U.S. for at least half of that time.8 Also, if any of
your trips in the last five years have been for more than one year, you can still
naturalize, but you'll have to wait. If you ever moved from the U.S. to live in
another country since you have had you're green card, we'll have to show you
didn't intend to move from the U.S. permanently, but that the U.S. has really
remained your home during the whole time you have been a permanent resident.
- be willing to swear allegiance to the United States.
“Finally, you have to fill out an application and get your picture taken and pay the
filing fee.
"If you are eligible to apply, and decide that you want to, here are the steps
you will take.9 I can answer some questions and help you complete the
application form, and explain how the legal requirements apply to you. But you
5
If your client is over 50 and has been a lawful permanent resident for 20 or more years, or is over 55 and a lawful
permanent resident for 15 or more years she does not have to learn English to naturalize. INA § 312(a). Also, there
is now an exemption to both the English and U.S. history and government requirements for people with physical or
mental disabilities that prevent the applicant from being able to learn English or U.S. history or government. For
more information on this topic, please see Chapter 7.
6
The wait depends on which the INS district the application is filed in, and the effects of recent INS plans to speed
up the naturalization process.
7
This requirement is only three years for someone who has been married to a U.S. citizen, and been a lawful
permanent resident for three years. 8 CFR § 319.1. To be eligible for this shortened time period, the applicant need
not have gotten her lawful permanent resident status through his or her U.S. citizen spouse -- it could have been
through asylum, legalization, or an employment-based visa.
8
This is called the physical presence requirement.
9
Show the applicant the Naturalization process spelled out in a flyer: Application, Preparation for Interview,
Interview, and Swearing-In Ceremony. Copies of flyers in English and Spanish are included in Appendix 2-B.
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can do a large part of the work on your naturalization case at every step.10 The
application is pretty straightforward. The preparation for your interview is
probably the most work of the whole process because you have to learn enough
English to answer questions in an interview at the INS about your application and
about U.S. history and government. And of course, you'll have to learn some
basic things about history and government. Then you go to an interview at the
INS, which takes about 15 minutes. And finally, you go to a citizenship
ceremony, where you swear your loyalty to the U.S. and become a citizen. The
whole process takes about ____________.11
"From what we just talked about, do you see any problems that you might have
with the requirements for naturalization in your own case?12 Let’s talk now about
some of the reasons people either do, or do not want to apply for naturalization. Then
we’ll talk about whether you want to apply to become a U.S. citizen."
If a law, requirement, or procedure is particularly complex, or if the client’s case introduces

an additional element of complexity, advocates should also follow suggestions 4 through 6, above.
The following example breaks down a naturalization requirement into smaller sections and provides
a concrete illustration of one segment of the requirement, and provides an explanation of the
requirement’s rationale:
Example: Client who may have trouble showing that she has good moral character.
Bettina has lived continuously in the U.S. as a lawful permanent resident for ten years.
She speaks English fluently and was able to answer all the U.S. history and government
questions in her last citizenship class. When the advocate tells her that not paying taxes
may cause a problem in meeting the good moral character requirement, she admits that
she did not pay taxes for the past two years even though she should have.
The advocate should break down the requirement into smaller sections by
explaining that good moral character does not necessarily mean that someone is a model
citizen. Instead, it is defined as a combination of two things: The first is a list defined
by law of things that will prevent someone from showing good moral character even if in
every other way they have what anyone would regard as good moral character. This
includes certain crimes like selling drugs. The second aspect of good moral character is
judged by the INS, using “the standards of the average citizens of the community in
which the applicant resides.” This includes things like failure to pay taxes or child
support. Unlike the good moral character problems listed in the law, a naturalization
10
An advocate who wants to represent the client in her naturalization case may wish to do more of the work.
11
Fill in this blank with the waiting period in your INS jurisdiction. For example, applications filed in the San
Francisco office currently take a total of about 14 - 20 months (12- 18 months from application to interview, and
another 1 - 2 months to the Oath Ceremony).
12
If your client answers "yes," you can say something like: "If so, what problems do you see? Let's go over them
one by one to see if you do fit the requirements of naturalization." (Be sure to refer to all the chapters of this book
that explain the requirements in detail.)
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applicant may convince the INS that she has good moral character even though she has
one of these problems. She can do that by showing that she has reformed – that she
recognizes that her actions were a problem and is working to make things right. She can
also show that there are other things about her that positively show that she is a person of
good moral character.
The advocate should give an example of the way the INS should balance
negative with positive factors, like, “ For example, she may have arranged with the
Internal Revenue Service to repay her taxes a little at a time over the next several years,
or she may be an active volunteer in her community. The INS has to take that into
account in determining whether she has good moral character.”
Bettina may note that U.S.-born citizens often get away with not paying their
taxes, and that they don’t usually have to show someone that they have good moral
character. The advocate can explain the rationale of the good moral character
requirement. She might say that because naturalization is seen by Congress and the INS
as a formal bridge to participating fully in American society, they want to make sure new
citizens share the same moral values as other American citizens -- even if that means
naturalization applicants have to meet a higher standard for behavior than people who are
not trying to naturalize.
Practice Tip. A discussion of the requirements, process, advantages and disadvantages

of naturalizing can take place in a one on one appointment or in a group setting. Group
workshops allow people to discuss ideas and compare notes as well as allowing advocates an
opportunity to explain things to more people at once, freeing up their time for other things. See
Chapter 10 for discussion of work with groups.
§ 2.3 Advantages and Disadvantages
The idea of becoming a U.S. citizen means different things to different people. Some
people want to vote, others want to petition for a visa for their parents. Others oppose the idea
for social, political or cultural reasons. You could call this part of the naturalization discussion
"Reasons some people want to apply to become citizens" and "Concerns some people have about
applying" to reflect the fact that what may be an advantage to one person may be a disadvantage
to someone else.
The standard reasons for, and concerns about naturalizing include a long list of
advantages and a short list of disadvantages. But remember that one of the disadvantages is
huge: INS can discover information about the applicant during the naturalization process
that might make her removable. If there is any chance that she is removable, it is your job to
make sure your client does not apply, or if she still wants to apply, that she carefully builds an
effective case to support her application, and is fully informed about what could happen.
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If your client has already decided that she wants to apply, if you've determined together
that she's eligible, you don't need to go over the advantages or disadvantages. If your client isn't
sure she wants to apply, or if she might be removable however, you can help her work through
reasons to, or not to apply.13 Your client may already have thought about reasons she wants to
apply, and concerns she may have. You should listen carefully to her views on the subject, and
talk about each point she raises. Although you may feel strongly that immigrants should become
citizens, for example, to enhance their voting power, you should not unduly interfere with your
client's decision about whether or not to apply.14 On the other hand, some people have poor
information about naturalization, and this is a good opportunity to give the client good
information with which to make her decision.
You might begin a conversation about advantages and disadvantages like this:
"Now that we have thought through the requirements of naturalization together

and discovered that you can apply if you want to, let's talk about whether you want to
apply. Why do you want to apply for naturalization? Do you have any concerns about
applying? If so, what are they? If, after we've talked about them, you still aren't sure
what you want to do, I can tell you some of the reasons other people have for applying or
not applying."
After such a conversation, you can fill in from the following reasons any information the
two of you haven’t covered in your conversation so far, until the client has decided whether she
wants to apply or not. Of course, all this information still may not help her make her final
decision. Encourage her to talk to her friends and relatives about the decision. One of the great
things about naturalization is that applying is not forced on anyone: it is the applicant's decision.
§ 2.4 Reasons Why Some People Want to Naturalize
1. A U.S. citizen has the right to vote in elections. Elections help shape the policies of the U.S.
government. When immigrants vote, they have more influence over elected officials, national
policies like immigration, the rights of minority groups, and foreign affairs, and local policies
like funding for schools and after school programs.
Some clients are skeptical about the right to vote because they come from countries
where the political system is corrupt or there is very little choice. You can help overcome this
13
If the applicant might fit into one of the categories described in Appendix 6-D, making her ineligible for
citizenship, removable, or inadmissible, you must be sure she understands the risks involved in applying, as well as
the benefits. See the Practice Tip on in § 2.5.
14
If you want people to naturalize, do outreach. We have discovered in numerous information workshops that
the most important thing that can be done to promote naturalization is to inform potential applicants about the real
advantages and disadvantages of applying for citizenship.
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skepticism by pointing out local events that were shaped by immigrants' votes or coalitions of
immigrants and other minorities.
2. Only a U.S. citizen has the right to hold public office and the right to apply for certain federal
and state government jobs.
3. A U.S. citizen can petition for more family members through the immigration system than a
lawful permanent resident. In most cases the waiting lists are shorter.
4. U.S. citizens cannot be denied entry into nor removed from the U.S. Although a U.S. citizen
can lose her citizenship under certain conditions, it is very difficult to do so. Lawful
permanent residents always face the possibility of being denied entry into the U.S. or
removed from the U.S if they violate criminal or immigration laws. Violations can be as
simple as someone who receives sufficient public benefits to be considered a "public charge"
(see Chapter 4, § 4.4, and 4.4(a) and Appendix 6-D), leaves the U.S. and then reenters the
United States.
5. Generally, U.S. citizens can leave the United States and live in another country for as long as
they want. In contrast, lawful permanent residents who live outside of the U.S. for extended
periods of time can lose their legal status.
6. Traveling in some foreign countries may be easier for U.S. citizens.
7. Lawful permanent residents now have to renew their green cards every 10 years, but U.S.
citizens never have to renew their certificates of naturalization.
8. In some instances United States citizens are entitled to some government benefits for which
some permanent residents are not eligible.
§ 2.5 Reasons Some People Do Not Want to Apply
1. The most important disadvantage is that an applicant for naturalization could be removed
from the U.S. if information on her application lets the INS know that she is removable. The
INS asks questions about this on the application, and it is very important that applicants are
honest in filling out their applications. The applicant could be deportable for breaking
immigration laws or for "abandoning" his or her residence in the United States.15
2. Some countries restrict foreign (including naturalized U.S. citizens) ownership of property.
For example, a client who owns land in her home country may lose it if she becomes a U.S.
citizen.
15
Note that the "abandonment of residence" cited here means intent to abandon one's lawful permanent
residence, which can result in loss of that status. See Chapter 5, § 5.4 for a discussion of the difference between
"abandonment of residence" and "disruption of continuity of residence" for naturalization purposes.
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Some clients are well informed about such laws, but others may be misinformed.
Together with your client you should see if this could be a problem in her situation. To get
information, you or your client can check with the Consulate of her native country located here
in the United States.
3. A client who decides to become a citizen of the United States may lose her citizenship in her
native country. However, some countries, including El Salvador, Colombia, and Poland,
allow dual citizenship. Yet others, such as Nicaragua and the Philippines, do not allow dual
citizenship. Dual citizenship rules from several countries are listed in Appendix 2-C. All the
information in this manual regarding dual citizenship is based on research conducted during
1998 or before.
Please Note: The attorneys at the ILRC are not experts on the laws in countries other than the
United States. To ensure correct information concerning property rights and "recovering"
citizenship, please consult an expert in the law of the foreign country in which you are interested.
4. The naturalization process can be scary, unless potential applicants have helped friends or
relatives through the process before. The INS interview and examination, for example, might
make some people very nervous. In addition, practicing for the English requirement may be
time-consuming and cause tension for some people. You can help your client through this by
providing resource materials and information on ESL and citizenship classes, and/or
introducing her to other applicants who want to study together.
Practice Tip: If your client is unsure about whether or not to apply for naturalization,
encourage her to make a list of the advantages and disadvantages in her own case. On a sheet of
paper make two columns, one labeled advantages (or "pros") and the other labeled disadvantages
(or "cons"). Your client can write down the factors she feels are most important to her in the
correct column. You can help your client with this exercise. Weighing advantages and
disadvantages is a common way people make decisions. Writing the factors down helps a person
visualize which side is more compelling. However, help your client think in terms of the weight
or significance of each point as well as how many points she can make on each side. For
example, someone with an 18-month absence and not much documentation to prove that she
didn't abandon her residence during that time may be risking her lawful permanent resident
status as well as her chances at naturalization. (See Chapter 4) On the other hand, if it is
extremely important to your client that she be able to immigrate her mother through an
immediate relative category within the next two years, she may be willing to take that risk.
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CHAPTER 3
OVERVIEW OF NATURALIZATION, THE LEGAL REQUIREMENTS, AND

THE APPLICATION PROCESS
Graciela has been a lawful permanent resident since 1989. She became a lawful
permanent resident through the amnesty program. She is a citizen of Mexico.
She is very concerned about local politics and the negative manner in which some
politicians are portraying immigrants. She wants to vote in elections and try to
help change things. She also wants to help her mother immigrate.
§ 3.1 What is Naturalization?
Graciela can achieve both of her goals if she becomes a U.S. citizen. The process by
which a lawful permanent resident becomes a citizen is called naturalization. In order to
naturalize, a lawful permanent resident has to meet certain requirements that are set forth in the
INA.
§ 3.2 Considerations in Naturalizing
The idea of becoming a U.S. citizen means different things to different people. Some
people are very proud of becoming citizens or want jobs that only citizens can hold. Others
resist becoming a citizen for social, political or cultural reasons. For almost everyone the subject
is an emotional one. You must recognize this when working with clients on naturalization cases.
Talk with clients about the advantages and disadvantages of naturalization and listen carefully to
their views on the subject. Sometimes things that may be an advantage to some people are a
disadvantage to others. Ultimately, the applicant must decide whether or not to apply.
To help the focus of a discussion on naturalization, consider some of these major

important advantages and disadvantages:
ADVANTAGES
1. A citizen has the right to vote in elections. Elections help shape policy of the U.S.
government. The more new citizens vote, the more influence they will have over elected
officials and over policies such as immigration, the rights of minority groups, and foreign
affairs.
2. Only a U.S. citizen has the right to hold public office and the right to hold certain federal and
certain state government jobs.
3. U.S. citizens can petition for more family members through the immigration system than can
lawful permanent residents. In most cases the waiting lists are shorter in the categories
available to citizen petitioners.
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4. U.S. citizens cannot be denied entry to nor deported from the U.S. U.S. citizens can lose
citizenship only under very limited circumstances. However, lawful permanent residents
always face the possibility of being denied entry to or deported from the U.S.
5. U.S. citizens can leave the United States and live in another country for as long as they want.
In contrast, lawful permanent residents who live outside of the U.S. for extended periods of
time can lose their status.
6. Traveling in some foreign countries may be easier for U.S. citizens.
7. In some instances United States citizens are entitled to some government benefits for which
some permanent residents are not eligible.
DISADVANTAGES
1. An applicant who decides to become a citizen of the United States may lose her citizenship
in her native country. However, some countries allow dual citizenship.
2. Some countries restrict foreign ownership of property. For example, an applicant who owns
land in her home country may lose it if she becomes a U.S. citizen. Many applicants are
aware of such laws. Together with the applicant, you should see if this could be a problem in
her situation.
3. The naturalization process can be intimidating for applicants, unless they have helped friends
or relatives through the process before. The INS interview and examination, for example,
might make some people very nervous. In addition, practicing for the English requirement
may be time-consuming and cause tension for some people.
§ 3.3 The Nine Basic Requirements For Naturalization
To become a naturalized citizen, an applicant must meet nine basic requirements. These
requirements can be found in the Immigration and Nationality Act (INA) §§ 312 through 337
and 8 Code of Federal Regulations (CFR) §§ 310 through 331. The nine requirements are that
an applicant must:
- be a lawful permanent resident (see Chapter 4);

- be at least 18 years old (see Chapter 7-5);
- have good moral character, keeping in mind certain specific "bars" to naturalization (see
Chapter 6);
- be able to read, write, and speak English (see Chapter 7);
- be able to demonstrate knowledge sufficient to pass a test on U.S. history and
government (see Chapter 7);
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- have been a permanent residence in the U.S. for at least five years (except in certain
circumstances - see Chapter 5);
- never have disrupted the continuity of residence (also called "abandonment of residence
for naturalization purposes") in the United States during any of the last five years (see
Chapters 4 and 5);
- have been physically present in the U.S. for at least half of the five year period (except in
certain circumstances - see Chapter 5); and
- take a loyalty oath to the U.S. and be attached to the principles of the U.S. Constitution
(see Chapter 9).
When a client wants to apply for naturalization, one of the first things the advocate
should do is explain the legal requirements for naturalization. While this can be accomplished in
a number of ways, strive to be thorough and clear. For an example of one way to explain the
legal requirements to a client, please see Chapter 2, § 2.2. Most clients find written explanations
of naturalization helpful as well. For samples of such documents in English, Chinese, Spanish,
and other languages, please see Appendix 2-B.
A group information session is often an efficient and effective method of explaining the
requirements for naturalization. In such a setting, the potential applicants can listen to the
requirements together and learn from each other's questions. Additionally, the advocate saves
time because she doesn't have to explain the requirements to each person individually. For a
more complete discussion of information sessions and group processing of naturalization
applications, see Chapter 10.
Practice Tip: The goal of the very first meeting with a client should be to make the legal
requirements as clear as possible so the client will be able to understand what needs to be proven
and why. The better informed the client is, the better able she will be to help build the case and
the better she will perform during the naturalization interview with the INS. Setting forth the
legal requirements before getting all the details of the case usually helps make discussions with
clients more efficient and productive because the client understands why the different topics are
being addressed. Additionally, it sets the tone for a relationship that recognizes that the client's
input will be important. Rather than making the client guess why certain factors may or may not
be relevant to his case, an explanation of the requirements will allow her to help determine what
is important.
When explaining the legal requirements, these five tips might be useful:
1. Break down the legal requirements into small, easily understood sections.
2. Write down the requirements on paper as you explain them (being sensitive to
whether or not the applicant is literate).
3. Discuss with the applicant the reasons for the requirements, so you both understand
the law better.
4. Encourage the applicant to ask questions about the law.
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5. Explain to the client the entire naturalization process (completing the application,
attending English and civics classes or taking the civics exam, attending the INS
interview, and being sworn in) and how your office will handle the case at each
phase.
After discussing the law with the applicant and together determining whether or not he
qualifies, the two of you should discuss the reasons why he should or should not apply for
naturalization. You both want to make sure that naturalizing will in fact help the applicant
achieve his goals.
§ 3.4 Lawful Permanent Resident Status
To apply for naturalization, an applicant must have an I-551 "green card." All I-151
green cards have been invalid since March 20, 1996.
An important exception exists for aliens who served honorably in active duty with the
U.S. armed forces during certain hostilities (i.e., certain times of war). They can be naturalized
in many instances without first becoming permanent residents. The law requires that such
veterans must have served honorably and in active duty during the requisite periods and that the
applicants must have been in the U.S. or the Panama Canal Zone, American Samoa, the Midway
Islands (prior to August 21, 1959), or the Swains Islands when they joined the military. A list of
the hostility periods (war periods) that qualify is found in Chapters 4 and 7-5 and INA § 329.
Non-citizen nationals who owe permanent allegiance to the United States also fall into an
exception. Generally, this exception only applies to people from American Samoa and the
Swains Islands. For more information on this topic, please see Chapter 7-5 and the U.S.
Citizenship and Naturalization Handbook by Daniel Levy (2002 Edition, published by West
Group).
WARNING: Advocates and clients must be thorough in examining the lawful permanent
residence status of the naturalization applicant. If she violated her status as a permanent resident
and was ordered deported or removed from the U.S., was excludable or inadmissible upon
reentry into the U.S., committed fraud to obtain her residence in the first place, or has abandoned
her residence, she may no longer be a lawful permanent resident. Proceeding with such a
naturalization applicant may result in her being placed in deportation proceedings. For more
information on this topic, please see Chapter 4.
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§ 3.5 Age
An applicant must be at least 18 years old to become naturalized.
Special rules apply to minor unmarried lawful permanent resident children of U.S.
citizens to help them obtain certificates of citizenship under certain circumstances. For more
information on this topic, please see Chapters 7-5 and 12 of this manual.
§ 3.6 Good Moral Character, Bars to Naturalization,

Permanent Ineligibility for Citizenship, and Discretion
All naturalization applicants must demonstrate good moral character for the required
residency period immediately prior to applying for naturalization. For most applicants the period
is five years, but if the applicant is married to a U.S. citizen, the period may be reduced to three
years. The INS can consider events before the five (or three) year period when deciding if the
applicant has good moral character if they shed light on the period in question.
There are two ways an applicant can be denied naturalization for lacking good moral
character. The applicant can be statutorily denied, that is, the applicant commits an act or falls
into a category that is specifically listed as a disqualifying factor in the Immigration and
Nationality Act. The applicant can also be denied in the INS's discretion, that is, the examiner
feels that other "bad" things the applicant has done make the applicant undeserving of approval,
even though the "bad" things are not on the list of automatic disqualifications. The statutory
reasons for denying someone naturalization are listed in INA § 101(f) and incorporate some of
the acts listed in INA § 212(a). Many, but not all, of these acts are crimes. Although the reasons
why someone can be found lacking in good moral character in the INS's discretion are broader, it
is the ILRC's opinion that the INS must consider both the negative and positive aspects of the
applicant's character when making such a decision.
Example: Emilio wants to apply for naturalization because he wants to vote and help is
mother immigrate to the U.S. He is presently violating a court order to pay child support
payments and he was convicted of driving with a suspended license. Although the statute
does not automatically bar Emilio from proving good moral character for naturalization,
the INS could deny his case for discretionary reasons. Thus, the legal worker has to
explain the meaning of good moral character to Emilio, and together they must discuss
the positive equities Emilio may have to weigh against his conviction and non-payment
of child support.
After discussing the issue, Emilio told the legal worker that he attends church, completed
his probation for his conviction (which included community service with a charity), is
active in his labor union, and has been making small donations to the United Way.
Additionally, Emilio said he would start paying the child support immediately, which he
could not pay previously because he just started working again.
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On September 30, 1996 President Clinton signed a new immigration law (the Illegal
Immigration Reform and Immigration Responsibility Act of 1996, or IIRIRA), which changed
some key terms of law for immigrants. Now the “grounds of inadmissibility” is the name of the
group of acts which bar persons from being admitted into the U.S. These grounds used to be
called the “grounds of exclusion.” The grounds of inadmissibility can be found in INA § 212(a).
This is important to naturalization applicants because certain grounds of inadmissibility are bars
to meeting the good moral character requirement. Additionally, the term now used to describe
what happens when the U.S. government makes an immigrant leave the U.S. is “removed”
instead of “deported.” Immigrants can be removed if they fall within the grounds of
deportability or inadmissibility. For more information on this topic, please see INA § 237 and
the ILRC’s manual, A Guide for Immigration Advocates (please check for most current edition).
WARNING: Beware of applying for naturalization for clients who are removable for falling
within the grounds of deportability or who were inadmissible when they last made an admission
to the U.S., even if they can show good moral character. In the course of investigating the
naturalization application the INS might discover those things and remove your client. Needless
to say, if this happens your client's application will be denied. Remember that the grounds of
deportability and inadmissibility include more areas than does the definition of good moral
character, so a person might have good moral character but still be deportable or inadmissible.
Chapters 4 and 6 explain these issues in more detail.
Example: Joe Smith, from Canada, became a lawful permanent resident in 1989 through
the legalization program. In 1997 and again in 1998 Joe was convicted of petty theft, a
crime involving moral turpitude. Thus, under INA § 237(A)(2)(A)(ii) Joe is deportable
for having been convicted of two crimes involving moral turpitude after admission. If
Joe applies for naturalization he will be denied under INA § 101(f) because he lacks good
moral character. Additionally, he could be placed in removal proceedings as someone
who is deportable for having been convicted of two crimes involving moral turpitude
after admission. Although Joe is presently deportable and could be deported, he could, if
placed in deportation proceedings, apply for a type of relief from deportation called
“Cancellation of Removal for Permanent Residents.” This program is for people who
have been permanent residents for at least five years and have been living in the U.S. for
at least seven years after having been admitted to the U.S. in any status. For more
information on Cancellation of Removal, please see INA § 240A and the ILRC’s manual,
A Guide for Immigration Advocates (please check for most current edition).
In addition to the good moral character requirement, other temporary or permanent bars
to naturalization are contained in the statute. A person with a removal order against her at the
time she applies for naturalization cannot become a citizen. Additionally, someone cannot be
naturalized if removal proceedings are pending against her. However, if removal proceedings
are stopped, she can naturalize. People who have been involved in certain political activities
during the ten years prior to applying for naturalization are also barred from citizenship. Certain
actions, mostly connected with military service, can make a person permanently ineligible for
U.S. citizenship. Ineligibility to citizenship is defined in INA § 101(a)(19).
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For more information on good moral character, the bars to naturalization, the ways one
can be permanently ineligible for citizenship, and discretion in naturalization cases, refer to
Chapter 6.
§ 3.7 Attachment to the Principles of the Constitution
INA § 316(a)(3) makes it a requirement for a naturalization applicant to be "attached to

the principles of the United States Constitution" for the same period as she needs to be a lawful
permanent resident (either five or three years). One may be denied citizenship by not being
attached to the principles of the Constitution if she is hostile to the basic form of government in
the U.S., or does not believe in the principles of the Constitution. This requirement is to some
extent a combination of fulfilling the requirement of believing in and taking the loyalty oath
(discussed in Chapter 9) and the political grounds discussed in the "Temporary Ineligibility to
Naturalize" section of the good moral character requirement for naturalization (discussed in
Chapter 6). For more information on the requirement of being attached to the principles of the
Constitution, please see U.S. Citizenship and Naturalization Handbook by Daniel Levy (2002
Edition, published by the West Group).
§ 3.8 English Language
An applicant must be able to understand English and read, write and speak words in
ordinary usage in the English language. How well the applicant must speak English may depend
on who the INS examiner is in the naturalization interview. But the level is supposed to be fairly
simple.
There are exceptions to the English requirement. There is an exception in the form of a
wavier for applicants who cannot learn English because of a physical, mental, or developmental
disability. There are other exceptions for elderly applicants who have been lawful permanent
residents for a long time. If an applicant is over 50 years old, and has lived in the U.S. for at
least 20 years since becoming a lawful permanent resident, or is over 55 years old, and has lived
here for at least 15 years since becoming a lawful permanent resident, she is not required to
speak, write or read in English. She will be tested on U.S. history and government in her own
language. For more information on the English language requirement, please see Chapter 7.
§ 3.9 U.S. History and Government
An applicant must understand basic U.S. history and government. Most applicants take
classes in their communities to learn English, history and government for the naturalization test.
There is a list of one hundred history and government questions from which the INS chooses the
questions on each applicant’s history and government test. For copies of the hundred questions
in many different languages, please see Appendix 7-A. Discussing some of the questions with
the applicant is also a good idea. This gives the applicant a better idea of how the requirements
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fit together and provides an opportunity to practice answering these questions. For more
information on this topic please see Chapter 7.
The INS will provide “special consideration” in testing on U.S. history and government
for applicants who, on the date of filing their naturalization applications, are over 65 years old
and have been lawful permanent residents for at least 20 years. Instead of having to study 100
questions about U.S. history and government, people who fall under the 65/20 category only
have to study an easier 25 questions (see Appendix 7-C). They must get 6 out of 10 questions
correct during their interviews.
Because those applicants who are over 65 years old and have lived in the U.S. for at least
20 years also will qualify for the age exemption from the English requirement, they will just be
required to attend a naturalization interview and answer questions in their own language.
Although in the past there were no exceptions to the requirement of having a knowledge
and understanding of the history and government of the United States, in 1994 Congress created
a waiver of the history/civics requirement for applicants who, because of physical, mental, or
developmental disability, cannot pass the history and government exam. For more information,
please see Chapter 7.
§ 3.10 Residence in the U.S.
An applicant must have resided in the United States for at least five years as a lawful
permanent resident. Essentially this means she must have been a lawful permanent resident and
made the U.S. her home for the five years immediately prior to applying for naturalization. In
addition, she must have lived in the INS district or state where she files the petition for at least
three months.
Example: Josefina obtained status as a lawful permanent resident in 1998. She will not
be eligible for naturalization until she has been a lawful permanent resident for five
years. Thus, in 2003 she can qualify for naturalization.
There are exceptions to the five-year requirement. The spouse of a U.S. citizen only
needs to have lived in the United States for three years as a lawful permanent resident. She must
have been married to the same U.S. citizen for three years and the U.S. citizen spouse must have
been a citizen for the entire three years. The marriage must be valid and the couple must have
lived together for the three years immediately before the date of the filing of the application and
naturalization interview.
Example: Graciela obtained her status as a permanent resident in 2000. In 2001 she
married someone who had been a U.S. citizen for all of her life. They remained married
and living together for three years. Thus, Graciela will become eligible for naturalization
in 2004, three years after her marriage. If she were to get divorced before applying for
naturalization, then she would have to wait until 2005, the full five years before
qualifying for naturalization.
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Refugees and asylees are also subject to a special rule. Refugees are not eligible for
lawful permanent resident status until they have been in the U.S. for a year, and asylees cannot
apply for lawful permanent resident status until one year after their asylum applications are
approved. Under rollback, a refugee can start counting her five years from the time she arrived
in the United States, and an asylee can start counting from the year before her application for
lawful permanent residence was approved.
There are exceptions to the five-year residence requirements for people who served or
serve in the military and for people who obtained their lawful permanent residence status under
the Violence Against Women Act (VAWA) immigration program. See Chapters 5 and 7-5 of
this manual for more information on these subjects.
For more information on the residence requirement, please see Chapter 5.
§ 3.11 Physical Presence in the U.S.
An applicant must have been physically present in the United States for at least half (30
months) of the five-year residence period discussed above. The spouse of a U.S. citizen only
needs to have been here for half of 3 years (18 months) instead of half the 5 years (30 months).
If an applicant cannot meet this requirement, she must wait and submit her new application when
she does qualify. If she is denied on this basis, then she can wait and submit a new application
when she meets the requirement. For more information on this topic, please see Chapter 5.
Example: In the examples discussed in § 3.12 above, Josefina must be physically present
in the U.S. for at least 30 months (half of her required residency period of five years) in
order to qualify for naturalization. Meanwhile, Graciela needs to be physically present in
the U.S. for at least 18 months (half of her required residency period of three years)
because she is married to a U.S. citizen.
There are exceptions to the 30-month physical presence requirements for people who
served or serve in the military and for people who obtained their lawful permanent residence
status under the Violence Against Women Act (VAWA) immigration program. See Chapters 5
and 7-5 of this manual for more information on these subjects.
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§ 3.12 Discontinuity of Residence

(Formerly Known as Abandonment of Residence for Naturalization Purposes)
It is best to look at this requirement as "disruption of residence" or "disruption of the

continuity of residence" rather than "abandonment of residence for naturalization purposes." It is
too easy to confuse "abandonment of residence for naturalization purposes" with "abandonment
of permanent residence." "Abandonment of permanent residence" has significantly more severe
consequences and different legal requirements than "abandonment of residence for naturalization
purposes."
To qualify for naturalization, an applicant must show she has not disrupted her residence
in the United States. For an applicant to show she has not disrupted her continuous residence,
she must show that she has continuously maintained her residence in the United States for the
five-year period before applying for naturalization. This is an issue for people who have spent
long stretches of time outside the U.S. If a person has left the U.S. for less than six months, then
she will be found not to have disrupted the continuity of her residence. If she has left the U.S.
for more than six months at one time but less than one year she will be found to have disrupted
the continuity of her residence unless she can prove she did not disrupt it. The applicant can
often prove this by showing that she intended to keep her home in the U.S. and by testifying to
that fact.
Practice Tip: Some INS offices rarely find that one disrupted her residence by leaving for less
than one year at time, while other INS offices are more likely to find that someone has disrupted
her residence by leaving the U.S. for a period of six - twelve months. Please check the practice
of the INS office in your client’s jurisdiction.
If an applicant has left the U.S. for one year or more she automatically will be found to
have disrupted the continuity of her residence. There are exceptions for people in the military,
certain employees and contractors of the U.S. government, certain people working for American
corporations and public international organizations doing business abroad. The applicant's
spouse, parents, and children can qualify for some exceptions through the applicant.
Additionally there are exceptions for certain religious workers.
If a naturalization applicant is found to have disrupted the continuity of his residence

because he was absent for one year or longer, he will not qualify for naturalization. He must
wait four years and one day (or two years and one day if he is married to a U.S. citizen) from his
return to the U.S. after his absence to reapply for naturalization.
Example: Mauro was gone from the U.S. for a 13-month period. He left the U.S. on
July 13, 1999 and returned to the U.S. on August 15, 2000. Because of this absence he
disrupted the continuity of his residence and he must wait four years and one day from
when he returned to the U.S. before he can apply for naturalization. Thus, Mauro can
apply for naturalization on August 16, 2004.
For more information on abandonment or discontinuity of residence, please see Chapter 5.
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WARNING: A naturalization applicant must be very cautious if she has prolonged absences.
Not only might she be denied naturalization, but she also may lose her lawful permanent resident
status. Anyone who abandons her residence may lose her status as a permanent resident and get
her green card taken away. Thus, prolonged or repeated absences must be carefully reviewed
before applying for naturalization.
It is important to note that some absences from the U.S. can cause the INS to determine
that an applicant abandoned her residence, and thus could lose his/her status as a permanent
resident. The disruption of continuity of residence test is different for naturalization than
abandonment for loss of lawful permanent resident status. See Chapter 4 for more information
on the test for abandonment that can cause one to lose her green card.
§ 3.13 Belief in the Principles of U.S. and Oath of Allegiance
An applicant must swear under oath that she is attached to the principles of the U.S.
Constitution and will support and defend the laws of the U.S. She also must renounce or give up
her allegiance to any other country. This does not, however, mean she has to give up her
passport from or citizenship of in her native country. Although the U.S. does not encourage
people to be dual citizens, it does not prohibit dual citizenship. The U.S. does not prohibit
traveling on two passports. Some countries, however, may prohibit dual citizenship. For more
information on these topics, see Chapter 9 on the oath of allegiance and Appendix 2-C that
discusses the laws in some foreign countries regarding dual citizenship.
§ 3.14 Overview of the Application Process
To apply for naturalization one must submit a Form N-400, Application for
Naturalization, two photos, a copy of both sides of the applicant's green card, a check or money
order for the appropriate fee made payable to the Immigration and Naturalization Service, and, in
many circumstances, the INS demands other documents (see Chapter 8).
It is important to encourage applicants to complete the first draft of their own

naturalization applications to enable them to become familiar with the questions which will be
asked during their interview. Practitioners can help by giving their clients copies of N-400s
translated into the client's native language. For a copy of the naturalization application in
Spanish, please see Appendix 8-B.
Several months after submitting the application packet, the INS will send the applicant a
notice for an appointment to be fingerprinted. Then, several months later, the INS will schedule
the applicant for an interview. Depending on the local INS district, the interview could take
place several months or even a couple of years after submitting the application. During the
interview the INS examiner will question the applicant about the information on the
naturalization application as well as test the applicant on English and U.S. history and
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government. If the application is approved, she will receive a notice from the INS to attend a
swearing in ceremony and obtain her certificate of naturalization. At that point she becomes a
U.S. citizen and is able to apply for a U.S. passport and register to vote in elections in the U.S.
For more information on the application process, please see Chapters 8, 9, and 10.
It is important to discuss the entire naturalization process with an applicant at the outset
of the relationship. By keeping the applicant out of the dark about the process, she can remain
up to speed on procedural steps and is better able to contribute to the success of the case.
Practice Tip: Group Processing. If you often do more than a couple of naturalization
applications in a week, you may want to work with clients in groups. Group processing of
naturalization applications allows your agency to be more efficient when helping clients apply
for naturalization. Clients do much of the work in this method, which saves you time and
actually builds a stronger case. Clients will know what information the INS is looking for, and
will be better prepared for their interviews. Group processing allows clients to work together
and learn from each other as well as from the advocate. It helps develop valuable skills, such as
how to fill out forms and keep records, which help clients in other parts of their lives. For more
information on how to do group processing workshops, please see Chapter 10.
Practice Tip: Interview Role-Play. The naturalization interview, particularly the parts on
English and U.S. history and government, is easy to practice. Invite the applicant to practice the
interview with you so that she will be more comfortable for the real thing. She could play the
part of an applicant, while you play the part of the examiner in a naturalization interview. If you
meet with more than one applicant at a time, the group can discuss and practice ways to enter the
interview room and introduce themselves, so that they show the examiner that they understand
American mannerisms and customs. Having a former client who has already gone through the
interview process come and explain to the group what it was like is helpful. During the role-play
the applicants can switch roles and play the interviewer as well as the interviewee. This
approach also may help the applicant see that, as important as this procedure is to her, the
interview is not a mysterious process. The examiner is a normal government worker who can be
nice or mean, but whose questions can be anticipated and practiced with her friends.
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CHAPTER 4
LAWFULLY ADMITTED FOR PERMANENT RESIDENCE
§ 4.1 Introduction
The first requirement for a naturalization applicant is that she was lawfully admitted for
permanent residence.1 Lawfully admitted for permanent residence is actually defined as being
lawfully admitted without such status having changed.2 Therefore, not only does one have to
have been lawfully admitted, but one also has to maintain status as a lawful permanent resident.
Although these requirements cannot be waived, they do not apply to non-citizen nationals of the
United States3 and those who served in the U.S. Armed Forces during certain wars or
"hostilities."4
The naturalization applicant has the burden to show that she entered the U.S. lawfully and
when, where and how she entered.5 Generally, the I-551 (often referred to as a "Green Card") is
sufficient to prove lawful entry.6
To determine if an applicant was lawfully admitted for permanent residence, the INS may
investigate whether he was originally eligible for admission to the U.S. as a lawful permanent
resident and whether he has maintained his status as a permanent resident. Someone who was
inadmissible/excludable7 when she was admitted as a permanent resident to the U.S. is now
removable/deportable8 and could be denied naturalization and placed in removal proceedings.
Additionally, someone who abandoned her residence (see § 4.8) or who is now removable for
any reason (such as being convicted of a crime — see Appendices 4-A and 4-B on grounds of
deportability) could be denied naturalization and be placed in removal proceedings.
1
INA §§ 316 and 318.
2
INA §101(a)(20).
3
INA § 325. For more information on this subject, please see Chapter 5, § 5.10.
4
INA § 329. For more information on this subject, please see § 4.2.
5
INA § 318.
6
8 C.F.R. § 316.4(a)(2).
7
The new immigration law in 1996 (IIRIRA) changed some key terms of law for immigrants. Acts that barred
people from admission into the U.S. used to be called “grounds of exclusion,” and performing one or more of these
acts made a person “excludable” from the U.S. Now, these acts are referred to as “grounds of inadmissibility,” and
a person can be found “inadmissible” for violating them. This manual uses the new terms.
8
The new immigration law in 1996 (IIRIRA) changed some key terms of law for immigrants. Before 1996, the INS
used the term “deported" to describe what happens when the U.S. government makes an immigrant leave the U.S.
Now, this term has been changed to “removed.” An alien may become “removable” if he violates the grounds of
inadmissibility (see footnote 7) or the grounds of deportability. This manual uses the new terms.
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When someone applies for naturalization, the INS checks with the FBI to determine if
she has a criminal record. Additionally, the INS looks through the applicant's immigration file,
carefully reviews the information provided in the N-400 (Application for Naturalization), and
conducts an interview of the applicant. If the naturalization branch of the INS thinks that
something relevant to eligibility should be more carefully checked out, the file could be sent to
the investigations branch. If, at any point during the process, evidence comes up that the
applicant is removable or has abandoned her residence, the INS could put the applicant in
removal proceedings.
Much of this chapter covers categories of possible applicants who risk being removed.
Advocates and applicants should discuss these categories and determine whether a particular
applicant is at risk. If so, serious consideration should be made as to what action to take.
For information on other groups of people who do not have to prove they were lawfully
admitted for permanent residence in order to qualify for naturalization, please see the U.S.
Citizenship and Naturalization Handbook (2002 Edition, West Group).
§ 4.2 Exception: People Who Have Served in the U.S. Armed Forces
During Certain Wars or "Hostilities"
People who are not even lawful permanent residents, but who served in the U.S. Armed
Forces during certain periods of military hostilities, may be eligible for naturalization. The
periods of hostilities include:
• World War I;
• the period between September 1, 1939 and December 31, 1946 (World War II);
• the period between June 25, 1950 and July 1, 1955 (Korean War);
• the period between February 28, 1961 and October 15, 1978 (Vietnam War);
• the period between August 2, 1990 and April 11, 1991 (the Persian Gulf War);9 or
• any other period, which the President can designate.10
9
See Executive Order 12939, 59 Fed. Reg. 61231 (Nov. 29, 1994), and Vol. 71 Interpreter Releases No. 47, page
1646 (Dec. 12, 1994).
10
INA § 329(a).
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Anyone serving in the Armed Forces during these periods can apply for naturalization,
whether or not he has a Green Card. If the person does not have a Green Card, he must have
enlisted (or re-enlisted) in the U.S., or certain U.S. territories, to be eligible for this benefit.11
The standard requirements of being 18 years old, not having an outstanding order of
deportation entered against the applicant, and residing and being physically present in the U.S.
are not applicable to applicants who have served in the U.S. Armed Forces during these
periods.12
§ 4.3 Children Who Naturalize
Some children born outside the U.S. filing under INA § 322 do not have to be permanent
residents. Please refer to Chapter 7-5 in this manual.
§ 4.4 Ineligible for Admission as a Lawful Permanent Resident
Sometimes people are granted lawful permanent residence status (a “Green Card”) even
though they were not eligible when they applied. This can happen if the INS makes a mistake or
the permanent resident lied about or mistakenly concealed an important fact.
If someone became a lawful permanent resident because he lied about something

important in his case and was granted permanent residence when it should have been denied, the
INS can take away his status. (Of course, he would be entitled to a hearing in front of an
immigration judge on the issue.) If this person applies for naturalization, his application would
be denied because the applicant was not lawfully admitted for permanent residence.13 The idea is
that his admission was unlawful because of the fraud he committed.
Example: Sur, from Korea, immigrated to the U.S. as the unmarried son of a
lawful permanent resident (a second preference petition). In truth, Sur was
married at the time and this fact came out during his naturalization interview.
Since Sur was not originally eligible for lawful permanent residence upon entry,
the INS denied his naturalization application because he had not been “lawfully
admitted for permanent residence.” The INS then placed Sur in removal
proceedings because he was removable for having been inadmissible at entry
under INA §§ 237(a)(1)(A) and 212(a)(6)(C)(i) (relating to fraudulently obtaining
11
The U.S. territories under this section include the Panama Canal Zone, American Samoa, and the Swains Islands.
See INA Section 329(a). For more information on naturalization for people who served in the Armed Forces, please
see Chapter 12 of the U.S. Citizenship and Nationality Handbook by Daniel Levy (2002 Edition West Group).
12
INA § 329(b)(1) and (2).
13
INA § 101(a)(20).
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a visa). While in removal proceedings, Sur will be able to apply for a waiver of
this ground of deportability. For more information on this waiver, see § 4.7.
Had Sur not applied for naturalization in the first place, the issue of his
ineligibility for his original visa (green card) may not have arisen. In this case, a
thorough eligibility discussion between Sur and a knowledgeable immigration
practitioner before he submitted his naturalization application would have
revealed the risks and a more-informed decision on whether or not to proceed
could have been made.
§4.5 Inadmissible at Admission and Now Removable
INA § 212(a) contains of list of categories of aliens who can be physically kept out of the
U.S. This list is commonly referred to as the grounds of inadmissibility. A person who comes
within a ground of inadmissibility does not qualify to be admitted to the U.S. legally. A person
who does not come within any ground of inadmissibility qualifies for legal admission into the
U.S.
The grounds of inadmissibility apply to every person who applies for any type of visa,
either immigrant or non-immigrant. Thus, anyone applying for lawful permanent residence
status must overcome the grounds of inadmissibility. Additionally, any lawful permanent
resident that is outside the U.S. for more than 180 days, or leaves the U.S. and has certain other
problems,14 must overcome the grounds of inadmissibility when he tries to return to the U.S.
Example: Hans, from Holland, has been a lawful permanent resident since 1985.
In 1997 Hans was convicted of auto theft and spent 18 months in prison. In 1999
Hans returned to Holland for a nine-month visit. Upon returning from Holland to
the United States, Hans will be considered to have made a new admission because
he was gone from the U.S. for more than 180 days and because he committed a
crime involving moral turpitude. Because Hans has made a new admission, Hans is
now inadmissible under INA § 212(a)(2)(A)(i)(I) for having been convicted of a
moral turpitude crime. Hans is entitled to a removal hearing in front of an
immigration judge.
14
Under INA § 101(a)(13)(C), a lawful permanent resident who has left the U.S. will be "applying for admission"
when he or she returns (and therefore will have to overcome the grounds of inadmissibility) if he or she:
• was absent for a continuous period of more than 180 days;
• engaged in illegal activity since leaving the U.S.;
• left the U.S. while under removal proceedings;
• committed an offense described in INA § 212(a)(2) (grounds of inadmissibility dealing with crimes); or
• enters or attempts to enter without inspection and authorization;
• has “abandoned” his or her lawful permanent resident status (see § 4.8 of this manual); or
has not been admitted to the United States after inspection and authorization by an immigration officer.
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Even if she has already made it back into the U.S., a lawful permanent resident is
considered to have been improperly admitted if she was inadmissible upon making a new
“admission” to the U.S.15 Such an individual is no longer considered to be a lawful permanent
resident under INA § 101(a)(20) because her unlawful admission caused her status to change
when she returned to the U.S. Therefore, the INS could find her to be ineligible for
naturalization.16 Although the individual cannot officially lose her status as a lawful permanent
resident until she has a removal hearing, the INS could deny her naturalization application.17
Example: In the example above, if Hans had not been questioned at the border and was
permitted to re-enter the U.S., he would still have been inadmissible upon his re-entry.
Hans may not be eligible for naturalization because the INS may not consider Hans to be
a lawful permanent resident of the U.S. Additionally, he would be removable under INA
§ 237(a)(1)(A) as someone who was inadmissible at re-entry.
Typical grounds of inadmissibility for which someone becomes removable for having
been inadmissible at entry18 include: people who were convicted of certain moral turpitude or
drug crimes,19 people who have certain physical or mental disorders,20 people likely to become a
public charge,21 people who smuggled aliens into the U.S.,22 people who committed visa fraud,23
people who are subject to a final order of civil document fraud,24 and others.25 Appendix 4-B
contains a chart of the grounds of inadmissibility.
15
The new immigration law in 1996 (IIRIRA) changed some key terms of law for immigrants. Before 1996, the
INS used the term “entry,” which referred both to legal permission to enter, and an alien’s physical arrival on U.S.
land. Now, the term “admission" is used to describe “the lawful entry of the alien into the U.S. after inspection and
authorization by an immigration officer.” See INA §101(a)(13)(A). In this manual, the word “enter” simply means
a physical arrival, while the word “admission" means INS permission to come into the U.S.
16
See INS Interpretations 318.2(c)(1)(iii).
17
See INS Interpretations 318.3.
18
See INA § 237(a)(1)(A).
19
See INA § 212(a)(2).
20
See INA § 212(a)(1).
21
See INA § 212(a)(4).
22
See INA § 212(a)(6)(E).
23
See INA § 212(a)(6)(C)(i).
24
See INA § 212(a)(6)(F).
25
For a complete list of the grounds of inadmissibility, see INA § 212(a).
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Practice Tip: Advocates must be very familiar with all the different ways in which a
naturalization applicant can become inadmissible and/or removable. If you have clients, like
Hans, who were inadmissible while making a re-entry, are now removable, and are applying for
naturalization, explain to them the risks not only of being denied naturalization, but also of being
placed in removal proceedings, losing their Green Card, and being forced to leave the U.S. For a
sample flyer explaining these risks, see Appendices 4-A and 4-D.
§ 4.5(a) Entries into the U.S. Before April 1, 1997:

Excludable at Reentry and Now Deportable
This discussion is about a separate analysis for entries into the U.S. before April 1,
1997. Before April 1, 1997, the list of ways to keep people out of the U.S. was called the
grounds of exclusion instead of the grounds of inadmissibility. A person who came within a
ground of exclusion was excludable. A person who did not come within any exclusion ground
was admissible.
The grounds of exclusion applied to every person who submitted an application for any
type of visa, whether immigrant or non-immigrant. Thus, anyone applying for lawful permanent
resident status had to pass the grounds of exclusion. Additionally, under the re-entry doctrine,
the grounds of exclusion applied to a lawful permanent resident every time he left and then re-
entered the U.S., even though he had a green card.
Example: Hans, from Holland, has been a lawful permanent resident since 1985. In
1992 Hans was convicted of auto theft and spent 18 months in prison. In 1993 Hans
returned to Holland for a nine-month visit. Upon returning from Holland and trying to
re-enter the U.S., Hans was excludable under INA § 212(a)(2)(A)(i) for having been
convicted of a moral turpitude crime.
When re-entering the U.S., a lawful permanent resident is considered to have been
improperly admitted if she was excludable upon her re-entry. Such an individual is no longer
considered to be a lawful permanent resident under INA § 101(a)(20) because her unlawful entry
caused her status to change when she re-entered the U.S. She is therefore ineligible for
naturalization. Although the individual cannot lose her status as a lawful permanent resident
until she has a removal hearing, she is ineligible for naturalization and she has interrupted her
residence and physical presence.
Example: In the example, if Hans had not been questioned at the border and was
permitted to re-enter the U.S., he would still have been excludable upon his re-entry.
Hans would not be eligible for naturalization because he would no longer be considered
a lawful permanent resident of the U.S. Additionally, he would be deportable under
INA § 241(a)(1)(A) as someone who was excludable at re-entry.
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The concept of what constitutes an entry into the U.S. for a lawful permanent resident
has a long and complicated history. Every time a lawful permanent resident left the U.S. and
returned she may have been making a new entry. However, merely crossing the border did not
automatically mean she was making a new entry. If her absence was "brief, casual, and
innocent" and was not "meaningfully interruptive" of her residence, then she did not make a new
entry and the grounds of exclusion do not apply. This exception for lawful permanent residents
is called the Fleuti exception.
Example: Mr. Field had a green card for many years. He lived in San Diego. One day,
he decided to go shopping in Mexico for a few hours. When he tried to cross the border
back into the U.S., the INS discovered he might have been excludable under INA §
212(a)(4) as a public charge because he had received welfare for many years. The INS
refused to let him back into the U.S. Mr. Field was given a hearing at which the court
decided he was not excludable because he did not make an "entry." The court decided
his absence was "brief, casual, and innocent" and was not "meaningfully interruptive" of
his residence.
There are no hard and fast rules defining what is a "brief, casual, and innocent" absence
which is not "meaningfully interruptive" of one's residence. Different factors such as the length
and purpose of the absence, the intent of the person when she left the U.S. and the circumstances
surrounding re-entry into the U.S. can all be important. These factors are similar to the factors
involved in determining whether an applicant for suspension of deportation broke the required
seven years of continuous physical presence due to an absence, which was, not "brief, casual,
and innocent.
It is still uncertain whether the grounds of exclusion, the reentry doctrine, and the laws
from the Flueti case, or the grounds of inadmissibility and the definitions of admission discussed
in footnote 14 of this chapter will be applied to permanent residents applying for naturalization
that left the U.S. and returned before April 1, 1997. It is possible that a naturalization applicant
who left from and returned to the U.S. before April 1, 1997, would not have made a new
admission under the present definition of admission and thus the grounds of inadmissibility
would not apply to him, while the same absence could be treated as a reentry and he could be
deemed deportable since he had been excludable at the time of his reentry to the U.S.
Practitioners must be careful of both of these scenarios and determine if a naturalization
applicant might be either removable now for having been excludable before April 1, 1997, or
removable now for having been inadmissible during a new admission before or after April 1,
1997.
It is still uncertain whether the INS and courts will apply the reentry doctrine, or the
new definition of an admission, to permanent residents applying for naturalization that left the
U.S. and returned before April 1, 1997. Thus, the ILRC feels advocates should argue, when
beneficial to their clients, that in analyzing whether or not one is now deportable for having been
excludable during a pre-April 1, 1997 absence and subsequent border crossing, the INS and
immigration courts must use the definition of reentry and the reenty doctrine instead of the
definition of admission.
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Practice Tip: It is essential for advocates to thoroughly explain the concept of "brief, casual, and
innocent" to all clients who may have made a new entry at a time when they were excludable.
When explaining this concept to clients, advocates may want to review the following factors,
which could help convince a judge that the absence was "brief, casual, and innocent":
- the absence was for a short period of time;

- the absence was due to an emergency;
- the absence was for a business reason or vacation;
- the individual left the U.S. intending to be gone for a short period of time and an
emergency forced her to stay longer; and
- the individual did not move out of her apartment, did not quit her job, nor did she
take her family with her when she left.
Advocates and their clients may also want to discuss the following factors, which could
show the absence was not "brief, casual, and innocent":
- the absence was for a long period of time;

- the reason for the absence was to commit a crime or help someone else commit a
crime; or
- the individual intended to leave the U.S. and live in another country.
Neither of these lists is a complete list of the factors indicating whether or not an absence was
"brief, casual, and innocent."
Providing applicants with concrete examples of what types of absences may or may not
be considered "brief, casual, and innocent" is helpful.
§ 4.6 Waiver Under § 212(k)
A Green Card holder who is inadmissible under INA § 212(a)(7)(A)(i) (invalid visa) or §
212(a)(5)(A) (no labor certification) may apply for a 212(k) waiver and may be admitted into the
U.S. The applicant for such a waiver must have an immigrant visa and must show that before he
applied for admission back into the U.S. (that is, before he returned to the U.S.) he was not aware
of the fact that he would be inadmissible and he could not have become aware of it had he made
a reasonable effort to find out. This waiver is a discretionary waiver, which means that the INS
is not required to grant the waiver. Its decision will probably be based on weighing favorable
and unfavorable factors in the applicant’s case.26 Thus the applicant has to prove to the INS that
his circumstances make him worthy of the waiver.
26
Matter of Riccio, 15 I.&N. Dec. 548 (BIA 1976) (Although this case discusses discretion in the context of
suspension of deportation, discretion should be similarly defined in a § 212(k) case).
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Example: José’s father, a U.S. citizen, petitioned for José to come to the U.S. About one
month before coming to the U.S. José and his father got into an argument and his father
told him not to call because he did not ever want to hear from him again. Although he
tried to contact his father immediately after immigrating to the U.S., José was unable to
because his father’s number was disconnected and his neighbors said his father had
moved. Two years after immigrating to the U.S., José discovered that his father had died
the day before José left Mexico to immigrate to the U.S. Since José’s father had died
prior to José’s use of the visa, José’s visa was invalid and he was actually inadmissible
under INA § 212(a)(7)(A)(i). If an immigration judge finds him removable for having
been inadmissible at admission, José should apply for a 212(k) waiver.
Often the INS considers the following factors when deciding whether to grant a
discretionary application:
1. The applicant's good character or contribution to society.
2. The hardship that the applicant or close relatives (usually parents, spouse, and
children) who are either U.S. citizens or lawful permanent residents would suffer if
the application were denied. This may be financial, emotional, physical, or any type
of hardship.
When submitting a 212(k) waiver it would be best to include information on these two
factors. The waiver may be submitted to the INS district director having jurisdiction over the
place where the applicant is trying to enter the U.S. and, if denied, it may be renewed in removal
proceedings.27 An immigration judge can decide a 212(k) waiver even if the district director has
not made a decision on the application for the waiver.28 One may also apply for a 212(k) waiver
while in removal proceedings without first applying to the district director.29 If the waiver is
denied, it is very unlikely that this decision can be changed. A federal court would have to find
that the INS abused its discretion in balancing the favorable and unfavorable factors in the
case—which is rare.30
27
8 CFR § 212.10.
28
Matter of Aurelio, 19 I.&N. Dec. 458, 461 (BIA 1987).
29
Matter of Aurelio, 19 I.&N. Dec. 458, 461 (BIA 1987).
30
See Gordon et al, Immigration Law and Procedure, Vol. 8, § 104.09[2][c].
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§ 4.7 Fraud Waiver While in Removal Proceedings
INA § 237(a)(1)(H)31 provides for a waiver of the ground of deportability covering

individuals who are removable for having committed visa fraud when they entered the U.S.32 If
someone is granted this waiver, she can remain living in the U.S. as a lawful permanent resident
and is no longer removable.33
People who were granted the 241(a)(1)(H) wavier (and presumably a 237(a)(1)(H)
wavier) are eligible for naturalization.34 An applicant who is granted this waiver can start
counting her five- or three-year residence period (see Chapter 5) as of the date she first became a
lawful permanent resident.35
Example: Muhey immigrated to the U.S. in 1988. In 1998, he applied for naturalization
at which time the INS discovered he had committed visa fraud on his initial application
for permanent residence. He was placed in deportation proceedings. Muhey applied for,
and, in 1998, was granted a waiver of deportation under INA § 237(a)(1)(H). Muhey can
apply for naturalization immediately because he is considered to have become a
permanent resident in 1988 even though the judge granted the INA § 237(a)(1)(H) waiver
in 1998.
To qualify for a § 237(a)(1)(H) waiver, an applicant must be the spouse, parent, son, or
daughter of a U.S. citizen or lawful permanent resident, have had an immigrant visa (document
showing she was admitted for lawful permanent residence) at the time the applicant first arrived
in the U.S., and otherwise have been eligible for the visa obtained except for the fraud or
misrepresentation s/he committed to get the visa.36
This waiver is a discretionary waiver. This means that the immigration judge is not
required to grant the waiver, so the applicant should submit evidence to convince the judge to
grant it. Often the important evidence to show includes:
1. The applicant's good character or contribution to society; and
2. The hardship that the applicant or close relatives with lawful status (U.S. citizens or
31
This waiver used to be called a 241(a)(1)(H) waiver and before that a 241(f) waiver. Many people still refer to this
waiver as a 241(f) waiver.
32
Someone who committed visa fraud many years ago is removable because she was inadmissible at time of admission
as someone who committed visa fraud. See INA §§ 212(a)(6)(C)(i) and 241(a)(1)(A).
33
See Matter of Tadena, 15 I.&N. Dec. 458 (BIA 1975) and INS Interpretations 318.5.
34
See Operations Instructions 318.2(d) and INS Interpretations 318.5.
35
Matter of Sosa-Hernandez, 20 I.&N. Dec. 758 (BIA 1993).
36
INA § 237(a)(1)(H). For more information on this topic, please see Gordon et al, Immigration Law and Procedure,
Vol. 6, § 71.04[2][a][ii].
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lawful permanent residents) would suffer if the waiver application were denied. This
may be financial, emotional, physical, or any type of hardship.
Example: In the example given in § 4.4, Sur can apply for a 237(a)(1)(H) waiver
to try and protect himself from removal. He is eligible for the waiver because he
is the son of a lawful permanent resident. Since it is a discretionary waiver, Sur
should show his good character, contributions to society, and that if the waiver
were denied, Sur or his family members would suffer hardship.
After Sur's legal worker explains to Sur what the legal requirements are and what
needs to be proven for the waiver, Sur suggests the following items to
demonstrate why he deserves the waiver:
• a letter showing that he coaches a youth basketball team;
• a letter from the minister at his church proving that he is active in the parish;
• an employment letter;
• copies of his tax returns;
• birth certificates of his U.S. citizen children;
• a letter from his daughter's teacher discussing the high level of involvement
Sur has in her education and what she would miss if Sur were not around;
• affidavits from relatives and friends showing the closeness of the family
and the fact that Sur contributes financially to the family.
As Sur and the advocate work on the case, they come up with more ideas to show
that he deserves the waiver.
Usually people are in removal proceedings for visa fraud because they committed fraud
or willfully (on purpose) misrepresented a material fact (something important) on the
application to obtain their lawful permanent residence (Green Card).37 This ground of removal
37
The definition of willful misrepresentation of a material fact can be complicated. First, the misrepresentation must
be willful. To be willful, the applicant must make a misrepresentation with the knowledge that it is false and with the
actual intent to deceive so that the applicant gains an advantage for immigration purposes to which he would not
otherwise have been entitled. Matter of G-G-, 7 I.&N. Dec. 161 (BIA 1956). A second requirement is that the
misrepresentation must be material. The INS applies a 2-part test to determine if a representation was material:
1. Is the alien inadmissible based on the true facts? If yes, then the misrepresentation was material. If not,
then:
2. Did the misrepresentation shut off a line of inquiry relevant to the alien's eligibility and that probably would
have resulted in the alien’s inadmissibility? A misrepresentation as to identity or place of past residence, for
example would almost necessarily have shut off an opportunity to investigate part or all of the alien's past
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most often arises when someone has already committed the fraud and immigrated to the U.S., but
for some reason it was not discovered by the INS until afterwards. One reason why the fraud
may be discovered is that ex-relatives, spouses, or friends tell the INS about the fraud because a
relationship has soured. Another reason is that when the individual who committed the fraud
petitions for a relative or applies for naturalization she includes information in the petition,
application, or during the interview, which leads the INS to discover that she was not originally
eligible for her visa.
Example: Ann is in removal proceedings because in 1988 she immigrated to the

U.S. as the unmarried daughter of a lawful permanent resident when in fact she
was married. Ann made a willful misrepresentation of a material fact because if
she had told the INS that she was married, her visa application would have been
denied. The INS did not discover this misrepresentation until Ann petitioned for
her spouse in England. Her marriage certificate states she got married in 1987.
Ann should submit an application for a § 237(a)(1)(H) waiver.
§ 4.8 Abandonment of Residence -- Losing One's Permanent Resident Status
A naturalization applicant must be careful if she has prolonged or repeated absences from
the United States, because the INS could find that she has abandoned her residence. Abandoning
one’s residence terminates one’s lawful permanent residence status, and can result in two very
serious consequences:
• the person may no longer qualify for naturalization; and

• the person may be removed (whether or not one is applying for naturalization).38
Absences must be carefully discussed with all applicants. If a parent abandons her
residence and takes her child with her, the child also will be found to have abandoned her
residence.39
history, and thus have shut off a relevant investigation. However, a remote, tenuous, or fanciful connection
between a misrepresentation and a line of inquiry, which is relevant to the client's eligibility, is insufficient to
satisfy this aspect of the test of materiality.
If a relevant line of inquiry has been cut off, the alien bears the burden of proving that the line of inquiry
blocked by the misrepresentation would still not have resulted in his being found inadmissible. Matter of S-
and B-C-, 9 I.&N. Dec. 436, 448-49 (Attorney General 1961); Gordon et al, Immigration Law and Procedure,
Vol. 6, § 71.04[2][a].
38
See INA § 101(a)(27)(A) and Matter of Huang, 19 I..&N. Dec. 749 (BIA 1988). Even if a lawful permanent resident
had already entered the U.S., if she had abandoned her residence at any time, the INS could find that she is no longer a
lawful permanent resident under INA § 101(a)(27). Additionally, she could be found to be removable under INA §
241(a)(1)(A) as someone who was inadmissible at time of admission or under INA § 212(a)(7)(A)(i) as someone who
entered the U.S. without a valid unexpired immigrant visa. There is a waiver of this ground of inadmissibility in INA §
212(k). For more information about this waiver, please see § 4.5.
39
See Matter of Zamora, 17 I.&N. Dec. 395 (BIA 1980); Matter of Favela, 16 I.&N. Dec. 753 (BIA 1979).
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The reason that a person who is presently in the U.S. can be removed for abandoning his
residence is somewhat complicated. Essentially, a lawful permanent resident is someone who
has the right to reside permanently in the U.S. so long as his status does not change.40 A lawful
permanent resident who makes a temporary visit abroad is permitted to enter the U.S. as a
“special immigrant.”41 If the lawful permanent resident’s trip abroad was more than a
“temporary absence,” the INS can find that he abandoned his residence. Therefore, he can no
longer be admitted to the U.S. as a “special immigrant,” which means that his status has
changed. This status change means that he was no longer lawfully admitted for permanent
residence under INA § 101(a)(20). When he came back into the U.S., he really entered without a
valid visa and was therefore inadmissible under INA § 212(a)(7)(A)(i)(I). Since he was
inadmissible at time of admission, he is presently removable under INA § 237(a)(1)(A).42
There is really no set time period to measure how long a person’s absence can be before
he can be found to have automatically abandoned his residence.43 Instead, it is determined on a
case-by case-basis. Often the reality is that if someone has been abroad for less than six months,
no one will ask him questions about abandonment when he returns to the U.S. If he is absent for
between six months and one year, he may have to prove that he did not abandon his residence. If
he was gone for more than one year, it may be difficult for him to prove he had not abandoned
his residence, but certainly not impossible.44 But note that a person who was abroad for less
than six months could be found to have abandoned his residence, if in fact the person intended to
move his home from the U.S. to another country. It all depends on the circumstances of the
absence.
Note: A naturalization examiner should not take away someone's green card right away, and
the person will not be removed immediately, if the INS thinks she has abandoned her residence.
First, the INS investigates the naturalization applicant to see if she did indeed abandon her
residence. Then, if the INS thinks it appropriate, it issues a Notice To Appear, which is the
charging document that starts removal proceedings. (Prior to 1996, this document was called an
40
INA § 101(a)(20).
41
INA § 101(a)(27).
42
See Matter of Huang, 19 I.&N. Dec 749 (BIA 1988).
43
Abandonment of residence should not be confused with “disruption of continuity of residence,” a separate
naturalization requirement discussed in Chapter 5.
44
There are examples of cases where people were gone for more than a year and the BIA found they did not abandon
their residences. In fact, in one instance the individual was gone for four years trying to sell his assets, returning to the
U.S. for only two brief visits during the time abroad, and the BIA found he did not abandon his residence. Generally,
the important facts to prove in the case of someone gone for a long period of time are that he intended to leave for a
temporary visit, while abroad he kept his intent to continue living in the U.S. as a lawful permanent resident, and he
could not come back because of unforeseen circumstances causing an unavoidable delay. For a thorough explanation
of this issue, please see “You Can Go Home Again—How to Prevent Abandonment Of Lawful Permanent Resident
Status,” by Gary Endelman, Immigration Briefings, No. 91-4 (April 1991).
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Order to Show Cause.) The individual is entitled to a hearing and a lawyer or accredited
representative may represent her. This process can take many months. Sometimes the INS may
decide not to initiate removal proceedings even though the INS may think that a naturalization
applicant has abandoned her residence. This decision is left to the local INS office that has
jurisdiction where the naturalization applicant lives.
Anyone accused of abandoning his or her residence is entitled to a hearing in front of an

immigration judge. It is the INS’s burden to prove that someone abandoned his residence.45 To
determine if a lawful permanent resident has abandoned his residence, the INS looks to the
person’s intention in going abroad. If the person intended to permanently leave the U.S., the
INS, and eventually the courts, probably will find that s/he abandoned his/her residence. If s/he
only went abroad intending to stay for a short time or a temporary, finite period, generally the
INS, and the courts, should find that s/he has not abandoned his/her residence.
To combat INS’s claim that a lawful permanent resident abandoned his residence, the
person must show his absence was temporary and not permanent, and that he did not move his
residence to another country. The INS will consider several factors in determining whether there
has been an abandonment of residence, such as:
1) Purpose of the trip abroad: the applicant should show a definite reason for the
temporary visit;
2) Intended duration of visit: the shorter the better. The applicant should show that he
or she expected the visit to end within a short period of time, or at the occurrence of a
definite, fixed event;
3) Place of employment: it is good if the applicant can prove his employment is in the
U.S.;
4) Ties to the U.S.: the applicant should demonstrate personal, financial, and other
relevant commitments to the U.S.;
5) Applicant’s home: the applicant should show that he or she considers the U.S. his
actual home, as opposed to just a place of employment or business, or a place to
visit.46 However, an applicant does not have to own or rent a dwelling in the U.S. in
order to show that he or she has not abandoned residence.47
If the applicant says that her intent was to take only a temporary trip abroad, but her
actions (under these factors) tend to show otherwise, the INS could very well find that the
applicant did not really “intend” her trip as a temporary one, and may probably find that she has
abandoned her residence.
The INS may assume (a rebuttable presumption) that any naturalization applicant who is
a lawful permanent resident has abandoned her residence if she has done either of the following:
45
See Matter of Huang, 19 I.&N. Dec. 749 (BIA 1988).
46
See Matter of Kane, 15 I.&N. Dec. 258 (BIA 1975) and Matter of Huang, 19 I.&N. Dec. 749 (BIA 1988).
47
See Matter of Huang, 19 I.&N. Dec. 749, 753 (BIA 1988).
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(1) voluntarily claimed nonresident alien status when filing her tax returns, because she
wants to qualify for special tax liability; or
(2) failed to file her state or federal taxes because she considers herself to be a
nonresident alien.48
A trip abroad must be either for a relatively short period, fixed by some early event, or
intended to end after an event that reasonably should occur within a relatively short period of
time. In the latter situation, the individual must have a continuous, uninterrupted intention to
return to the U.S. during his entire visit.49 In the 9th Circuit (which includes California), the issue
is supposed to be not whether or not the person ultimately intended to return to the United States,
but whether or not the person had the intent to return to the United States within a relatively short
period of time.50
Example: Mae, from Vietnam, was a lawful permanent resident of the U.S. when
she returned to Vietnam to attend her father's funeral. While there, she had to sell
her family's farm and business. It took her 15 months to sell everything and then
she spent an additional week packing the remaining belongings before she
returned to the U.S. Mae should argue that she reasonably expected the funeral
and sale of the farm and business to occur in a relatively short period of time.
(She thought the funeral would be quick and it would not be hard to sell the farm
and business.) Additionally, she should argue that for the entire period she was
gone she maintained her intent to continuously reside in the U.S. all the time she
was in Vietnam. She should also list her ties to the U.S. such as a home, relatives,
and her job.
Even though the INS has the burden to prove abandonment of residence by "clear,
unequivocal, and convincing evidence,"51 an individual who has been accused of abandoning her
residence and threatened with the loss of lawful permanent residence status needs to gather all
the documentation that she can to show she did not abandon her residence. Brainstorming with
the client on what documents are supportive is generally helpful. Several examples below
demonstrate how the issue arises, and suggest what documents may be useful.
Example: Maria Martinez has been a lawful permanent resident for five years.
She is married and has one daughter. She went alone to visit her parents once for
a month three years ago, and then for thirteen months last year when her mother
was very sick. Maria thought she would be gone for two months to take care of
her mother but the illness lasted nearly thirteen months. Maria and her husband
own their home and she came back to her job as a lab technician. Now she is in
your office and the two of you are meeting to discuss her situation.
48
See 8 CFR § 316.5(c)(2).
49
Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986).
50
Chavez-Ramirez v. INS, 792 F. 2d 932 (9th Cir. 1986).
51
See Matter of Huang, 19 I.&N. at 754.
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You could start the meeting by explaining that a green card allows someone to
live in the U.S. and come to the U.S whenever she wants. But it does not allow
someone to live in another country for long periods and keep her green card at the
same time. Once someone decides to live in another country, she is considered to
have abandoned her residence in the U.S. and could lose her green card. Thus,
Maria must show she did not intend to leave the U.S. permanently.
To demonstrate that Maria did not intend to leave the U.S. permanently, she could
try to collect some of the following documents:
(1) Deed to her house. This will show she has property to return to in the U.S. If
she did not own property, she can use other documentation that she continued to
maintain an apartment in the U.S. during her stay abroad (e.g, phone bills, electric
bills, lease agreement).
(2) Tax records. These will help show her intent to remain a U.S. resident.
(3) A letter from her mother's doctor. This may show that the illness lasted
longer or was more serious than Maria expected, suggesting that she initially
intended to be away from the U.S. for only a short period.
(4) Her daughter's school records. This shows that her daughter has remained
in school in the United States, and implies that Maria intended to return.
(5) Letters to and from her husband and daughter, saying that she planned to
come back to the United States.
(6) Declaration of her husband, saying he knew that she planned to return to the
U.S. when her mother recovered.
(7) Letter(s) to her employer telling her when she expected to be back, and
asking that she be able to come back to her same job. If she belonged to a union,
proof that she was paying her union dues would be helpful.
(8) Letter(s) from her employer discussing temporary job coverage.
(9) Proof that she kept a U.S. bank account while she was out of the U.S.
This is not an exhaustive list. You and Maria should think of as many documents as
possible.
It is important to keep clients aware of the dangers of abandoning their residence. If a

client is about to go abroad for a long period of time, take the time to explain the concept of
abandonment to her. In fact, it is probably best to explain the concept (or at least distribute a
flyer explaining it) to every client in your office who obtains status as a lawful permanent
resident. For sample flyers in English and Spanish, which explain abandonment, please see
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Appendix 4-C.
When explaining abandonment, not only do you need to explain the risks and
requirements involved, but also you need to go over ways to keep from one abandoning his/her
residence. Give clients helpful tips about how to avoid being asked about abandonment upon re-
entering the U.S. For instance, the INS may get suspicious if someone has a round trip airline
ticket originating in a foreign country, does not have a driver's license (or identification card) or
bank account in the state he claims to live in the U.S., has no job, possessions or home in the
U.S. (especially if he has any of these in another country), or has not filed taxes in the U.S.
§ 4.9 Reentry Permits
A reentry permit can be very useful for a lawful permanent resident who is expecting to
leave the U.S. for an extended period of time.52 This does not mean a reentry permit alone is
sufficient evidence that a lawful permanent resident did not abandon her residence. The key
issue will still be whether or not she intended to abandon her residence. Thus, it is vital for all
practitioners to make sure clients applying for reentry permits know a reentry permit is not
sufficient protection against losing their green cards if they intend to abandon their residences.
This interpretation that we are offering is the interpretation of many practitioners. There
is, however, another interpretation, which is more generous. The more generous interpretation is
that so long as a lawful permanent resident did not obtain his reentry permit by fraud or
misrepresentation, the permit should be sufficient evidence to demonstrate that he was returning
from a temporary absence abroad and therefore did not abandon his residence.53 Practitioners
should not rely on this more generous interpretation because they might not have much success
with it. Yet if they and their clients have no other recourse, then they should try the more
generous interpretation. Under 8 CFR § 223.3(d)(1), a permanent resident who has a valid
reentry permit shall not be found to have abandoned her residence based solely upon the length
of her absence or absences while the reentry permit was still valid.
Practice Tip: If a lawful permanent resident obtained a reentry permit prior to leaving the U.S.
and upon returning from a trip abroad the INS accuses him of abandoning his residence, the
resident should make the following arguments:
1) He never intended to abandon his residence; and
2) That since he did not obtain the reentry permit by fraud or misrepresentation, the
permit should be sufficient evidence to demonstrate that he was returning from a
temporary absence abroad and therefore did not abandon his residence.54
52
See INA § 223, 8 CFR § 211.1(a)(3).
53
See Matter of V, 4 I.&N. Dec. 143 (BIA 1950, Approved by the Attorney General, 1950).
54
See 8 CFR § 211.1(b)(2) and Matter of V, 4 I.&N. Dec. 143 (BIA 1950, Approved by the Attorney General, 1950).
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To apply for a reentry permit one must complete Form I-131. The permit may be used
for multiple re-entries.55 It is valid for a maximum of two years, unless it specifies less time.56
The permit cannot be renewed.57
WARNING: A reentry permit from the INS can be helpful in showing someone did not
abandon her residence. But even with a reentry permit, one can lose her status as a resident if
she did indeed intend to abandon her residence and abandoned it. However, a lawful permanent
resident who has a valid (unexpired) reentry permit (and who is otherwise admissible) cannot be
said to have abandoned her residence only because she was gone for a long time.58
§ 4.10 Becoming Removable
The grounds of deportability are contained in INA § 237 and are simply a list of the kinds
of non-citizens who can be forced to leave (removed from) the U.S. The grounds of
deportability include committing certain crimes, smuggling aliens, entering the U.S. while
inadmissible,59 being a public charge, and others.60 The grounds of deportability are discussed in
more detail in Chapter 6, Appendix 6-D, and Appendix 4-B.
WARNING: All practitioners helping clients apply for naturalization should become familiar
with the grounds of deportability and inadmissibility. If a naturalization applicant is removable
for any reason—including being inadmissible at entry—or if she was not entitled to permanent
residence in the first place because she was inadmissible, she may be denied naturalization and
be placed in removal proceedings.
55
See 8 CFR § 223.3(d)(1) and Matter of V, 4 I.&N. Dec. 143 (BIA 1950, Approved by the Attorney General,
1950).
56
8 CFR § 223.3(a).
57
8 CFR § 223.3(c).
58
74 Interpreter Releases 1276 (August 18, 1997) and 8 CFR §223.3(d)(1).
59
The grounds of inadmissibility are found in INA § 212(a).
60
Practitioners handling naturalization cases must become familiar with the grounds of deportability. A more complete
discussion of the grounds of deportability is beyond the scope of this manual. For a more complete discussion, please
see the ILRC's manual, A Guide for Immigration Advocates (2002 Edition); Bill Ong Hing, Handling Immigration
Cases or Gordon et al, Immigration Law and Procedure.
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If it appears to the INS examiner that an applicant for naturalization may be removable
under the grounds of deportability based upon an act occurring before, during, or after admission
into the U.S., the case may be sent to the INS investigations branch to consider whether or not to
issue a Notice to Appear and place the individual in removal proceedings.61
Additionally, an immigration judge may terminate removal proceedings to permit an

individual to continue with her final hearing on her pending naturalization application if she is
prima facie eligible for naturalization, and the case involves exceptionally appealing or
humanitarian factors.62
No one who has a final order of deportation entered against her can qualify for
naturalization.63 There are exceptions for people who have served honorably and currently serve
in the U.S. Armed Forces or who naturalize through service in the U.S. Armed Forces during one
of the wars or "hostilities" discussed in INA § 32964 and § 4.2 of this chapter. Additionally, no
application for naturalization will be considered if the applicant has a removal proceeding
pending.65 The INS takes the position that removal proceedings are pending from the time the
Notice to Appear is served.66
Note that although the INS cannot naturalize someone while s/he is in deportation
proceedings, a federal district court judge can. See INA § 318 and Chapter 11 for more
information on this subject.
Pending removal proceedings and outstanding orders of deportation are serious matters,
especially when naturalization applicants are concerned. Sometimes applicants are not aware
they have outstanding orders because they were ordered deported in absentia or were confused
by the court process. Other times, applicants prefer not to share this type of information with
their advocates because they think it might jeopardize their case or they think it might not be
important. Thus, it is extremely important for advocates and applicants to discuss the
consequences of pending removal proceedings and outstanding orders of deportation. Advocate
and client need to decide together if these issues apply to the applicant and, if so, to determine
how to handle the situation. To get more information, an advocate may file a FOIA (Freedom of
Information Act) request with the government to get a record of the applicant’s past and present
immigration status (please refer to Appendix7-B).
61
See INS Operations Instructions 318.1. This instruction actually mandates the INS to refer such a case for
consideration of whether or not to issue an Order To Show Cause.
62
8 CFR § 239.2(f) and INS Interpretations 318.2(c)(1)(ii).
63
INA § 318.
64
INA §§ 328(b)(2) and 329(b)(1).
65
INA § 318.
66
See INS Interpretations 318.2(c)(1)(iii).
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CHAPTER 5
RESIDENCE AND PRESENCE REQUIREMENTS
§ 5.1 Introduction
In addition to maintaining lawful permanent resident status, the naturalization applicant

must meet four residence and presence requirements to qualify for naturalization. These are:
I. Five Years of Continuous Residence: An applicant must have resided continuously in the
U.S. as a lawful permanent resident for the last five years immediately prior to applying for
naturalization.1 For some applicants married to U.S. citizens, the continuous residence
period is three years.2
II. Three Months of Local Residence: The applicant must have resided in the state or INS
district where her application is filed for the three months immediately prior to applying for
naturalization.3
III. Continuous Residence After Application: The applicant must continuously reside in the
U.S. from the date of filing the application until she is admitted to citizenship.4
IV. Physical Presence: The applicant must have been physically present in the U.S. for at least
half of the five-year residence period immediately prior to submitting the application,5 (or
half of the three-year period if the applicant is married to a U.S. citizen).6
Each of these four requirements and their exceptions are discussed in greater detail in the
sections below.
1
See INA § 316(a)(1).
2
See INA § 319 and Chapter 7-5 of this manual.
3
See INA § 316(a)(1).
4
See INA § 316(a)(2).
5
See INA § 316(a)(1).
6
See INA § 319.
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§ 5.2 FIRST RESIDENCE REQUIREMENT: Five Years of Continuous Residence
This requirement has three important parts:
1) First, the five-year period includes the five years counting backwards from the date the
applicant files for naturalization.7 This means that the INS is not concerned with breaks in the
applicant’s U.S. residence before the five-year period. Yet, the problems associated with
abandonment of residence can arise due to absences from the U.S. no matter how long ago the
absence occurred.8
Example: Helena became a lawful permanent resident in 1988. She made two trips to visit
family and friends in Poland—once in 1989, and again in 1998. Helena applied for
naturalization in 2002. To determine if Helena disrupted her continuous residence by going
to Poland, the INS will not look at her 1989 trip because it was more than five years before
she applied for naturalization. However, the INS will look at how her 1998 trip affected her
continuous residence, because it was within the five years immediately prior to filing the
naturalization application.
2) Next, the term residence is defined by the INS as a person’s “principal dwelling place.”9
Therefore, if an applicant owns a house or rents an apartment in the U.S., but spends most of her
time living in an apartment or house in another country, the INS may find that she does not
reside in the U.S.
Example: George became a lawful permanent resident in 1992. He now wants to apply for
naturalization. Since 1992, George has worked in New York City, where he lives in an
apartment that he rents. Each summer, George spends two months at his childhood home in
Russia where his parents still live. Even though George spends two months living at his
childhood home in Russia, his principal dwelling place is his apartment in New York, where
he lives ten months out of the year. Therefore, George principally resides in the U.S.
An applicant who is a commuter alien does not meet the residence requirement for
naturalization. A commuter alien is a lawful permanent resident who works in the U.S., but lives
in a foreign contiguous territory,10 like Canada or Mexico. Since the commuter alien does not
reside in the U.S., he will not qualify for naturalization until he has resided continuously in the
U.S. for five years.
3) Finally, the residence during the five-year period must be continuous. This means that if the
applicant travels out of the country for certain periods of time, the INS may find that she does
not qualify for naturalization because she has broken her U.S. residence by leaving the country.
7
See INA § 316(a)(1).
8
See Chapter 4, § 4.8 of this manual.
9
See INA § 101(a)(33).
10
See 8 CFR § 316.5(b)(3).
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The INS calls this breaking the continuity of residence, or disrupting continuous residence11 (see
§ 5.4 below).
Filing for Naturalization Three Months Early
Lawful permanent residents can file the application three months before the five-year period
is complete.12 There is a similar rule for people married to U.S. citizens applying under the
three-year residence requirement, which lets them apply 90 days prior to their third year of
residence.13 However, the ILRC has been getting reports that several citizenship applicants who
apply 90 days before the third anniversary of residence in the U.S. (since they qualify for the
three year residence rule because they are married to U.S. citizens) are being denied at the
interview for having applied too early. This type of denial should not be happening. If the
applicant has been married to and living with a U.S. citizen for at least three years, and the U.S.
citizen spouse has been a U.S. citizen for at least three years, the applicant can apply for
naturalization three months before actually being eligible (i.e. after having lived in the U.S. for
two years and nine months). Yet, it is the Service’s position that an applicant may not apply
three months early if he or she has not already lived with the spouse for a full three years.
For an illustration, compare the two situations below:
Example: Earl Early, a lawful permanent resident since January 10, 2000 got married on
July 13, 2000 to a U.S. citizen. They have been living together since they got married.
The U.S. citizen spouse has been a citizen for ten years. According to the Service, Earl
can apply for citizenship on July 13, 2003, not three months before that time (April 13,
2003).
Example: Tomas Temprano, a lawful permanent resident since January 10, 2000, has
been married to a U.S. citizen since March 12, 1999. They have been living together
since they got married. Tomas’s U.S citizen spouse has been a citizen for ten years.
According to the Service, Tomas will qualify for naturalization on January 10, 2003 and
can apply for citizenship on October 10, 2002, three months before that time—even
though he will have been a lawful permanent residence for two years and nine months—
because he has been living with and married to a U.S. citizen for three years.
Interim Policy for Applicants who Mistakenly Filed for Naturalization Early
The INS has established an interim procedure to provide relief under certain circumstances
from the undue hardships caused when applicants prematurely filed naturalization applications.
This procedure allows people who filed too early for naturalization and were thus statutorily
ineligible for naturalization at application date, to have their applications adjudicated without
11
See 8 CFR § 316.5(c)(1)(i).
12
See INA § 334(a). Please note that although the statute says one can file an application three months early, the
regulations say 90 days. See INA § 334(a) and 8 CFR § 316.4(b).
13
See INA § 334(a) and 8 CFR § 334.2(b).
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having to pay another filing fee and without having to start at the back of the line. Applicants
can benefit from this policy so long as they meet the following criteria:
• The naturalization application was filed on or before June 29, 1999;

• The INS determines that the application was unintentionally filed more than 90 days
before the applicant met the continuous residence requirements or the applicant, in
reliance on the form instructions, filed an N-400 seeking an age and residence-based
exemption from the English language or civics requirements; and
• On the date of the naturalization examination, the applicant has met the continuous
residence requirement, or is eligible for the 55/15 and 50/20 residence based
exemptions to section 312.
If an applicant meets these requirements, the INS may employ the interim procedures and
permit the applicant to file a new N-400, without fee, at the time of the interview, and have such
application processed out of chronological order. For more information on this interim
procedure, please see Appendix 5-A (included with this update), INS, Immigration Services
Division, Field Operations Policy Memorandum No. 54, “Interim Procedure to Remedy
Prematurely Filed Naturalization Applications.”
§ 5.3 Exceptions to the Five Year Continuous Residence Requirement

(Special Groups)
Certain categories or special groups of people do not need to meet the five-year
continuous residence requirement.
• Children of a U.S. Citizen

• Spouses of a U.S. Citizen
• Lawful Permanent Residents Serving in U.S. Armed Forces
• Filipino War Veterans
Please refer to Chapter 7-5 for more information about how people in these special
groups meet this exception.
In addition, there are four other groups of people with special rules for the five-year
residence requirement.
• Refugee Rollback for Refugees and Asylees
Refugees and asylees are also entitled to a special residence rule when applying for
naturalization. Refugees are not eligible for lawful permanent resident status until they have
been in the U.S. for a year. Asylees cannot apply for lawful permanent resident status until one
year after their asylum applications are approved.14 Under rollback, a refugee can start counting
14
See INA §209(a).
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her five years from the date she arrived in the United States.15 An asylee can start counting from
the date one year before her application for lawful permanent residence was approved.16
Example: Tran, from Vietnam, was admitted as a refugee to the U.S. in November 1991.
He applied for lawful permanent residence in December 1992 and became a lawful
permanent resident in 1993. Tran was eligible to naturalize five years from his entry date
(November 1991) because the date he became a lawful permanent resident is “rolled
back” to the date he entered the U.S. Thus, Tran has been eligible for naturalization since
November 1996.
Ana, from El Salvador, entered the U.S. without inspection in 1989. She applied for and
was granted political asylum in 1990 and became a lawful permanent resident in 1993.
Ana was eligible to naturalize in 1997 (four years later) under rollback because she can
start counting her five years from the year before she was granted status as a lawful
permanent resident.
Many refugees and asylees are unaware of the refugee rollback provisions. Practitioners
and advocates should make a point of publicizing this provision to refugee communities.
See § 5.8 of this chapter for another special exception for refugees and asylees.
• U.S. Nationals
Non-citizen nationals who owe permanent allegiance to the U.S. may become U.S.
citizens without meeting this residence requirement in the U.S. Instead, they can meet the five-
year residence requirement by residing in an outlying possession of the U.S.17 Outlying
possessions of the U.S. are American Samoa and Swains Island.18
A U.S. national must still fulfill the requirement of living in the state or INS district
where she files her application for at least three months prior to filing the application.19
Section 302 of Public law 94-241 allows certain inhabitants of the Commonwealth of the
Northern Mariana Islands to opt for non-citizenship national status instead of status as a United
States citizen.20
15
8 CFR § 209.1(e).
16
8 CFR § 209.2(f).
17
See INA § 325, 8 CFR § 325.3(a), INA § 101(a)(22).
18
See INA § 101(a)(29). For a complete description of who can be non-citizen nationals, please see INA § 308 and
Chapter 3, Daniel Levy, U.S. Citizenship and Naturalization Handbook (2002 ed., West Group).
19
See 8 CFR § 325.3(a) and § 5.1. Some practitioners argue that under INA § 325 the three-month residence is not
required; instead the requirement is that the national must reside in a state for any period of time.
20
See “Memorandum from United States Department of State” copied in Appendix II, 74 Interpreter Releases 1307
(August 19,1997).
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See § 5.8 for another special exception for U.S. nationals.
• Seamen aboard Ships
A lawful permanent resident who is NOT a member of the Armed Forces, but who has
served aboard a U.S. vessel, is given an exception from the five-year requirement.21 His
residence on board the ship is considered to be the same as residence in the U.S. if it was during
the five years immediately before applying for naturalization. This exception also applies for the
physical presence requirement (see § 5.8 below).22
• Employees of Certain United States Incorporated Nonprofit Organizations
Anyone who fulfills the following requirements will not have to demonstrate any
continuous residence, physical presence requirements, nor any State or INS District residence
prior to applying for naturalization:
1. the individual must be employed by a bona fide U.S. incorporated nonprofit

organization which is principally engaged in conducting abroad through
communications media the dissemination of information which significantly
promotes U.S. interests abroad and which is recognized as such by the Attorney
General;
2. the individual must have been employed by the above-mentioned organization for
a period of not less than five years after a lawful admission for permanent
residence;
3. the individual must file his application for naturalization while so employed or
within six months following the termination thereof;
4. the individual is in the U.S. at the time of naturalization; and
5. the individual declares before the Attorney General in good faith an intention to
take up residence within the U.S. immediately upon termination of such
employment.23
(..continued)
21
See INA § 330 and 8 CFR § 330.1.
22
See INA § 330.
23
See INA § 319(c).
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§ 5.4 Disrupting Continuous Residence
Disrupting continuous residence means that the applicant has failed to reside
continuously in the U.S. because he has taken a trip abroad for a certain period of time.24
Note: Abandonment of Residence v. Disrupting Continuous Residence.

Disrupting continuous residence is NOT the same thing as abandonment of residence
(described in Chapter 4 above). Abandonment of residence affects the applicant’s lawful
permanent resident status and may trigger removal. The INS looks primarily at the
applicant’s intent in traveling abroad, and the length of the trip is important, but not the
only critical aspect of the trip. In contrast, disrupting continuous residence only affects
the applicant’s eligibility for naturalization, and will not make the applicant removable.
The INS does not always consider the applicant’s intent in traveling abroad, and the
amount of time the trip lasted often does determine whether or not the applicant has
disrupted her residence. Disrupting continuous residence does not jeopardize the
applicant’s lawful permanent resident status, but it does mean that the applicant will have
to re-establish his/her continuous permanent residence.25
The INS looks at three different time frames to determine if an applicant has disrupted
the continuity of residence:
1) Trips abroad for less than six months. If a person has left the U.S. for a trip lasting less
than six months, disrupting continuous residence is not an issue.26
2) Trips abroad for more than six months but less than one year. For trips of this length,
the INS will presume that the applicant has disrupted the continuity of her residence UNLESS
she can prove that she did not disrupt her residence.27 To prove that she did not disrupt the
continuity of her residence, the applicant should provide evidence of as many of the following
facts as possible:
• the applicant did not terminate her employment in the U.S.
• the applicant’s immediate family remained in the U.S. while she was abroad
24
See INA §316(b) and 8 CFR §§ 316.5(b)(5) and 316.5(c).
25
See INA § 316(b). It is important to note that in 1993, 8 CFR § 316.5(c)(1) changed the term “abandonment for
naturalization purposes” to “disruption of continuity of residence.” Yet, INA section 316(b) still refers to
abandonment of residence. For more information on “abandonment of residence” when it is meant to indicate
abandoning and losing one’s status as a lawful permanent resident, please see Chapter 4, § 4.8.
26
See INS § 316(b) and 8 CFR § 316.5(c)(1), which discuss only absences lasting more than six months as relevant to
disruption of continuous residence.
27
See INA § 316(b) and 8 CFR § 316.5(c)(1)(i).
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• the applicant retained full access to her home in the U.S.
• the applicant did not find new employment while she was abroad.28
The types of documents that an applicant might use to show she did not disrupt her
residence include: bank statements, tax returns, proof of insurance, car registration, rent receipts,
house payments, membership in organizations, and school records.
Although the INS might not agree, the ILRC's position is that an applicant should argue
that the INS must also consider the applicant’s intent in travelling abroad.29 An advocate should
argue that the applicant did not intend to disrupt the continuity of her residence and her lack of
intent should factor into the final decision on eligibility for naturalization.
Note: Some INS offices usually will not find that an applicant disrupted her continuous
residence based on an absence of six to twelve months, while in other offices the INS will find
that an absence of six – twelve months did disrupt the applicant’s continuous residence.
Example: Sam Wong, a citizen of Hong Kong, was granted lawful permanent
residence under the amnesty law in 1989. Sam is eligible to apply for
naturalization. While Sam and Alex the Advocate, who is helping Sam apply for
naturalization, were discussing the requirements for naturalization, Sam told Alex
that on April 15, 1997, he left the U.S. to return to Hong Kong and did not return
to the U.S. until December 20, 1997 (a total of eight months). Alex carefully re-
explained the concept of disruption of continuity of residence and the types of
proof the INS will look for to determine whether or not Sam disrupted his
residence.
After discussing the topic together for some time, Sam came up with the
following ideas for proof: a letter from Sam's employer showing that Sam was
given a leave of absence and did not quit his job; school records showing his
children continued going to school in the U.S. while Sam was away; pay stubs
showing his wife worked in the U.S. while he was away; a letter from the landlord
and rent receipts showing that his family continued paying the rent for the
apartment while Sam was away; and affidavits from people explaining that Sam's
visit to Hong Kong was to see his parents whom he had not seen for many years;
and that the visit was indeed temporary in nature.
If the INS determines that Sam did disrupt his residence, then he would have to
wait five more years after returning to the U.S. from Hong Kong before being
eligible for naturalization. Thus, if he did disrupt his residence, Sam would be
eligible for naturalization on December 20, 2002, five years after returning from
Hong Kong. Sam could apply three months early, on September 20, 2002.
28
See 8 CFR § 316.5(c)(1)(i).
29
See Petition of Turner, 51 F.2d 1062 (S.D. Tex 1931) and INS Interpretations 316.1(b)(5).
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Practice Tip: If the INS claims an applicant disrupted her continuous residence because of an
absence of between six to twelve months long, an advocate must be able to work with her client
to get the best evidence possible, and to take the time to discuss thoroughly with her the concept
of disruption of the continuity of residence and what kinds of proof will be most helpful. It is
often helpful to list the types of proof mentioned in 8 CFR § 316.5(c)(1)(i) and give your client
concrete examples of them. A sample explanation of disruption of residence and how a client
can prove she did not disrupt her residence by showing examples of the following:
In order to qualify for naturalization, you must show you lived in the U.S. for five
years as a permanent resident. The five years has to be continuous, that is without any
big breaks, or absences. If you did have a long absence then the INS calls this
“disrupting your residence.” If the INS believes that you have broken or disrupted your
residence, then you will lose your case. If you lose, you might be able to re-apply later.
But the INS may also find that you have broken your residence in such a way that you
have lost your permanent residence status (i.e., your green card).30
The rule is that if you never left the U.S. for more than six months at a time, then
you never broke your residence. If you left for more than one year, then you will
automatically lose your naturalization case unless you fall into an exception to the rule.
If you were gone for more than six months, but less than one year, we will have to show
the INS that you didn't really break your residence.31
This is a requirement because the INS wants people to become U.S. citizens only
if they have been living in the U.S. during the past five years. The INS thinks this will
give people more time to learn English and U.S. history and government, as well as show
they can follow the laws in the U.S. Additionally, the INS thinks this requirement will
make it so people who naturalize will be more likely to become part of the U.S. culture.
You and I may not necessarily agree that it's good to have this requirement, but it is here
and we have to work with it.
We will have to work together to show that you did not break your residence.
What we must do is try to show the INS that your absence was only temporary, that you
always intended to return to the U.S., and that you kept ties with the U.S. Specifically,
30
If your client might have abandoned her residence and risked losing her green card, you should also explain this
situation to her. For more information on the topic, please see Chapter 4, § 4.8. This is very important because if
she did abandon her residence, she could be put in removal proceedings instead of gaining U.S. citizenship.
31
At this point in time, the advocate should draw a chart of the possibilities for the client. The chart could be
something like this:
1. Gone for less than six months, you don't need to worry about anything.
2. Gone for six months or more but less than one year, you'll have to prove you didn't disrupt your residence.
3. Gone for one year or more, you can't qualify for naturalization.
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for example, we could show the INS that you didn't permanently stop the job you had in
the U.S. while you were away. Instead, maybe you had an agreement with your boss that
she would keep it open for you. Also, we could try to show that while you were gone,
your family stayed in the U.S., and that you did not work while you were gone. It would
be helpful if we could show the INS that you could return at any time to the U.S., and you
kept your same apartment or house while you were away. We do not need to show all
these things, but the more we can show, the better. The major concerns are: your job,
your family, and your house or apartment, and anything else showing you kept roots here
and were abroad temporarily. Do you have any questions or anything to add? Now let's
go over these things one by one and together we can come up with ideas of how to prove
them.
Also, an applicant whose trip abroad falls within this time frame may qualify for one of
the EXCEPTIONS described below in § 5.5.
Note: If an applicant disrupted continuous residence because of an absence lasting

between six months to one year, he will need to wait five years before he can re-apply for
naturalization.
3) Trips abroad for one year or more. Trips of this length will always disrupt the continuity
of residence (unless the applicant qualifies for an exception—see § 5.5 below). Unlike with trips
lasting between six months and one year, in this case, the INS will not consider where the
applicant worked, where her family remained, or whether she had full access to her home for
absences of one year or longer. Remember that for this requirement, the INS is only concerned
about the portion of the absence that falls within the five-year period immediately before the
applicant applies for naturalization.
Example: Thorsten became a lawful permanent resident in 1985. He filed his

naturalization application on September 15, 1998. Therefore, he must show five years of
continuous residence from September 15, 1993 to September 15, 1998. Thorsten was
absent from the U.S. for two years when he returned to Germany to take care of his sick
mother. (Although he only intended to be gone for a few months until his mother
recovered, the illness lasted longer and was more serious than he expected.) He was
absent from the U.S. from July 10, 1992 to August 3, 1994. Although Thorsten was
absent for well over one year, he did not disrupt his continuous residence because the INS
only looks at his absence as of September 15, 1993. Since he returned to the U.S. less
than one year after this date, his continuous residence is still intact and he is eligible for
filing on September 15, 1998. (Hopefully, the INS will find that there was no
abandonment of residence either, since Thorsten’s intent was to be gone only for a few
months, but his mother’s illness forced him to prolong his stay).
Note: A person who has disrupted continuous residence by an absence of more than one
year will not have to establish another full five years of continuous residence in order to qualify
for naturalization. The INS permits a person to be absent for up to 364 days out of the year
without automatically breaking the continuity of residence. Therefore, a person who has been a
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lawful permanent resident for at least five years, but who disrupted her continuous residence
during the five-year period because she was absent for one year or longer during that period,
only has to wait four years and one day after the date she returns to the U.S.32
In contrast, the INS probably will require a person who has been a lawful permanent
resident for at least five years and but who the INS has found to have disrupted continuous
residence because of an absence of between six months and one year to start counting her five
years all over again as of the date she returned to the U.S. from the disrupting trip. We
encourage advocates to argue that the four year and one day rule found in 8 CFR §
316.5(c)(1)(ii) should apply in these circumstances as well.
Example: Marta was lawfully admitted for permanent residence in May 1996. It is now
March 2002, and Marta wanted to apply for naturalization on April 1, 2002. In talking
about the requirements for naturalization with her advocate, Marta states that she took a
trip to Chile, leaving on February 15, 1997 and returning to the U.S. on May 3, 1998.
(Marta and her advocate determine that this departure was not an abandonment of
residence). If she files her application with the INS on April 1, 2002, Marta must show a
five-year period of continuous residence from April 1, 1997 to April 1, 2002. Marta was
absent for more than one year during this five-year period. From April 1, 1997 (the start
of the five-year period) to May 3, 1998 (her return to the U.S.), she was in Chile, and this
time period is a total of 13 months and two days. (Remember that for disruption of
continuous residence, the INS does not care about her absence before April 1, 1997,
because this was before the five-year period started). Since Marta has disrupted her
continuous residence, she must start counting her continuous residence from the date she
returned to the U.S.—May 3, 1998. However, Marta only needs to wait four years plus
one extra day before filing. The INS will count the “one extra day” as the entire fifth
year, since theoretically Marta could be absent for the rest of that year (364 days) and still
not disrupt her continuous residence. Therefore, the earliest date Marta can file her
naturalization application is May 4, 2002.
This special rule also applies to applicants who have a three-year residence
requirement. If the applicant has been a permanent resident for at least three years, but has
disrupted continuous residence because she was absent for one year or longer, she may file her
naturalization application two years plus one day after she returns to the U.S. from a trip that
disrupted continuous residence.33
Example: Laura Huang has been a permanent resident since September 17, 1995. She
has been married to a U.S. citizen since that time. Laura took a trip to visit her ill
grandfather in China from December 12, 1999 through January 3, 2001. Laura and her
lawyer determine that although she did not abandon her permanent residence during her
stay in China, she did disrupt her continuous residence because she was absent from the
U.S. for nearly 13 months. Under the rules, Laura must start counting her continuous
32
See 8 CFR § 316.5(c)(1)(ii).
33
See 8 CFR § 316.5(c)(1)(ii).
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residence from the date she returned to the U.S.—January 3, 2001. However, because
she is married to a U.S. citizen, Laura only needs to wait two years plus one extra day
before filing. The INS will count the “one extra day” as the entire third year, since
theoretically Marta could be absent for the rest of that year (364 days) and still not disrupt
her continuous residence. Therefore, the earliest date Marta can file her naturalization
application is January 4, 2003, two years and a day after she returned to the U.S.
§ 5.5 Exceptions to Disruptions of More than One Year
In certain situations, the INS will disregard disruptions of continuous residence of more
than one year.
Involuntary departure: If the applicant was forced to leave the U.S. against his will
(for example, if he was taken prisoner), and then is kept away from the U.S. against his will for
over a year, the INS will not find that he has disrupted continuous residence.34
Misinformation by the INS: In some circumstances, the INS may find that an applicant
has not disrupted continuous residence if a government official gave him incomplete, misleading,
or wrong advice and the applicant relied on the advice by remaining absent from the U.S. for
more than one year.35
U.S. Armed Forces: A lawful permanent resident who is absent from the U.S. while on
active duty with the armed forces will not be found to have disrupted continuous residence, even
if the absence was for more than one year.36 See Chapter 7-5 for more details on special rules for
U.S. armed forces personnel.
Preserving Residence: Two groups of people are allowed to ask in advance that the INS
excuse them for absences from the U.S. for more than one year.
The first group consists of employees of the U.S. government, certain U.S. corporations
engaged in foreign trade and commerce, certain research institutions, or public international
organizations.37 The applicant under this category must have been physically present and
residing in the U.S. for a continuous period of one year as a lawful permanent resident before he
was employed by one of the organizations listed. The applicant must file Form N-470 with the
INS to request preservation of residence.38 This form must be filed before employment begins,
34
See INS Interpretations 316.1(b)(4) and In re Yarina, U.S.D.C., N.D. Ohio, 73 F. Supp. 688 (1947).
35
See INS Interpretations 316.1(b)(4) and In re Petition of LaVoie, D.C., V.I., 349 F. Supp. 68 (1972), but see also.
Matter of Tuakoi, 19 I.&N. Dec. 341 (BIA 1985) that held that a failure to inform the respondent of all the legal
consequences of his actions is not sufficient to establish affirmative misconduct.
36
See INS Interpretations 328.1(b)(3)(1).
37
See INA § 316(b).
38
See 8 CFR § 316.5(d)(1).
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but can be filed after the applicant is living abroad, so long as it is filed before the applicant has
been away from the U.S. for one continuous year.39 This exception also covers the applicant’s
spouse and dependent unmarried children.40 If an applicant has an approved Form N-470, but
voluntarily claims non-resident alien status to qualify for tax exemptions, he may have given up
the right to preserve his U.S. residence.41
The second group consists of people performing religious duties abroad with specified
religious organizations. The applicant must have been physically present and residing in the
U.S. for at least one continuous year as a lawful permanent resident before travelling abroad.
The applicant must file Form N-470 with the INS, although he does not need to do so if the
absence is for less than one year.42 An applicant may submit the N-470 application before or
after his absence from the U.S. and before or after the performance of his religious duties
abroad.43 Upon his return to the U.S., he must prove to the INS that his absence was only for the
purpose of performing religious duties. If he meets these criteria, then the INS will count the
time he was abroad as part of his five-year continuous residence in the U.S.44
WARNING: Preserving Residence with Form N-470 is different from a Reentry Permit (Form
I-131), which is discussed in Chapter 4, § 4.9 above. A Reentry Permit on its own may not
prove that a person did not disrupt the continuity of her residence for naturalization purposes.45
§ 5.6 SECOND RESIDENCE REQUIREMENT: Three Months of Local Residence
An applicant must have lived in the state or INS district where she files her naturalization
application for at least the three months immediately before filing her application.46 It is not
enough to have lived in the state or INS district for three months many years ago. The three
39
See 8 CFR § 316.5(d)(1).
40
See INA § 316(b) and 8 CFR § 316.5(d)(1)(ii).
41
8 CFR § 316.5(d)(1)(iii)
42
See 8 CFR § 316.5(d)(1) and INS Interpretations 317.1(b)(2).
43
8 CFR 316.5(d)(2).
44
See INA § 317.
45
See INA § 223(e).
46
See INA § 316(a)(1) and 8 CFR 316.2(a)(5).
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month state residence requirement can be met if the applicant is absent from the U.S. for several
months, has not abandoned her residence, and after the absence moves back to the same state
from which she had originally departed.47 The absence must be for less than a year.48
If an applicant decides to apply for naturalization three months before she is actually
eligible, she does not need to be living in the INS district where she files the application for the
three month period immediately before filing her application. Instead, she only needs to have
lived in the INS district for three months immediately before her naturalization interview.49
Note: See Chapter 7-5 for special groups that may be exempt from the three-month local
residence requirement.
Please see INA § 319(b) and Chapter 7-5 of this manual for an additional exception to the
physical presence requirement for certain spouses of U.S. citizens working abroad.
Please see INA § 319(c) and the update to § 5.3 of this manual for an exception to this
rule for people who are employed by certain U.S. nonprofit organizations.
A student who is attending school in a state or INS district away from home may apply
for naturalization either where the school is located or where his/her home residence is, so long
as s/he is financially dependent on his/her parents at the time of submitting the application and
throughout the naturalization process.50
§ 5.7 THIRD RESIDENCE REQUIREMENT: Continuous Residence After Application
Once a person has filed his naturalization application with the INS, he must maintain
continuous residence from the date of filing until he is admitted to U.S. citizenship.51 Continuous
residence after application does not mean that the applicant must remain in the United States
during the entire period while he is waiting for his application to be adjudicated. Generally, it
just means that he cannot reside in or move to another country while waiting for the INS to
decide his application. Thus, an applicant can make temporary visits during this period of time,
as long as he maintains his home in the United States.
47
See 8 CFR § 316.5(b)(5) and INS Interpretations 316.1(b)(6). For example, Rosalinda lived in California for five
years, and then following a seven-month visit to Mexico she returned to California. Rosalinda can immediately
apply for naturalization because she fulfilled the three-month residency requirement prior to her visit to Mexico.
Yet, had she moved to Arizona, instead of California after her visit to Mexico, she would have to live in Arizona for
the full three months prior to applying for naturalization.
48
8 CFR 316.5(b)(5)(i).
49
See 8 CFR § 316.2(a)(5).
50
See 8 CFR § 316.5(b)(2).
51
See INA § 316(a)(2).
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§ 5.8 FOURTH RESIDENCE REQUIREMENT: Physical Presence
To qualify for naturalization, an applicant must have been physically present in the
United States for at least half (30 months) of the five-year residence period discussed above.52
Example: Mary was denied naturalization because during the last five years (60
months) she only has been physically present in the U.S. for 24 months. Mary
must wait and reapply when she has been physically present in the U.S. for at
least 30 of the 60 months prior to the time she reapplies.
There are several exceptions to the physical presence requirement.53 Some of the major
exceptions are:
• Some unmarried children54 under 18 years old, who make a lawful admission to the
U.S. and who have at least one U.S. citizen parent, may be obtain a certificate of citizenship
under INA § 322 without fulfilling the physical presence requirements.55
• A spouse of a U.S. citizen only needs to have been physically present in the U.S. for
half of the three-year residence period (18 months).56
• A member of the U.S. Armed Forces who is serving abroad will still meet the
physical presence requirement even if he is outside the U.S. for more than a year.57
• U.S. Nationals may meet their physical presence requirement through physical
presence in an outlying possession of the U.S.58 (i.e., American Samoa or the Swains Islands)59
Please see Chapter 7-5 for a more complete discussion of the special naturalization
requirements and exceptions for children and spouses of U.S. citizens, people serving in the
military, and U.S. nationals.
52
See INA § 316(a)(1).
53
See 8 CFR §§ 319 – 331 and Ch.7-5 of this manual.
54
“Child” is defined in INA § 101(c) for naturalization and citizenship. Although adopted children do qualify for
certificates of citizenship under INA § 322(b), a stepchild is precluded from qualifying for a certificate of citizenship
under this section.
55
INA § 322(a).
56
See INA § 319(a) and Chapter 7-5, § 7-5.2 of this manual.
57
See 8 CFR § 328.2(e)(1).
58
See INA § 325, 8 CFR § 325.3(a), and § 5.10 of this manual.
59
See INA § 101(a)(29).
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Please see INA § 319(b) and Chapter 7-5 of this manual for an additional exception to the
physical presence requirement for certain spouses of U.S. citizens working abroad.
Please see INA § 319(c) and Chapter 5 of this manual for an exception to this rule for
people who are employed by certain U.S. nonprofit organizations.
Note: The physical presence requirement is an additional and separate requirement from
the three other residence requirements discussed above.
Practice Tip: The issue of physical presence will come up in Part 8 of the new Naturalization
Application (Part 3 of the old application), which asks the applicant to list all absences from the
U.S. Before reviewing this question with your client, explain the residence and physical
presence requirements with him in some detail. Often it is difficult for someone to remember
how long he was out of the country. Discussing events in the client’s life often helps to jog the
memory and allow a more accurate time sequence to be established.
Referring to the applicant's passport or any reentry permits she used is also helpful for
recalling dates of absences from the U.S. This also helps to establish consistency because the
INS might ask to look at the passport. INS officials will probably have all her old reentry
permits and may compare the information on the reentry permits with any absence of
information on the naturalization application. In cases where the dates are critical, the legal
worker may consider filing a Freedom of Information Request [(FOIA) see Appendix 7-B] to
obtain a copy of the client’s INS file, which would include any old reentry permits.
Example: Antonia could not remember how long she was out of the country, nor could
she remember the date she left. Yet, she did remember she left before Christmas and was
back in the U.S. for the three-day weekend of President’s Day.
Also, explaining the physical presence requirements to clients helps them understand why
finding out about absences from the U.S. is so important. By being better informed, clients
perform better during their INS naturalization interview. Appendix 2-B contains a flyer
explaining some of the legal requirements for naturalization.
§ 5.9 The Effect of Deportation/Removal Orders and Deferred Inspections
If a naturalization applicant has been removed from the United States, or left the United
States while under an order of deportation or removal, her status as a lawful permanent resident
will end and she will no longer be able to meet the residence requirement for naturalization.60
A naturalization applicant who has been readmitted as a lawful permanent resident after a
deferred inspection or exclusion/removal hearing will be able to maintain her residence as if she
were never placed in deferred inspections or exclusion proceedings in the first place.61
60
8 CFR § 316.5(c)(3).
61
8 CFR § 316.5(c)(4).
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CHAPTER 6
GOOD MORAL CHARACTER AND STATUTORY BARS TO ELIGIBILITY
§ 6.1 Introduction
This chapter covers some of the areas that most often cause problems for naturalization
applicants. They include good moral character, certain statutory bars, and categories of lawful
permanent residents who are ineligible for naturalization. Some of the bars are temporary while
others are permanent. In this chapter, we also consider certain factors that are relevant to
whether or not discretion will be exercised in the applicant's favor. In any of these cases, the
applicant's history is important.
It is absolutely crucial to make sure that a naturalization applicant not only has good
moral character, but also is not deportable. The worst thing that can happen to an applicant
without good moral character is that she must wait some years and apply again for naturalization.
The worst thing that can happen to an applicant who is deportable is that the INS might begin
removal (deportation) proceedings against her, take away her lawful permanent resident status,
and deport her. Some people even have been arrested during their naturalization interviews!
We will remind you several times in this chapter of the importance of getting expert advice if
there is any possibility that an applicant might be deportable.
Establishing good moral character is a two-step process. First, the person must prove
that under the statute, she is not disqualified from showing good moral character. In other
words, demonstrate that she is neither statutorily barred nor deportable. Second, the applicant
must show that she really does have good moral character. In examining good moral character
it’s important to consider the following questions:
1) Is the person statutorily barred from establishing good moral character, and if so, for how
long?
2) Is the person deportable? And if so, can the person ever overcome the deportability issue?
3) If the person is not statutorily barred from establishing good moral character, can the person
convince the examiner that his/her good moral character meets the community’s standard?
The discussion that follows will help you ascertain the answers to the above questions. If
you are not clear as to the answers to any of the questions, or if you find the person to be
deportable (regardless of whether or not there appears to be a solution to the deportability issue),
you should consult the recommended books or refer the client to an immigration expert.
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§ 6.2 The Good Moral Character Requirement—An Overview
The naturalization applicant must demonstrate that during the required statutory period
(five years for most people, three years for spouses of U.S. citizens)1 she has been and still is a
person of good moral character.2 Any applicant who cannot satisfy the good moral character
requirement or who is statutorily barred from proving it, will not be allowed to naturalize.
The fact that the applicant must have good moral character for five years (or three years)
does not mean that the INS is limited to only looking at the applicant's activities during that
statutory period. In fact, the Immigration and Nationality Act (INA) explicitly states that the
government is not limited to the five or three-year period immediately before the application is
filed.3 The INS can and often does look beyond the statutory period to determine if the applicant
has good moral character. Thus, the applicant's good behavior in the past five years, while
critical, is not the last word on her good moral character.
The INS recognizes that when Congress created the requirement that naturalization
applicants demonstrate good moral character during a specified period, it intended to allow the
eventual naturalization of those individuals who in the past engaged in some wrongdoing but
who have now "reformed."4 However, the INS reasons that in order to determine if these
individuals have reformed, activities prior to the statutory period can and will be considered.
Thus, past behavior may reflect on even current character.
On the other hand, some courts have held that the applicant’s behavior before the five or
three-year period cannot be the only reason to deny naturalization. As long as the applicant has
shown “exemplary” conduct in the last three/five years, he or she must be found to have good
moral character.5 The INS must evaluate each application on a case-by-case basis.6
1
See Chapter 5 for a thorough discussion of residency and physical presence requirements. The statutory period for
showing good moral character may vary for some individuals, but in general, most applicants have to establish good
moral character for a five-year period and spouses of U.S. citizens have to establish good moral character for a three-
year period. Persons serving or who have served in the military can come within special rules.
2
INA § 316(a)(3). Under 8 CFR § 316.10(a)(1), an applicant for naturalization must be a person of good moral
character during the statutory period prior to applying, currently and during the period between the examination and
the oath of allegiance.
3
INA § 316(e). See also INS Interpretations 316.1(f)(2).
4
INS Interpretations 316.1(f)(1).
5
See, e.g., Santamaria-Ames v. INS, 194 F.3d 1127 (9th Cir. 1996), Marcantonio v. U.S., 185 F.2d 934, 937 (4th Cir.
1950), Gatcliffe v. INS, 23 F. Supp. 2nd 581 (D.V.I. 1998), reported in Interpreter Releases, November 9, 1998, p.
1553 (District Court reversed INS holding that naturalization applicant could not establish good moral character
solely because of events outside the five year period; remanded the case to removal proceedings so that the
applicant could apply to terminate proceedings and proceed to naturalization)
6
8 CFR § 316.10(a)(2).
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The good moral character requirement can be very confusing. One of the reasons for this
confusion is that there is no actual statutory definition of what good moral character means. The
INA only defines what good moral character does not mean and what individuals will not be
allowed to establish good moral character.7 The INS takes the position that in determining good
moral character, the "standards of average citizens of the community in which the applicant
resides" will be applied.8 Since "community standards" change over time, the definition of good
moral character also changes over time.9
WARNING: Beware of assisting naturalization applicants who are deportable or were

inadmissible when they last entered the country, even if they can show good moral
character. Good moral character is not the only issue to look for in evaluating your clients past
life. In the course of investigating the naturalization application the INS might discover those
things and put your client in removal proceedings. Needless to say, if this happens your client's
naturalization application will be denied. Remember that the grounds of deportation and
inadmissibility include more areas than does good moral character, so a person might have good
moral character but still be deportable or inadmissible. See Chapter 4.
Example: Yosh Tsukamoto, who had never been to the U.S. before, was admitted as
lawful permanent resident in 1994. In 1996, he visited relatives in Japan, and while there
he was arrested for possession of cocaine and served three months in jail. The
immigration officials at the airport asked him for his I-551 card ("green card") when he
arrived back in the United States. When he showed it, they said it was okay for him to
re-enter the U.S.. Should Mr. Tsukamoto apply for naturalization now that he has been a
lawful permanent resident for more than five years and only left the country for four
months?
Probably not. Mr. Tsukamoto is deportable because of the conviction. Also, the
conviction caused him to be inadmissible when he re-entered the United States from his
trip to Japan, which is another ground of deportation. Unless he can show that he
7
INA § 101(f).
8
INS Interpretations 316.1(e)(1).
9
INS Interpretations 316.1(e)(1). For example, prior to the repeal of INA § 101(f)(2) on December 29, 1981, adultery
was a mandatory bar to establishing good moral character. INS Interpretations 316.1(f)(6). Currently, it is the INS
position that while adultery is no longer a mandatory bar, a finding of a lack of good moral character will be found
where adultery: destroys a viable marriage, is grossly incestuous, is commercialized or causes public notoriety and
public scandal. See INS Interpretations 316.1(g)(2)(viii) for the complete description of the INS' current position on
adultery. Many of these "criteria" may be challenged.
The Ninth Circuit has held that having sexual relations with a common law wife and fathering a child out of
wedlock are not proper negative considerations in a discretionary decision (in that case, an application for 212(c)
relief). See Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993). The INS rule is to penalize only persons who break
up a "viable" marriage by committing adultery.
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qualifies for some discretionary relief,10 he will not only fail the "good moral character"
requirement, but the INS may institute removal proceedings against him.
WARNING – Expungements and Some Other Ways of “Erasing” a Conviction Will Only
Work in Very Limited Cases. Many people might be found ineligible to show good moral
character or even deportable because of a criminal conviction. In the past, individuals who were
deportable due to a conviction were able to “expunge” or otherwise erase the conviction in order
to avoid deportability. In 1998 and 1999 the BIA ruled that many types of state court
proceedings erasing a conviction will not be accepted for immigration purposes. The Ninth
Circuit Court of Appeals modified these rulings in 2000 to allow individuals with some drug-
related convictions to use expungements to avoid deportation. See Part III, below.
The important point is: Any naturalization applicant who went through criminal
proceedings and is counting on some kind of diversion, expungement, vacation of judgment, or
deferred adjudication to wipe out his or her conviction must consult with an expert to make sure
the conviction is really gone!!!!
Practice Tip: Explain the good moral character requirement to your client. Encourage her to
ask questions. Your client should understand the requirement as well as the importance of being
honest about any prior encounters with law enforcement or the INS.
Your client may think that something she did in the past is insignificant or will not affect
her application, or she may simply be embarrassed to talk about it. The incident may indeed be
insignificant in the sense that it would not ultimately affect her ability to naturalize. However, if
the item is more serious, knowing about it in advance may enable you and the client to clean up
the situation. Another reason for learning about negative factors ahead of time is that the INS
takes the position that a petition will be recommended for denial under INA § 101(f) if the
applicant deliberately fails to be honest in responding to questions.11 In fact, the INS takes the
position that even if the lie concerns facts which, had the INS known about them, would not have
led to a denial of the naturalization application, the application will still be recommended for
denial.12
Remind the client that the INS will conduct a FBI fingerprint check as part of the
naturalization process, and thus INS therefore probably will know about all arrests and
convictions. It is better to tell the truth about something that may not seem important because
10
Mr. Tsukamoto would not qualify for cancellation of removal under INA § 240A. He does not meet the
requirement of seven years since admission into the U.S. before committing the offense. For more information, see
ILRC manual, California Criminal Law and Immigration
11
INS Interpretations 316.1(g)(3)(ii). INA § 101(f) states that a person who, during the required statutory period, gave
false testimony for the purpose of obtaining an immigration benefit, will be found to lack good moral character.
12
INS Interpretations 316.1(g)(3)(ii).
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the INS may deny the application if they find out that the person lied--even if the lie was not that
significant.
Often it is best for a client and his/her advocate to send in a request for the client's
criminal record. They should send this request to the FBI and/or the department of justice in the
state where the client has been living. See Appendix 6-A. This way, the client and his/her
advocate will have the criminal background information necessary to determine if it best for the
client to apply for naturalization.
PART I: Answering the question: Is the person statutorily barred from establishing good moral
character and if so, for how long?
§ 6.3 Bars to Proving Good Moral Character
1. Statutory bars to proving good moral character

2. Non-statutory automatic bars
3. Dealing with clients who have a criminal record; finding the records
WARNING: Many of the statutory bars to proving good moral character and the grounds of
deportability relate to criminal convictions. This area of the law is increasingly complicated.
The immigration penalties for certain crimes -- including relatively minor offenses -- can be
terribly severe. Penalties can include denial of the naturalization application, loss of a green card
and deportation with no chance ever to enter the U.S. again, and in some cases new federal
criminal penalties (if a person illegally re-entered the U.S. after having been convicted of an
aggravated felony and deported). Also, recent court rulings have limited the effectiveness
expungements and some other state relief have on avoiding criminal deportation grounds.
If you are not an attorney, accredited representative or supervised legal worker who has
expertise in this area, do not attempt to analyze the case alone. Refer the case to an expert, or
consult with an expert to see if referral is required. To be safe, an expert should review the case
of any person who has ever been arrested for a crime.
1. Statutory bars to proving good moral character.
Under INA § 101(f), certain people are automatically barred from showing good moral
character, and thus cannot apply for naturalization.13 Individuals are automatically disqualified
13
Some of these grounds are found in § 212(a), but are incorporated into § 101(f).
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from showing good moral character if during the period that good moral character is required,
they have:
-- been convicted of an aggravated felony—see discussion below;

-- been convicted of, admitted committing, or admitted the essential elements of a
drug offense (except a single conviction of possession of less than 30 grams of
marijuana)—see Appendix 6-D for further information;
-- been convicted of, admitted committing, or admitted the essential elements of a
crime involving moral turpitude14 (other than a purely political offense), with
important exceptions;--see discussion below;15
-- given the INS "reason to believe" they are or were a drug trafficker;16
-- spent 180 days or more in jail as a result of one or more convictions, no matter
when the offenses were committed;
-- been convicted of two or more offenses (other than for a purely political offense)
for which the applicant received a total sentence of five years or more;
-- came to the U.S. to engage in prostitution or has engaged in or profited from the
business of prostitution;
-- engaged in alien smuggling--See Practice Tip below for definitions and
exceptions;
-- been a habitual drunkard;
-- given false testimony17 (referring to sworn statements or testimony under oath)18
to get or retain immigration benefits;19
-- lived off of or had two or more convictions for illegal gambling;
14
See Miller v. United States Immigration and Naturalization Service, 762 F.2d 21 (3rd Cir. 1985). The petitioner had
been convicted of welfare fraud, a crime of moral turpitude, and thus was disqualified from showing good moral
character. See also Grageda v. U.S. Immigration and Naturalization Service, 12 F.3d 919, (9th Cir. 1993) In
Grageda, the Ninth Circuit found that spousal abuse is a crime of moral turpitude. Read the case for a discussion of
how crimes involving moral turpitude have been defined.
15
A person who has committed a crime of moral turpitude will not be barred from showing good moral character if
the person committed only one crime and EITHER: a) the person was under 18 when the crime was committed,
and both the crime was committed and the person was released from confinement more than five years before the
date he applies for naturalization; OR b) the maximum sentence possible for the crime was less than one year in jail
and, if the person was convicted, the sentence given (regardless of time served) was six months or less. INA §
212(a)(2)(A)(ii). For more information, please see the ILRC's manual entitled California Criminal Law and
Immigration.
16
See Nuñez-Payan v. INS, 811 F.2d 264 (5th Cir. 1987). Although a guilty plea did not constitute a "conviction"
pursuant to a state rehabilitative statute, the petitioner's guilty plea to transporting drugs into the U.S. was sufficient
reason for the INS to believe he was a drug trafficker. Thus he was disqualified from showing good moral
character. Id. at 266.
17
The false testimony need not be material in order to preclude the applicant from showing good moral character.
U.S. v. Kungys, 485 U.S. 759 (1988).
18
See Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986). In this case, the court noted that what constitutes "false
testimony" has been defined very narrowly, and is only meant to cover statements made under oath in front of a
court or tribunal. Id. at 533. See also Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981), rev'd on other
grounds, 464 U.S. 183 (1984).
19
See Liwanag v. INS, 872 F.2d 685, 689 (5th Cir. 1989).
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-- came to the U.S. (or is coming) to practice polygamy.20
Giving false testimony under oath is a bar to good moral character. This refers only to
spoken testimony, not to a written misrepresentation.21 The false testimony does not necessarily
have to relate to a naturalization application. The BIA held that false statements that a person
says in an asylum interview constitute false testimony under oath, and bars establishing good
moral character.22
A person who is inadmissible for polygamy is barred from establishing good moral
character. Note that polygamy (the ideology or religious practice of having many wives) is
different from bigamy (the crime of being married to more than one person at a time). Only
people who believe in the ideology of polygamy and intend to practice it in the U.S. are barred
from establishing good moral character.23
In recent years much attention has been paid to what the immigration consequences of
drunk driving convictions (DUIs)24 should be. The INS has not issued a national policy on this
issue therefore it has been mostly up to each district office, with influence from case law, to
develop it’s own position on the effect DUIs should have on the ability of a naturalization
applicant to establish good moral character. Some districts treat DUIs as a factor in the good
moral character determination while others consider DUIs to be evidence that the person is a
habitual drunkard and hence bared from establishing good moral character. Advocates should
also be aware that immigration courts have also looked at whether DUIs should be considered
deportable offenses.25 For a more thorough discussion of the effects of DUIs on a person’s
immigration status see Appendix 6-D.
20
Polygamy does not include someone who failed to get a divorce from the first spouse and so has (usually secretly)
committed bigamy. It refers to the belief and practice that people should have multiple spouses. Matter of G, 6 I&N
Dec. 9 (1953).
21
See INS Interpretations 316.1(g)(3)(iii).
22
Matter of R-S-J-, Int. Dec. 3401 (BIA 1999).
23
See, e.g., Matter of G-, 6 I&N (BIA 1953).
24
In some States drunk driving offenses are referred to as “Driving While Intoxicated” or “DWI”.
25
For example, while in the past the BIA has ruled that a DUI with a year’s sentence imposed is an aggravated
felony, that rule has changed in many parts of the country. See discussion in Appendix 6-D. Also certain DUIs
have been held to be “crimes involving moral turpitude.” Compare Matter of Lopez-Meza, Int. Dec. 3423 (BIA
1999), the BIA found that under Arizona law, the offense of aggravated driving under the influence, which requires
the driver to know that he or she is prohibited from driving under any circumstances, is a crime involving moral
turpitude. However, in Matter of Torres-Varela 23 I&N Dec. 78 (BIA 2001), the BIA held that a conviction under
another Arizona DUI statutes where intent was not an element to the crime was not a crime of moral turpitude and
see discussion of moral turpitude at §6.6.
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Example: Sandra is applying for naturalization. Over the last five years she has been
convicted once for petty theft and twice for driving under the influence of alcohol (DUI).
At her last DUI conviction she was sentenced to 200 days in jail. With time off for good
behavior, she got out of jail after 140 days. If she adds those 140 days to all the other
days she has spent in jail for her convictions, the total is 179 days in jail over the last five
years. Sandra is still eligible to show good moral character and can apply for
naturalization. If she had been in jail more than 179 days, she would not be eligible. The
key here is not what sentence was imposed, but how many days she actually spent
incarcerated.
Situations such as these illustrate the importance of taking the time to explain the law to
your client and of including your client as much as possible in the entire process. If the
"180 day rule" was not explained to Sandra, she may only tell you that she was sentenced
to 200 days in jail, without telling you that she only spent 140 days in jail. You might
then tell her that she is ineligible for naturalization, when under the "180 day rule" she is
not ineligible.
Sandra may still have problems with the bar against habitual drunkards and discretionary
good moral character because of her three convictions. Enrolling in some kind of
counseling or treatment program may help Sandra convince the INS that she is not a
habitual drunkard, and that she has good moral character. Caution: The BIA has held
that some DUI offenses are crimes of moral turpitude and aggravated felonies if the
person receives a one-year sentence. However, recent circuit decisions and unpublished
BIA decisions tend to suggest that the courts may be backing-off labeling DUIs as
deportable offenses. See Appendix 6-D for further discussion.
Finally, Sandra’s conviction for theft is a crime involving moral turpitude. See
discussion below. Someone must analyze how that affects her case, depending upon
when the conviction occurred, and what sentence was possible and was imposed.
For a more thorough explanation of statutory bars to providing good moral character,
please see INA § 101(f) and the corresponding sections of INA § 212(a). Appendix 6-C
contains a flyer for naturalization applicants that includes some of these grounds. It is written in
English and Spanish.
Note on Alien Smuggling. The question of alien smuggling has presented a problem for
some naturalization applicants. A conviction for alien smuggling of any kind is an aggravated
felony, unless it was a first offense for smuggling only a parent, spouse or child. This is a change
in the law that occurred in 1996 and applies to past offenses. See INA § 101(a)(43)(N). In
addition, a person who commits alien smuggling -- even if there is no conviction -- can be found
deportable (if it occurred at the time of any entry, prior to any entry, or within five years of any
entry)26 and inadmissible. If the person smuggled any alien within the previous five years (or
26
INA section 237(a)(1)(E).
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three years, if applying as the spouse of a U.S. citizen) she will not be able to establish good
moral character and will not qualify for naturalization.
The definition of alien smuggling is very broad. Any person who has "encouraged,
induced, assisted, abetted, or aided" any other person to enter the U.S. (or to try to enter) is an
"alien smuggler." The INS can raise this issue in the case of naturalization applicants who
may have helped others enter without inspection. Clients must be made aware of this because
it is possible that an applicant will be asked questions about whether she has helped friends or
relatives (including children) enter the country unlawfully.
There is a discretionary waiver for the smuggling inadmissibility and deportability

grounds. The waiver is available to lawful permanent residents (LPRs) who are returning from a
temporary visit abroad and to LPRs who helped smuggled a qualifying relative within five years
of the LPR’s last entry.27 The waiver does not eliminate the statutory bar to establishing good
moral character.28 More importantly, the waiver is only available if the lawful permanent
resident encouraged, assisted, abetted or aided the person's spouse, parent, son or daughter (and
no other individual) to enter the country in violation of the law. See Appendix 6-D, section 1.12
for more on alien smuggling.
Most lawful permanent residents29 can only request the smuggling waiver from an
immigration judge. Therefore in order to take advantage of the waiver, a naturalization applicant
that discloses the fact that he/she smuggled a qualified relative, or whose record indicates that
he/she did so in the past, will have to be placed in removal proceedings in order to obtain the
waiver. Since the waiver is discretionary, there is no guarantee that the judge will grant the
waiver instead of ordering the individual deported.
Example: Alicia, a lawful permanent resident helped her son cross the border illegally
into the United States ten years ago. Alicia went to Mexico, obtained a false green card
for her son and tried to re-enter the United States with him. The INS stopped Alicia and
her son at the border. Alicia’s car was confiscated and her son was returned to Mexico.
The INS released Alicia and eventually returned her car. In reviewing Alicia’s file, the
naturalization examiner sees that Alicia attempted to smuggle her son. Although Alicia is
not statutorily ineligible to establish good moral character (the smuggling offense took
27
INA section 237(a)(1)(E)(iii). See Appendix 6-D, section 1.12 for more on alien smuggling
28
There is also a waiver of the smuggling inadmissibility ground for people who are immigrating as immediate
relatives or through a first, second, or third preference visa petition See Chapter 14 for a discussion of the Visa
Preference System. Also note that the Technical Corrections Act of 1991 added an automatic exemption from the
alien smuggler inadmissibility ground for certain relatives of legalized aliens. The smuggler must have: been the
parent, spouse or child of someone legalized through the amnesty program; been physically present in the U.S. on
May 5, 1988; immigrated as a second preference, Legalization Beneficiary, or an immediate relative, or who is
applying for Family Unity; and before May 5, 1988 smuggled only a spouse, parent, son or daughter. See INA §
212(a)(6)(E)(ii).
29
There is a limited exemption (a waiver request is not necessary) from the smuggling ground of deportation for
individuals who immigrated through the IRCA Family Unity Legalization Program. INA § 237(a)(1)(E)(ii).
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place outside the statutory period), she is deportable.30 Therefore, the officer denied
Alicia’s naturalization application and placed her in removal proceedings. Alicia will
need to ask the judge to grant her a waiver for having smuggled her son.
The Immigration Service has some discretion in deciding whether or not to place a person
in removal proceedings and often in cases such as Alicia’s chooses to deny naturalization rather
than to place the person in removal proceedings. However, individuals who have smuggled
relatives in the past and who are applying for naturalization need to be aware that the INS could
choose to place them in removal proceedings.
2. Non-Statutory Automatic Bars to Establishing Good Moral Character: Affairs,

Unlawful Acts, Failure to Support Dependents, and Probation or Parole at Time of
Interview.
As you have already seen, some actions, such as DUI convictions, which are not statutory
bars to establishing good moral character have the practical effect of keeping individuals from
naturalizing. In addition to the list of statutory bars under INA § 101(f), the INS will find that an
applicant lacks good moral character if during the required statutory period she: had an extra-
marital affair which tended to destroy an existing marriage, or committed unlawful acts that
adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such.
An applicant who is on probation or parole on the day of the interview will not be granted
naturalization.31 See § 6.4 below for more on probation and parole.
A. Failure to Pay Child Support
The INS views the “willful” (i.e. deliberate) non-payment of child support as a failure of
good moral character.32 However, the INS is required to look at the reasons why someone has not
supported his children.33 If an applicant has not been paying child support because he has been
unemployed or is otherwise financially unable to do so, or his family is self supporting, the failure to
pay child support should not be considered willful and thus the INS should not find the applicant is
lacking in good moral character.34 Additionally, the ILRC would argue that if someone has made a
reasonable effort to provide child support but has not been able to for some reason (such as he
cannot find his family or the family refuses his assistance), the failure to pay child support should
30
Alicia is deportable for having been inadmissible at the time of entry. INA § 237(a)(1)(A).
31
8 CFR § 316.10(c)(1).
32
8 CFR section 316.10(b)(3)(i).
33
The INS position is that failure to provide support will add to the weight of other evidence to sustain a finding of
lack of good moral character. See INS Interpretations 316.1(f)(5). It is important to note that the standard is not
merely failing to pay child support, but "willful failure to pay child support." In determining whether the failure to
support dependents warrants a finding of a lack of good moral character, some courts have taken into account
extenuating circumstances such as unemployment or financial inability to pay. See INS Interpretations 316.1(f)(5)
for examples.
34
See Gordon & Mailman section 95.04[1][b][iii] and INS Interpretations section 316.1(e)(5).
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not be considered willful and the INS should not deny the case for lacking good moral character.35
Therefore, always ask your client why he has not been paying child support and see if the
explanation is one that the INS should or will accept.
B. Receipt of Public Benefits
Receipt of Public Benefits is an issue only if fraud is involved. However, some INS
offices might incorrectly use receipt of public benefits as a basis for refusing to find good moral
character. This is against INS national policy and should be challenged aggressively. Appendix
6-E contains a sample INS Memorandum explaining the Los Angeles INS office's position on
how the receipt of public benefits affects good moral character. This memo explains the same
policy that we think all INS offices should adopt.
In San Francisco, advocates were able to convince naturalization authorities to change their
policy of using receipt of public benefits as a basis for denial. For an example of a legal argument,
see Appendix 8-K, a sample letter in response to INS denial based partly on the basis of receipt of
public benefits.
C. Failure to Register for the Selective Service
Since 1980, all young men between the ages of 18 and 26 have been required to register
for the military with Selective Service, including men without lawful immigration status. Not
only do U.S. citizens and lawful permanent residents have to register for the Selective Service,
but any male refugee, asylee, parolee or undocumented immigrant who is in the U.S. and is
between the ages of 18 and 26 must also register.36 Note however, that an individual who
entered the U.S. on a non-immigrant visa (under INA § 101(a)(15)) and who remained a non-
immigrant through the age of 26 is not required to have registered. Also, any male who entered
the U.S. after the age of 26 is not required to have registered.
A 1987 INS memorandum (not a statute or regulation) stated that failure to follow this
law will be evaluated as evidence of bad moral character.37 Many INS offices have followed the
memorandum and instituted a policy of giving men between 18 and 26 years of age, who have
not registered, the opportunity to register before their naturalization application is denied. For
men 26 to 31 years of age who should have registered but did not, the examiners would evaluate
35
Id.
36
The Military Selective Service Act is found at 50 USC App. 450, et seq.
37
See memorandum entitled, "Eligibility for naturalization of persons who fail to register under the Military Selective
Service Act," sent to all INS offices on July 22, 1987 by the INS Associate Commissioner for Examinations,
reprinted in 64 Interpreter Releases 921 (8/10/87), hereafter refereed to INS Memorandum. See also Letter from R.
Michael Miller to Robert F. Belluscio, Esq., dated October 19, 1987, reprinted in 64 Interpreter Releases 1330
(11/23/87), referred to as "INS Letter."
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whether their failure to register with Selective Service was willful or knowing or whether they
did not understand that they had a duty to register. Men who were over 31 years old (or over 29
if applying for naturalization as the spouse of a U.S. citizen) and who failed to register did not
generally face consequences from failing to register.
However, some INS offices refused to accept applicants’ explanations regarding why
they had failed to register for selective service and instead had a policy of blanket denials for
anyone who had not registered. These blanket denials were arguably illegal. The Federal
Selective Act requires that no one be denied a federal right or benefit if he shows by
preponderance of the evidence in that his failure to register for Selective Service was not
knowing or voluntary.38
In a 1998 opinion that was made public in 1999, the INS offered further information
about the effect of failure to register. See Appendix 6-F, INS memorandum presenting the
opinion of INS General Counsel Paul W. Virtue, April 27, 1998.
The legal opinion states that failure to register for Selective Service bars naturalization only
if the applicant knowingly and willfully failed to register. The opinion examines four different time
periods and gives officers instructions on how to evaluate cases.
From age 18 to 26, men are required to register to draft unless they are in the U.S. on non-
immigrant visas. The legal opinion states that the INS is justified in denying naturalization
applicants of this age who fail to register.
From ages 26 to 31, the failure to register for Selective Service still occurred within the last
five years and the INS can deny naturalization based on the failure. The legal opinion states that the
INS can presume (assume) that the failure to register was knowing or willful, unless the applicant
shows otherwise by a preponderance (majority) of the evidence. (Note from the ILRC: If the
applicant’s failure to register was not willful, but was because he did not know about the
requirement or sincerely believed that it did not apply to him, he must bring in evidence to prove
this fact to the INS. This could include his testimony, the testimony of others who know him, or
other evidence.)
After age 31, the test changes again. First, if the INS finds that failure to register was not
knowing and willful, there is no problem. Second, even if the failure to register was knowing
and willful, it is not an absolute bar because it is outside the five years. While the agency can
consider bad conduct outside the five years, it must explain specifically why it does so.
a. Willful failure to register
Most applicants who failed to register with the Selective Service probably just did not
know that they were required to do so. INS offices continue to have different standards for
determining whether failure to register for Selective Service was knowing and therefore
“willful.” For example, in most Northern California district offices, INS examiners generally
38
Military Selective Service Act 50 USC App. 4531 Section 3(a); 50 USC App. 462(g)
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will accept an applicant's statement that he did not know he was supposed to register, and will
ask him to fill out a form affidavit to that effect.39 If there is evidence in the person's file that the
INS told him of the Selective Service requirement in his own language, however, the officer
might attempt to deny the application.
The INS may assert that all permanent residents are warned, in a manner that they can
understand, of the requirement at the time they gain permanent residency. For example, special
rules applied to some persons applying under the “amnesty” programs of the 1980’s.40 Some
INS examiners argue that therefore all failures to register by permanent residents are knowing
and willful. These officers may insist that even if the person did not understand such a warning,
the person should have understood and should be penalized.
The question, however, is whether the individual person actually understood the
requirement. A person's statement that he did not understand the requirements should contain
details about the applicant's own experience and feelings and not just be a "boilerplate"
statement. In all cases the applicant should be prepared to explain in detail why he did not
believe he had to register. For example, if the applicant attended high school in the U.S. and
heard of the requirement, but thought that it did not apply to undocumented or permanent
resident aliens, he should be ready to discuss that. If his immigration record states that he was
informed of the requirement when he immigrated, but he does not remember this or did not
understand it, he should be ready to discuss any limitations in terms of understanding English or
of literacy he had at that time. We suggest that naturalization applicants who may be affected by
this (males over between 26 and 31 who did not register) and who live in an INS jurisdiction
which is strict about accepting the applicant's statement should file a FOIA (Freedom of
Information Act) request with INS to review the person's INS file. If there is some written
record of a warning in the applicant's native language, this will give the applicant time to think
about the warning and remember if in fact the person understood the warning, and if not, why
not. Instructions for filing a FOIA request are at Appendix 7-B.
b. Legal Objections to the Policy
It is the ILRC’s opinion that this policy has some flaws. First, we assert that even if the
person failed to register within the previous five years, e.g., if the applicant is between the ages
of 26 to 31, the INS cannot deny it solely on that ground. It still should apply a balancing test
and give the applicant the opportunity to show good equities. Even if the person admits or the
INS decides that the person did “willfully” fail to register, this should not mean an automatic
denial of the application until the person reaches age 31. The INS, in this as in all good moral
character cases, must weigh evidence of bad moral character against evidence of good moral
39
Some offices also require that applicants submit a registration even if no longer eligible to register. A copy of the
notice sent to males registering after reaching the age of 26 is included in Appendix 6G.
40
People who became permanent residents under the amnesty or legalization program because they lived here since
before 1982 were required to register for Selective Service to qualify for amnesty and the question appeared on the
amnesty form. Persons who gained amnesty through the SAW program because they were farmworkers were not
required to register as a condition of getting amnesty, and the question did not appear on their application forms.
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character under the Torres-Guzman test.41 The person must be permitted to attempt to offset the
“bad” of willful failure to register with the “good” of stable employment, support of family,
participation in church or civic activities, and other evidence of good moral character.
Example: Carlos walks into the office of Araceli Advocate and tells her that he wants to
apply for naturalization. He is 30 years old and has been a lawful permanent resident for
5 years. In the course of explaining the requirements for naturalization and answering his
questions, Araceli informs Carlos of the Selective Service requirements. She tells Carlos
that one of the questions on the naturalization application asks whether he has ever failed
to comply with the Selective Service laws.
Araceli tells Carlos that if he knew about having to register with the Selective Service
and didn't do so, then he will probably be denied naturalization, most likely on the basis
that he lacks good moral character. Araceli also tells Carlos that if he didn't register
because he didn't know he was required to register, then the INS shouldn't automatically
deny his application for naturalization, but that he should be prepared to explain to the
INS why he didn't register, and why he does have good moral character.42 Carlos then
explains that he came to the U.S. when he was 24 years old, but that he didn't register
because he never knew that he was required to do so. He tells Araceli that had he known,
he would have registered.
Note that if Carlos were currently between the ages of 18 and 26, and he had not registered, you
should encourage him to immediately register at the nearest post office.
Second, when the person is over 31, the INS should not deny naturalization solely on the
basis of conduct outside the five years, although this conduct might provide additional
information if there is other bad conduct within the five years.43
Practice Tip: If you have any questions regarding the requirements for registering with the
Selective Service, or if you want to ask a question about a specific person, you can contact the
Selective Service Systems at: P.O. Box 94638, Palatine, Illinois, 60094-4638 or by calling 1-
847-688-6888.
41
See Torres-Guzman v. INS, 804 F.2d 531, 543 (9th Cir. 1986). See discussion and footnote in Part 1 of this
section.
42
See Interpreter Releases, November 23, 1987, Appendix V, where the INS Deputy Assistant Commissioner for
Adjudications states that "failure to register, as required by the Military Selective Service Act, does not constitute an
automatic denial recommendation, but will alert the [INS] Naturalization examiner to closely scrutinize the
applicant's good moral character, or lack thereof, and his attachment to the principles of the Constitution."
Of course, the Selective Service issue may never come up, but the applicant should be prepared to give an
explanation for his failure to register in the event that the INS raises the issue. He should also be prepared to show
why, despite his failure to register, he has good moral character. See Practice Tip on page 6-9 for a discussion on
ways to document good moral character.
43
See § 6.7, “Balancing the Good and the Bad.”
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D. Failure to file Taxes
The Immigration and Naturalization Service considers failure to file income taxes
evidence of lack of good moral character. Therefore, if a person has failed to file income taxes
in the five years preceding his/her application for naturalization, proving good moral character
will be an issue.44
a. Not everyone is required to file income taxes
Individuals who make under a certain amount are exempt from having to file taxes. The
amount varies from year to year. Therefore, applicants must verify with a tax expert whether
their earnings were below the threshold for a given year. An applicant who was exempt from
filing taxes should indicate that they have not failed to file income taxes on their application for
naturalization. Some jurisdictions require applicants to bring proof of tax filing to the interview.
Therefore, applicants who were exempt from filing should bring proof of their exemption in lieu
of tax filing records.
b. What applicants who failed to file taxes can do
Applicants should strongly consider filing late taxes and making arrangements with the
IRS to pay any past due taxes. The applicant should also be ready to offer a reasonable
explanation why he/she failed to file taxes. The Immigration Service is more likely to overlook a
failure to file if the person has made efforts to correct the situation. Ultimately, whether or not
corrective action will be sufficient to avoid an adverse finding of good moral character depends
on local district policy and the specifics of the case.45
Advocates should be aware that tax evasion is a crime.46 Anyone who has not paid his/her
taxes or has not filed a tax return should be referred to a tax attorney. Moreover, violations of
federal tax laws have been found to be crimes of moral turpitude rendering the person
susceptible to deportation.47
c. Filing for non-resident status
Although rare, some individuals file non-resident status forms to avoid tax liability. Any
naturalization applicant who has ever filed one of these forms must consult with an immigration
expert. The INS can use the filing of such form as evidence of intent to abandon lawful
permanent residence and bring deportation proceedings against the individual. See Chapter 5
for a discussion of abandonment of lawful permanent resident status.
44
El-Ali v. Carroll 83 F. 3d 414 (4th Cir. 1996) ; Gambino v. Pomeroy 562 F. Supp. 974 (D.C.N.J. 1982).
45
Some INS offices require applicants to have paid-back any past due taxes before being allowed to naturalize.
Other districts only require that the person have a payment arrangement with the IRS. In some districts, a willful
failure to file or pay taxes during the statutory period will result in the INS finding the person to lack good moral
character.
46
26 U.S.C.A. §7206(1) (West 1989)
47
Surrett v. U.S. 421 F.2d 403 (5th Cir. 1970)
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3. Dealing with Clients Who May Have a Criminal Record; Obtaining Records
You can see from the list of automatic bars under INA § 101(f) that the most common
reason for which people are disqualified from establishing good moral character is that they were
involved in some sort of criminal activity. Therefore, the topic of arrests or convictions is an
important one to raise with naturalization clients.
If your client has had a criminal history, several steps should be taken. First, someone
must gather as much official information as possible about the incident. The client can go to the
court where she made her appearance and request a document showing the outcome of her case.
In some areas, this may be called a Summary Abstract of the Court Disposition. From this paper,
you will be able to find out if she was actually convicted of a crime and what that crime was.
Whenever the fact of a conviction is unclear, you should run both an FBI check and a check with
the state's Justice Department to clarify the information. The forms necessary to do the check
with the FBI and with the California Department of Justice can be found at Appendix 6-A.
Please note that the fee for obtaining a client’s FBI criminal record is $18.00.
Next, you should find out if the particular crime involved is one of the crimes that will
automatically disqualify your client from showing good moral character. You can begin with the
list above. For more information on this issue refer to the ILRC Manual, California Criminal
Law and Immigration, or manuals on the law of your state.
Finally, if the crime is one that will disqualify your client from showing good moral
character, find out if any kind of post-conviction relief is available to eliminate the crime for
immigration purposes. See Part 4 of this section.
Too often applicants do not share information about their criminal history and other
personal facts because they do not think it is important, do not know the consequences of such
acts, or do not know (because of confusion surrounding the proceedings) that they were actually
convicted of a crime. This makes client education on these issues critical. The advocate has to
take the responsibility to share this information with clients and together determine which, if any,
bars apply to them and what action to take. For a sample of a flyer in English and Spanish,
which explains some of the grounds for which applicants can be denied naturalization, please see
Appendix 6-C.
Remember that a person who may not be able to meet the good moral character
requirement now may be able to do so at some time in the future. In those cases, the prospective
applicant may wisely choose to wait a while before seeking naturalization.
§ 6.4 Temporary Ineligibility to Naturalize
Many applicants choose to wait before pursuing naturalization because they have a better
chance of establishing good moral character at a future time. In that sense, the good moral
character requirement is properly viewed as a temporary bar to naturalization. Other temporary
preclusions are discussed in this section.
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The Attorney General, and consequently the INS, is not authorized to naturalize a person
who has an outstanding deportation or removal order against her nor a person who has a
deportation or removal proceeding pending at the time she applies for naturalization.48 It is the
ILRC’s position that a Federal District Court Judge, however, is not governed by this statutory
limitation since his/her authority is not dictated by the INA. Also, although an Immigration
Judge is not authorized to grant naturalization, he/she can terminate removal proceedings to
allow an otherwise eligible naturalization applicant to proceed with naturalization.49
People who have been involved in certain political activities in the ten years before
applying for naturalization are also barred from citizenship.50 For example, people who have
advocated anarchism or totalitarianism cannot be naturalized. A person who is or has been a
member of or affiliated with the Communist Party in the ten years before her application is also
barred from citizenship. Other groups are also affected by this ten-year ban.51 INA § 313 must
therefore be reviewed carefully.52
The ten-year bar has an important exception. Naturalization is not precluded if (1) the
applicant participated in the prohibited activity involuntarily; (2) the prohibited activity occurred
and terminated before the applicant reached 16 years of age; (3) the membership was by
operation of law; OR (4) she had to participate so that she could get food, a job, or other
necessities.53
Individuals who are on probation or parole or suspended sentence during all or part of
the required period are not disqualified from establishing good moral character. 54 However, the
application will not be approved while the applicant is still on probation or parole.55 In practice,
this means that a person who is or has been on probation or parole within the last three or five
years can file a naturalization application, but should be prepared to present additional evidence
showing good moral character to offset any bad implication the INS might make of the probation
or parole. See § 6.4, Part 1, above. The INS might decide to deny the application in the INS’
discretion based on the probation/parole, and the person then would have to re-apply for
48
INA § 318.
49
8 CFR § 239.2(f).
50
INA § 313. Note that the Ninth Circuit has held that a naturalization applicant cannot refuse to answer questions
pertaining to his organizational affiliations. Pierce v. INS, 941 F.2d 878 (9th Cir., 1992).
51
INA § 313(c).
52
Note that the prohibition on certain political activities not only addresses activities during the ten years prior to the
filing of the naturalization application, but also creates bars to naturalization for individuals who engage in these
political activities after filing the application and before taking the oath.
53
INA § 313(d).
54
8 CFR § 316.10(c)(1); See also INS Interpretations 316.1 (f)(4).
55
8 CFR § 316.10(c)(1).
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naturalization at a later time. Finally, the applicant must time the filing of the application to
make sure that he or she is not still on probation or parole by the time of the naturalization
interview or else s/he will be denied naturalization.
§ 6.5 Permanent Ineligibility to Naturalize
Certain actions, mostly connected with military service, can make a person permanently
ineligible for U.S. citizenship.56 (Note that these are different from simple failure to register for
selective service, discussed at § 6.7 above.)
Deserters from the armed forces and draft evaders are permanently ineligible to become
U.S. citizens.57 In order to be barred from citizenship under this section, the desertion or draft
evasion must have occurred (or will occur) during a time when the U.S. was at war and the
person must have been convicted by a court martial or other court.58
People who are permanently ineligible for U.S. citizenship are also inadmissible from
admission into the United States. The most important category is draft dodgers and draft
deserters.59 The grounds that make a person "ineligible to citizenship" are found in INA § 314
and § 315. The ineligible group is very small. It includes only people who requested an
exemption from service in the U.S. armed forces on the ground of being an alien, or people who
deserted the U.S. armed forces during the period 1971-1973, World War II, and during other
conflicts. Note that the amnesty given by President Jimmy Carter to individuals who avoided the
draft during the Vietnam War also protects eligible aliens from this exclusion.
A person who has applied for and received certain exemptions from U.S. military service
based on being an alien is also permanently ineligible for citizenship.60 Keep in mind that while
many different kinds of exemptions from military service are available, only a few of them bar a
person from citizenship. Ask your client carefully what kind of exemption he received, and talk
to a draft counselor if you are not certain what immigration consequences are involved.
In addition, some aliens who received an exemption from military service may still be
eligible for naturalization. A person might still be eligible for citizenship if: (1) at the time of the
exemption the person was not by law bound to serve;61 or (2) the person did not knowingly
request the waiver nor understand the results of the exemption.62
56
Permanent bars are discussed at INA § 101(a)(19). Note also that under 8 CFR § 316.10(b)(1), anyone who has
ever been convicted of murder cannot establish good moral character. See Footnote 19 for a discussion of
aggravated felonies, which may also create permanent ineligibility to naturalize.
57
INA § 314.
58
INA § 314.
59
INA § 212(a)(8).
60
INA § 315.
61
INS Interpretations 315.3(a).
62
INS Interpretations 315.3(a)(5).
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Although there has not been a draft in the U.S. in many years, make sure your clients do
not fall into any of the above categories.
PART II: Is the person deportable? And if so, can the person ever overcome the deportability
issue?
§6.6 Deportability Issues
1. Grounds of Deportation
2. Aggravated Felonies
3. Effect of state relief from a conviction such as expungement, diversion, etc.
4. Possible defenses for deportable naturalization applicants
1. Grounds of Deportation.
A naturalization applicant who is deportable may not only be denied naturalization, she
might be brought under removal (formerly deportation) proceedings, lose her green card, and be
deported. It is important for all advocates to have some familiarity with the grounds of
deportation.
One way to discuss these grounds with naturalization applicants is to use a brochure
describing the "Red Flag Areas." At a minimum, the advocate should help the applicant identify
if any of the "red flags" might be a problem for her, and then find a referral if the advocate is not
able to represent the applicant. Copies of this brochure in English, Spanish and Chinese are
reprinted at Appendix 2-B. A more thorough overview of the grounds of deportation is provided
at Appendix 6-D.
The grounds of deportability appear in INA § 237(a) [formerly INA § 241(a)]. A brief
overview list of the grounds of deportability include:
z Conviction of certain crimes. These can include conviction of offenses with any
relation to drugs or firearms; “crimes involving moral turpitude” (offenses that
have as an element fraud, theft, threat of great bodily injury, in some cases
lewdness, recklessness or malice); offenses related to running a prostitution
business; aggravated felonies; and other offenses.
z Domestic violence and child abuse: Conviction of almost any offense that
involves the threat of violence against a person with whom the accused was
married, lived with, had a child with, or had as a common law spouse; conviction
of child abuse, neglect or abandonment; a civil finding that the person violated a
domestic violence Temporary Restraining Order. (This applies to convictions on
or after September 30, 1996.)
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z Alien smuggling, which means helping or encouraging any alien to cross into the
U.S. illegally, even if the person was not convicted for doing this. (There is a
discretionary waiver for permanent residents who smuggled only their parent,
spouse or child.)
z Being the subject of a civil order finding that the person used false documents to
get an immigration benefit (e.g., false social security number to get a job, fake
papers to get a visa, completed an immigration form with misinformation).
z Making a false claim to U.S. citizenship to any federal, state or local government
(on or after September 30, 1996). [Note: there is a very limited exemption for
individuals who were adopted by U.S. citizens and who believed that the were
U.S. citizens because the adopting parents were U.S. citizens.]63
z Unlawful voting in violation of federal, state or local laws. [Note: many of these
laws require that the unlawful voting was knowing, as opposed to mistakenly
thinking you were qualified to vote. Check the local law. In addition, there is a
very limited exemption for individuals who were adopted by U.S. citizens and
who believed that the were U.S. citizens because the adopting parents were U.S.
citizens.]64
z Having been a drug addict or abuser at any time since admission to the U.S.
• Deportable for having been inadmissible when the person last was admitted to the
U.S. Some permanent residents who took trips outside the U.S. may be subject to
an even stricter standard if they had criminal convictions or wrongdoing before
leaving the U.S.
Please note: Appendix 6-D at the end of this manual describes in more detail the grounds
of deportability, how to obtain criminal records, and other information.
2. Aggravated Felonies.
Anyone who has been convicted of an “aggravated felony” on or after November 29,
1990 is forever barred from showing good moral character. Moreover, a person convicted of an
aggravated felony is deportable and subject to severe penalties.
Congress first defined "aggravated felonies" in the Anti-Drug Abuse Act of 1988, and has
continued to expand the number of crimes considered aggravated felonies since then. Two 1996
acts, the AEDPA and the IIRIRA,65 significantly expanded what offenses will be aggravated
63
INA 237(a)(6)(B).
64
INA 237(a)(6)(B).
65
The Anti-Terrorist and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) passed in 1996 amended the definition of aggravated felony, found at INA § 101(a)(43).
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felonies. Remember that the person must have a conviction in order to be penalized as an
aggravated felon.
What we may think of as relatively minor crimes -- for example, selling $10 worth of
marijuana, or "smuggling" one's baby sister across the border illegally -- are aggravated felonies.
Advocates must be very careful in advising clients!!! Old convictions count as aggravated
felonies. Some people have been arrested during their naturalization interview because they had
a very old conviction for an offense that turned out to be an aggravated felony.
The definition of aggravated felony is found at INA § 101(a)(43). As a basic overview,

here is a summary of the listed offenses.
z murder; rape; sexual abuse of a minor;
z any offense generally considered to be a "drug trafficking," plus certain federal

drug offenses and state statutes that punish exactly the same act (state
"analogues");
z trafficking in firearms, plus several federal crimes relating to firearms or

destructive devices (e.g., bombs, grenades);
z money laundering and monetary transactions from illegally derived funds if the
amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if
the amount exceeds $10,000;
z a "crime of violence" resulting in a term of imprisonment of at least one year, if it

was not a "purely political offense;"
z theft or burglary if the term of imprisonment is at least one year;
z any alien smuggling, harboring or transporting, except for a first offense in which
the person smuggled was the smuggler's parent, spouse or child;
z using or creating false documents if the term of imprisonment is at least one year,
except for a first offense which was committed for the purpose of aiding the
person's spouse, child or parent;
z commercial bribery, forgery, trafficking in vehicles with altered numbers if the

term of imprisonment is at least one year;
z bribery of a witness, perjury, if term of imprisonment is at least one year;
z various offenses such as demand for ransom, child pornography, RICO offenses
punishable with a five year sentence, running a prostitution business, slavery,
offenses relating to national defense, sabotage or treason, revealing the identity of
an undercover agent, and failure to appear to serve a sentence if the underlying
offense is punishable by a term of five years, or to face charges if the underlying
sentence is punishable by two years.
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Common aggravated felonies.
In 1999, the Board of Immigration Appeal (BIA) held that driving under the influence
of drugs or alcohol with a one-year sentence imposed was an aggravated felony as a crime of
violence.66 However, many federal circuit courts (the Second, Third, Fifth, Seventh and Ninth
Circuits at this writing) have held the opposite, so the rule now does not apply in the majority of
the country. Someone with a DUI conviction should consult with an expert before applying for
naturalization. See Appendix 6-D for a more detailed discussion of DUIs as aggravated felonies.
Another possible aggravated felony is statutory rape (which could include consenting
sex between two people, at least one of whom is under 18 or some other age depending upon
state law), regardless of sentence. See Appendix 6-D for a discussion of statutory rape. Many
theft-related offenses with a one-year sentence imposed (regardless of how little time the
person actually spent in jail) are aggravated felonies. Conviction of alien smuggling or
document fraud, with certain exceptions, is an aggravated felony. Any conviction, especially
one with a one-year sentence imposed, should be carefully analyzed to make sure that it is not
an aggravated felony.
Penalties for conviction of an aggravated felony include removal/deportation from the

U.S., with no possibility of return. If the person was deported and then re-entered illegally after
being convicted of an aggravated felony, the person is subject to up to 20 years in federal prison
just for the illegal re-entry. A lawful permanent resident that has been convicted of an
aggravated felony will have a very difficult time defending against deportability. The only
immigration remedies available are a very strong political asylum cases ("withholding of
removal"), 212(c) relief for certain convictions before April 24th 1996, and the naturalization
defense strategy under 8 CFR 239.2 discussed below, if the conviction occurred before
November 29, 1990.
Aggravated Felony Effective Dates. All of the above offenses are held to be aggravated
felonies, regardless of the date of conviction, in all immigration actions taken after September
30, 1996. (Before IIRIRA, there was a complicated set of effective dates for what convictions
qualified, based on what year the conviction had been added to the list of aggravated felonies.)
Conviction of an aggravated felony after November 29, 1990 is a permanent bar to

establishing good moral character. Conviction of murder at any time is a permanent bar to
establishing good moral character.67
66
Matter of Magallanes, Int. Dec. 3341 (BIA 1998); Matter of Puente-Salazar, Int. Dec. 3412 (BIA 1999)
67
Murder is treated differently from other aggravated felonies in terms of the November 29, 1990 date. This is
described in the Code of Federal Regulations (CFR). Under 8 CFR § 316.10(b)(1), anyone who has ever been
convicted of murder cannot establish good moral character, no matter when the conviction occurred. Anyone who
is convicted of another aggravated felony (as defined by INA § 101(a)(43)) on or after November 29, 1990 will be
found to lack good moral character. In other words, the aggravated felony bar to naturalization only applies to
convictions occurring on or after November 29, 1990. See “INS Discusses Effect of Aggravated Felony
Conviction on Naturalization”, 70 Interpreter Releases 752 (June 7, 1993).
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3. Effect of Post-Conviction Relief and Diversion Schemes.
Different states have different ways that a person may be able to “erase” his or her record
of conviction to get a clean criminal record through expungements, deferred adjudication or
other rehabilitative relief. These are known as forms of “post-conviction relief.” In 1999 the
BIA ruled that many types of state court proceedings erasing a conviction would no longer be
accepted for immigration purposes.68 In 2000, the Ninth Circuit reversed the BIA’s decisions
and held that an expungement, or other “rehabilitative relief” such as deferred adjudication, will
eliminate the immigration effect of a conviction of a first offense, simple possession of a
controlled substance. Lujan-Armendariz v. INS (with Roldan v. INS joined) 222 F.3d. 728 (9th
Cir. 2000). Under Lujan-Armendariz, a noncitizen whose immigration case is adjudicated within
the Ninth Circuit, and who gained an expungement, deferred adjudication, or other type of
rehabilitative relief in any state, cannot be held deportable or inadmissible for having a drug
conviction, as long as the conviction was for a first offense of simple possession (including
possession of drug paraphernalia.)69
Offenses that do not qualify as first offense simple possession of a controlled substance
will be considered convictions regardless of expungement or other rehabilitative relief, thereby
exposing the individual to deportability. The Ninth Circuit has in fact ruled that expungements
will not eliminate non-drug related convictions in 2001.70 In addition, individuals residing
outside of the Ninth Circuit will not benefit from the Lujan-Armendariz ruling unless their circuit
adopts the Ninth Circuit ruling or the BIA withdraws the original Roldan ruling. Finally, an
immigration expert should assist naturalization applicants hoping to benefit from the Lujan-
Armendariz ruling since not all drug-related convictions are covered by the Lujan-Armendariz
expungement protection.
These recent court rulings have not encroached upon all post-conviction relief. There
may be ways to vacate the conviction on other legal grounds, such as failure to supply an
interpreter or to advise the client about his or her rights. However, this usually is a difficult and
expensive process, requiring the help of an attorney.
It also may be possible that a “conviction” never occurred. This might be true, for
example, if the client participated in a “diversion” or other court proceeding in which there never
was a finding of guilt or guilty plea. It can be complicated to figure out whether this occurred.
For example, until January 1, 1997 California had a pre-trial diversion program that the BIA
recognizes would not result in a conviction, even if a drug offense had been charged. After
January 1, 1997, the California drug diversion program changed to require a guilty plea,
although some counties can opt for a non-guilty plea “drug court” process. Therefore diversion
granted in California on or after that date should be analyzed on a case-by-case basis.
68
Matter of Roldan, Int. Dec. 3377 (BIA 1999).
69
Cardenas-Uriate v. INS 227 F.3d 1132 (9th Cir. 2000).
70
Murillo-Espinoza v INS 01 CDOS 7030 (9th Cir. 8/15/01; case no. 00-70096).
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Also, a person whose case was handled in juvenile delinquency proceedings instead of
adult proceedings does not have a conviction. In all these situations, the client should submit
supporting documentation with the application and should also bring proof to the interview that
shows why the conviction should not be counted for immigration purposes. For more
information on these issues, please refer to the ILRC manual California Criminal Law and
Immigration, or other materials listed at the end of this chapter.
While the absence of a conviction may keep your client from being statutorily ineligible
to establish good moral character, the INS still will consider the underlying facts in making a
discretionary decision about good moral character. The applicant has a duty to report on the N-
400 that the arrest occurred. This is the case even if the state diversion or expungement law
expressly states that once the diversion or other program is completed, the person has the legal
right to deny the arrest ever took place.71
4. Possible Defenses for Deportable Naturalization Applicants
This discussion is intended for skilled practitioners who are representing persons in
deportation or removal hearings (meaning attorneys, accredited representatives, or others
permitted to practice in immigration court). Others helping immigrants may wish to understand
these to be able to spot the possibility of the defense and refer the applicant to a qualified
representative. In some cases, applicants might be so motivated to naturalize (for example, to
immigrate their sick mother) that they would be willing to attempt naturalization if they thought
they had a chance of escaping deportation.
Termination of Removal/Deportation Proceedings Under 8 CFR 239.2(f) (formerly 8

CFR 242.7(e)). This is a defense theory that might help a naturalization applicant who is
deportable for a crime or other reasons. It might be available to persons convicted of an
aggravated felony before November 29, 1990.
Federal regulation permits an immigration judge presiding over a removal hearing (until
April 1, 1997 called a deportation hearing) some flexibility in dealing with a naturalization
applicant who is deportable. The regulation provides that:
"An immigration judge may terminate removal proceedings to permit the respondent to
proceed to a final hearing on a pending application or petition for naturalization, when
the respondent has established prima facie eligibility for naturalization and the matter
involves exceptionally appealing or humanitarian factors; in every other case, the
deportation hearing shall be completed as promptly as possible notwithstanding the
pendency of an application for naturalization during any state of the proceedings..."
71
Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994) (in making a discretionary decision the INS can consider a
person's conduct that led to his arrest, even if the person received California diversion and so never was "convicted"
of the offense and also had the right under California law to deny the arrest).
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See 8 CFR 239.2(f) (formerly 242.7(e)); see also INS Operations Instructions
318.2(c)(1)(ii).
In other words, the judge may decide simply to close the person’s removal hearing and let
the person continue on to naturalize. Consider the case of a person who is deportable based on
two convictions of crimes involving moral turpitude that occurred several years ago. Within the
last five years, the person has maintained good moral character and, except for being deportable,
is otherwise eligible for naturalization. Under this regulation, if the judge terminated removal
proceedings and sent the person on to complete the pending naturalization process, the
naturalization officials should, or at least would be able to, grant the petition.
This can be useful in at least two situations: (a) where a permanent resident is brought
into removal proceedings and, before there is a final order of removal, she applies for
naturalization, and (b) where a naturalization applicant is charged during the naturalization
process with being deportable and brought under removal proceedings. In both cases, the judge
should have the discretion to terminate removal proceedings and send the person on to continue
naturalization.
While there is never anything remotely like a guarantee that the judge will terminate
proceedings, some practitioners have had real successes in convincing immigration judges to
terminate proceedings. At least two federal court recently ordered the INS to find that an
applicant had good moral character so that the applicant could request termination of
proceedings.72
How does this provision affect persons convicted of an aggravated felony? Conviction of
an aggravated felony is a “permanent” bar to establishing good moral character if, and only if,
the conviction occurred on or after November 29, 1990. (The only exception is murder, which is
a permanent bar to establishing good moral character regardless of the date of conviction.)73 For
example, a person who was convicted of drug trafficking on November 28, 1990 has been
convicted of an aggravated felony for many purposes, but not for the purpose of the permanent
bar to good moral character. If the person indeed has no other problems within the last five years
(or three if applying as the spouse of a U.S. citizen) that would bar a finding of good moral
character, and otherwise is eligible for naturalization, the judge arguably has the authority to
terminate proceedings under 8 CFR 239.2(f). If however, the aggravated felony conviction
occurred on or after November 29, 1990, the person is permanently barred from establishing
good moral character and thus cannot qualify for naturalization.
72
Gatcliffe v. Reno, 23 F.Supp.2nd 581 (D.V.I.1998), reported in Interpreter Releases, November 9, 1998, p. 1553
(District Court reversed INS holding that the naturalization applicant could not establish good moral character
solely because of events outside the five year period; remanded the case to removal proceedings so that the
applicant could apply to terminate proceedings and proceed to naturalization). See also Ngwana v. Attorney
Geneeral 40 F. Supp. 2d. 319 (D. Md. 1999).
73
Immigration Act of 1990 § 509(b) (aggravated felony convictions dating before November 29, 1990 are not
permanent bars to good moral character); MTINA § 306(a)(7) (murder is a permanent bar regardless of date of
conviction). See also Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996), Castilglia v. INS, 108 F. 3d 1101
(9th Cir. 1997).
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If a person has established exemplary character during the required five year period (or
three years for persons married to U.S. citizens, or one year for persons who served in the
military during certain conflicts), then the INS may not deny naturalization based solely on
convictions or other events that took place before the good moral character period.74
Cancellation of Removal or Other Waivers of Deportation. “Cancellation of

removal” under INA 240A(a) is a relief for long-time permanent residents.. The rules governing
who is eligible for this relief are somewhat complex. For information on this relief, as well as an
update on information about the 212(d)(11) waiver for certain persons who smuggled only a
parent, spouse or child, see Appendix 6-D. In general, remember that a person convicted of an
aggravated felony is ineligible for cancellation and almost any immigration relief. LPRs with
aggravated felony convictions before April 24, 1996 may want to consider requesting “212(c)”
relief. See below.
Note that even if cancellation or some other waiver is granted, the naturalization
applicant may still have good moral character problems. The waivers may help them to avoid
deportation, but the INS could still argue that the person lacks good moral character for
naturalization purposes.
212(c) Relief. Before the IIRIRA lawful permanent residents who were deportable for an
offense that had a parallel ground of exclusion (inadmissibility), had resided in the U.S. for seven
years and who possessed positive equities were allowed to retain lawful permanent status despite
the convictions. 212(c) could even be used to waive deportability for an aggravated felony or a
drug conviction. With the enactment of the IIRIRA Congress eliminated 212(c) completely.
The U.S. Supreme Court, however, in INS v. St. Cyr75 ruled that 212(c) could not be eliminated
for individuals who had pled guilty to a deportable offense before the enactment of the
Antiterrorism and Effective Death Penalty Act of April 24, 1996 (AEDPA). Therefore, lawful
permanent residents with certain convictions prior to AEDPA’s enactment date can request
212(c) relief as long as they would have been eligible for 212c relief at the time they pled guilty
and regardless of when they are placed in removal proceedings.
Political Asylum, Family Immigration, and other relief. Possibly a deportable

applicant still would be eligible for other forms of immigration relief. See Chapter 14 for a
general summary of types of immigration relief. The person should have a full consultation with
an expert practitioner.
74
See, e.g., Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996). A subsequent case, Castiglia v. INS, 108 f.3d.
1101 (9th Cir. 1997) holds that conviction of murder is a permanent bar to establishing good moral character
regardless of the date the conviction occurred, so that a person convicted of murder never will qualify for
naturalization. Some dicta in that case may appear to imply that conviction of any aggravated felony -- and not just
of murder -- is a permanent bar, but that is not the holding of Castiglia and is explicitly not the rule under the
statute. See above footnote.
75
121 S. Ct. 2271 (June 25, 2001)
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PART IV: If the person is not statutorily barred from establishing good moral character, can
the person convince the examiner that his/her good moral character meets the community’s
standard?
§ 6.7 Discretionary Bars to Proving Good Moral Character
1. Balancing the “good” and the “bad”

2. Factors that may show bad moral character
Once a naturalization applicant has shown that she is not statutorily prevented from
establishing good moral character, the job is not over. Even if the applicant does not fall into one
of the automatic bars to establishing good moral character under INA § 101(f), the applicant can
still be found to lack good moral character.76
1. Balancing the “Good” and the “Bad”
In considering the issue of good moral character, many kinds of evidence have bearing on
character.77 The applicant should present evidence of good character, to counteract any evidence
of bad character.
The Legal Standard: A Balancing Test. The INS is supposed to balance the evidence
of good and bad moral character to get a picture of the applicant’s life as a whole78 An applicant
will not necessarily be denied naturalization just because she has done something "bad." The
examiner can use her discretion to decide whether or not naturalization should be recommended
to the court. The goal is to present your client in the best possible light, considering all aspects
of her life.
Documenting Good Moral Character. Remember that a person may present any kind
of evidence to show good moral character. You and your client can be very creative when
thinking about good moral character. For example, the person may be a community leader,
excellent employee, devout church member, and a volunteer in her child's classroom or someone
who helps an elderly neighbor by shopping for him. Documentation of what appears to be a
person's plain and ordinary life can be great evidence of good moral character. For example,
76
INA § 101(f) provides that "[t]he fact that any person is not within any of the foregoing classes [of automatic bars]
shall not preclude a finding that for other reasons such person is or was not of good moral character."
77
See Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986). "Where . . . the petitioners have not committed acts
bringing them within § 101(f)'s enumerated categories, the Board must consider all of petitioners' evidence on
factors relevant to the determination of good moral character." Id. at 534.
78
See, e.g., Torres-Guzman v. INS, 804 F.2d 531, 534 (9th Cir. 1986); Matter of Sanchez-Linn, 20 I&N 362 (BIA
1991) (evaluating good moral character involves evaluating “both favorable and adverse” evidence); Matter of B-, 1
I&N 611, 612 (BIA 1943) regarding good moral character, “We do not think it should be construed to mean moral
excellence, or that it is destroyed by a single lapse. Rather do we think it is a concept of a person’s natural worth
derived from the sum total of all his actions in the community.”).
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letters from a work supervisor and copies of paycheck stubs can show a steady, hardworking,
and productive member of society.
To document these aspects of good moral character, the client should try to get letters
from work or volunteer supervisors, co-workers, teachers, other volunteers, or those who benefit
from her activities (such as school children, church members, or neighbors). If the client has
won any awards or been recognized in any other way (articles, letters of appreciation, etc.) then
these documents should be included as well. Your client should talk about these important
activities in her interview.
Example: At the end of their first meeting, Araceli the Advocate handed Consuelo the
Client some paper and asked her to go home and list all the ways she contributes to the
United States, including her help to relatives, friends, employers, and others (positive
equities). At home Consuelo wrote down the following positive equities: she is a good
mother, cares for her elderly father, is an outstanding employee, belongs to her church
choir, and volunteered after the 1994 Los Angeles earthquake. A copy of the sheet
Araceli gave to Consuelo and the sheet Consuelo completed is at Appendix 6-B.
2. Factors that may show “bad” moral character
Since INA § 101(f) permits the Immigration Service to go beyond the language of the
statute and consider other negative factors in assessing good moral character, it is useful to have
a sense of what might work against a client. In the past, courts have found an absence of good
moral character when a person willfully failed to pay child support,79 failed to file tax returns,80
committed adultery which destroyed a viable marriage,81 sold liquor illegally in his restaurant
(even though the law was not enforced in his community),82 and refused to respond to questions
regarding his history, associations, and activities.83 If anything negative stands out, check
reported court opinions to see if bad precedent exists. Whether or not there is bad case law, you
may still be able to argue that despite the problem, the applicant is of good moral character based
on all the evidence of good moral character submitted.
79
In re Malaszenko, 204 F.Supp 744 (N.J. 1962). Cited in INS Interpretations 316.1(f)(5).
80
Gambino v. Pomeroy, 562 F.Supp 974 (D.N.J. 1982).
81
INS Interpretations 316.1(g)(2)(viii). See also 8 CFR § 316.10(3)(ii).
82
Petition of Orphanidis, 178 F.Supp 872 (N.D. W.Va. 1959).
83
Gambino v. INS, 419 F.2d 1355 (2nd Cir. 1970). The petitioner's numerous arrests added to the judge's decision to
find that he lacked good moral character.
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Similarly, actions that at first glance may appear to tarnish a person’s good moral
character sometimes have little relevance to establishing good moral character. For example, a
default judgment in a civil case against an individual more often than not is immaterial to
eligibility for naturalization.84
Not telling the truth in the naturalization interview itself, especially about any criminal
arrests or convictions, is a common basis for denying naturalization applicants. Courts have
found that “lying” in a naturalization interview is a sign of bad moral character85 if the lie is
coupled with intent to deceive for the purpose of obtaining citizenship or other benefits under the
act.86 In fact the INS also has moved to denaturalize persons who have become U.S. citizens,
when it discovered that the persons did not tell the truth even about small convictions that would
not have hurt their case. (The denaturalization process is the subject of lawsuits, see Chapter 13
in this manual.)
The moral is: arm the client with knowledge. If there is any chance of a past arrest or
conviction, obtain the client’s criminal record and give a copy to the client to review. Get the
client to practice with you or another person answering questions about the record. If needed,
the client can bring the record to the interview. Practice is important because answering these
questions can be very embarrassing, and the client should not have to face saying the information
out loud for the first time at the naturalization interview.
Finally, help the client to think about how to make her case. If there are “bad” events in
her life, ask your client to explain to you why she should be allowed to naturalize. Ask her what
things about her life she thinks the interviewer will look at most closely. If any of those things
could be viewed negatively, ask her to explain why the situation was not really so bad, or why it
will not happen again. If she practices telling you, she will be better prepared to explain it to the
interviewer.
84
See, e.g. Puciaty v. INS 125 F. Supp. 2d 1035; 2000 U.S. Dist. LEXIS 19349 (D.C. Haw. 2000). The district court
found that the applicant’s failure to satisfy or set aside a default judgment, in and of itself, was insufficient
grounds to deny the applicant’s naturalization application.
85
See, e.g., In re De la Cruz, 565 F.Supp 998 (S.D.N.Y. 1983), Bernal v. INS, 154 F.3d. 1020 (9th Cir. 1998.)
86
See Plewa v. INS 77 F. Supp.2d 905 (N.D. Ill. 1999). The court ruled that a naturalization applicant who had not
disclosed his arrest record based on the wrongful advise by his attorney did not lie to obtain an immigration
benefit. Therefore, the applicant was not barred from demonstrating good moral character. See Also Chan v.
INS, ___F. Supp. 2d ___, 2001 U.S. Dist. LEXIS 6252 (E.D.N.Y. 2001) where the applicant is eligible for
naturalization despite misrepresentations on his naturalization application and in his testimony. The court
concluded that the applicant’s lack of education and confusion about American culture, coupled with the
complexity of the matters in question, more likely than not, were the cause of the misstatements. Therefore, the
applicant did not intend to deceive the government and hence was not ineligible for naturalization for providing
false testimony to obtain immigration benefit.
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CHAPTER 7
REQUIREMENT: ENGLISH, HISTORY AND GOVERNMENT
§ 7.1 Introduction
Generally, the INS interview covers an applicant's answers on her application, and tests
her knowledge of English and U.S. history and government. Questions focus on the contents of
the application and knowledge of history and government, but the interview is conducted in
English, as a way of testing the applicant's language ability. In addition, the applicant must write
a sentence in English which the examiner dictates. Although most legal service agencies do not
conduct preparatory courses in English and U.S. history and government, you can explain the
requirements and options, and tell your client where she can go to prepare. Information about
exceptions to the English and U.S. history and government requirements for applicants
with disabilities is included beginning with section 7.7.
Practice Tip: the examiner based on the interview will essentially decide whether an applicant’s
naturalization application will be granted or denied. It is critical for the client to be as prepared
as possible for the interview. She should, of course, study English and U.S. History and
Government. But you should also help her understand and prepare for the interview itself. If
you explain what the interview room will look like, who the examiner is, and how long the
interview should take, you will help her overcome her fear and prepare. Tips for handling
oneself in a naturalization interview are included in Chapter 10 on Group Processing.
§ 7.2 English Requirements
An applicant must demonstrate an understanding of the English language, including an

ability to read, write, and speak words in ordinary usage.1 This means that the test should be just
simple words and phrases so that a reasonable test of the applicant's literacy can be made.
According to the law, "no extraordinary or unreasonable conditions shall be imposed upon the
applicant."2 Some older and long time permanent residents and any person physically unable to
comply do not have to fulfill the English language requirement. (See §§ 7.3, 7.7)
The applicant's understanding of English will be tested as follows:
The Literacy Examination: (1) Verbal Skills. The INS Naturalization Examiner will
ask questions in English about the information the applicant provided in her application, and
about U.S. history and government. Based on the applicant's use of English in answering these
1
8 CFR § 312.1(a).
2
INA § 312(a)(1).
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questions, the examiner determines if she has demonstrated a sufficient understanding of

English. If the applicant is having a hard time understanding what is being asked, the examiner
must repeat the questions in a different form, or further explain them, until she is satisfied that
the applicant either fully understands the questions or is unable to understand English.3
Practice Tip: Because she will be questioned on the contents of the application, the applicant
should know her application (and any changes since she applied) well. She should be actively
involved in filling it out (including in workshops discussed in Chapter 10). The applicant needs
to keep a copy of her application and should study it just as she would study about U.S. history
and government. She should practice going over her application in English with a friend or legal
worker.
The Literacy Examination: (2) Reading and Writing Skills. The applicant must write
a sentence dictated to her by the examiner in English. The sentence dictated to her must be taken
from one or more parts of Federal Textbooks on Citizenship written at the elementary literacy
level.4 Commonly dictated sentences include:
- The colors of the flag are red, white, and blue.

- I want to be a citizen of the United States.
- There are three branches of government.
- The Statute of Liberty was a gift from France.
- The President lives in the White House.
- The Constitution is the supreme law of our land.
- I drive a blue car to work.
- The man wanted to get a job.
- Warm clothing was on sale in the store.5
§ 7.3 Exceptions to the English Language Requirement
The following four categories of applicants do not have to fulfill the English language
requirement:
a) A person who, on the date of filing his or her application for naturalization, is over 50
years old and has been living in the U.S. as a lawful permanent resident for at least 20
years.6 This is referred to as the "50/20 rule."
3
8 CFR § 335.2(c)
4
8 CFR § 312.1(c)(2). One can purchase the textbook from the Superintendent of Documents, Government Printing
Office, Washington, DC 20402.
5
Sample sentences taken from A Guide to Naturalization, Form M-481 (Rev. 11/98) written by the Immigration and
Naturalization Service. The complete list of “Sample Sentences for Written English Testing” is reproduced in
Appendix 7-I.
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b) A person who, on the date of filing his or her application for naturalization, is over 55
years old and has been living in the U.S. as a lawful permanent resident for at least 15
years.7 This is referred to as the "55/15 rule."
c) A person who is unable to comply with the literacy requirement (and the knowledge
of U.S. history and government requirement as well -- see § 7.5) because of a
"physical or developmental disability" or a "mental impairment."8 This exception --
known as a "disability exception" or "disability waiver"9 -- was added to the
Immigration and Nationality Act in 1994. See § 7.7 for a thorough discussion of
disability exceptions.
d) A person who qualifies for the Hmong Veterans’ Naturalization Act of 2000 which
provides an exemption from the English language requirement and special
consideration for civics testing for certain Laotian refugees and their spouses, who
served along side U.S. military forces in Southeast Asia between 1961-1978. See §
7.14 for more information.
§ 7.4 U.S. History and Government
Every applicant must demonstrate to the satisfaction of the INS examiner a knowledge
and understanding of the fundamentals of the history, and the principles and form of government
of the United States.10 An important exemption exists for those who can demonstrate that they
qualify for an exemption based on physical or developmental disability or mental capacity
Note that even applicants who do not have to fulfill the English language requirement
because they qualify for the 50/20 or 55/15 rule described above must still fulfill the U.S. history
and government requirement.
(..continued)
6
8 CFR § 312.1(b)(1); INS Operations Instructions 312.1(a)(2)(iii). The examination on her application and her
knowledge of U.S. history and government will be conducted through an official interpreter selected by the INS or
another qualified person selected by the applicant. The INS can disqualify an interpreter chosen by the applicant "to
insure the integrity of the examination," that is, if they think the interpreter may be substantively helping the applicant
answer questions. If the applicant's interpreter is disqualified, the INS must provide its own interpreter in a timely
manner. 8 CFR § 312.4.
7
8 CFR § 312.1(b)(2); INS Operations Instructions 312.1(a)(2)(iii).
8
INA § 312(b) added to INA § 312 by the Immigration and Nationality Technical Corrections Act § 108(b)(1) (1994).
9
Although it is commonly called the "disability waiver," the new provision actually exempts qualified applicants from
the English and U.S. history and government requirements. It is important to note that this exemption does not
automatically apply to any naturalization applicant with a disability. A person must apply as well to receive the
exemption.
10
8 CFR § 312.2(a) and (b).
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An applicant can fulfill this requirement in any of three ways.
a) INS Interview: The most common way is to answer questions about U.S. history
and government during the interview. The INS examiner could primarily ask questions about the
contents of the INS-authorized Federal Textbooks on Citizenship. The exception is the identity
of current officeholders.11 Often, the examiner will select between six and ten questions from a
list of 100 questions the INS has created to cover the material in the Textbooks.12 There are no
established rules regulating how many questions an applicant must answer correctly. Instead, the
decision is left to the judgment of the examiner. Practitioners who have handled a lot of
naturalization cases note that most examiners do not expect applicants to answer every question
correctly, and may ask a few more questions until they feel they know whether the applicant has
a sufficient understanding of U.S. history and government.
Practice Tip: Occasionally, an INS examiner will ask a question or two that do not come from
the Federal Textbook on Citizenship, and will even find that the applicant did not pass her
examination based on her failure to answer the question. This is a violation of INS procedure. It
will help your client and other naturalization applicants if you keep careful records of any such
incident and forward them to the Branch Director of your local INS Office's Naturalization
Branch. See Chapter 11 for a discussion about how you can appeal an examiner's decision on an
application for naturalization.
The examiner must consider the applicant's education, background, age, length of
residence in the United States, opportunities available and efforts made to learn the required
information, and anything else relevant to deciding whether the applicant knows and understands
enough to pass the exam.13 In This means the examiner should choose subject matters, phrase
questions and evaluate responses of someone with little education or advanced age by an easier
standard than other applicants.
Note: The INS computer system generates a randomly selected list of questions for examiners to
use at the naturalization interviews. Advocates should remind examiners to evaluate the
complexity of the questions generated by the computer before using them. Remember that
examiners are required to take into consideration the applicant’s socio-economic background in
selecting questions.
11
8 CFR § 312.2(b)(2).
12
A copy of "The official 100 questions," in English and Spanish, with answers is included in Appendix 7-A.
According to the San Francisco INS Naturalization Branch, an examiner might ask more questions if the applicant had
trouble with the first 10, to give her a chance to get some right. Every INS office has its own rules about the number of
questions to ask.
13
8 CFR § 312.2(b)(2).
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Practice Tip: If you are representing a client who, because of any of the qualities listed above
(e.g. advanced age or poor education), has trouble remembering or easily answering citizenship-
type questions, you may want to tell the examiner about his or her situation when the examiner
begins to ask questions.14 That way, the examiner will not get a poor impression of your client
before you or your client have an opportunity to explain. You could say, for example, "Mr.
Garcia has studied a lot for this examination, but he can't always seem to remember the answers.
I know he has been to a citizenship class for two months, and I have gone over citizenship
questions with him twice. He has really worked hard, but he's frustrated because he often can't
remember. I hope you'll take his age and his poor memory into account when you evaluate his
answers. Thank you."
If you help someone whom you are not representing, and who will be interviewed alone, you
may want to tell him or her to tell the examiner the same thing at the beginning of the
examination. The applicant should feel free to say "I have taken citizenship classes and have
worked very hard to prepare for this examination because I really want to become a citizen, but
my memory is bad and I'm afraid I won't be able to remember everything I studied."
It might also be helpful for an applicant to take a copy of a certificate stating that she has
successfully completed a citizenship class. This will indicate to an examiner that she has put a
lot of effort into learning the required subjects.
b) Standardized Test. The INS no longer allows applicants to take standardized

tests. Applicants who passed a standardized English and Citizenship Examination administered
by the INS authorized testing agency prior to August 30, 1998, and who submitted a
naturalization application within one year of passing the test, will be allowed to use the passing
score to meet the history and government testing requirement. Although the Testing Services
that were authorized to administer the tests were required to notify INS of individuals who had
passed the test, often the INS has no such records. Therefore, any qualifying applicant should
bring his/her certificate showing that he/she passed the test to the interview.15
The INS examiner may refuse to accept the applicant's passage of the standardized test
(and test him at the interview) if he has reasonable cause to believe that the test results were
obtained by fraud.16 The applicant's inability to speak English may not be the sole reason for
finding that the test results were obtained through fraud or misrepresentation.17 However, many
14
However, some examiners do not permit an advocate to talk during the interview. Thus, be sure that the applicant is
also prepared.
15
8 C.F.R. § 312.3(a)(1) clearly states that a person can satisfy the reading and writing requirement by passing a
standardized citizenship test within one year of the date he/she submits an application. This regulation continues to
apply despite the agency’s termination of the standardized citizenship testing program.
16
8 CFR § 312.3(a)(3).
17
See 8 C.F.R. § 312.4(a)(3).
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examiners believe that it is impossible for someone who cannot speak English to pass the
standardized exam. If INS refuses to accept proof that she passed her standardized test, the
applicant should request an explanation of the reason for the refusal.
The standardized test also tests the applicant's ability to write a sentence in English.
However, note that even if the applicant passes the standardized test, she still has to answer
questions about her application in English.
Note: The Immigration and Naturalization Service has indicated that it has plans to reinstate a
standardized test which it plans to make mandatory. The test would be administered by a
subcontracting agency at INS designated locations. The INS has also indicated an intention to
require individuals to pass the standardized test before applying for naturalization. It is not clear
if and when this testing plan will be implemented. But for the moment, individuals cannot
choose to take a standardized test in order to meet the naturalization testing requirements.
c) Examination by INS Official or Standardized Test for Phase II of Amnesty (also

called the "312" test). An applicant who obtained lawful permanent resident status under the
Amnesty program,18 and who, at that time passed either an examination administered by the INS
or one administered by the ETS or CASAS, will not be given another test at the time of the
naturalization interview.19
The amnesty ETS and CASAS test and the test at the INS amnesty interview are the only
amnesty tests that will qualify for naturalization. Those who completed their amnesty
English/Civics requirement by simply showing proof of having attended 40 hours of classes, or
who took the INS-administered videotape exam at an INS office must still fulfill the English and
Civics requirement again now to naturalize.
§ 7.5 Special Rules on U.S. History and Government Requirement
Unlike the English Language Requirement, there are no blanket exceptions to the
knowledge of U.S. history and government examination based solely upon age and long-term
lawful permanent resident status. Applicants exempted by the 50/20 and 55/15 rule from literacy
requirements still have to be tested in history and government.20 However, some special
conditions may apply to some applicants.
18
INA § 245A.
19
8 CFR § 312.3(b). The INS should have a record of the applicant's exam, but in case it has been lost, the applicant
should take proof of having passed the exam to her INS interview. If she took the ETS exam, she can take her ETS
exam certificate if she has it. If she was interviewed at the INS, you will have to make a request under the Freedom of
Information Act (FOIA) for a copy of her INS file and make copies of any records of her exam. She should take those
to her interview. (See sample FOIA request at Appendix 7-B.)
20
8 CFR § 312.2(a).
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a) History and Government requirement exception for some applicants with physical
and mental impairments. A person who is unable to comply with the U.S. history and
government requirements for naturalization may apply for an exception to them "because of
physical or developmental disability or mental impairment." See the discussion of this exception
below in § 7.7 of this manual.
b) Easier test for History and Government requirement for applicants 65 or older and
who have been lawful permanent residents for at least 20 years. The Immigration and
Nationality Technical Corrections Act of 1994 provides for "special consideration" in testing on
U.S. history and government for applicants 65 years of age or older and who have been lawful
permanent residents for at least 20 years. INS Regulations have defined "special consideration"
to mean that instead of having to study 100 questions about U.S. history and government, these
applicants only have to study 25 questions (included in Appendix 7-C). The applicant will be
asked 10 questions from that list, and must get at least 6 right during their interviews.
Because they will also qualify for the age exemption from the English requirement, these
applicants will just be required to answer questions about their applications and the history/civics
questions in their own language. See Chapter 8 for a discussion of translation issues.
c) Native-Language Testing for 55/15 and 50/20 applicants. Applicants who do not
have to be tested in English because they are over 50 and have been lawful permanent residents
for at least 20 years, or are over 55 and have been lawful permanent residents for at least 15
years can be tested in their own language with the assistance of an interpreter.
According to the INS's regulations, the interpreter may be selected by either the applicant
or by the INS, but the INS may disqualify an interpreter provided by the applicant in order to
make sure the applicant is answering the substance of the questions by herself without assistance
from the interpreter.21 Not every INS office follows this instruction, however. See Chapter 8 for
a more detailed discussion of INS translation policies.
d) Applicants who have already passed a U.S. History and Government Examination
recognized by the INS for naturalization do not have to be tested again. These include people
who passed the standardized English and Citizenship test within one year of applying for
naturalization, or who passed an INS exam (known as the 312 Exam) or a standardized English
and Citizenship test during Phase II of Amnesty. (See § 7.4(c), above.)
e) A child who becomes a U.S. citizen either automatically through derivation of

citizenship because her parents naturalized while she was a permanent resident, or whose parent
applies for a certificate of citizenship on her behalf under INA § 322 , does not have to be tested
for English or U.S. history or government in order to become a U.S. citizen.22 See Chapter 7.5
for a discussion of naturalization of children under § 322 of the Immigration and Nationality Act
and Chapter 12 for a discussion on derivation of citizenship.
21
If so, the INS must provide its own interpreter in a timely manner. 8 CFR § 312.4.
22
8 CFR § 322.2 and 8 CFR § 322.4. See Chapter 7-5 for discussion of Naturalization of a child of one citizen parent.
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f) A person who qualifies for the Hmong Veterans’ Naturalization Act of 2000 will
be given a modified civics test like the one given to applicants who are 65 years or older and
who have been lawful permanent residents for over 20 years. See b) above for information
regarding the modified test. See § 7.14 for more information on the Hmong Veterans’
Naturalization Act of 2000.
§ 7.6 Retesting
If an applicant does not pass her exam on English and/or Civics at either her INS
interview or through the standardized test, she can take the exam again, according to the rules
described below.
Exam at the INS Interview. If an INS examiner determines that an applicant did not
sufficiently demonstrate knowledge of English or U.S. History and Government during her
interview, the applicant can be re-tested.23 An applicant can request that the interview be
rescheduled for more than 90 days from the date of the first interview, but he/she must agree to
waive the requirement that the service render a determination on the application within 120 days
from the initial interview.24
If the applicant cannot attend a scheduled interview, she may send a certified letter to the
INS Citizenship Branch where she filed her application, requesting a postponement of the second
examination to a later date. In San Francisco, her new interview will be rescheduled to a later
date without any special reply to her letter. Make sure to check the procedures in your own INS
jurisdiction. If she fails to appear for that second interview without having notified the INS that
she could not appear, the INS will consider her as if she failed the examination and deny her
application.25
If the applicant feels that the determination that she did not pass her interview was wrong,
she may challenge the decision. See discussion in Chapter 11.
Practice Tip: It is difficult for many clients to challenge decisions made by those in authority,
and even harder for them to document their claims. If you work in an INS district that has a
reputation for failing naturalization applicants unjustly, you may wish to prepare a client to
document the fairness of her interview. Although it would be ideal for the client to make note of
the INS examiner's name, she does not have to remember it: usually the INS can figure it out by
looking up who interviewed that applicant. The applicant can take notes about the progress of
the interview, including inappropriate questions. If the Examiner asks the applicant why she is
taking notes, it may be best to explain why she is taking notes in a non-confrontational manner.
After the interview, she should report to you as fully as she can. Then you and your client can
23
See 8 C.F.R. § 312.5(a).
24
See 8 C.F.R. § 312.5(b).
25
8 C.F.R. § 312.5(b).
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work together to write a letter on her behalf, detailing what happened and how it affected her
chances of passing the test. The letter should be sent to the District Director of your local INS
Naturalization office so that he/she can make any necessary corrections in their staff's
procedures.26
If an applicant must go to her interview without a legal worker, she should consider taking along
a friend or relative who has gone through the process, or understands English well, or preferably
both. Then if something goes wrong in the interview, the applicant and her friend -- a "lay
advocate"27 -- can talk to a supervisor or the Chief of the Citizenship branch right after the
interview. Generally, only the applicant's attorney or a BIA accredited representative can
accompany an applicant into her naturalization examination (except in some instances with
applicants who have disabilities). However, a non-accredited representative, friend, or relative
can wait for her in the waiting area to provide guidance and moral support after the exam, and
can accompany her to see a supervisor if necessary. It is important to see the supervisor on the
same day as the examination because some INS offices videotape every naturalization interview,
and a videotape might help substantiate the applicant's complaint. However, some INS offices
keep the videotape for just 24 hours before it is taped over (advocates should check local INS
district policy).
§ 7.7 Introduction to the Disability Exceptions to the English and Civics Requirements
On March 19, 1997, the INS published a regulation implementing the disability
exceptions to the English and history/government requirements.28 These exceptions are
commonly referred to as "Disability Waivers" or "Disability Exemptions.” This regulation sets
out rules that the INS must follow in handling disability exception cases.
Following the establishment of regulations, the INS published several memoranda and
instructions for the public and for INS adjudicators. The INS, however, issued a memorandum
on April 7, 1999 that supercedes all prior memoranda.29 This memo is the a very important
26
We recommend that community organizations try to set up some mechanism for ongoing discussions with your local
INS office about naturalization. See Chapter 1, § 1.3. This is especially important in INS districts that have a history
of problems in their naturalization units.
27
See discussion of lay advocates in Chapter 14.
28
The final regulation appears at 8 CFR § 312 and was published in the Federal Register Vol. 62, No. 53, 12923 on
March 19, 1997. See INA § 312(b).
29
The INS had previously issued the following memoranda: Memorandum from Louis D. Crocetti, INS Associate
Commissioner, "Section 312 Disability Naturalization Adjudications: Supplemental Policy Guidance for Field
Offices" March 12, 1997; INS Fact Sheet: "Final INS Rule: Exceptions from English and Civics Testing
Requirements for Naturalization Applicants with Disabilities" March 19, 1997;"Supplementary Information for
Doctors and Psychologists on Naturalization and the exceptions from the English and Civics Requirements for
Persons with Disabilities;” "Questions & Answers Prepared by the U.S. Immigration and Naturalization Service.
Final Rule on Exceptions from English and Civics Testing Requirements for Naturalization for Applicants with
Disabilities;” “Memorandum from James S. Angus, Acting Executive Director, Section 312 Disability
Naturalization Adjudications: Supplemental Policy Guidance for Field Offices, Part II” March 16, 1998;”
“Memorandum from William R. Yates, Acting Deputy Executive Associate Commissioner, Office of Field
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source of guidance for advocates assisting naturalization applicants with disabilities. And, while
policy memos do not have the same legal force as regulation, they are official statements of INS
policy, all INS officers should follow them, and advocates can argue from them. In fact, it may
be a good idea to bring copies of relevant memoranda to interviews, in case the INS examiner
does not know about recent changes. A copy of the April 7 memorandum is included in
Appendix 7-E.
What follows is a discussion of the Immigration Service’s implementation of disability

waivers, definitions of qualifying disabilities, the procedures for obtaining a disability exception,
concerns regarding the ability of applicants to take the oath of allegiance, and the ever-important
issue of INS accommodations for applicants with disabilities.
§ 7.8 Definitions of Qualifying Disabilities
A person does not have to meet the English language requirement if she can
demonstrate that she is unable to comply with this requirement even with reasonable
modifications in the testing process because:
1) she has a medically determinable physical or mental impairment, or combination of

impairments;30
2) the impairment(s) have lasted or are expected to last at least 12 months; and
3) the loss of cognitive skills is not based on the direct effects of illegal drug use.31
Several terms and aspects of this definition require discussion.
The Applicant Must Show the "Nexus" or Connection Between His Disability and His
Inability to Meet the English or Civics Requirement
In establishing eligibility for a disability waiver, special attention must be paid to

explaining how the person’s disability actually prevents the individual from meeting the testing
requirements for naturalization. Showing the “nexus" requires that the doctor spend some time
detailing the symptoms brought about by the medical condition and how the symptoms affect the
person’s ability to demonstrate knowledge of English and/or U.S. history/civics.
(..continued)
Operations, Immigration Services Division. Section 312 Disability Naturalization Adjudications. December 30,
1998.
30
8 CFR § 312. Please note that the regulations do not specifically allow a person to receive a waiver if s/he can
only show that a combination of impairments prevents her from demonstrating knowledge of U.S. history and
government. Please see footnote 37 for arguments which advocates and applicants can try to use to get around this
problem.
31
8 CFR § 312.
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Example: The patient suffered a stroke last year. The patient’s stroke caused significant
cerebral infarction (death of brain tissue) and has left her with severe and irreversible
neurological damage. Because of the widespread damage to the brain tissue she has
suffered markedly decreased cerebral function and is incapable of remembering,
articulating, or learning. Because of the patient’s condition, she is unable to learn a new
language or U.S. history and civics.
In the above example, the doctor has identified the person’s medical condition: “stroke
causing significant cerebral infarction.” The doctor also explained the impact of the medical
condition on the person: “widespread damage to brain tissue.” She then explained the symptoms
of the medical condition as being “incapable of remembering, articulating, or learning.” Finally,
the doctor concluded that the medical condition prevented the person from meeting the testing
requirements.
"Medically Determinable Impairment"
The term "medically determinable” in the regulation means an impairment that "results
from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnosis techniques."32
Although the terms "medically determinable physical or mental impairment" do not spell
out the inclusion of developmental disabilities, those disabilities are nevertheless covered by
this definition.33
These definitions are intended by the INS to mostly match the definitions of disabilities
used by the Social Security Administration (SSA).34 They are broader and slightly more
generous than any previous instructions by the INS regarding these exceptions. Applicants with
disabilities like Alzheimer's disease, depressive conditions, mental retardation, learning
disorders, dementia, memory loss, blindness, deafness, and even post-traumatic stress disorder
may qualify if the condition affects the ability to learn and/or demonstrate English or U.S.
history and government.
Old Age and Depression as “Medical Conditions”
Note that the regulation does not include an exception for people who are unable to learn
the required information due to their advanced age alone.35 In many cases, however, there is a
32
8 CFR § 312.
33
INA § 312(b) and supplementary Information of the final regulation 8 CFR §312, Federal Register Vol. 62, No.
53, 12917.
34
8 CFR § 312. The language of the regulation differs from definitions used by the SSA in its inclusion of language
regarding drug use from the Technical Corrections Act of 1994, which created the disability exceptions. SSA
standards for Supplemental Security Income (SSI) eligibility can be found at 42 U.S.C. §§ 1381-1383(d).
35
In its April 1999 memorandum, the Service specifically indicates that old age in and of itself is not a medically
determinable physical or developmental disability. “Memorandum from Michael A. Pearson, Executive Associate
Commissioner, Office of Field Operations. Section 312 Disability Naturalization Adjudications.” April 7, 1999.
Appendix 7-E. pg. 6.
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diagnosable medical reason why an elderly person cannot learn English or U.S. government and
history. Sometimes, because the elderly person has been able to complete the basic tasks of
living, it has not occurred to him or her to be evaluated for a disability that affects learning new
cognitive skills and facts. A doctor might examine an elderly person and determine that he has
had a number of small strokes without knowing it, or has dementia, or memory loss and that such
conditions interfere with the individual's ability to demonstrate his knowledge of English or U.S.
government and history.
In addition, the Immigration Service specifically indicated in its April 1999 memo
(Appendix 7-E) that depression, without further explanation, is insufficient to warrant a
disability waiver. Any disability waiver application should include information as to how the
person’s medical condition impairs his/her ability to meet the testing requirements. In cases
where the applicant is suffering from depression, however, the doctor should be particularly
thorough in explaining how the condition has resulted in the applicant's functioning being so
impaired that the applicant is unable to meet the English and civics requirements for
naturalization.
Combination of Impairments
The definition of disabilities set out by the INS specifically includes a "combination of
impairments.”36 This means that an applicant with two or more disabilities can qualify for a
disability exemption based on their combined effect, even if each disability alone would not be
severe enough severe to qualify for the exemption.
Example: Ludmilla Pavlova is 79 years old and suffers from mild dementia as well as
partial hearing loss. Her difficulty hearing exacerbates the trouble she has concentrating
and remembering what she is trying to learn. She has attempted to learn English but
cannot, because of these disabilities. Although neither the mild dementia nor partial
hearing loss might alone qualify Ludmilla for a disability exemption from the English
requirement, the combination could allow her to qualify. Her doctor should consider the
effects of both disabilities in combination when making her determination about
Ludmilla's ability to learn English, and should discuss the effect of the combination of the
disabilities when completing the N-648 form.
36
See 8 CFR § 312.1(b)(3). Note that in the regulations, the “combination of impairments” language only appears
in the section dealing with the waiver of the English requirement, but not the civics requirement. However, there is
no legal basis for distinguishing between the two, and in the INS’ other explanatory memoranda that accompany the
regulations the INS does not limit the “combination of impairments” language to the waiver of the English
requirement alone. See the Supplementary Information 8 CFR § 312, Federal Register Vol. 62, No. 53, page 12917.
Additionally, an applicant with disability submits just one application form, the N-648, for exceptions to both
requirements. The N-648 does not make a distinction between the definition of disability for each exception.
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Impairment Has Lasted or Will Last Twelve Months
The exception is for a "permanent" disability, which is defined as a disability that has
lasted or is expected to last at least 12 months. Applicants do not have to wait until they have
had the disability for 12 months before they can be granted a disability exception, if their doctor
states that the disability is expected to last for at least 12 months.
Reasonable Modification/Accommodations
The applicant must demonstrate that her disability causes her to be unable to take the
test(s) even if the INS makes "reasonable modifications" in the testing procedure. Generally, this
means that the INS would be willing to make appropriate changes in the way that it conducts the
interview, if that would enable the person to take the test. This could include providing a sign
language interpreter for a deaf person or permitting a close family member to assist in asking the
questions for a person with a mental disability. For more information on "reasonable
modifications" to the naturalization process, see discussion of this below in § 7.13.
The "reasonable modification" might work for or against the applicant, depending upon
what she is trying to do. The "reasonable modification" requirement works in the applicant's
favor if she elects to take the test, because she can demand the accommodations and the
modifications that she needs. If, however, the applicant is applying for an exemption, the INS
might deny her the exemption on the grounds that, in their opinion, she ought to be capable of
meeting the requirement as long as INS makes reasonable accommodations.
Example: Kwaku Ananse has a mild form of mental retardation, and is partially
paralyzed. He has spoken English well since he was a child, and is able to master the 100
civics questions required for naturalization. If the INS makes certain modifications to
make the interview site physically accessible for him, none of his disabilities would make
him unable to take the tests. The INS will not grant him a waiver of the test requirements
based on his disabilities, because his disabilities do not prevent him from meeting the
requirements. Kwaku would not be able to show a nexus between his disability and his
inability to meet the English and/or Civics requirements.
Applicants Must Show that the Disability Makes It Impossible to Meet Each Requirement
Separately.
An applicant should not submit a general application to waive both the English and civics
requirements. She must show specifically how her disability prevents her from meeting each or
both requirements, depending upon which requirements she needs to waive.
For example, some people with disabilities may be able to learn the civics material but
cannot master a new complex skill such as learning English. Others may have spoken English
for years but are unable to master the list of 100 questions about civics and history, because of
particular memory or concentration problems. Others may be unable to pass either test. In every
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case, the applicant must show specifically how the disability makes it impossible for her to meet
the test or tests that she needs to have waived.
The INS will only grant exceptions to applicants whose disabilities have so severely
impaired the applicant’s ability that the individual is unable to learn English and/or U.S. history
and government, or from passing the English or U.S. history and civics tests. Thus, the INS will
not grant the waiver for someone who has a disability that does not completely impair the
person’s ability to speak or learn English and/or learn U.S. history and civics. Such an
individual will be required to take the English and civics tests to try to become a U.S. citizen.
Example: Sean Maloney is from Ireland and speaks fluent English. Sean has a disability
preventing him from learning U.S. history and government. Although the INS may
waive the U.S. history and government test, they will not waive the English test because
Sean speaks fluent English.
§7.9 Applying for the Disability Exceptions: Preparing the N-648 Form
An applicant for a disability exception must submit a medical certification form, INS
form N-648, as documentation.37 The INS created the two-page form N-648 specifically for the
naturalization disability exemption. The form asks the applicant to provide some personal
information. Most of the form, however, must be completed by the medical professional who
has evaluated the applicant. In this section the medical professional must:
• establish that he or she is familiar with the applicant's case and is capable of making a
diagnosis of this disability;
• make a diagnosis showing that the applicant has a disability (including a DSM Code if
appropriate);
• explain how the disability makes it impossible for the applicant to meet the English
and/or civics requirement( i.e. the “nexus” between the disability and the inability to
fulfill the English and/or US government history and civics requirements); and
• state under penalty of perjury that these statements are correct to the best of his or her
knowledge.
Which Medical Professionals Can Complete the N-648?
The N-648 medical certification may be completed only by a medical doctor (including a
psychiatrist), a clinical psychologist or a doctor of osteopathy, who is authorized to practice in
the United States including the US territories of Guam, Puerto Rico, and the Virgin Islands.
37
Please see Appendix 7-F for a copy of Form N-648
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Although the doctor must have expertise in diagnosing physical or mental impairments, it can be
the applicant's own treating physician, so long as he or she has this expertise.
How to Complete the N-648 Form
The N-648 has a basic set of instructions for filling out the form along with a five-page
attachment of instructions describing, among other things, what is required for the naturalization
examination. This information should help doctors determine whether the applicant can take and
pass the exam or if a waiver is warranted.
The N-648 form requests brief biographical information from the applicant and an
authorization to release medical records to the INS. The bulk of the form is to be completed by
the doctor or psychologist. Most of the questions require brief answers except Question 3, which
asks the doctor to (1) describe any of the applicant's disabilities that (2) prevent her from being
able to learn English and/or U.S. history and government or from being able to pass the required
exams. The doctor or psychologist should note whether the applicant should be excepted from
both requirements, or just one.
Example: Franz has a severe learning disability that makes it impossible for him to learn
English. Yet, Franz has a good memory so he has learned most of the 100 questions for the U.S.
history and government exam. Franz's doctor wrote on the N-648 that although Franz's disability
prevents him from learning English, Franz would be able to demonstrate that he knows enough
U.S. government and history to pass the exam.
This section of the N-648 should include the following information.38
1. the applicant’s medical diagnosis, including, if applicable, the DSM code;

2. an explanation of whether and how the condition affects the applicant’s ability to
learn and demonstrate knowledge of basic English and/or civics; and
3. an opinion on whether the medical diagnosis prevents the applicant from
demonstrating knowledge of basic English and/or civics.
Again, the key to completing the form is to adequately address the above issues and to
explain the "nexus," or cause and effect relationship, between the applicant's disability and the
applicant's inability to demonstrate a sufficient knowledge of English and U.S. government and
history. Doctors should not assume that just because they note that the applicant has a certain
disability means the INS will know that the disability will prevent the applicant from
demonstrating English and U.S. history and government. Everything must be spelled out for the
INS examiner adjudicating the case.
Example: Julie has mental retardation making it impossible for her to demonstrate
sufficient knowledge of both English and U.S. history and government. Julie went to her
doctor, Dolores the Doctor, to complete the N-648. Instead of merely writing that Julie
38
“Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations.
Section 312 Disability Naturalization Adjudications.” April 7, 1999. Appendix 7-E. pg. 5.
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has mental retardation, Dolores also wrote how severe the mental retardation was,
explained how she had determined that Julie has mental retardation and she discussed
exactly why the mental retardation actually keeps Julie from being able to learn English
and U.S. government and history.
It may be difficult for many doctors to answer all the questions asked on the N-648 in the
small boxes provided. Thus, it may be more efficient for the doctors to write, "See Attached
Letter" in the spaces provided on the N-648 and attach a letter that answers all the questions.
Submission of medical records is not required.39
Note: In its December 1998 Section 312 memorandum, the Immigration Service mandated that
doctors include on all N-648s a description of the clinical tests he/she had used to reach her/his
diagnosis. INS offices denied some N-648s that were completed before the addition of this new
requirement, but did not include a description of how the diagnosis was reached. The April 7,
1999 memo retracted the December 1998 memorandum, and doctors are no longer required to
state what clinical tests were performed. In addition to removing the controversial requirement,
INS headquarters has ordered field offices to reopen cases where applicant’s were denied
disability waivers based solely on the fact that the N-648 they had submitted did not detail what
exams the doctor had performed to reach the diagnosis.
§ 7.10 How Advocates, Doctors, and Social Workers Can Work Together
Because doctors are usually extremely busy, it is often best for advocates to establish
relationships with the doctors of their clients and even help the doctors complete the N-648. It is
helpful to send a sample N-648 to the doctor. Also, practitioners should try to review a draft of a
N-648 that the doctor has completed and then give the doctor input to assist her in finalizing the
form. Sometimes it is necessary to suggest some of the actual language for the doctor to use.
Additionally, a client's social worker or caseworker can be instrumental in helping a

doctor complete a thorough N-648. Because social workers and caseworkers have many clients
who need N-648 forms completed, the worker can become experienced in what is necessary to
complete these forms. Case workers and social workers are well versed in the disabilities that
their clients have, and thus can be the bridge between the medical and legal problems that a
client has. Many times it is the social worker that has suggestions for the doctor on how to
describe the impediment the disability is causing on the applicant on the N-648. Practitioners
must take advantage of a client's social worker.
Example: Yen is a paralegal helping her client who has a disability apply for
naturalization. Yen asks her client for the phone number of the client's social worker.
After a phone conversation, Yen and the social worker agree that the social worker will
39
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work closely with the doctor to complete the N-648. They agreed to do this because the
social worker has helped many others complete their N-648s, she has a relationship with
the doctor already, and she is very knowledgeable about the client's condition.
Practice Tip: INS Headquarters encourages INS District Offices to schedule meetings with local
doctors, medical associations and medical centers that help immigrants and to carryout
informational trainings on how to correctly complete the N-648. Advocates working with people
with disabilities should pressure their local medical associations and the local INS office to
conduct such trainings. This is especially true knowing that a poorly prepared N-648 creates a
suspicion of fraud with many examiners.
§ 7.11 Applying for the Disability Exceptions: Procedural Issues
At What Point in the Process Must the N-648 Be Submitted?
Under the regulations, applicants are required to submit the N-648 with their N-400
forms. 40
In 2002, the Immigration and Naturalization Service re-drafted the N-400
Naturalization Application. The new form Part 3 question H asks whether or not the applicant is
submitting an N-648 and the application’s instructions direct the applicants to attach Form N-648
Application for Disability Waiver to the N-400.
In situations where the applicant becomes disabled after the submission of the
naturalization application, an N-648 can be presented at the interview. In any case, the N-648
must be filed within six months of when it is completed and signed. It is important to note that
once the N-648 is submitted, it does not expire.41 A second or amended N-648 is valid as long as
it is submitted to the INS on the date specified in the N-14, regardless of whether that date is
more than six months from the date that it was signed.42
How will the INS adjudicate the waiver request?
The INS has instructed all its examiners to use "compassion and discretion" in
adjudicating disability waiver cases.43 Practitioners should use this to their advantage when
helping clients apply for disability waivers. This may be especially useful if an INS employee
refuses to allow the applicant to apply for the waiver, is rude, impatient, or threatening with the
applicant.
40
8 CFR § 312, Federal register Vol. 62, No. 53, 12923.
41
Instructions for Form N-648. Appendix 7-G.
42
43
Section 312 Disability Naturalization Adjudications.” April 7, 1999. Appendix 7-E. pg.6
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In addition, INS examiners are not medical professionals, and thus they are not supposed
to make medical determinations. They should not second-guess the medical evaluation nor
should they deny the existence of a disability. Thus, unless the INS has doubts about the truth of
the N-648, the INS must accept the medical findings of the doctor who completes the N-648.44
The April 7 INS memo clearly states that the examining officer must review the N-648
for sufficiency before proceeding with the interview. (See Appendix 7-E.) Advocates and
applicants should demand that the INS at the outset of the interview determine whether the N-
648 is approved. Some offices have had a policy of “letting the applicant try to pass the exam
before proceeding with the N-648.” Advocates should pressure INS offices to end such practices
because, had the doctor evaluating the applicant thought that the applicant was capable of
passing the naturalization exam, s/he would not have prepared an N-648 for the applicant.
Forcing an applicant who has a disability to engage in an activity that s/he is medically unable to
do will frustrate the applicant and it is not an empowering experience. To analogize, expecting a
person to pass an exam s/he is medically unable to pass, is like requiring a person using a
wheelchair to first try to use the stairs before allowing him/her to use the elevator.
If the examiner decides that the N-648 contains all of the required information, she will
grant the disability exception request and proceed to ask questions regarding the N-400. An
examiner who does not believe that the N-648 was properly completed, can require the applicant
to obtain further clarification from the doctor who prepared the N-648. The examiner should
give the applicant a new N-648 to complete along with a N-14 and N-648B “Notice of
Incomplete N-648” stating specifically why the disability waiver submitted is not sufficient.45
In cases where the N-648 is not approved, the INS must tell the applicant that his/her
waiver is going to be denied and offer the applicant the opportunity to be tested on English and
civics.46 Whether the person is tested or not, the INS will count the appointment as one of the
two opportunities the person has to satisfy the testing requirements.47 An applicant whose N-648
is not approved and who does not pass the English and U.S. history and civics examinations will
be scheduled for his second interview at which time s/he will have a second opportunity to either
present a sufficient N-648 or attempt to pass the examination.48 Some INS offices may require
the applicant to mail the amended N-648 before the appointment, while others may require the
applicant to bring the N-648 to the interview. You should verify local practices by contacting
your INS district office.
44
Section 312 Disability Naturalization Adjudications.” April 7, 1999. Appendix 7-E. pg. 4
45
Section 312 Disability Naturalization Adjudications.” April 7, 1999. Appendix 7-E. pg. 10
46
47
48
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Sometimes, naturalization applicants with disabilities are not aware of the availability of
waivers until after their first interview. Current INS policy allows these individuals to submit an
N-648 for the first time at the second interview. The examiner is then required to evaluate the
sufficiency of the N-648. As in cases where the N-648 is found to be insufficient at the first
interview, an applicant with a insufficient N-648 at his/her second interview is to be given the
opportunity to take the exam.49 While an applicant whose N-648 was insufficient at his first and
second interview will likely face a denial, an applicant who presented an N-648 for the first time
at his second interview will be given the opportunity to re-submit a new N-648 if the applicant
fails the exam.50 This is because the service affords applicants two opportunities to submit a
satisfactory waiver application even if it necessitates three interviews of the applicant.
§ 7.12 Appeals of Denials of Disability Exceptions
There is not a separate procedure for appealing the denial of a disability exception
waiver. The current appeals process is the same as the regular naturalization appeals process. If
the INS has told an applicant that his/her N-648 has been denied, the ILRC suggests the
applicant do the following:
1) request to see a supervisor to contest the denial and clarify why it is being denied;51
and
2) choose to be tested on English and U.S. history and government, if the applicant
chooses to take and fails the English and civics test, she may request to be rescheduled
for a second interview.52
If the applicant fails the test during his second interview, her application will be denied.
Under those circumstances the applicant can:
• appeal the denial by submitting an appeal with the appropriate fee within 30
days of the denial. A review hearing must will be held within 180 days of the
date the appeal is filed.53 As part of the appeal process, the applicant can
submit new evidence, including a new N-648 with supplemental
49
50
51
Although the INS memoranda has not specifically approved this option, it is the ILRC’s opinion that in cases
where advocates feel that the examiner is not properly following INS guidance, advocates should be permitted to
approach INS supervisors.
52
8 CFR § 312.5. The naturalization examiner may give a second exam to allow the applicant a second chance to
pass the English and U.S. government and history exams. The new test, or “reexamination” as it is called, must
occur within 90 days after the initial examination.
53
8 CFR § 336.2(a) and (b).
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documentation, and medical evidence before the appeal hearing (also called a
"Reconsideration Hearing"); or
• submit a new application for naturalization at any time, even the same day
s/he is denied naturalization. However, the applicant will have to wait the
standard waiting time for an interview, unless he/she can obtain an expedited
interview. See Chapter 8 for information on expedited naturalization.54
§ 7.13 The INS Must Make Reasonable Accommodations to the

Naturalization Process for Applicants with Disabilities
Section 504 of the Rehabilitation Act of 1973 requires that the INS make reasonable
accommodations/modifications to the naturalization process to make it possible for applicants
who have disabilities to get through the naturalization process.55 The INS must make these
accommodations whether or not the applicant is applying for a disability wavier. However, the
INS does not need to make reasonable accommodations and/or modifications if they
substantially interfere with the naturalization program. But note that if the necessary
modifications would significantly interfere with the integrity of the test, then it would seem
appropriate that a N-648 be submitted to waive the examination altogether.
Example: Mark Smith is paralyzed from the waist down and he gets sever migraine
headaches from the damage to his brain he suffered in a car accident. Although Mark can
speak English and has learned U.S. government and history, his severe migraine
headaches prevent him from demonstrating his knowledge of government and history.
The INS must accommodate Mark's wheelchair and provide environmental
accommodations to limit the possibility of his getting a headache at his interview.
Alternatively, it might arrange for Mark to be interviewed away from the INS in a setting
which does not stimulate his headaches, with enough time flexibility to allow him to take
the exam when he is feeling well. If it is not "reasonably" feasible to make such
arrangements, Mark should be able to qualify for the disability exception.
The April 7 memorandum included further guidance on testing modifications.56 It

indicated that applicants who require a modification of the exam do not need to submit an N-648.
54
For example, applicants with terminal illnesses, impending extreme hardship due to inability to qualify for certain
benefits, or who are dependents of U.S. military personnel required to travel abroad may be eligible for expedited
naturalization. However, loss of public benefits alone, or inability to qualify for a certain non-law enforcement job
are not considered emergent reasons. See Appendix 8-N.
55
Regulations implementing § 504 of the Rehabilitation Act of 1973 provide that an agency of the Justice
Department, such as INS, may not utilize “criteria or methods of administration the purpose or effect of which
would …(ii) [d]efeat or substantially impair accomplishment of the objectives of a program or activity with respect
to handicapped persons.” 28 CFR § 39.130(b)(3). INS accommodation of applicants with disabilities is necessary so
that the interview does not “defeat or substantially impair” Congress’ intent in INA § 312(b) to ensure that persons
with disabilities are not denied naturalization.
56
INS has been working on a Memorandum regarding testing modifications for some time now. However, as of the
date of publication of this manual a final version of the memorandum has not been issued.
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It is only when the applicant is requesting a complete waiver of one or both of the testing
requirements that a N-648 must be submitted.57
The April 7 memo also instructs examiners to allow family members or the legal
guardians of applicants with disabilities to accompany the applicant during the interview.
However, family members and legal guardians are prohibited from answering questions on
behalf of the applicant58 However, family members can act as translators or assist the examiner in
learning what motions or signals an applicant uses to communicate. The memorandum also
reminds examiners that they must be courteous and sensitive to the needs of applicants who
require modifications and that such modifications are required under the Rehabilitation Act of
1973.59
Note: It is the ILRC position that this mandate does not prohibit family members from assisting
examiners with rephrasing a question in a way the applicant can understand. For instance, if the
examiner asks, "Will you bear arms on behalf of the United States?" And the applicant cannot
understand the question; the examiner should be able to receive assistance from the family
member on rephrasing the question.60
How to Request Accommodations
In 2002, INS adopted a revised N-400 naturalization application. The new application
provides a place in Part 3 question I where applicants to request accommodations. Applicants
can attach further explanation in a cover letter sent with the N-400 application form. A sample
letter is found in Appendix 7-G. In making the request, the applicant should specify the type of
accommodation required, and why it is required (for example, the applicant with the disability
needs to have a family member attend the interview with her because when she meets strangers
she gets frightened and cannot answer questions). Practitioners should become familiar with the
process of requesting accommodations in their local INS offices. Each office might have a
different system. Some offices may want the letter submitted with the N-400, when possible.
Other offices might want the representative to also fax or call the INS with the request a few
days or weeks before the interview.
57
58
59
60
For example in this instance, the question could be changed to “would you protect your town?” or “would you
defend the United States?” This example is adapted from materials produced by Melinda Bird from Protection and
Advocacy Inc. in Los Angeles.
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No formal medical certification or N-648 is required for accommodations. Some INS

offices may prefer that the request for special accommodations be accompanied by a letter from
the applicant's treating physician stating why the requested accommodation is necessary.61 In the
example above for instance, the doctor should state why the presence of the social worker and
family member are necessary and how it is related to the applicant's disability. However,
according to the 1998 memorandum, such letter should not be requested for individuals whose
disabilities are clearly perceivable (e.g., no letter should be necessary from someone requesting a
Braille or oral examination because the person is blind).62
Since INS offices are supposed to review a naturalization application before the actual
interview, the office should be able to arrange for any necessary accommodations or
modifications that may be necessary for the applicant. However, because the INS offices nearly
always fail to review an application prior to the interview, it may be advisable to contact the INS
office a few days before the interview to make sure that the office is ready with the necessary
modifications.
Examples of Accommodations63
The ILRC feels that reasonable modifications to insist upon include allowing:
- wheelchair-accessible test sites;

- sign language interpreters;
- loud translators or written tests for people who have difficulties hearing;
- tests in Braille or large print, or oral questions for applicants who are blind;
- a family member, guardian, or maybe even a social worker to be present during the
interview to act as an interpreter or help the applicant feel more calm and secure during
the interview;
- a family member, guardian, social worker, or legal representative to repeat and/or
reword the INS examiner's questions if the applicant is unresponsive to the examiner;
- an extension of time for the civics test for an applicant with a learning disability who
does not request an exception to the testing requirements;
- questions which call for a "Yes" or "No" answer;
- the use of the applicant’s own translator (such as a family member or friend) rather than
a translator provided by AT&T or the INS;
- a request that applicants with behavioral issues, or those who tire easily, or have
problems sitting for long periods of time, be seen in a timely fashion (i.e., at the time
indicated on the appointment notice) to maximize their interview performance level;
- requests for home interviews for applicants with certified health needs or medical
conditions that make traveling painful or impractical;
61
If the INS requests such letters, advocates may wish to encourage local INS offices to accept letters from
applicants and their advocates without supporting letters from doctors.
62
63
Steve Rosenbaum, Staff Attorney with Protection and Advocacy Inc. in Oakland, California, suggested some of
these examples.
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- a request that an approved applicant be allowed to take the oath administered by the INS
immediately after the completion of the interview where fatigue, pain, or behavioral
issues would make it difficult or impractical to travel to the oath ceremony;
- non-verbal communications such as tapping, blinking, or head nodding;
- questions in more simple language; and
- a request that INS modify its policy of interviewing applicants in order to verify the
information on the N-400 and instead accept sworn testimony from other individuals or
receive documentary evidence (such as passports, school records, reports, doctor’s
records, court records, etc.) to prove eligibility for naturalization. It may be difficult to
convince the INS to agree with this suggestion. The argument is that immigration law
does not specify the manner of interview or examination, only that the adjudicator is
authorized to take testimony “touching or in any way affecting the admissibility of any
applicant for naturalization.” It would probably be best to try this argument with
applicants who cannot remember their addresses, ages, absences from the U.S. and
other similar facts. Try using relatives and documentary evidence to prove these facts
which the applicant cannot remember or does not know.
Example: Mary Robbins has paranoid schizophrenia and never responds to government
employees. She gets very stressed in meetings with governmental officials unless her
social worker or a family member is with her to help. Mary's advocate requests that her
mother and social worker attend the interview to help rephrase the questions and so she
will be responsive during the interview. Mary's mother will make the interview far less
stressful for Mary, thus allowing Mary to more fully participate in the interview.
Practice Tip: When there is no INS adjudicator who speaks the applicant’s primary language,
consider having a social worker or someone else serve as a language interpreter in lieu of the
AT&T operator. This is less disorienting for the applicant and more efficient for the overall
interview.
Remember, the INS has instructed all its examiners to use "compassion and discretion" in
adjudicating disability cases. Practitioners should remind the INS examiners of this when
requesting modifications to the naturalization process. Advocates, applicants, social workers,
and family members should be creative in determining what accommodations and modifications
to the naturalization process they will need. There is no set list of them. Conceivably, one could
request anything that will help the applicant take the interview, pass the tests, and become
naturalized. Although the INS will only provide "reasonable" accommodations, what seems
reasonable to one person might not be reasonable to another. Thus, it will not hurt to ask for the
type of accommodations your clients need.
Off-Site, Homebound, and Expedited Interviews as Reasonable Accommodations
Applicants who cannot attend interviews at the INS office despite reasonable
accommodations made by the INS may request that they be interviewed at a site away from the
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INS, like their home or a senior facility. If the applicant suffers from an illness that is serious
enough to prevent her from appearing at the INS for her interview, the INS must conduct the
interview at a place where the applicant can appear.64 In reality, many offices do little or no
home-visits thereby depriving homebound applicants from an opportunity to naturalize.
Advocates should work with their local INS offices to help them make these accommodations.
Some INS offices have in the past agreed to send examiners to senior or other care homes to
conduct "off-site interviews" at one central site in the community that may be more accessible to
some people with disabilities or ill applicants. For more information about how to set up off-site
interviews, you can order the ILRC's publication, Off-Site Processing of Naturalization
Examinations.
Additionally an applicant who, because of an emergency such as serious illness, must

have his application and his request for an exception adjudicated immediately, may request that
his application be expedited.65
Fingerprinting Provisions for Individuals with Disabilities
All applicants must be scheduled for and appear for fingerprinting at an INS-designated
location. Some applicants, however, are unable to provide fingerprints or are unable to be
fingerprinted. For instance, a person may have been born without hands, or may have a
condition resulting in illegible fingerprints. In such cases, the INS can waive the fingerprinting
requirement AFTER determining that the applicant is unable to comply with the requirement.
Individual applicants who are unable to attend fingerprinting appointments due to medical
conditions will need to request a home visit by the INS to attempt to fingerprint the applicant.
An INS officer or INS Application Support Center (ASC) manager may grant a waiver
only after s/he:66
1. Has personally seen the applicant;

2. Has attempted to fingerprint the applicant or has observed a fingerprint technician
employed by the INS attempt to fingerprint the applicant;
3. Has determined that the applicant cannot be fingerprinted at all or cannot provide a
single legible fingerprint; and
4. The inability to provide fingerprints must be a permanent condition.
If fingerprinting is waived, the person will be permitted to bring local police clearances to
64
8 CFR § 334.4. According to the discussion accompanying the regulations, “it is the common practice of all
Service offices to conduct naturalization interviews and to administer the oath of allegiance outside of the local
Service office in instances where the applicant is either homebound or confined to a medical facility.” Final Rule, 8
CFR § 312, Federal Register Vol. 62, No. 53, 12919.
65
The district director of the INS office with jurisdiction over the applicant’s residence may have an application
expedited in the event of an emergent circumstance. Supplementary Information to the Final Rule.
66
“Memorandum from William R. Yates, Deputy Executive Associate Commissioner, Office of Field Operations,
Immigration Services Division. Fingerprint Waiver Policy for Naturalization Applicants who are Unable to be
Fingerprinted.” November 15, 1999 reprinted in Interpreter Releases 76 I.R. 1794 (Dec. 20, 1999).
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his/her naturalization interview.

§ 7.14 Waiver of the English Requirement and Modification of the U.S. History/Civics
Testing for Hmong Veterans.
The Hmong Veterans’ Naturalization Act of 200067 provides an exemption from the
English language requirement and special consideration for civics testing for certain refugees
from Laos applying for naturalization.. Only the first 45,000 qualified applicants who submit an
application will benefit under the act.
Requirements:
1. the applicant must have been admitted into the United States as a refugee from Laos;
and
2. the applicant must have served with a special guerrilla unit, or irregular forces
operating from a base in Laos, in support of the U.S. military at any time during the
period beginning February 28, 1961, and ending September 18, 1978.
In addition, some spouses of qualified Hmong Veterans can also benefit under this act.
To qualify the spouse must demonstrate that he/she:
1. was admitted as a refugee from Laos; and

2. at the time of admission was the spouse of a person who qualifies under the Hmong
Veterans’ Naturalization Act of 2000
or
he/she is the widow(er) of a qualifying Hmong Veteran who was killed or died in
Laos, Thailand or Vietnam.
In order to benefit from the act, qualified veterans and spouses need to apply on or before
May 26, 2003. Qualifying widows must submit a naturalization application on or before
November 1st, 2003.68
To document eligibility the applicant can either rely on information he/she submitted at
the time of admission to the U.S. or other documentation attesting to his/her eligibility such as:
• original documents (military records, identification, photographs, etc.).

• an affidavit from a superior officer attesting to the applicant’s participation.
• affidavits from two individuals who served alongside the applicant.
If the person qualifies, he/she will not be tested in English. In addition, eligible
applicants will be given the modified civics test currently provided to elderly applicants who are
over 65 years of age and have been living in the U.S. as lawful permanent residents for twenty
years. See § 7.5.
67
Hmong Veterans’ Naturalization Act of 2000 Pub. Law. 106-207 (May 26, 2000).
68
The original filing deadline was November 26, 2001. Congress extended the deadline in September 2001. Pub.
Law 106-415.
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§ 7.15 Signature on Naturalization Form
Besides the applicant herself, only legal guardian may sign the N-648 application.69 The
N-400 can be submitted with a mark if the applicant can do so or the signature line can be left
blank. However, in those situations where an application is being submitted without a signature
or with a mark in lieu of a signature, the preparer of the application must sign the preparer’s box
(Question 12 on the N-400). Applicant is required to sign the application once more before the
interviewing officer at the end of his/her interview and to sign the naturalization certificate as
well. Officers are authorized to waive the signature requirement when it is clear that the
applicant’s disability prevents the person from signing.
§ 7.16 The Oath of Allegiance and People With Disabilities
Generally, all applicants for naturalization are required to take the oath of allegiance.
Applicants with certain disabilities may now qualify for a waiver of the oath of allegiance. On
November 6, 2000, President Clinton signed a new law, which allows the Attorney General to
waive the oath requirement if in his/her opinion, the applicant can neither understand nor
communicate an understanding of the meaning of the oath due to a physical or developmental
disability or mental impairment.70 In cases where the INS grants an applicant a waiver of the
oath of allegiance because s/he has certain disabilities, the INS will consider the applicant to be
“attached to the principles of the Constitution of the United States.”71
In the past, INS examiners could deny an applicant’s case based on a finding that the
applicant couldn’t understand the oath of allegiance because of his/her severe disability. With
this new waiver of the oath of allegiance, certain applicants will be considered to have satisfied
the showing of attachment to the Constitution’s principles as set out in INA § 316(a)(3). The
new law applies to applications for naturalization filed before, on or after November 6, 2000,
which is the date of enactment of this new law. Thus, the waiver applies to applications
regardless of the filing date. Since the enactment of the legislation, the Immigration and
Naturalization service has been working on guidelines to implement the law. To date neither
regulations nor policy guidance has been issue. It is believed, however, that in order to benefit
under the statute, a guardian or a qualified legal representative (yet to be defined) will need to
attest to the Service that the applicant’s desires are to naturalize.
Relief for Individuals Who Were Previously Denied Naturalization Based on a Failure to
Meet the Oath Requirement
69
70
77 Interpreter Releases 1599 (Nov. 13, 2000), citing S. 2812; Pub. L. No 106-448; 114 Stat. 1939.
71
77 Interpreter Releases 1599 (Nov. 13, 2000).
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As it was earlier noted, the act allowing the INS to waive the oath is retroactive.
Therefore individuals who were denied naturalization in the past solely based in their inability to
take the oath of allegiance, should be allowed to reopen their cases and allowed to naturalize
without having to restart the entire process.
Note: On a separate but related matter, U.S. law does not prohibit dual citizenship, but the words
in the oath may seem to some to require a new citizen to give up citizenship in another country.
Many people who naturalize maintain their citizenship in another country despite having taken
the oath. The U.S. government forces no one to give up the citizenship of his or her native
country in order to become a citizen of the U.S. Some other countries, however, do require their
citizens to give up the citizenship of their native countries in order to become a citizen of the
U.S. This issue is confusing to most people, whether they have a disability or not. Please see
Chapter 2 for more information on this subject.
§ 7.17 Expedited Ceremonies for Persons with Serious Illness or Disabilities
1) If an applicant has a serious disability or sickness that prevents her from appearing at the
public ceremony, the INS may arrange for the oath to be administered in a place other
than the INS district office.72 The INS calls this an "expedited" administration of the
oath.
2) Requests for expedited administration of the oath should be submitted in writing to the
district director of the office handling jurisdiction over the applicant.
3) Each office may have its own procedures for permitting expedited oaths and for
accommodating them, and advocates should find out what procedures to follow in each
district. The San Francisco INS office's procedure is for the applicant to write a letter
that includes:
(a) a request for an expedited oath of allegiance,

(b) the nature of the applicant's disability or illness,
(c) the reason that the disability or illness prevents him from attending the regularly-
scheduled oath ceremony, even with reasonable accommodations (discussed
above),
(d) a request that the oath of allegiance be taken at a specified other site which
accommodates the applicant's physical needs (including the applicant's hospital,
senior home, private home, or other location in the applicant's neighborhood), and
(e) a letter from the applicant's treating physician in support of the request, which
includes a description of how the disability or illness prevents attendance at the
ceremony.
72
8 CFR § 337.2
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Practice Tip. This letter should also point out that in addition to requesting that the applicant be
able to take the oath of allegiance at a site other than the public ceremony, the regulations (8
C.F.R.337.3) provide that the oath be expedited -- that is, to accelerate the process. This is
particularly important for applicants whose health is deteriorating, and who need to take the oath
of allegiance as soon as they can. However, it is also advisable to find out whether it would be
practical to "expedite" the oath. If in spite of advocates' efforts, the "expedited" oath procedure
takes longer than the regularly scheduled ceremonies, some applicants may prefer to attend the
regular ceremony and should insist on accommodations that will enable them to do so.
§ 7.18 Resources
You can help applicants prepare for their examinations by providing them with resource
materials, information on ESL and citizenship classes, and/or introducing them to other
applicants who want to study together.
-- Location of ESL Classes. Generally, Community Colleges and Adult schools offer
ESL classes. Administrators of those programs might know of other available classes.
Consider informing a school that you will be sending applicants their way and working
out additional class offerings. In addition, an agency can consider setting up its own ESL
classes.
Depending on your local situation, there may be extremely long waiting lists to attend
these classes. Make sure you are aware of the situation in your area and tell clients to get
on waiting lists as quickly as possible.
-- Location of Citizenship classes. Community Colleges and Adult schools often offer
Citizenship classes that prepare students for the U.S. history and government exam.
Community organizations and churches offer others. Find out and make a list available
to your clients.
-- Interview Preparation Workshops. See Chapter 10 for a model of how to do an

interview preparation workshop in your community.
-- Mock Interview Videotape. Success at your INS Interview Citizenship Advocacy

Project 60-minute video, $24.95 (Spring 2002 price). The video script and a workbook
are also available at $10.95 each. Shipping and Handling is $4.50 and California
residents have to pay sales tax (7%). The video can be ordered through the internet by
visiting www.citizenadproject.com or by writing to Citizenship Advocacy Project, 498
Foam Street, #6, Monterey, California 93940-1410 or by fax to (831) 657-0291.
7-28
March 15, 2002
Information and an order form for other naturalization assistance material published by
the ILRC is included in Chapter One of this manual.
7-29
March 15, 2002
CHAPTER 7-5
REQUIREMENTS FOR SPECIAL CATEGORIES: SPOUSES, CHILDREN,

PEOPLE IN THE MILITARY, AND U.S. NATIONALS
§ 7-5.1 Introduction
There are several exceptions to the general requirements for naturalization. These
exceptions are for people who fall into "Special Categories." The "Special Categories" are
included in INA §§ 301-309, 319,1 322, 325, and 327-329 and 8 CFR §§ 319-331. In this
chapter we review the following four categories of naturalization applicants that are treated
differently from other naturalization applicants: spouses of U.S. citizens, children of U.S.
citizens, people serving in the military, and United States nationals.
§ 7-5.2 Spouses of United States Citizens
The five-year residence requirement and the 30-month physical presence requirement
contain an exception for a spouse of a U.S. citizen. A spouse of a U.S. citizen only needs to have
lived in the United States for three years as a lawful permanent resident prior to applying for
naturalization.2 Additionally, the alien spouse needs to have been physically present in the U.S.
for only half of the three-year period, or 18 of the 36 months.3 The naturalization applicant must
have been married to and living with her U.S. citizen spouse for at least three years and the
spouse must have been a U.S. citizen for the entire three years.4
The naturalization applicant need not have acquired permanent residence through
marriage in order to benefit from this three-year rule. She may have been admitted for
permanent residence through any means such as asylum and employment-based visas, so long as
she has been married to and living with a U.S. citizen for the last three years and the spouse has
been a U.S. citizen for the entire three years.
To benefit from this rule, the applicant's marriage must be valid, with the parties living
together at the time of the application and the naturalization interview.5 If the marriage has
1
INA § 319(c) allows some special provisions for people applying for naturalization who work, or who file an
application for naturalization within six months of having worked, abroad for a U.S. incorporated nonprofit
organization conducting certain types of activities that are described in INA § 319(c).
2
INA § 319(a).
3
INA § 319(a).
4
INA § 319(a).
5
INA § 319(a) and 8 CFR § 319.1(a)(3). There is no requirement the individuals live together during the period
from the interview until the date of naturalization. Yet the INS position is that although they need not live together,
the marriage must remain viable during such time. See INS Interpretations 319.1(d)(1). This strict INS
interpretation seems to be contrary to INA section 319(a), which only requires that the three years of marital union
7.5-1
March 15, 2002
ended in divorce, legal separation, or death, before or after the naturalization application is
submitted, the applicant will not be able to receive naturalization benefits from the marriage and
will have to wait the five-year period instead of the three-year period.6 If an applicant's marriage
ends, marrying another United States citizen will not restore eligibility for the three-year
residence rule. She will have to wait three years from the date of her second marriage unless, of
course, she first accumulates five years as a lawful permanent resident and does not need the
benefits of being married to a U.S. citizen (which is more likely to be the case).7 If the couple
has informally separated, the INS will evaluate whether the separation suggests that the marital
union has dissolved and thus the applicant will have to wait the five-year residence period
instead of the three-year period.8
Example: John, a citizen of Canada, became a lawful permanent resident through his
father's petition in January 1999. In January 2000, he married Francine, a U.S. citizen. If
John and Francine stay married and remain living together, John will be able to naturalize
in January 2003. If, however, they get a divorce, John will have to wait the entire five-
year period and cannot naturalize until January 2004.
One who is married to a U.S. citizen can apply for naturalization three months before the
three-year anniversary of becoming a permanent resident. Yet, according to the way that most, if
not all, INS offices interpret the law, although the applicant only needs to have been a permanent
resident for two years and nine months, s/he has to have been living with and married to the U.S.
citizen for at least three years before being eligible to apply for naturalization.
Example: Sheila, from India, married a U.S. citizen in March 1999. In January 2000 she
became a lawful permanent resident. Sheila will be eligible to apply for naturalization in
October 2003 (two years and nine months after becoming a permanent resident). She
will be able to apply three months before having been a permanent resident for three
years because she will have already lived with and been married to her U.S. citizen
spouse for three years by then.
Esmeralda, a citizen of the Dominican Republic, became a permanent resident of the U.S.
through her father in March 1999. In January 2000 she married a U.S. citizen.
Esmeralda will be eligible to apply for naturalization in January 2003, not in October
exists before applying for naturalization. Section 319(a) does not mandate that the couple continue to be in marital
union at the time of the interview. See Ali v. Smith, 39 F.Supp. 2d 1254 (W.D. Wash. Mar. 22, 1999). The ILRC
encourages advocates and their clients to challenge the INS' strict interpretation of this requirement.
6
See footnote 5 and 8 CFR § 319.1(b)(2).
7
8 CFR § 319.1(b)(2).
8
See 8 CFR § 319.1(b)(2)(ii) and INS Interpretations 319.1(d)(2). However, brief separations, even if divorce was
contemplated, have not kept people from showing the marital union still exists. Although the INS defines "marital
union" as "actually residing with one's current spouse," the meaning of marital union is not always equal to
marriage. See INS Interpretations 319.1(d)(2) citing In re Olan, 257 F. Supp. 884 (S.D. Cal. 1966); In re Kostas,
169 F. Supp. 77 (D. Del. 1958); In re Omar, 151 F. Supp. 763 (S.D.N.Y. 1957). If the couple does not live together
as a result of circumstances beyond their control, such separation does not preclude naturalization.
7.5-2
March 15, 2002
2002, because she will not have been married to and living with her U.S. spouse for three
years full years until January 2003.
To document eligibility for this exception, the naturalization applicant must show she is
married to a U.S. citizen, they have been married for three years, and that they have lived
together for the entire three years. Important documents to submit with the application include: a
valid marriage certificate (and if any prior marriages by either person, a valid divorce certificate),
proof of the U.S. citizen spouse's status as a citizen (i.e., birth certificate, passport, or certificate
of citizenship), and bills, receipts, bank records, insurance records, or other papers containing
both their names showing that the couple has lived together.
VAWA Rule - If a naturalization applicant obtained her permanent resident status as the spouse
or child of a United States Citizen who battered him/her or subjected him/her to cruelty, then the
applicant can qualify for the same residence requirements as a spouse of a U.S. citizen. She only
needs to be physically present for half of the three-year period, which is 18 out of the last 36
months, and only needs to have three years of continuous residence as a lawful permanent
resident.9
§ 7-5.3 Spouses of United States Citizens Stationed Abroad
There is a separate naturalization provision for lawful permanent residents whose spouses
are 1) U.S. citizens; 2) employed by the U.S. government, certain American research institutions,
certain American firms or corporations engaged in international trade, or certain public
international organizations, or who are performing certain religious or missionary duties; and 3)
regularly stationed abroad in employment. People who fall under this provision may be
naturalized without any prior residence in the U.S. or specified period of physical presence in the
U.S. or within a State or INS district. For more information on this provision for spouses of U.S.
citizens, please see INA § 319(b) and 8 CFR § 319.2.
§ 7-5.4 Introduction to Children of United States Citizens
The Immigration and Nationality Act of 1994 amended INA § 322 to create a special rule
allowing some minor unmarried children of U.S. citizens to obtain a certificate of citizenship.10
The Child Citizenship Act of 2000 (Public Law 106-365) made further changes to this process.
Under this process, which some call “Naturalization of Children,” citizens can apply for a
9
INA § 319, as amended on October 28, 2000 by the Battered Immigrant Women Protection Act of 2000.
10
The definition of a child for § 322 purposes includes adopted children if they were adopted before they reached
the age of 16 and the child either (a) has been in the legal custody of, and living with, the parents for at least two
years, or (b) qualifies as an orphan under INA § 101(b)(1(F). Stepchildren do not qualify under § 322. See INA §
322(a)(4), INA § 101(c), and INS § 101(b)(1)(E)(F). In certain circumstances children born out of wedlock (often
referred to as "Illegitimate Children") can qualify as well. See the section on Illegitimate Children below.
7.5-3
March 15, 2002
certificate of citizenship for their minor children who are living outside the U.S. and are
temporarily present in the U.S. pursuant to a lawful admission and are still in that lawful status.11
The whole process of application and interview must be completed before the child is 18
years old, and the child must be admitted to citizenship before his/her 18th birthday and before
her visa expires. Local INS offices have been instructed that immediate priority is given to
applications for children approaching their 18th birthdays.12
§ 7-5.5 Basic Requirements for Citizenship for Children
There are five basic requirements to qualify for naturalization under INA § 322. A child
must fulfill all five of the requirements at the time of being admitted to citizenship. The
requirements are:
(1) At least one parent is a U.S. citizen, either by birth or by naturalization;13
(2) The U.S. citizen parent of the child has to have resided in the U.S. or its outlying
possessions for a total of five years or more, at least two of which were after the
parent turned 14 years old;14
OR
A U.S. citizen parent of the child's U.S. citizen parent15 (that is, the child's
grandparent) must have lived in the U.S. for five years, at least two of which were
after the grandparent turned 14 years old.16
(3) At the time of being admitted into citizenship, the child is under 18 years old and
unmarried;17
11
INA § 322 as changed by the Child Citizenship Act of 2000. Although § 322 is officially a process to obtain a
certificate of citizenship, most service providers, applicants and many INS personnel call it a naturalization process
and refer to it as "Naturalization of Children." Throughout this manual, we refer to § 322 naturalization as
"Naturalization of Children."
12
See Appendix 7-5-A. (Wire #1, July 7, 1995 memo from Louis D. Crocetti Jr. entitled, "Expedited
Naturalization Procedures for Certain Children Pursuant to Revised Section 322 of INA.") The authors of this
manual expect and hope that the INS continues to follow the guidance outlined the July 7, 1995 memo.
13
INA § 322(a)(1).
14
INA § 322(a)(2)(A).
15
For applications based on a U.S. citizen grandparent's physical presence in the U.S., the grandparent may be
living or deceased when the application is filed. [Proposed Rule, 61 Fed. Reg. 47690 (Sept. 10, 1996)].
16
INA § 322(a)(2)(B).
17
INA section 322(a)(3).
7.5-4
March 15, 2002
(4) The child is residing outside of the U.S. in the legal and physical custody of the
citizen parent;18 and
(5) The child is temporarily present in the U.S. pursuant to a lawful admission (such
as a visitor’s visa or student visa, but not parole status) and the child is
maintaining such legal status.19 Thus, although a child can be abroad when the
application is submitted, s/he must be in the U.S. to attend the INS citizenship
interview.
Example: Olga was born in Russia in 1987. Her father, Dimitri, had immigrated to the
U.S. in 1990 and became a U.S. citizen in 1998. Last year Dimitri moved back to Russia
to live with Olga. Dimitri wants Olga to become a U.S. citizen. If Olga were to come to
the U.S. on a visitor’s visa she would qualify for § 322 naturalization because Dimitri had
lived in the U.S. for more than five years, at least two of which were after the age of 14
and Olga would have made a lawful admission to the U.S. Olga would have to remain in
legal status until the adjudication of her § 322 application.
It is important to note that often a person who enters the U.S. on a visitor’s visa will not
be able to complete the section 322 process before her permission to stay in the U.S., and thus
her legal status, expires. In many cases, the INS takes between one and three years to adjudicate
a section 322 application.
Example: Jose was born in Mexico in 1960. Both of Jose’s parents were U.S. citizens
and grew up in Texas. They left Texas together in 1958 after graduating from high
school in the U.S. at the age of 18 and never returned to the U.S. Jose acquired U.S.
citizenship at birth but has never lived in the U.S. Now, he lives with his fourteen year
old daughter, Raquel, in Mexico. Raquel came to the U.S. on a F-1 student visa and
remains in that status. Although she is spending the school year this year in the U.S., she
is only staying in the U.S. temporarily. Her permanent home is still in Mexico with her
father.
Raquel qualifies for § 322 naturalization because she entered the U.S. in lawful status and
has remained in that legal status. Raquel lives with her U.S. citizen parent in Mexico,
and, although Jose, her father, does not have five years of residence in the U.S., Jose’s
parents, i.e., her grandparents, are U.S. citizens that lived in the U.S. for more than five
years, two of which were after they were 14 years old.
If a child was adopted, the requirements of INA § 322 are the same so long as the child
was adopted prior to reaching the age of 16, and the child either (a) has been in the legal custody
of, and resided with, the adoptive parent for at least two years, or (b) qualifies as an orphan under
INA § 101(b)(1)(F).
18
19
7.5-5
March 15, 2002
The parent or parents must complete form N-600, Application for a Certificate of
Citizenship, on behalf of the child. As long as the process will be completed before the child
turns 18, the citizenship process has fewer requirements for the child than the adult applicant
does under the normal naturalization procedures. Under § 322, children do not have to:
- speak, read, or write English;20

- have a knowledge and understanding of U.S. history and government;21
- meet any residence or physical presence requirements;22
- show that they have "good moral character;"23
- take the oath of allegiance if the INS decides to waive it because the child is unable to
understand the oath.24
§ 7-5.6 Definition of Legal Custody for Citizenship for Children Who Are Legitimate
One of the requirements for section 322 citizenship is that the U.S. citizen parent has
legal and physical custody of the child.25 The INS regulations set forth several different
scenarios in which the INS will presume, absent evidence to the contrary, that the parent has the
necessary legal custody to apply for section 322 citizenship for his/her child.26
First, the INS will presume, absent evidence to the contrary, that both parents have legal
custody for purposes of §322 citizenship where their biological child currently resides with them
and the parents are married, living in marital union, and not separated.27
Example: Jesus’ mother and father are U.S. citizens. He lives with both of his parents
and they are married. Both of Jesus’ parents have legal custody of Jesus for section 322
purposes.
Second, the INS will presume, absent evidence to the contrary, that a parent has legal
custody for purposes of §322 citizenship where his/her biological child lives with him/her and
the child's other parent is dead.28
20
Since there is no specific requirement in § 322 requiring applicants to speak, read, or write English, applicants
applying under § 322 do not have to do so.
21
Since there is no specific requirement in § 322 requiring applicants to have a knowledge and understanding of
U.S. history and government, applicants applying under § 322 do not have to do so.
22
See INA § 322.
23
See July 3, 1997 INS Field Cable from Jane Barker, Reprinted in 74 Interpreter Releases 1220, August 11, 1997.
24
INA § 337(a).
25
INA 322.
26
See 8 CFR § 322.1.
27
8 CFR § 322.1(1)(i).
7.5-6
March 15, 2002
Example: Chan's father died. Chan lives with his U.S. citizen mother. Chan's mother
can apply for §322 citizenship.
Third, the INS will presume, absent evidence to the contrary, that a parent has legal
custody for purposes of § 322 citizenship if the child was born out of wedlock and the parent
lives with the child and has legitimated the child while the child was under 16 and according to
the laws of the legitimating parent or child's domicile.29
Example: When Mosha was born his mother and father were not married. Mosha's U.S.
citizen father legitimated Mosha. Mosha's father has legal custody and can apply for
§322 citizenship for Mosha.
Fourth, in a case where the child's parents are legally separated or divorced and a court or
other appropriate governmental entity has legally awarded that the parents have joint custody of
the child, the INS will presume, absent evidence to the contrary, that the parents have joint legal
custody for purposes of § 322 citizenship.30
Example: Maria's mother and father got divorced four years ago and her parents were
awarded joint custody of Maria. Maria's U.S. citizen mother or father can apply for §322
citizenship because both her mother and father have legal custody for § 322 purposes (so
long as Maria is living with the parent who submits the application on Maria’s behalf).
Fifth, in a case where the parents of the child have divorced or legally separated, the INS
will presume, absent evidence to the contrary, that the parent who is awarded legal custody of the
child by a court or other appropriate government agency, has legal custody for purposes of §322
citizenship.31
Example: Sara's mother and father got divorced two years ago and her U.S. citizen
mother obtained legal and physical custody of Sara. Sara's mother but not her father can
apply for §322 naturalization for Sara because her mother has legal and physical custody
of Sara.
Example: Joe's mother and father got divorced two years ago and his lawful permanent
resident father obtained legal and physical custody of Joe, while his U.S. citizen mother
merely obtained visiting rights. Neither parent can apply for §322 citizenship for Joe
because his father is not a U.S. citizen and his mother does not have legal custody.
28
8 CFR § 322.1(ii).
29
INA §101(c)(1) and 8 CFR §322.1(1)(iii).
30
8 CFR § 322.1(2).
31
8 CFR § 322.1(2). Practitioners also should make the argument that although legal custody may be obtained by
judicial or statutory award, in the absence of judicial or statutory grant of custody, the parent having actual
uncontested custody is to be regarded as having legal custody. In Matter of M—, 3 I&N 850 (1950) (interpreting
section 314(c) of the 1940 Act, which is identical to the now repealed INS section 321(a)(3)—the reasoning should
remain valid, though the law it is interpreting has been repealed); INS Interpretations 320.1(a)(6) and 320.1(b).
7.5-7
March 15, 2002
Sixth, the regulations state the there may be other factual circumstances under which the
INS will find that a U.S. citizen parent has legal custody for purposes of §322 citizenship.32
Advocates and their clients should be creative in thinking of other ways to prove that the INS
should determine that a U.S. citizen parent has legal custody if the parent - child relationship
does not fit into one of the categories listed above.
§ 7-5.7 Definition of Legal Custody for Citizenship for Children

For those Children Born Out of Wedlock (Illegitimate Children)
The Child Citizenship Act of 2000 could pose a problem for children born out of wedlock
(i.e., children who were illegitimate at birth). As stated earlier, the parent of a child can only
apply for §322 citizenship for that child if the parent has legal custody.33 The INS regulations
require that a parent can have legal custody of a child born out of wedlock if the child has been
legitimated before the child's 16th birthday and under the laws of the parent or child's domicile.34
Practice Tip: Some countries do not differentiate between legitimate and illegitimate children
and thus, for section 322 citizenship purposes, such children born out of wedlock will be
considered legitimate.35
This legitimation requirement will be a large hurdle for most people for a number of
reasons. First, the legitimation must take place before the child turns 16. Once s/he turns 16, it
is too late for the legitimation to count for § 322 citizenship purposes.36 Second, many people do
not think about or know about the legitimation process. Third, although there usually are
legitimation procedures in most, if not all, states and other jurisdiction for a father to legitimate
his child, many, if not all states and other jurisdictions, have no legal process for mothers to
legitimate a child born out of wedlock. Thus, one strict interpretation of the regulations is that
although a child born out of wedlock could be within the legal custody of his/her father and thus
become eligible for citizenship if the father legitimates the child, because a mother cannot
legitimate a child, she cannot have legal custody of a child born out of wedlock, and thus she
cannot apply for a child to become a citizen under section 322.
32
8 CFR § 322.1(2).
33
INA § 322.
34
8 CFR § 322.1(1)(iii) and 101(c).
35
See Matter of Hernandez, 19 I.&N., Dec. 14, 16 (BIA 1983).
36
In the Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001), the BIA held that the Child Citizenship Act of
2000 was not retroactive for people who did not qualify as of, or after, the affective date of the Act (February 27,
2001). See also Nehme v INS, 252 F.3d 415 (5th Cir. 2001). Although in both of these cases the court and the BIA
were deciding the retroactivity issue regarding INA §320 as amended by the Child Citizenship Act of 2000, one can
assume that both the 5th Circuit Court of Appeals and the BIA would come to the same conclusion regarding
INA§322 as amended by the Child Citizenship Act of 2000.
7.5-8
March 15, 2002
Example: Bill’s mother and Father never got married. Bill’s father became a U.S.
citizen when Bill was five years old. Bill’s father legitimated Bill when Bill was eight
years old and then they started living together. Bill’s father can submit a section 322
application on behalf of Bill.
Example: Frieda’s mother and father never married. Frieda’s mother is a U.S. citizen.
Frieda lives with her U.S. citizen mother. The INS might argue that because Frieda
cannot legitimate Frieda, her mother cannot have legal custody of Frieda and thus cannot
submit a section 322 citizenship application on behalf of Frieda. Advocates would argue
differently (see below).
ILRC and many other practitioners believe that a child should be able to qualify whether
legitimate or not if the mother is applying for the child because there should be a presumption
that an unwed mother has legal custody of her child. This is the argument the BIA adopted in In
Re Rivers, 17 I&N 419 (BIA 1980). This was a case about qualifying for a visa that found that
unless there is a legal decree granting legal custody to one parent or there is a local law that says
otherwise, there is a presumption that an unwed mother has legal custody unless the father has
legitimated the child. If the father has legitimated the child then the presumption is that both
have legal custody.37 The INS, along with most, if not all, states and other jurisdictions work
with the presumption that the natural mother has the necessary relationship with her child to
establish a parent-child relationship.38 The idea behind this is that giving birth to a child has long
been recognized as enough to establish maternity and a parent-child relationship. Although the
strict reading of the 8 CFR 322 does not recognize this presumption, and further recognizes only
legitimation as a showing of legal custody in the case of a child born out of wedlock, such an
interpretation is not consistent with the treatment of natural mothers under U.S. immigration and
citizenship law.
Practice Tip: There are two other arguments one should use to try to persuade the INS to
approve a §322 citizenship application filed by a U.S. citizen mother of a child who was born out
of wedlock. First, the regulations state that there may be other factual circumstances under
which the INS will find the U.S. citizen parent to have legal custody for purposes of §322
citizenship.39 It seems as though the scenario of a U.S. citizen mother applying for a child born
out of wedlock would be one of the those "other factual circumstances" under which the INS
should find the U.S. citizen parent to have legal custody for purposes of §322 citizenship.
37
See also § 97.02[2][b] of Immigration Law and Procedure, by Gordon, Mailman, and Yale-Loehr, citing 8 CFR
322.2(b)(1)(iii)]. Although this belief is based on an old regulation [8 CFR 322.2(b)(1)(iii)] that was written for the
old naturalization of children statute that has been changed twice since 1994, the ILRC and other practitioners are
optimistic that the INS will interpret the law and regulations to allow mothers to apply for section 322 citizenship for
children born out of wedlock.
38
See INA section 309; 7 Foreign Affairs Manual, 1133.4-2; and Tuan Anh Nguyen v. INS, 121S.Ct. 2052, 2061
(2001).
39
8 CFR § 322.1(2).
7.5-9
March 15, 2002
Second, as mentioned above the regulations state that a parent has legal custody for purposes of
§ 322 citizenship if the child was born out of wedlock, the child has been legitimated, and the
child currently resides with the natural parent.40 Although the logical reading of this regulation
could be that only the parent who legitimates the child can apply for the child to receive §322
citizenship, the regulations do specifically state that only the parent who legitimates the child can
be the one to apply for the child to become a citizen under §322. Thus, one should argue that
either natural parent could apply for the child to become a citizen under §322 so long as either
parent has legitimated the child.
Example: Franz was born in Austria in 1992. His mother and father never married. His
mother moved to the U.S. and, after living in the U.S. for six years, she became a U.S.
citizen. Franz's father remained an Austrian citizen. Franz's father legitimated Franz
according to Austrian law. Franz's mother recently moved back to Austria and Franz
moved in with her. Franz's mother and her advocate should argue that because Franz's
father legitimated Franz and thus Franz has now met the legitimation requirement, and
because Franz now lives with his U.S. citizen mother, his mother should be able to apply
for citizenship for Franz under §322.41
§ 7-5.8 Documenting a Claim Under § 322 Citizenship
A. For a natural born child of a U.S. citizen parent.
A completed N-600 application form should be accompanied by:42
1. Proof of lawful admission of the child (if the child is not now in the
United States, this evidence must be provided at the interview).
2. Proof of citizenship of the parent and grandparent (where applicable) who
is applying for the child.43
40
INA §101(c) and 8 CFR §322.1(1)(iii).
41
See 8 CFR 322.1(iii).
42
8 CFR 322.3(b)(1).
43
Generally the child’s birth certificate will be sufficient proof of the parent-child relationship. In some instances,
however, the child’s U.S. citizen parent might not be listed on the birth certificate, the birth certificate might not be
available, and/or the INS might question the authenticity or veracity of the birth certificate. Under certain
circumstances there are other ways to prove parentage such as through baptismal certificates, other birth records,
affidavits, and interviews. Additionally, in most instances, the child and parent can undergo DNA testing to prove
the parent-child relationship. In a cable dated February 8, 2001 and called “New DNA Testing Guidelines for Visas
and Citizenship” (Cable Number 01-State-22995), the State Department issued guidelines on DNA testing to prove
the parent-child relationship in visa petition and citizenship cases. See 78 Interpreter Releases, Page 532, March 19,
2001. It is important to note that the Department of State issued these guidelines and thus only Department of State
officials, not INS officers, must follow them. Yet, where beneficial, advocates should try to use the information in
this cable to help their clients prove citizenship whether they have to prove it to the Department of State of the INS.
7.5-10
March 15, 2002
3. A copy of the child's birth certificate, showing U.S. citizen as parent.

4. Evidence of the U.S. citizen parent's (or grandparent's) residence in U.S.,
which might include income tax returns, school attendance records,
employment records, and/or rent or mortgage payment receipts, social
security records (available from the Social Security administration, or
census records (available from U.S. Census Bureau), and a letter detailing
how the parent meets the physical presence requirement.
5. Marriage certificate of the child’s parents (if applicable).
6. If the child’s parents were previously married, proof of dissolution of the
prior marriage (e.g., a death certificate of the prior spouse or a divorce
decree).
7. If the child was born out of wedlock, proof that the child was legitimated.
8. Proof that the child is in the legal and physical custody of the U.S. citizen
parent.
9. If applicable, evidence of all legal name changes of the child, the child’s
U.S. citizen parent, and the child’s U.S. citizen grandparent.
10. A $185 fee.
11. If physical presence is required of the child's grandparent, include N-600
Supplement A, "Physical Presence of a Grandparent."
B. For an adopted child of a U.S. citizen parent.
A completed N-643 filed by the U.S. citizen adoptive parent, and supporting documents
should be accompanied by:44
1. Proof of lawful admission of the child (if the child is not now in the
United States, this evidence must be provided at the interview).
2. Proof of citizenship of the petitioning adoptive parent and, if applicable,
grandparent.
3. A copy of the child's birth certificate.
4. An adoption decree showing that the U.S. citizen parent adopted the child
before the child's 16th birthday.
5. A notarized written statement by the adoptive parent that the adopted child
has resided with and been in the legal custody of the citizen adoptive
parent for at least two years prior to the date the Form N-643 was filed.
6. Evidence of U.S. citizen adoptive parent's (or grandparent's) residence in
U.S., which might include income tax returns, school attendance records,
employment records, and/or rent or mortgage payment receipts, social
security records (available from the Social Security administration, or
census records (available from U.S. Census Bureau) and a letter detailing
how the adoptive parent meets the physical presence requirement.
7. If applicable, evidence of all legal name changes of the child, the child’s
U.S. citizen parent, and the child’s U.S. citizen grandparent.
8. A $145 fee.
44
8 CFR 322.3(b)(1).
7.5-11
March 15, 2002
9. If physical presence is required of the child's adoptive grandparent,

include N-643 Supplement A, "Physical Presence of a Grandparent."
C. For an orphan adopted child of a U.S. citizen parent the parents must submit the
same documentation as that listed above except for item number 5. Instead, the applicant
must include evidence that the orphan adopted child is or was the beneficiary of an
approved Form I-600.45
§ 7-5.9 How to Apply for §322 Citizenship
The U.S. citizen parent (not the grandparent) files the N-600 application form for
naturalization of a child under INA § 322 at any stateside INS district office or sub office (i.e.,
these cases cannot be submitted to an INS Service Center where the N-400 applications are
submitted). The U.S. citizen parent should include a cover letter with the application in which
the U.S. citizen parent requests preferred interview dates. The requested dates should allow at
least 90 days for the INS to review the application, schedule the interview, and send the
appointment notice to the foreign address of the parent and her child.46
Before the changes instituted by the "Child Citizenship Act of 2000" naturalization of
children pursuant to the § 322 was supposed to be an expedited process. According to
instructions from INS headquarters, a child who qualified for § 322 citizenship under the rules
before the "Child Citizenship Act of 2000" and on whose behalf an application has been filed
"shall be scheduled for the first possible interview date."47 Additionally, the INS' stated policy
was that if a child who is nearing his/her 18th birthday is eligible for naturalization under § 322,
the INS must make every effort to schedule the interview before the child’s 18th birthday.48 This
is an important distinction because the regular process of obtaining a certificate of citizenship
through the N-600 process is traditionally very slow. The ILRC hopes the INS will continue to
follow these policies when adjudicating cases under the section 322 law as amended by the
"Child Citizenship Act of 2000." Additionally, the ILRC feels that the section 322 process
should continue to be an expedited process in cases where the child is about to become 18 or
his/her visa is about to expire. Advocates helping a family apply for a certificate of citizenship
45
8 CFR 320.3(b)(8).
46
8 CFR § 322.3(a).
47
See Appendix 7-5-A [July 7, 1995 INS Wire # 1 entitled, “Expedited Naturalization Procedures for Certain
Children Pursuant to Revised Section 322 of the INA,” reprinted in 72 Interpreter Releases 1089 (August 14,
1995)]; and Appendix 7-5-B [December 22, 1995 INS Wire # 2 entitled, “Expedited Naturalization Procedures for
Certain Children Pursuant to Revised Section 322 of INA,” reprinted in 73 Interpreter Releases 66 (January 16,
1996)]. Additionally, "In keeping with congressional intent, (INS) field offices will make every effort to expedite the
interview process." Proposed Rule, 61 Fed. Reg. 47690 (Sept. 10, 1996).
48
See Appendix 7-5-A [July 7, 1995 INS Wire # 2 entitled, “Expedited Naturalization Procedures for Certain
Children Pursuant to Revised Section 322 of the INA,” reprinted in 72 Interpreter Releases 1089 (August 14, 1995)];
and Appendix 7-5-B [December 22, 1995 INS Wire # 2 entitled, “Expedited Naturalization Procedures for Certain
Children Pursuant to Revised Section 322 of INA,” reprinted in 73 Interpreter Releases 66 (January 16, 1996)].
7.5-12
March 15, 2002
for a child should attach to the application, or provide to the family to attach to the application, a
cover letter explaining the need to expedite the application if the child is about to turn 18, his/her
non-immigrant visa is about to expire, or, if, for any other reason, the applicant needs to be
admitted to citizenship immediately.
Practice Tip: Under the § 322 naturalization process that was in affect before February 27,
2001, the N-600 application could be filed from abroad, and the U.S. State Department and the
INS generally were supposed to cooperate to issue a visa to the child for the purposes of
attending the naturalization interview in the U.S. and taking the oath of allegiance to become a
U.S. citizen.49 In many instances, the child would not need a visa from the U.S. consulate abroad
because s/he came from a country that was part of the visa waiver program and thus did not need
to get a visitor’s visa from the consulate. The ILRC hopes and expects that people applying for §
322 naturalization on or after February 27, 2001 also have the opportunity to apply from abroad
and obtain a visitor’s visa for the purpose of attending their §322 naturalization interviews.
Example: May was born on November 13, 1986 in Taiwan. She has lived there all of
her life with her mother and father. Her mother Ri-xi, a U.S. citizen by birth, lived in
U.S. until she was 21. Ri-xi can apply for § 322 naturalization for May from abroad,
because Ri-xi has met the residency requirements (at least five years, at least two of
which were after age 14). Although May is not currently physically present pursuant to
lawful admission, the State Department should cooperate to grant her a visitor's visa to
attend her naturalization interview, so that at the time of the interview she will meet the
lawful admission requirement.
Example: Misame was born in 1985 and lives with her parents in Tokyo. Misame's
mother, Kyoko was born in the United States, but moved to Japan to live with her
grandparents after her U.S. citizen mother died when she was 15. Kyoko's mother Miho
had moved to the United States when she was 12 and became a naturalized U.S. citizen as
soon as she turned 18. Miho lived in the U.S. until her death at age 35. Misame does not
qualify for § 322 naturalization through her mother, but she does qualify through her
grandmother.
49
Under the previous version of § 322 that expired on February 26, 2001, the parent of a child living outside of the
United States could submit the N-600 application to any INS field office. If the INS approved the application, it was
supposed to send a letter and naturalization appointment date to the applicant. When the applicant presented the
approval letter to the American Consulate, the consulate was supposed to issue him/her a B-2 visitor's visa to allow
him/her to enter the U.S. for the purpose of attending the interview. See 72 Interpreter Releases 350 (March 13,
1995) "State Dept., INS Implement Naturalization and Citizenship Provisions of INTCA," and Appendix 7-5-A
[July 7, 1995 INS Cable entitled, “Expedited Naturalization Procedures for Certain Children Pursuant to Revised
Section 322 of the INA,” Wire # 1, reprinted in 72 Interpreter Releases 1089 (August 14, 1995)]. To help facilitate
this process, the parent was supposed to include with the application a request noting preferred interview dates
(allowing sufficient time for the INS to approve the application, schedule the interview and send the appointment
notice). Proposed Rule, 61 Fed. Reg. 47690 (September 10, 1996). As of the writing of this manual, it is unclear
whether or not the INS will follow this procedure or adopt another one.
7.5-13
March 15, 2002
The child and U.S. citizen parent must attend an interview at the INS.50 An examiner
will confirm that all of the records are valid and sufficient to support the naturalization
application. The child will take the oath of allegiance at the end of the naturalization interview
instead of attending an oath ceremony. The INS may waive the oath of allegiance.51
As noted in the requirements, the child must submit the application and the INS must
interview and (unless waived) give the child the oath before the child's 18th birthday and before
his/her visas expires. INS offices have been instructed to give immediate priority to an
application of a child approaching her 18th birthday.52
§ 7-5.10 How to Appeal a Denial of a § 322 Citizenship Application
If the INS district director denies an application for §322 citizenship, the applicant can
appeal the denial to the Administrative Appeals Unit (AAU). The applicant must file the appeal
on INS Form I-290B, Notice of Appeal to the Administrative Appeals Unit. The applicant must
file the appeal within 30 days of service of the INS' decision denying the original application.53
If the INS has denied an application for § 322 citizenship and the applicant failed to
submit a timely appeal of the decision to the AAU, the INS will reject any other applications for
§ 322 citizenship submitted by the same applicant and instead instruct the applicant to submit a
motion to reopen or reconsider to the INS.54
Compare Acquisition and Derivation. One should not confuse the § 322 naturalization
process with acquisition or derivation of citizenship, which are discussed in Chapter 12 of this
manual. Naturalization under INA § 322 is an application process whereby a U.S. citizen parent
can apply for a child to become a U.S. citizen and obtain a certificate of citizenship. Acquisition
and derivation of citizenship are methods of acquiring citizenship automatically, without
applying for anything. Under acquisition and derivation, the child only has to apply for a
certificate of citizenship to prove s/he already is a citizen.
Generally, if at least one parent is a U.S. citizen and his/her child is not a lawful
permanent resident of the U.S. but is in the U.S. temporarily pursuant to a lawful admission and
is still in such status, the child's only option is to try and naturalize under INA § 322. If,
50
8 CFR § 322.4.
51
INA § 337 and 8 CFR § 322.5(a).
52
See Appendix at 7-5-A, Wire #1, July 7, 1995, to INS field offices from Louis D. Crocetti, Jr., Associate
Commissioner, Examinations, H.Q., page 3, items 4 and 8.
53
8 CFR § 322.5(b).
54
8 CFR §322.5(b).
7.5-14
March 15, 2002
however, at least one parent is a U.S. citizen and his/her child is a lawful permanent resident,
then the child may have derived citizenship automatically.
Acquisition of citizenship allows certain people born outside the U.S. to automatically
become U.S. citizens at birth. Derivation of citizenship allows certain lawful permanent
residents born outside of the U.S. to automatically derive U.S. citizenship if one parent becomes
a citizen through naturalization or was a citizen at birth, but the child did not acquire citizenship
at birth. Some families may be unaware of automatic derivation when their parents naturalize.
Thus, some minor children may already be citizens and not know it. Unlike the process for
applying for naturalization for children under § 322, because people who have derived or
acquired citizenship are automatically citizens, they do not have to submit their N-600
applications before they are 18 years old.
To obtain proof of citizenship status due to acquisition or derivation, these children must
apply for a U.S. passport and/or file a Form N-600 (or Form N-643 in the case of an adopted
child) to obtain a certification of citizenship. See Chapter 12 for more information on this topic.
§ 7-5.11 Exception: People Serving in the U.S. Armed Forces
Under INA section 328 someone who has served in the Armed Forces of the United
States for a total of at least three years does not have to comply with the five year continuous
residence requirement, the physical presence requirements, nor with the three month requirement
of living in the state or INS district in which she applies for naturalization.55 Service in the U.S.
Armed Forces is recognized as active or reserve service in the U.S. Army, U.S. Navy, U.S.
Marines, U.S. Air Force or U.S. Coast Guard.56 National Guard service in units during periods
when the unit was federally recognized as a reserve component also qualifies under this
section.57 Service in the Philippine Scouts is also recognized as U.S. military service if the
service occurred before the independence of the Philippines.58 The three years of military
service does not have to be continuous.59 It can be the total of different periods of service, as
long as they total at least three years. One can also fulfill the three years of military service
requirement by combining periods of inactive duty in the reserves with active duty periods.60 In
55
See INA § 328(a) and 8 CFR § 328.2(e). If, however, the applicant's three years of service have been
discontinuous, she must establish that she resided in the United States in the state or INS district where she is
applying for naturalization during periods when she was not serving in the Armed Forces. This rule only applies if
the break in her service occurred during the five-year period immediately before when she files her naturalization
application. 8 CFR § 328.2(e)(1).
56
8 CFR § 328.1(1).
57
8 CFR § 328.1(2).
58
INS Interpretations §§ 328.1(b)(4) and 329.1(c)(4)(i).
59
8 CFR §328.2(b).
60
8 CFR §§ 328.1(1), 328.2(b).
7.5-15
March 15, 2002
all cases the applicant must have served honorably and apply for naturalization while still in
military service, or within six months after finishing her military service.61 If she does not apply
within six months after finishing her service, she must comply with the five-year residence
requirement and the physical presence requirement. Any military service within five years of
applying for naturalization will be counted as residence and physical presence whether or not she
was a lawful permanent resident during the period.62 However, an applicant must be admitted as
a lawful permanent resident by the time her naturalization application is filed.63
During all the periods in which she served honorably in the armed services, an applicant
under this section also is presumed to automatically fulfill the requirements of having to show
good moral character and being attached to the principles of the U.S. Constitution.64 The
applicant, however, will have to prove that s/he had good moral character and was attachment to
the principles of the Constitution for any periods while she was not serving in the military and
the period from the time she was discharged from service until admitted for citizenship.65
The bar to naturalization which is discussed in Chapter 4 of this manual66 for someone
under a final order of deportation or who is presently in deportation proceedings does not apply
to people applying for naturalization under this section who are currently serving in the armed
forces.67
Someone who is absent from the U.S. while on active duty with the armed forces will not
be found to have disrupted the continuity of her residence, even if the absence was for more than
one year.68 Yet, it does not appear that this exception would apply to the spouse of someone on
active duty with the armed services.69
Someone applying under this exception must file forms N-400 (Application for
Naturalization), N-426 (Certificate of Military or Naval service), and G-325B (Biographic
form).70 If the applicant is applying for naturalization within six months after being discharged
from military service, she may file her application in any INS district office. If she is filing more
61
8 CFR § 328.2(c)(1).
62
8 CFR § 328.2(d)(1). See Chapter 5 of this manual for a complete discussion of physical presence.
63
8 CFR § 328.2(c).
64
8 CFR § 328.2(c).
65
8 CFR § 328.2(d)(1).
66
INA § 318.
67
INA § 328(b)(2).
68
8 CFR § 328.2(e)(1).
69
For more information on the spouses of U.S. citizens applying for citizenship, please see § 7-5.2.
70
8 CFR § 328.4.
7.5-16
March 15, 2002
than six months after her discharge, then she must file with the INS district office having
jurisdiction over her place of residence during the three-month period right before she applies for
naturalization.71
If one applies for naturalization while serving in an active duty status, s/he must submit
his/her naturalization application to the INS Service Center in Lincoln, Nebraska at the following
address: Nebraska Service Center, Attention N-400, Naturalization Facilitation Unit, P.O. Box,
87426, Lincoln, Nebraska, 68501-7426.72
If an applicant is serving in the Armed Forces of the U.S. but does not qualify for
naturalization under INA section 328 as explained above, the applicant’s residence for
naturalization purposes shall be:
• The state or service district where the applicant is physically present for at least three
months immediately before the filing of a naturalization application or immediately
before the naturalization examination if the application was filed early pursuant to
INA section 334(a) and the three month period falls within the required period of
residence under INA section 316(a) or 319(a); or
• The residence of the applicant’s spouse and/or minor children; or
• The applicant’s home of record as declared to the Armed Forces at time the applicant
enlisted in the Armed Forces and as is currently reflected in the applicant’s military
personnel file.73
§ 7-5.12 Exception: People Who Have Served in the U.S.

Armed Forces During Certain Wars or "Hostilities"
People who are not even lawful permanent residents but who served in the U.S. Armed
Forces during certain periods of military hostilities may be eligible for naturalization. The
periods of hostilities include:
* World War I;
* the period between September 1, 1939 and December 31, 1946 (World War II);
* the period between June 21, 1950 and July 1, 1955 (Korean War);
* the period between February 28, 1961 and October 15, 1978 (Vietnam War);
or
* any other period that the President can designate.74
71
8 CFR § 328.3.
72
See 76 Interpreter Releases 1721, December 3, 1999 and 64 Federal Register 67323-24 (Dec. 1, 1999).
73
8 CFR 316.5(b)(1).
74
INA § 329. Two periods that Presidents have designated as “hostilities” for purposes of naturalization include
the period between October 25, 1983 and November 2, 1983 (the Grenada Invasion) and the period between August
2, 1990 and April 11, 1991 (the Persian Gulf War). See 52 Fed. Reg. 12,582 (Feb. 4, 1987) and 59 Fed. Reg. 61,231
7.5-17
March 15, 2002
Anyone serving in the Armed Forces during these periods can apply for naturalization,
whether or not he has a green card. The applicant must have enlisted (or reenlisted) in the U.S.
or a qualifying U.S. territory to be eligible for this benefit.75 If the person was not enlisted or
inducted within the U.S. or a qualifying territory, he is eligible to naturalize under this section
only if he became a lawful permanent resident at any time after enlistment or induction.76
Active duty service in the U.S. Army, U.S. Navy, U.S. Air Force, U.S. Marines or U.S.
Coast Guard is required to qualify for benefits under this section. National Guard units federally
recognized as reserve components of the U.S. Armed Forces that were called for active duty also
qualify.77 Service in the Philippine Scouts, Philippine army or certain recognized guerilla units
of the Philippines during World War II is also recognized as active duty in the U.S. Armed
Forces under this section.78
The person must have served honorably in an active duty status. Separation from the
Armed Forces also must have been honorable.79
The standard requirements of being 18 years old, not having an outstanding order of
deportation entered against the applicant, residing and being physically present in the U.S. are
not applicable to applicants who have served in the U.S. Armed Forces during these periods.80
However, the person must be able to establish good moral character and attachment to the
principles of the U.S. Constitution for one-year preceding the application for naturalization.81
Someone applying under this exception must file forms N-400 (Application for
Naturalization), N-426 (Certificate of Military or Naval service), and G-325B (Biographic
form).82 If the applicant is no longer serving in an active duty status, s/he may file the forms in
any INS office, without regard to where the applicant's place of residence is.83 If one applies for
naturalization while serving in an active duty, s/he must submit his/her naturalization application
to the INS Service Center in Lincoln, Nebraska at the following address: Nebraska Service
(Nov. 29, 1994).

75
Qualifying territories are the Canal Zone of Panama, American Samoa, the Midway Island (before August 21,
1959), the Swains Island, or in the ports, harbors, bays, enclosed sea areas, or territorial waters of these land areas.
INA § 329(a)(1), 8 CFR § 329.2(c)(2).
76
8 CFR § 329.2 (c)(1) and (2).
77
8 CFR § 329.1. For more information on this topic, please see INS Interpretations 329.1(d)(1).
78
INS Interpretations §§ 329.1(c)(4)(i) and (ii).
79
8 CFR § 329.2(b).
80
INA § 329.
81
8 CFR § 329.2(d).
82
8 CFR § 329.4.
83
8 CFR § 329.3.
7.5-18
March 15, 2002
Center, Attention N-400, Naturalization Facilitation Unit, P.O. Box, 87426, Lincoln, Nebraska,
68501-7426.84
For more information on citizenship for people serving in the military, see U.S.
Citizenship and Naturalization by Daniel Levy (2002 Edition, published by West Group).
§ 7-5.13 Filipino War Veterans
During World War II, many nationals of the Philippines fought alongside the United
States Armed Forces. Some of these nationals were allowed to naturalize to become U.S.
citizens without first being lawful permanent residents. There were no residence or physical
presence requirements for these war veterans to fulfill before applying for naturalization.
Essentially the requirements for these Filipino war veterans to become eligible for
naturalization were:
(1) the person was born in the Philippines;

(2) the person served honorably in an active-duty status under the command of the U.S.
Armed Forces in the Far East or within the Philippine Army, the Philippine Scouts, or
recognized guerrilla units, at any time between September 1, 1939, and December 31,
1946; and
(3) the application was filed by February 3, 2001.85
For more information on the naturalization of Filipino war veterans, please see Chapter
12 of the U.S. Citizenship and Naturalization Handbook, by Daniel Levy (West Group, 2002
Edition).
§ 7-5.14 Nationals of the United States
Non-citizen nationals who owe permanent allegiance to the U.S. may become U.S.
citizens without meeting the five-year residence requirement of living in the U.S. Instead, they
can meet the five-year residence requirement by residing in an outlying possession of the U.S.86
American Samoa and the Swains Island are both outlying possessions of the U.S.87
84
See 76 Interpreter Releases 1721, December 3, 1999 and 64 Federal Register 67323-24 (Dec 1, 1999).
85
See the Philippine Army Scouts, and Guerilla Veterans of World War II Naturalization Act of 1997 also cited as
section 112 of HR 2267 amending section 405 of the Immigration and Nationality Act of 1990. See also 74
Interpreter Releases 1788 (November 1997).
86
See INA § 325, 8 CFR § 325.3(a), INA § 101(a)(22).
87
See INA §§ 308 and 101(a)(29). For a complete description of who can be non-citizen nationals, please see INA
§ 308 and Chapter 3, Daniel Levy, U.S. Citizenship and Naturalization Handbook (2002 ed., West Group).
7.5-19
March 15, 2002
U.S. Nationals may meet their physical presence requirements through physical presence
in an outlying possession of the U.S.88 (i.e., American Samoa or the Swains Islands).89
A U.S. national still must fulfill the requirement of living in the state or INS district
where she files her application for at least three months prior to filing the application and all the
other requirements for naturalization such as demonstrating good moral character, passing the
tests on English and U.S. history and government, and swearing allegiance to the U.S.90
Section 302 of Public law 94-241 allows certain inhabitants of the Commonwealth of the
Northern Mariana Islands to opt for non-citizenship national status instead of status as a United
States citizen.91
88
See INA § 325 and 8 CFR § 325.3(a).
89
See 101(a)(29).
90
See 8 CFR § 325.3(a). Some practitioners argue that under INA § 325 the three-month residence is not required;
instead, the requirement is that the national must reside in a state for any period of time.
91
See “Memorandum from United States Department of State” copied in Appendix II, 74 Interpreter Releases 1307
(August 18,1997).
7.5-20
March 15, 2002
CHAPTER 8
THE APPLICATION PROCESS AND INTERVIEW
§ 8.1 Introduction to the Naturalization Process
There are three steps in the naturalization process: 1) the application; 2) the interview;
and 3) the final hearing and oath of allegiance. This Chapter will cover the first two steps, while
Chapter 9 covers the oath.
§ 8.2 The Application
The first step in applying for naturalization is for you and your client to complete the
application. The application form is called an "Application for Naturalization" or Form N-400.1
(See blank and sample completed Form N-400 in Appendix 8-A.) It must be completed in black
ink or on a typewriter or computer. It may be helpful to translate the application into your
client's native language and have her complete her own draft of the application. (A copy of an
N-400 translated into Spanish is included in Appendix 8-B.) A client who has difficulty reading
or writing may have a relative or a friend assist her. Afterwards, you and your client can review
the draft together and fill out the form that goes to the INS.
Practice Tip. Applicants may fill out and submit high quality laser print-outs or photocopies of
the N-400 form instead of the official N-400 form from the INS.2 Please note, however, that
anyone who makes N-400 forms available must make sure potential applicants learn about the
naturalization requirements and risks and “red flag” issues. One way to do this is by providing
the forms in a class or other workshop that discusses these issues. Alternatively, a form that
describes the requirements and red flags (Appendix 2-B) can be attached to the N-400. Potential
applicants should be instructed to read both sides of the red flags form, and mark with an "X"
any of the red flag issues that apply to them, and discuss them with someone from your agency
or another immigration expert.
There will be at least a few blanks that the applicant will not fill out because she does not
have any relevant information. In those blanks that do not apply to her, she should write N/A
(not applicable). But where the answer to a question is "none,” she should write "none" in the
1
Please note that in 2001 the INS issued a new N-400 application.
2
8 C.F.R. § 299.4. The forms must use black ink that will not fade or "feather" within 20 years and conform to the
officially printed forms currently in use with respect to size, wording and language, arrangement, style and size of
type and paper specifications. Every part of the official form must be copied onto the photocopy or laser printed
form. Computer generated forms are accepted so long as they comply with the requirements specified in 8 C.F.R. §
299.4.
8-1
March 15, 2002
blank. -- for example, if she does not belong to any organizations, she should write "none" in
Part 10, Section B.
Although the N-400 form is among the most straightforward immigration applications,
several points can cause confusion for applicants. The instructions on the new N-400 application
are very clear and thorough. Advocates and their clients should read the instructions before
completing the form. Additionally, the INS has published a packet of information on the
naturalization requirements. You can access this packet, called, "A Guide to Naturalization," on
the INS' website at www.ins.usdoj.gov.
Below is a review of the some of the sections of the N-400 application, including possible
problem areas for some applicants.
At the top of each page of the application, the applicant needs to write his/her INS “A”
Number. This helps the INS in case the application pages are separated.
Part 1: "Your Name."
The N-400 that the INS used before the 2001 version caused applicants and their
advocates a lot of confusion concerning what name to use. The new version of the N-400 is very
clear about what names to use in which boxes.
Section A of the form asks for the applicant's current legal name; i.e., the name that is on
the applicant's birth certificate or the name the applicant has legally adopted through a legal
name change or through marriage.
Section B asks for the name exactly as it appears on the applicant's green card, even if it
is misspelled.
Section C asks for other names that the applicant has used. An applicant should write her
maiden name here if she uses her married name now.
Section D provides a space for the applicant to write the name that s/he would like to use
in the future if it is different from his/her present legal name. When an applicant naturalizes,
s/he has the opportunity to legally change his/her name through the federal court that is
naturalizing him/her.
Part 2: "Information About Your Eligibility."
This part asks the applicant to check the basis upon which she is applying for
naturalization. It is very important that she checks the correct category. During the interview,
the INS adjudicator will ask her questions to make sure that she qualifies on the basis she
checked.3
3
If the applicant checks section b, c, or d, she will have to provide the INS with additional documentation that is
described below.
8-2
March 15, 2002
Part 3: "Information About You."
This section asks questions about eligibility for citizenship. Much of the information can
be found on the applicant's green card. If the applicant is applying as the spouse of a U.S. citizen
(box b. in Part 2), she must check that her marital status is "married."
Section A provides a space to write the applicant’s social security number. It is important
that applicants only note a valid social security number that was issued to the applicant in this
box. Applicants should not note any fake social security numbers they may have used over the
years.
Part C asks for the date the applicant became a permanent resident. The date the
applicant became a lawful permanent resident is not always very clear. Many of the I-551 cards
list it on the back in the middle of the first line of what looks like code. You will see something
like “P26 LAS 890714 245 9099001001.” The date that person was admitted to lawful
permanent resident status is July 14, 1989—found after the three letters (for port where
admitted), which are the second group in the sequence, and written year/month/day. Some
applicants who became lawful permanent residents through the amnesty program have cards that
list at the top, in day, month, year order, and the date they were admitted to temporary residence.
This is not the correct date to list on the N-400, or to use in making a determination of whether
the applicant has met the five-year residency period. Instead, look to the date described above.
To add to the confusion, new green cards (those issued beginning in 1998) do not have any
visually readable information in the back. This will make it more difficult for applicants to write
the correct date of entry, unless they remember it or have it recorded elsewhere. However, for
those applicants that have older green cards there is some useful information on the back of the
card. A sample I-551 is included in Appendix 10-B.
Sections D and E ask for different information. While Section D asks for the applicant’s
country of birth, Section E asks for where the applicant is a national (i.e. citizen) presently.
Section b: An application based upon marriage to a U.S. citizen for 3 years (INA § 319 -- allows the
applicant to file after just three years of lawful permanent resident status) requires proof that the marriage and the
U.S. citizen spouse's citizenship are valid. An applicant must provide the naturalization or U.S. birth certificate of
the U.S. citizen spouse and a marriage certificate. If either spouse was previously married, the applicant must
produce documents showing proper termination of the earlier marriage(s). See Chapter 5 for a discussion of the
exceptions to the five year residence requirement
Section c: An application based on military service requires the filing of two additional documents: a Form
G-325B verifying the military service and a Form N-426 requesting certification that separation from military
service was honorable. A veteran applying under INA § 328 or § 329 (eligibility based upon service in the United
States armed services) should include copies of his or her discharge papers with the N-400 application. See Chapter
7-5 for a discussion of the special naturalization requirements for those serving in the military.
Section d: This part includes several categories including non-citizen nationals (see Chapter 7-5).
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Section F asks about the citizenship status of the applicant’s parents. If one or both of the
applicant’s parents are U.S. citizens, it is possible that the applicant is already a U.S. citizen too.
Please see Chapter 12 for more information on this topic.
Section H asks whether the applicant is applying for a waiver of the English and/or civics
and history tests based on the applicant’s disability. Applicants applying for such waivers should
state their requests for such waivers in a cover letter attached to the N-400 application as well.
Please see Chapter 7 for more information on disability waivers.
Section I is new. This section of the application asks the applicant if s/he is requesting an
accommodation to the naturalization process because the applicant has a disability. Under
federal law, the INS must make reasonable accommodations (i.e., changes) to the naturalization
process for applicants who have disabilities. It is important to note the disability and the
accommodation the applicant needs. Often, it is best to submit a letter from a doctor verifying
the applicant’s disability and the need for the accommodation. An applicant who needs a waiver
of the oath requirement due to a disability should check the fourth box? fourth box and write
something like, “I am unable to take an oath of allegiance because of _____________ (describe
disability) and I therefore request a waiver of the oath requirement.” Please see Chapter 7 for
more information on this subject.
Practice Tip: There is no special place on the application for an applicant to indicate that s/he
qualifies for the English language exemption due to the 55/15 and 50/20 rules or the easier
history and civics exam because the applicant is over 65 and has been living in the U.S. for at
least 20 years as a lawful permanent resident. Thus, we suggest an applicant who qualifies for
these exceptions write this in Section I and in a cover letter attached to his/her naturalization
application. Additionally, we suggest that an applicant write the following in red ink at the top
of the first page of the N-400, “I qualify for an exemption of the English language requirement.”
Part 4: “Addresses and Telephone Numbers.”
Please note that this question asks for the actual physical address where the applicant is
living as well as the best mailing address of the applicant if that is different from where s/he
lives. Sometimes, farm workers or others prefer that their mail go to a more secure address than
where they live, such as the address of a relative who does not change his/her address often.
Part 5: “Information for Criminal Records Search.”
Information for this part will help the FBI do its criminal record search on the applicant,
which is part of the good moral character determination. It is important to note that Latinos and
Hispanics are considered within the White race for purposes of this question.
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Part 6: Information about Your Residence and Employment.”
The purpose of the residence section of this part is to help the INS examining officer
determine whether the applicant has actually lived in the United States for the required length of
time to meet the continuous residence period (usually five years for most applicants and three for
those applying as the spouse of a U.S. citizen). The examiner will ask the applicant at her
interview about any gaps in the information she provides here. Note that some of those gaps can
be explained by absences she will have listed in Part 7, but that it is important not to give the
impression that she abandoned her residence during those absences.
Section A: List the addresses where the applicant has lived for the last five years or for as
long as she has been a lawful permanent resident (whichever is less). Start with the
current address and then the one before it, and so on.
Section B: List the applicant's employers for the last five years, with her present
employer at the top, and earliest at the bottom. If the applicant is a homemaker, she
should write that in this section. If the applicant is retired or on disability, she should
indicate this fact and specify her last employment (if she had one) before retiring or
acquiring the disability. This will show some connection to the workforce, and thus some
positive equities for the applicant. The INS often will inquire about how an applicant
who is not working is supporting him or herself.
Note: If the applicant has been receiving unemployment or public benefits, s/he is still eligible
for naturalization. Receipt of public benefits is not a bar to eligibility unless the applicant
committed fraud to receive the benefits. If the applicant received public benefits by fraud or by
lying, the INS might deny the applicant for failing to show good moral character. In some cities,
the INS’ policy is to confirm that the applicant received such benefits appropriately. Thus, in
some of these cities if the INS believes there may have been a fraud issue involved in the receipt
of public benefits, the INS may demand that the applicant who has received public benefits
obtain a letter from the county or federal agency distributing the benefit indicating that the
distributing agency knew about the potential fraud.
For example, some public benefit programs forbid someone from receiving benefits while s/he is
out of the U.S. for more than 30 days at one time. Some INS offices require naturalization
applicants who have been absent from the U.S. for more than 30 days at one time while receiving
public benefits to bring to the INS a letter from the governmental agency distributing those
benefits acknowledging that the governmental agency was aware of the absence in question.
Part 7: Time Outside the United States: Note that Section C of this part on absences asks the
applicant to list every absence since entering the United States, not just during the last five years.
Here, the INS is concerned with the continuous residence requirement of either five or three
years, the physical presence requirement of two and a half or one and a half years, and with
whether the applicant's lawful permanent resident status has been invalidated by an abandonment
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of residence. See Chapter 5 for discussion of continuous residence and physical presence and
Chapter 4 for a discussion of abandonment of residence.
It is also important to remind applicants that trips to Mexico and Canada are considered
to be trips outside the U.S., even if the trips lasted a short period of time. Yet, in Sections B and
C, one does not have to list any absence from the U.S. that lasted less than 24 hours.
If the applicant has left the U.S. for a period of between six months and a year, she will
have to establish to the satisfaction of the examiner that she didn't break the continuity of her
residence. If she can't, she will be required to wait five years after she returned4 to file the
application so that the residency requirements are met.
If the applicant was gone longer than one year, she will not be eligible for naturalization
until four years and one day (or two years and one day if married to a U.S. citizen) after she
returned from the absence.5 In the case of such a long absence, you should also be on the
lookout for abandonment of residence issues. These issues arise when the applicant moved from
the U.S. to live in another country while a permanent resident of the U.S., and where the
applicant cannot prove that she did not abandon her residence. In these cases, the INS may not
only deny the naturalization application, but also might find that she abandoned her lawful
permanent residence and put her in removal proceedings. In spite of this risk, the applicant must
answer this and all questions truthfully. She must work with a proven immigration law expert to
prove that she did not disrupt her continuous residence nor abandon her lawful permanent
resident status. If there is a real possibility that the INS will decide that she has abandoned her
residence, she should consider not applying for naturalization, because the INS could place her in
removal proceedings to try to take away her green card and remove (that is, deport) her. See
Chapter 5 for specified exceptions to the residence requirement.
If your client has more than ten absences from the U.S., she should list them on a separate
sheet of paper and attach it to the application. You may wish to have forms ready to record that
information, with the categories listed in the Absence section at the top of the form (See
"additional pages" forms in Appendix 8-C.)
Practice Tip: Of course, it is extremely difficult to remember the dates of vacations taken 15
years ago. Suggest that the applicant try to remember what time of year it was -- was it around
Christmas or anyone's birthday? What kinds of things did she do? Summer or winter activities?
She can try to remember how long the vacation was by thinking about whether she had to have
someone watch her house or apartment during that time, or whether she took a vacation or a
leave of absence from work, or whether she was between jobs. She should also look at the dates
in her passport and reentry permits.6 Although exact dates are best, in many INS districts an
4
8 CFR § 316.5(c)(1)(i) and (ii).
5
8 CFR § 316.5(c)(1)(i) and (ii). See Chapter 5 for an explanation of the four year and one day rule.
6
Immigrants are required to turn in their old reentry permits to the INS when they get them renewed. Therefore, the
applicant may not be able to determine all of her trips out of the U.S. from her current permit. You and she can
request a copy of her file with a Freedom of Information Act (FOIA) request, which will include copies of her
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applicant can estimate dates in this section. You should check your own INS district office for
its rule. If an applicant does estimate a date, she should write "about" or "approximately" before
the date. In addition in some INS districts, if the applicant left the U.S. every year for short
vacations it may be sufficient to write, for example, "One 2-week vacation to Guadalajara,
Mexico approximately every year from 1977-1992."
Part 8: "Information About Your Marital History."
The INS uses this information to determine whether a marriage that formed the basis of
lawful permanent resident status (where gained by marriage to a U.S. citizen or lawful permanent
resident) is valid, and to determine whether an applicant really qualifies for the "three year rule"
(a spouse of a U.S. citizen may apply after only three years of lawful permanent resident status).
However, an applicant needs to complete this section even if she did not get her lawful status via
marriage and is not applying under the three-year rule. At section E, 3, where the question asks
the immigration status of the spouse, she should either check the “Lawful Permanent Residence”
box or the “Other” box. If she checks the “Other” box, she should write the spouse’s
immigration status, or if the spouse is undocumented, the applicant should write “Alien” in this
box instead of “Undocumented.”
Applicants should be warned that if they committed marriage fraud (i.e., if they got
married only to get their green cards), the INS could deny their naturalization applications and
place the applicant in removal proceedings. Sometimes the INS could become suspicious if the
application indicates that an applicant who was married for a short period of time became a
permanent resident through his or her spouse. Also, if the applicant’s spouse’s address listed in
this section is different from the applicant’s listed in Part 1 of the application, the INS will get
suspicious. People who committed marriage fraud should be discouraged from applying for
naturalization because of the risks involved unless they check with an expert in immigration law
first.
One of the questions in Section B of this part of the application is the date of marriage of
the applicant and his/her spouse. This can be a crucial date because if the marriage occurred
before the applicant immigrated to the U.S. and the applicant immigrated as the unmarried child,
son, or daughter of permanent resident (second preference petition) or the unmarried child, son,
or daughter of a U.S. citizen (immediate relative petition or first preference petition), the
applicant could be denied naturalization and placed in removal proceedings for having
committed visa fraud. People in such a situation should not apply for naturalization before
checking with an expert. See Chapter 4 for more information on this topic.
Question 4 of sections F and G asks about when the applicant’s previous marriage ended
and when his/her present spouse’s previous marriage ended. This could a vital question if the
applicant immigrated as a spouse under either an immediate relative petition or second
reentry permits. (A FOIA request form is included at Appendix 7-B). In addition to helping her remember the
dates of her absences, it will help her make sure the absences she lists are consistent with what the INS has in its
records.
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preference petition and either the applicant’s marriage or the applicant’s spouse’s marriage
actually ended after the applicant and her spouse got married. If this is the case, the applicant
would not have been legally married to the person who petitioner for her and the applicant could
be denied naturalization and placed in removal proceedings for not having been eligible for her
green card when she received it. People in such a situation should not apply for naturalization
before checking with an expert in immigration law.
In addition, applicants should be careful of alien smuggling issues. If it appears that the
applicant's spouse is in the U.S. without papers (for example, has no Social Security number or
Alien registration listed on the application), the Immigration Service could ask at the
naturalization interview about whether or not the applicant helped his or her relative enter the
U.S. illegally. An applicant could be denied naturalization and even removed from the U.S. if
she helped smuggle someone across the border illegally, even if she merely helped her spouse (or
children) across the border illegally by sending money to pay a professional smuggler. If placed
in removal proceedings, an immigration lawyer may be able to help an applicant apply for a
waiver of this ground of deportation. Applicants in this situation must be referred to an expert in
immigration law. See Chapter 6 for more information on smuggling.
Practice Tip: All advocates must learn the different rules relating to the effects of alien
smuggling upon a naturalization application. If you do not know all the different effects, please
refer the case to an expert in immigration law who does.
Part 9: "Information About Your Children."
Some children may automatically become citizens when the applicant does through a
process called, “Derivation of citizenship.” See Chapter 12 for more information on derivation
of citizenship. The information the applicant provides here will enable the INS to determine
whether the children will automatically derive citizenship through derivation of citizenship.7
Even where children are not entitled to automatically derive citizenship, it is important to list all
the children because the parent might plan to submit a visa petition for her children as
"immediate relatives” after she naturalizes.8 Therefore, she should list all of her children (not
just the lawful permanent residents, those under 18 or those living in the U.S.), including step,
adopted, and illegitimate children, whether married or unmarried to facilitate her petitioning for
them in the future.9 The instructions to the application state that applicants should list even
children who are dead or missing.
7
INA §§ 320. See Chapters 7-5 and 12 for more information citizenship for children.
8
See Chapter 14.
9
If the applicant failed to report all children at the time of an immigrant visa or adjustment interview, but includes
them on his N-400 so that he can petition for them later, the INS may be concerned about why the applicant is
reporting the children one way on the N-400 and another on his/her visa application several years prior to applying
for naturalization. Additionally, when making a determination of whether the applicant has good moral character,
the examiner may be concerned about whether the applicant has lied about his children. In this instance it is usually
best to clear up the confusion with the INS rather than continue to lie or hide the truth.
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Applicants should be warned about alien smuggling issues here, as well. If it appears that
the applicant's child is in the U.S. without legal immigration status (for example, if a child listed
lives in the United States, is not a U.S. citizen, but has no alien registration number listed in this
part of the naturalization application), the naturalization examiner could ask about whether the
applicant helped her child enter the U.S. illegally. As mentioned in the discussion for Part 8 of
the application, alien smuggling can cause an application to be denied naturalization and even
placed in removal proceedings. See discussion of Part 8, above.
Applicants should also be concerned in this section with the good moral character issue
of failing to provide child support. If a minor child is listed on the application and the address
where the child lives is different from the applicant’s address, the INS may ask about whether
the applicant provides the child with child support. Willfully failing to support one’s dependents
can be grounds to deny someone naturalization. Please see Chapter 6 for more information about
good moral character in general and failure to provide child support in specific.
Important Note: As stated above, applicants should list all their children on the naturalization
application. If your client did not list a child or children on her permanent residence application,
she should be ready to give a good reason as to why the child or children were not listed. It is
recommended that an applicant with this problem consult with an immigration expert prior to
applying. Remember, the applicant may want to apply for these children to immigrate to the
U.S. in the future. If they are not listed on her naturalization application, the Immigration
Service may have some doubts about whether or not they are really the applicant’s children.
Part 10: "Additional Questions.”
This section asks for additional information that the INS examiner will use to determine
whether an applicant is eligible for naturalization. Generally these questions go to the reasons
listed in the Immigration and Nationality Act for which the INS can deny naturalization.
Chapter 6 deals in depth with the factors included in this question. If an applicant obtains
naturalization fraudulently (by not telling the truth or deliberately filling out the form
inaccurately) and this is discovered, the INS could take away her naturalization and possibly put
her in removal proceedings. So, it is important that applicants answer the questions in this, and
all parts of the application truthfully.10
Generally naturalization may be denied to persons who are not of "good moral character"
or who have voluntarily participated in or joined communist or totalitarian organizations or
organizations that advocate or teach opposition to all organized government, or who have used
their lawful permanent resident status to avoid military service. See Chapter 6.
10
INA § 340(a)
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Part 10 focuses on good moral character issues, political affiliations that may cause one
to be ineligible for naturalization, military issues, selective service registration issues, previous
deportation, removal, and exclusion issues, and the oath of allegiance requirements.
If your client answers yes to any one of the items in Part 10, you will have to work
together with him or her to provide a detailed explanation of why s/he answered yes. You will
have to evaluate the issue carefully to determine whether or not your client should apply for
naturalization. Before your client who has any criminal convictions or arrest applies for
naturalization, you should obtain the criminal records of that client by submitting his or her
fingerprints to the FBI and/or your state’s criminal justice background check program. This way,
you and your client will be aware of, and can analyze all of the relevant good and bad facts in her
case. (See Chapter 6 for a detailed explanation.) Issues in this section that are commonly raised
or are particularly problematic are discussed below.
Part 10, Section A: “General Questions”
Most of these questions relate directly to the applicant’s good moral character. If the
applicant answers yes to any of these questions, the INS could deny his application. In addition,
a yes answer to questions 1-3 could even result in the INS placing the applicant in removal
proceedings. Thus, it is vital that anyone answering yes to any of the questions in this part see an
expert immigration attorney or BIA accredited representative before applying for naturalization.
Please see Chapter 6 for more information on these issues.
Part 10, Section A, Questions 4 and 5 - Payment of Taxes
If an applicant made enough money to be required to file a federal, state or local tax
return, but did not do so, she must mark "yes" and explain to the INS why not. Failure to file
taxes is a good moral character issue and Chapter 6 contains a thorough discussion of this topic.
Question 5 concerns whether the applicant owes any federal, state, or local taxes.
Although an applicant must indicate, "yes" if she has ever failed to file her federal, state,
or local tax returns, the INS is primarily concerned with what she has done for the last five years
(the period for which good moral character is required -- three years for applicants married to
U.S. citizens). Any applicant who failed to file a tax return should see an immigration expert
who will help him determine whether to file his past tax returns before applying.11 People with
very low incomes are not required to file income tax returns.12 They may mark "no" in response
to this question if they mark the response with an asterisk (*) and write on the application: "I
11
Usually, an applicant can file past returns and set up a payment schedule with the Internal Revenue Service for
any back taxes owed. Applicants may be able to make an argument that, even though they filed tax returns late and
may even still owe money to federal, state, or local tax collectors, they never “failed to file a required federal, state,
or local tax return” because all have now been filed.
12
For example, a single person under the age of 65 does not have to file an income tax return for the 2001 tax year if
she made $7450 or less. (Information received from IRS information line, April 19, 2002.) Advocates can call the
local IRS information line at 1-800-829-4477, topic number 351, for specific information about filing requirements
for applicants depending on their age, filing status and gross incomes.
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was not required to file an income tax return because my income was low." At the naturalization
interview, examiners frequently phrase this question differently, i.e.: "Have you always paid
your taxes?" These applicants can say, "I have not had to, because my income was too low."
Some INS offices require that applicants bring copies of tax returns for the three years preceding
the interview. You should confirm if your jurisdiction requires applicants to submit tax returns.
These are all good moral character issues. Good moral character is discussed in Chapter
6 of this manual.
Part 10, Section A, Question 7 – Legal Competence
The INS can deny naturalization to applicants who are not legally competent at the time
of the naturalization interview or oath. If an applicant was declared legally incompetent before
the interview and/or oath, s/he can demonstrate to the INS that s/he is now legally competent and
still be granted naturalization.13 If the applicant is never the less unable to understand the oath of
allegiance, s/he may apply for a waiver of the oath requirement. Please see Chapter 7 for more
information on this subject.
Part 10, Section B: "Affiliations"
This section asks the applicant to list membership or affiliation with any group -- both in
the U.S. and elsewhere. If she needs additional space, she should use another piece of paper.
There are two purposes for the questions in this section. First, membership in some of
these groups can reflect positively upon one’s good moral character. For instance, if the
applicant is an active member in her child’s PTA or volunteers at the local Red Cross, the INS
will consider such membership and activity to be a positive factor when determining good moral
character. Please see Chapter 6 for more information on positive and negative factors when
determining good moral character.
The second and more common use of the questions in this section is to determine whether
the applicant has been a member of a Communist, totalitarian, anarchist or Nazi group, or any
group committed to the overthrow of the United States government.14 (See Chapter 6 and
discussion below.) If your client is concerned about her membership or participation in any
group, you must work with her to prepare to explain them to the examiner at her interview.
Membership in Communist Organizations
People who have been involved in certain political activities (in the U.S. or abroad)
cannot naturalize until ten years after they have stopped their involvement in those activities.
Those political activities include advocating anarchism (a philosophy opposed to all forms of
government), totalitarianism (one political party or group controls everything), or communism
13
See 8 CFR section 316.12.
14
INA § 313.
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(for example, as practiced in China, Vietnam, and the former Soviet Union). Concerns about
communist affiliation are far more common than concerns about the first two philosophies. A
person who voluntarily participated in communist activities or with communist groups cannot
naturalize for ten years following the last involvement.15 However, if the applicant can prove
that association or activities were involuntary,16 required by law17 (as in several communist
countries) or necessary for the purpose of obtaining employment, food or other essentials of
living,18 he will be allowed naturalize. Many applicants from communist or formerly communist
countries will be asked about this issue. In making a determination of whether the membership
was voluntary or not, the applicant should be ready to say truthfully whether or not she believes
in the principles of communism, anarchism, or totalitarianism.
Part 10, Section C: “Continuous Residence”
Filing a non-resident tax return is evidence that someone has abandoned his lawful
permanent resident status. (See Chapter 4, §4.8 for more information on abandonment of
residence.) Anyone who marks "yes" to this question must see an expert in immigration law
before applying for naturalization -- someone who has abandoned his residence risks being put in
removal proceedings, losing his green card, and being deported.
Part 10, Section D: “Good Moral Character”
Questions 15 – 21: Criminal Record:
It is very important for applicants to be honest about any arrests, no matter how long ago,
seemingly insignificant the offense, or whether the charges were dropped, or erased ("expunged"
or "vacated") from the applicant's record -- because the questions ask whether the applicant was
ever arrested, cited, or detained, not just convicted.
It is important to note that Question 16 of this section asks “Have you ever been arrested,
cited, or detained by any law enforcement officer (including INS and military officers) for any
reason?” Due to the fact that this question includes the word “cited,” the ILRC believes that
applicants would have to answer, “Yes” to this question even if the only interaction the applicant
has ever had with any law enforcement official was a traffic citation. Although traffic citations
without arrests or any other problems should not affect one’s good moral character for
naturalization, an applicant must note any traffic citations on the application and mention them
when under oath during the interview or else possibly risk having her naturalization application
denied for giving false testimony under oath.
15
INA § 313(a) and (c); 8 C.F.R. § 313.2.
16
INA § 313(d); 8 C.F.R. § 313.3(b)(1).
17
INA § 313(d); 8 C.F.R. § 313.3(b)(4).
18
INA § 313(d); 8 C.F.R. § 313.3(b)(5).
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The INS will use an applicant's fingerprints to find out about all of his arrests -- so they
will know if the applicant lied, and can deny the application for that reason. Anyone who
answers "yes" should see an expert in immigration law since an applicant may be denied, placed
in removal proceedings, or even removed from the U.S. if s/he has been convicted of certain
crimes. On the other hand, an immigration law expert may easily resolve some problems.
Please see Chapter 6 for more information on the immigration and naturalization consequences
of criminal convictions.
Someone who was arrested by the INS or border patrol and left the U.S. under "voluntary
departure" should consider this an arrest in answering Question 16. As with all arrests, one who
was arrested by the INS or border patrol and then allowed to leave the U.S. under voluntary
departure, should write an explanation to this question, about the circumstances of the arrest and
departure. Generally, voluntary departure will not affect one's naturalization application.
Example. Applicant Ann might relate the circumstances of her voluntary departure as
follows: "In 1978 I was detained by the INS during an INS raid of my workplace. I
voluntarily departed the United States and returned to Hong Kong. In 1986, I immigrated
to the United States with a family visa."
Practice Tip: Your client may have misconceptions as to what constitutes an arrest or conviction.
In addition, she may think that if the arrest occurred several years ago, it will not show up in her
record or it is unimportant. To avoid misunderstandings, explain to clients that you need to know
everything about their encounters with the police or any other law enforcement agency, no matter
how trivial it may be. It may also be a good idea to obtain the applicant’s FBI record and court
dispositions to confirm the client’s recollections and to comply with the Service’s requirement that
dispositions on all criminal cases be submitted.
Part 10, Section D, Questions 22 - 24
These questions relate to the applicant’s good moral character. They involve issues such
as alien smuggling, failure to pay child support, giving false testimony to come to or stay in the
U.S., prostitution, polygamy, illegal gambling, and the sale and/or smuggling of controlled
substances, illegal drugs, or narcotics. The INS merely can deny naturalization to some applicants
who commit some of these activities (such as being a habitual drunkard or willfully failing to
support one’s dependents) and the INS can deny naturalization and remove from the U.S.
naturalization applicants who commit others of these activities (such as alien smuggling and
illegal drug selling). It is important to note that the applicant does not need to be convicted of any
of the offenses listed in these questions for the INS to deny the naturalization application and/or
remove the person from the U.S. The mere commission of some of these activities is sufficient.
For more information on these issues and how they can affect one’s naturalization application and
immigration status, please see Chapter 6.
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Part 10, Section E: “Removal, Exclusion, and Deportation Proceedings”
Someone who has been deported, excluded, or removed in the past should see an expert in
immigration law before applying for naturalization. Even if she was deported, excluded, or
removed long ago, and then became a lawful permanent resident after the deportation was
waived19 so that there should not be any problems in applying for naturalization now, we still
suggest that such an applicant see an expert in immigration law because there still could be
problems. If someone is now in deportation or removal proceedings or under an order of removal
or deportation, s/he cannot naturalize until the proceedings are stopped.
Part 10, Section G: “Selective Service”
Every man between the ages of 18 and 26 -- citizen or not -- has to register with the
Selective Service (or the “draft”). The only males exempt from this requirement are those who are
here pursuant to a non-immigrant visa or diplomatic status. The INS considers it a lack of good
moral character for men who are required to register with the Selective Service to knowingly and
willfully fail to do so. For a thorough description of the INS' policy regarding failure to register
for the Selective Service, please see Chapter 6 of this manual.
Practice Tip: One can find out if he did register for the selective service, or what his registration
number was if he did register, by visiting the selective service website at www.sss.gov.
Part 10, Section H: “Oath of Allegiance”
In order to become a U.S. citizen, an applicant must be willing to undertake the

responsibilities of citizenship. Generally this requires that the applicant be willing to serve in the
armed services or provide alternative service if she is "religiously" opposed to bearing arms.20 If
she answers no to any question in Part 8, you and she will need to work together to provide a full
explanation. See Chapter 9 for a discussion of these requirements.
Part 11: "Your Signature."
By signing the form, the applicant is indicating that the information provided and
documents submitted are correct to the best of his or her knowledge.21 Knowingly providing
19
If the applicant was deported, and then immigrated legally within five years, he would have needed a waiver of
the "prior deportation" ground of exclusion [INA § 212(a)(9)(A)].
20
INA § 337.
21
8 CFR § 335.2(e). Although the Form N-400 signature clause reads "I certify ... that this application ... is all
true and correct," the oath included in 8 CFR § 334.3 reads, "I swear (affirm) and certify under penalty of perjury
under the laws of the United States of America that I know that the contents of this application for naturalization
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false information is a ground for revocation of naturalization and for permanent denial of
naturalization.22 According to the instructions for the N-400, the signature must be legible.
Additionally, the instructions state that if the applicant cannot sign in English, s/he should sign in
his/her native language. The instructions also state that if an applicant is unable to write in any
language, s/he should sign her name with an “X.” For more information regarding applicants
who are unable to sign the naturalization form, see Chapter 7.
Part 12: "Signature of Person Who Prepared This Application for You."
If someone helped the applicant complete the N-400 form because the applicant was
physically unable to write, the person who prepared the application should complete this
section.23
§ 8.3 Documentation
An applicant must enclose the following with the completed N-400 application:
1) Photos. Although 8 CFR § 316.4(a) requires all applicants to submit three

photographs with their applications, most, if not all, INS offices require just two
photos. You should check the policies of the office in the jurisdiction in which you
are filing applications. Photos of the applicant must be taken within 30 days before
filing the application. Applicants should write their names and alien registration
numbers lightly in pencil on the backside of the photographs.
2) Application Fee. The fee for a naturalization application is $310.00 ($260.00 plus
an additional $50 fingerprinting fee). It should be paid by check24 or money order.
An applicant who cannot afford the filing fee can apply for a fee waiver in writing to
the INS Service Center with jurisdiction over her application.25 A model fee waiver
request is included at Appendix 8-J. The applicant should also provide evidence of
his or her income (which could include a record of social security earnings, the
previous year's tax return, or documentation submitted with an application for public
assistance), assets and expenditures with the fee waiver request. The INS denies
more naturalization fee waivers than it grants.
subscribed by me, and the evidence submitted with it, are true and correct to the best of my knowledge and
belief." [emphasis added].
22
INA § 340.
23
8 CFR § 334.2(a).
24
Payment by check can be useful because when the INS cashes the check, the applicant will have the cancelled
check as evidence that the INS received the application and fee.
25
Since the Service Center started accepting naturalization applications, the Service Center has the discretion to
grant naturalization application fee waivers. See 8 CFR § 103.7(c).
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3) Fingerprint Fees. Applicants are no longer required to submit fingerprint cards.

Instead they must include a fingerprint fee of $50 with their applications in addition
to the $250.00 fee for the naturalization application. The INS Service Center will
schedule the applicant to have her fingerprints taken at an INS fingerprint facility.
Please note that the instructions for the Naturalization Application provide that
fingerprints are not required for people under 14 or older than 75 years old.
4) Copy of Green Card. The applicant must enclose a copy of both sides of his/her
alien registration card ("Green Card"). If the applicant has lost his/her green card,
s/he should include with his/her application an explanation as to what happened to
his/her card. Note however that a loss card creates three problems.
a) Lawful Permanent Residents are required by law to carry their green cards at all
times.
b) INS files are kept by alien registration number not by last name. An applicant
who is unable to provide his/her alien registration number on his/her application
for naturalization because s/he does not have his/her card to verify the number,
may have his/her application returned to her.
c) Service Centers have on occasion returned applications as “incomplete” because

an applicant did not submit a copy of the green card, despite the fact that he/she
had included an explanation as to the whereabouts of her card. If this happens,
the application should be resubmitted with an indication that the applicant’s
application should be accepted despite the fact that a copy of the green card
could not be submitted. In order to qualify for naturalization an applicant only
needs to have the status of a lawful permanent resident, not necessarily a card
indicating that status.
Special Note Regarding Green Card Renewals: Lawful Permanent Residents (LPRs) are
required to submit green card replacement applications up to six months prior to the expiration
date of their cards. A LPR with an expired green card will not lose his/her legal status in the
United States, however a valid green card is often needed to obtain employment, benefits and re-
entry into the United States after traveling abroad. INS has issued a memorandum outlining the
green card replacement procedures. See INS Memorandum from Michael A. Pearson, Executive
Associate Commissioner Office of Field Operations Form 1-551 Renewal Policy and Process
dated September 29, 1999. In the memorandum, Mr. Pearson indicated that naturalization
applicants who submit an application for naturalization more than six months prior to the
expiration of the green card will not be required to submit an I-90 form to renew the green card.
However, INS will not issue interim proof of continued lawful status. Therefore a person who
filed for naturalization more than six months prior to the expiration of his/her green card may
need to apply for a green card replacement if he/she is seeking employment or plans to travel
abroad while his/her naturalization application is pending.
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Example: Jose got his LPR status in March 1993. His green card expires in March 2003.
He submitted his application for naturalization in August 2002. He is not required to
apply for a new green card because he applied for naturalization more than six months
before his green card was due to expire. INS, however, will not give him an extension on
his green card unless he submits an I-90 and the $130 fee. If he wants to travel and/or
change employment, it may be best for him to submit an I-90 so he can get an extension
for his green card.
Example: Mario also got his LPR status in March 1992. His green card expired in
March 2002. He submitted his application for naturalization in December 2001. Mario is
supposed to submit an I-90 and the $130 fee because he applied for naturalization less
than six months before his green card was due to expire.
5) If the applicant ever served in the U.S. armed forces, she also must fill out a Form G-
325B.
6) Additional Documents: It is unclear whether an applicant must include the

following documents with the application. However, examiners are requesting the
following documents at interviews and the Service may make it mandatory to submit
them with the application in the near future. Therefore it is important that applicants
be prepared to provide the documents when requested.
• All applicants with criminal records are required to submit police and/or court
records.
• Applicants who have received public benefits are often asked to provide letters from
the agency indicating that the applicant was eligible to receive the benefits.
• If the applicant has children who do not reside with her, she may need to provide
proof of child support payments or proof that no child support is required.
• An applicant may also be required to submit birth certificates for her children, as well
as marriage, divorce, and death certificates for herself and her spouse.
• An applicant applying as the spouse of a U.S. citizen will have to provide proof of the
spouse’s citizenship status.
• Applicants may be required to provide tax return copies for the three-year period
preceding the submission of the application. If the applicant has traveled outside the
U.S. for a period longer than six months, she may be required to submit IRS Form
1722.
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Practice Tip: It is important to know what documents the applicant will have to submit at her
interview and have the documents available on that day. Many cases are often unnecessarily
continued due to unavailability of documents at the interview. If an applicant is told to mail
documents that were not brought to the interview, she should mail the documents via certified
mail and return receipt requested. Often, cases are denied because the Service lost documents
that were mailed by applicants and the Immigration and Naturalization Service failed to place
them in the applicant’s file. If this happens, applicant and their representatives should contest
the denial. Please see Chapter 11 for information on naturalization appeals and denials.
Because applicants, like advocates, have lots of things to remember, they can benefit
from preparing a "To Do List" together which will help the applicant remember all of the
documents she needs to gather to submit with her application. See Appendix 2-A for a model
"To Do List" for applicants.
The applicant should make a copy of the application and supporting documents, and keep
them in a file separate from other important papers. Then the applicant should send the N-400
and supporting documentation to the INS Service Center with jurisdiction over the applicant's
residence If the applicant sends the application by certified mail, Return Receipt Requested, she
will have a record of when the INS received it. The Service Center will send a receipt for the
fee. The applicant should keep whatever documentation s/he has of filing the application -- the
cancelled check from the application fee, Return Receipt card or receipt from the INS -- with the
copy of the application.
The mailing addresses for applications and the states they cover are listed below.
• For applicants residing in: California, Hawaii, and Nevada
U.S. Immigration and Naturalization Service

N-400 Unit
California Service Center
P.O. Box 10589
Laguna Niguel, CA 92607-0589
• For applicants residing in: Alaska, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas,
Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oregon, South
Dakota, Utah, Wisconsin or Wyoming

Nebraska Service Center
P.O. Box 7400
Lincoln, NE 68501-7400
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• For applicants residing in: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, or
Texas

Texas Service Center
P.O. Box 851204
Mesquite, TX 75185-1204
• For applicants residing in: Connecticut, Delaware, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia,
Washington D.C., West Virginia, Commonwealth of Puerto Rico or the U.S. Virgin
Islands

Vermont Service Center
75 Lower Weldon Street
St. Albans, VT. 05479-0001
Please Note: Individuals who currently are serving in an active duty status in the armed services
and are applying for naturalization based on qualifying military service (See Chapter 7-5) should
file their application with the Nebraska Service Center, at the following address: Nebraska
Service Center, Attention N-400, Naturalization Facilitation Unit, P.O. Box 87426, Lincoln,
Nebraska, 68501-7426.26
Practice Tip: Group Processing. If you often do more than a couple of naturalization
applications in a week, you may want to work with the clients in groups. Group processing
allows your agency to be more efficient while helping clients learn about the naturalization
requirements and apply for naturalization. Clients do much of the work in this method, which
saves you time and builds a stronger case. Your client will know what information the INS is
looking for, and will be better prepared for her interview. Group processing allows clients to
work together and learn from each other. Group processing helps develop valuable skills, such
as how to fill out forms and keep records, which will help clients in other parts of their lives. See
Chapter 10 for a step-by-step group-processing plan.
§ 8.4 Applications of People With Disabilities
Some applicants who have disabilities will qualify for exceptions of the English language
and U.S. history and government requirements because they have "medically determinable
physical or mental impairments" which prevent them from learning and/or demonstrating
26
See 76 Interpreter Releases 1721, December 3, 1999 and 64 Federal Register 67323-24 (December 1, 1999).
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knowledge of these subjects. An applicant who wishes to apply for this exception must get a
medical certification, on Form N-648 (Appendix 7-I) from a licensed physician or a licensed
clinical psychologist with experience diagnosing persons with physical disabilities or mental
impairments. An applicant who is exempted from the testing requirement must still attend a
naturalization interview with an INS examiner. See Chapter 7 for more information about this
exception.
Applicants with disabilities, including those who qualify for the disability waivers of the
English and/or U.S. history and government exams, and those applicants with disabilities for
whom the tests are not waived may face significant obstacles in attending the naturalization
interview. The INS is required to accommodate the needs of applicants with disabilities.27
Applicants should request accommodations of their disabilities both in Part 3, Section I of the N-
400 application and in a cover letter sent with the N-400 application form. The letter should
specify the type of accommodation required, and the reason the accommodation is needed (for
example, the applicant with the disability needs to have a family member attend the interview
with her so she does not get too frightened). Reasonable modifications include providing
wheelchair-accessible test sites, sign language interpreters, allowing a family member to be
present during the interview as an interpreter, an extension of time for the civics test for an
applicant with a learning disability who will not get a waiver of the testing requirements, or other
modifications in the test format or test administration procedures.28 A model letter requesting
accommodation of disability at the naturalization interview is included in Appendix 7-J.
Although no formal medical certification is required, some INS offices might demand that the
applicant submit a letter from his or her treating physician stating why the requested
accommodation is necessary (in the example above, the doctor should state why the presence of
the family member is necessary and how it is related to the applicant's disability). You should
check the procedures in your local INS jurisdiction.
More significant accommodations may be necessary for people with more significant
disabilities or for very sick applicants. Applicants who cannot attend interviews at the INS
despite reasonable accommodations made by the INS may request that they be interviewed at a
site away from the INS, like their home or a senior facility. If the INS determines that the
applicant has an illness that is serious enough to prevent him/her from appearing at the INS for
an interview, the INS must conduct the interview at a place where the applicant can appear.29
27
Regulations implementing § 504 of the Rehabilitation Act of 1973 provide that an agency of the Justice
Department, such as INS, may not utilize "criteria or methods of administration the purpose or effect of which
would ...[d]efeat or substantially impair accomplishment of the objectives of a program or activity with respect to
handicapped persons." 28 C.F.R. § 39.130(b)(3)(ii). INS accommodation of applicants with disabilities is
necessary so that the requirement of attendance at the interview (or swearing-in ceremony) does not "defeat or
substantially impair" Congress' intent in INA § 312(b) to ensure that persons with disabilities are not denied
naturalization. See Chapter 7 of this manual for more information on this topic.
28
See Appendix 7-H. See Chapter 7 of this manual for more information on this topic.
29
8 C.F.R. § 334.4. According to the Supplementary Information accompanying the disability waiver regulations,
"it is the common practice of all Service offices to conduct naturalization interviews and to administer the oath of
allegiance outside of the local Service office in instances where the applicant is either home-bound or confined to
a medical facility." Final Rule, 8 C.F.R. § 312, 62 Federal Register, No. 53, 12915, 12919.
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Advocates should work with their local INS offices to help them make these accommodations.
Some INS offices send examiners to senior or other care homes to conduct "off-site interviews"
at one central site in the community that may be more accessible to some disabled or ill
applicants. For more information about how to set up off-site interviews, you can order Off-Site
Processing of Naturalization Examinations from the ILRC.
§ 8.5 Expedited Naturalization Application Processing
It is the INS’ policy to process naturalization applications in the order in which they are
received. However, the INS can expedite (speed up) the processing of an application for a
compelling reason. For example, the INS may expedite one’s application who is terminally ill or
who is a dependent of a member of the U.S. military who is required to travel abroad. An
application also can be expedited for an individual who can demonstrate that the loss of benefits
under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare
Reform Act) will cause “extreme hardship.” An extreme hardship is a hardship that would
immediately threaten the life, safety or health (including housing) of the applicant and is more
significant than the financial difficulties generally associated with the loss of benefits. Please see
Appendix 8-N for more details on expediting naturalization applications.
A new applicant for naturalization who wants to request expedited processing must first
submit his/her application to the appropriate service center and then send a written request fully
documenting the situation to the INS district office or sub-office with jurisdiction over his/her
residence. The applicant also should submit a copy of her written request for expedited
processing with her N-400 application. An applicant who originally submitted his/her
application to the district office, should send a written request with supporting documentation to
the district office or sub-office with jurisdiction over her application. The cover letter requesting
expedited processing should include:
• the applicant’s complete name as it appears on his or her Alien Registration Card
(green card);
• the applicant’s Alien Registration Number;
• the applicant’s day time phone number;
• a statement that the request is for expedited processing of a naturalization application;
and
• documentation of the need for expediting the application.
The INS grants expedited processing at its discretion. It is important to note that
expedited processing does not exempt an applicant from any requirements for naturalization. For
example, applicants with disabilities who are granted expedited processing and who also wish to
request an exemption from the English and civics requirements must file a separate N-648 in
accordance with procedures established by the INS.
The INS will schedule interviews for applicants who have been granted expedited
processing after all the preliminary processing, including the fingerprint checks, are completed.
When appropriate, and at the discretion of authorized officials, the INS can make special
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accommodation for the location of the naturalization interview and for the scheduling of the oath
ceremony.
§ 8.6 Amending the Application
In the months between when an applicant sends in her application and when she gets her
INS interview, many changes may occur in her life that belong on her application -- like moving,
changing jobs, or taking vacations out of the country. The examiner may ask the applicant in her
interview if she has any changes to her application, and she should tell the examiner of all the
changes then. She does not have to submit any written documentation, but a typed addendum
may help an examiner record the information if the applicant has numerous changes in her
application or has trouble communicating in English. If she needs to write things down, like
dates of vacations, and refer to her notes in the interview, the INS might allow her to -- but she
should make clear to the examiner that she only has these changes written, not answers to
questions about U.S. history and government.30
§ 8.7 Transferring to Another District
If an applicant moves to another INS district while waiting for her interview, she can
request that her file be transferred. To do this, she should write to the Service Center where she
filed her application and ask that the file be transferred to the INS office having jurisdiction over
her new place of residence. The request should include the applicant's name, A-number, date of
birth, complete current address (including country name), complete address at the time of filing
the application, reason for the request to transfer the application, and the date the applicant
moved or intends to move to the new jurisdiction.31 Transferring the application may take
months, or even years depending on the INS district to which it is sent. In addition, in many
jurisdictions the Immigration Service fell behind in entering change of address requests. As a
result, the Service sent appointment notices to wrong addresses. It is important to inform clients
about this potential delay before they file their applications, so that they can decide whether they
want to postpone moving until they have completed the naturalization process, or postpone filing
the application until they move to their new residence.
Example: Tran applied for naturalization but several months after submitting his
application he moved to another neighborhood. He sent his change of address notice to
the Immigration and Naturalization Service via certified mail. After waiting two years
for his appointment, Tran contacted the Immigration Service to inquire as to what
happened to his application. The Service responded that he had not attended his
appointment three months ago, so the Service had closed his case. Tran requested that
the Service re-open his case and sent proof that he had informed the Service of his change
30
Procedure in the San Francisco INS office suggested by Ted Schweiter, Deputy Assistant District Director,
Examinations, San Francisco District Office of the INS, San Francisco, in a conversation with the ILRC on
January 10, 1994.
31
8 C.F.R. § 335.9(a).
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of address. The INS re-opened the case and did not charge Tran for doing so. For more
information on requests to reopen, see Chapter 11.
If the INS District Director does not consent to transfer the application, the application
will be adjudicated in the district where the application was filed.32
Please Note - Telephonic Change of Address Service: Naturalization applicants can submit a
change of address request to the INS via a toll-free number. By dialing 1-800-375-5283, an
applicant will be connected to the INS National Customer Service Center (NCSC). The NCSC
will take the change of address information and update the INS computer files making the
necessary jurisdictional changes. Operators who speak Spanish and English staff the NCSC.
The INS hopes to add other language capabilities in the future.
§ 8.8 Withdrawing the Application
An applicant may request, in writing to the INS district director, that her application be
withdrawn. If permission is given, the application will be denied without further notice to the
applicant and without prejudice (i.e., without any negative effect) to any future application. If
permission is not given, the INS will determine the application on its own merits.33 Therefore, if
an applicant does not receive permission to withdraw her application, she may want to attend the
interview and make necessary explanations to improve her chance of success. Applicants who
discover they have made a mistake in applying may wish to withdraw their applications,34 or
simply not attend their interviews.
§ 8.9 Preparing For The INS Interview
After receiving the naturalization application, an INS Service Center Officer will review
the applicant’s N-400 and the INS’ file on the application (i.e., the “A-file,” which documents
the applicants entire history with the INS). The Service Center Officer will identify any
additional documents INS needs to adjudicate the case. If the applicant needs additional
documents, the reviewing officer may request that the applicant bring them to his/her interview.
Once the INS completes the fingerprint and file checks, the INS will schedule the
applicant for an interview.
The applicant will be required to go to the INS office and meet with an INS examiner for
a naturalization interview. Most interviews last about 10 to 20 minutes. The applicant will be
asked questions in English about the answers on her application for naturalization and about U.S.
32
8 C.F.R. § 335.9(b).
33
8 C.F.R. § 335.10.
34
It is possible that the INS might review an application that someone asks to have withdrawn to determine if the
applicant is deportable.
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history and government, and to write a sentence in English. There are several things that
applicants should do while waiting for their interview date, and several ways advocates can help
them.
English and U.S. History and Government. This is one of the most challenging parts
of the process. An advocate should help the applicant locate and register for a class -- explain to
her what citizenship classes are like, where they are offered and how to register. If no classes are
available, help her prepare on her own, including giving her a copy of the 100 questions the INS
uses as the basis for their questions (the most recent official INS edition of the 100 questions is
included in Appendix 7-A) and suggesting a study schedule. Advocates may want to
recommend that the applicant watch and study one of the videotapes listed below. If an advocate
knows of several applicants who need to study, she could suggest that they get together in a
study group. The INS has published on its website sample sentences in English that INS
examiners might ask an applicant to read or write and sample practice tests for the applicants.
See Appendix 7-H for a list of the INS’ sample English sentences.
Practice doing an interview. It is easy to practice a naturalization interview,

particularly the parts on English and history and government. Invite your client to practice the
interview with you so that she will be more comfortable for the real thing. She could play the
part of an applicant, while you play the part of the examiner in a naturalization interview. If you
meet with more than one applicant at a time, the group can discuss and practice ways to enter the
interview room and introduce themselves. The applicants can also switch roles and play the
interviewer as well. This approach may also help the applicant see that, as important as this
procedure is to her, the interview is not a mysterious process. The examiner is a normal
government worker who can be nice or mean, asking questions that the applicant already knows
and can practice with her friends.
Create a practice cassette. A legal worker or family member of the applicant can
prepare a taped cassette in English (with instructional cues in the native language) covering the
applicant's individual questions and answers about her N-400 form.
Mock interview videotape. New Readers Press has produced a video called, Will They
Pass? that includes a mock naturalization interview and other tips on the naturalization
interview. People can order the video by calling 1-800-448-8878.
Practice Tip: Preparation for the naturalization interview is well suited to a group workshop
format. The whole group can brainstorm interview techniques; someone who has been through
an interview can tell them how it went; agency workers and volunteers can act out a skit of an
interview that workshop participants can critique; and participants can pair up to do role plays
and then return to the group with ideas they came up with during their practice. See Chapter 10
for a more complete discussion of interview preparatory group workshops.
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Gather supporting documents. Depending on the circumstances surrounding the

applicant’s case, the applicant may need to bring documents to the interview that prove certain
things she stated on her application -- for example: marriage and divorce or death certificates of
spouses and ex-spouses, birth certificates of children,35 criminal history records, or proof of non-
abandonment of residence. It might be helpful for her to take a copy of a certificate stating that
she has successfully completed a citizenship class, so that the examiner will know that she has
put a lot of effort into learning the required subjects. You can work with her to determine what
documents she'll have to take, and how she can get them. Please see section 8.3 for a more
thorough discussion of documentation.
Disability waiver documentation. Applicants with disabilities who want to apply for a
disability wavier should submit their N-648 medical certifications with their N-400
naturalization applications. Some applicants, however, are either not aware of the availability of
disability waivers or become disabled after the application has been submitted. In those
circumstances, the applicant can bring his/her completed disability form to the interview. For
more information on when to submit the medical certifications, please see Chapter 7.
§ 8.10 The Interview
After several months or even years (how long depends on your INS District -- you should
find out what the wait is locally), your client will receive a notice telling her when to appear for
her INS interview. An attorney or BIA accredited representative is allowed to be present at the
interview if she submitted a G-28, "Authorization of Representation" form before or submits it at
the interview.36 During the interview, the examiner will swear in the applicant and do three
things:
1) Ask questions about any of the information on the Form N-400 application. This is a
good reason for the applicant to be extremely familiar with her application and any
changes since she applied. She should be actively involved in filling it out and should
study it just as she would study about U.S. history and government.
2) Determine whether the applicant can read, write, and speak words in English (the
"English Literacy examination"). Immigration and Naturalization Service regulations
require that "no extraordinary or unreasonable conditions shall be imposed" by the
examiner. The regulations further provide that the examiner shall repeat questions in a
different form, or further explain them, until she is satisfied that the applicant either fully
35
A copy may be certified by attaching to it the following statement: "I declare under penalty of perjury that the
attached is a true and complete copy of the original document." Some of the documents may not be in English. All
documents that are not in English must be submitted to the INS with "certified" English translations. A translator
may certify a translated document by attaching to it the following statement: "I declare under penalty of perjury that
I am competent to translate from English into [language], and that the attached document is a true and complete
translation of the original document."
36
Persons who are permitted to represent persons in immigration proceedings include attorneys and BIA-
accredited representatives. For a full list, See 8 C.F.R. § 292.1.
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understands the questions or is unable to understand English.37 See Chapter 7 for more
discussion of the English language requirement.
3) Ask the applicant some questions on the history and the government of the United
States. (See Chapter 7 for more information on the U.S. history and government
requirement.) In choosing the subject matters, in phrasing questions and in evaluating
responses, the examiner must make due consideration of the applicant's education,
background, age, length of residence in the United States, opportunities available and
efforts made to acquire the requisite knowledge, and any other elements or factors
relevant to an appraisal of the adequacy of the applicant's knowledge and
understanding.38
The examiner may request more information from the applicant, and put off making a
determination about whether the applicant passed his interview until getting that information.
The requests can include anything that the examiner thinks is necessary to determine if the
applicant is eligible to naturalize -- common requests are for dispositions of criminal cases and
questions about whether or not the applicant failed to register for the Selective Service.39
Examiners may request more complete information to support applications for disability waivers.
The examiner will use Form N-14 to list the additional documentation needed, and will give the
applicant a time frame within which to send in the requested information. The applicant may be
reexamined after the INS receives the information.40
If the applicant passes her naturalization examination, she may or may not be told that
she passed. The adjudicator is supposed to give the applicant a form indicating that she has
passed the examination and that she will receive an appointment in the mail for her "final
hearing" -- that is, the oath ceremony.
Translations: Timing of reinterview if interpreter disqualified. If an applicant

qualifies for an exemption from the English requirement, she or the INS may select an
interpreter for the naturalization interview. However, if the INS examiner thinks the
interpreter will make the interview less reliable, (by translating incorrectly or by
providing answers), the INS examiner can disqualify the interpreter. In that case, the INS
must provide another interpreter in a timely manner. If it is necessary to reschedule the
interview, the new interview shall be set as soon as possible so as not to unduly delay the
case.41
37
INA § 312(a)(1)
38
8 CFR § 312.2(c)(2).
39
Please see Chapter 6 for more information on this subject.
40
8 C.F.R. § 335.3(c)
41
8 C.F.R. § 312.4.
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Some INS offices such as the San Francisco INS district, translators available through the
phone service, AT&T, must be used in interviews where applicants are exempt from the
English language requirement. The INS makes arrangements with the AT&T translation
service at the time of the interview. Advocates should find out if their local districts
follow the same policy.
Translations: Deaf Applicants. Deaf applicants who know Sign Language should mark
their applications clearly: "American Sign Language Interpreter Requested." A deaf
applicant who is exempt from the English language requirement can be interviewed
through a sign interpreter in her native language, or if she doesn't know any sign
language for which the INS has a sign interpreter, then she should be granted an
exemption from the language requirement. She should mark in red (or some other
noticeable color) at the top of her application: ________________ (native language),
Sign Language Interpreter Requested.
In addition to submitting a request for a sign language interpreter on the application form,
an applicant should contact a supervisor in the citizenship branch of the local INS office
to make sure the INS can request that a sign interpreter attends the interview.
§ 8.11 What Happens After the Interview
In some cases the INS denies naturalization for lack of good moral character, failure to
pass two English and/or US history exams or for other reasons. See Chapter 11 for more
information on naturalization denials and appeals. If the applicant doesn't "pass" the
naturalization interview because she failed to pass the English or history and government exams,
the naturalization examiner must schedule a re-examination within 90 days following the initial
exam.42 See Chapter 7 for a discussion of retesting.
If the application is granted, the INS will send the applicant a notice with the time and
place where the naturalization ceremony will be held. Either a court or the INS may be
responsible for administering the oath of allegiance to the applicant, depending on your district.
You should check with your local INS office to determine whether the courts or the INS do it in
your locality. Congress has given the federal district courts the option of choosing whether they
wish to exercise "exclusive jurisdiction" over naturalization, meaning that the courts would retain
the exclusive right to administer the oaths. See Chapter 9 on the oath ceremony.
§ 8.12 Problems in the Process
Sometimes the application and interview process does not go completely smoothly. The
INS may lose an applicant's file or applicants may feel they were treated unfairly in their
interviews. You can minimize their effects on the applicant by both preparing well for problems
and by advocating on behalf of the applicant after the problem has occurred.
42
8 C.F.R. § 312.5(a).
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Preparing the file and the applicant. The applicant should be sure to use certified mail
and to keep copies of everything she sends to the INS. In case a file is lost, she can provide
replacements. The applicant should also be prepared for difficult interview situations. Some
interview preparation suggestions are included in Chapter 10. You should also tell the applicant
to try to remember details of what went wrong in her interview -- for example, if she were asked
questions that did not appear on the list of 100 questions, if the examiner said inappropriate
personal things, or if she was not given a chance to explain her answers. Although she may feel
confused and upset, she should try to note things on a sheet of paper so that you and she can be
specific when complaining to the INS. Try practicing an unfair or mean interview so she can
figure out ways to remember the problems. Although it is best to remember the name of the
examiner, if the applicant doesn't know it, the INS Naturalization office can determine who the
examiner was by knowing the name and A-number of the applicant.
Expired fingerprints: As the result of backlog of naturalization applications, applicants

are being further delayed by the expiration of their fingerprint checks. FBI fingerprint checks are
only valid for 15 months. The Service cannot interview, re-interview or schedule an oath
ceremony for a person whose fingerprint check has expired.
Example: After waiting 14 months for an interview, Natvia passes the naturalization
interview. The examiner informs her that she will receive her appointment for an oath
ceremony in the mail. Unfortunately, the next oath ceremony is in ten weeks and by then
her fingerprint check would have expired. Instead of receiving an oath appointment, she
receives a notice that she needs to be re-fingerprinted. A new clearance will have to be
obtained from the FBI, which could take a few months, thereby delaying Natvia’s oath
ceremony a minimum of five months.
Advocating on behalf of the applicant.
1) Lost Applications. You and the applicant should write a letter to the INS district
office or service center where her application was filed. The letter (a sample letter is
included in Appendix 8-F) listing the applicant's name and A-number, what forms and
papers were sent, and when. Attach a copy of the applicant's Return Receipt Requested
receipt and a copy of her entire application packet.
2) Lost INS Files. The INS cannot schedule a person for an interview unless it has a
copy of her INS file. There are occasions when the INS cannot locate the person’s file to
proceed with the applicant's request for naturalization. According to the INS’
Naturalization Quality Procedures VI43 upon receipt of an application for naturalization
the Service is supposed to make two attempts at locating the file at 30-day intervals. If
after two attempts the file is not located, the Service shall create a temporary file to allow
it to proceed with the application. Since the INS has had difficulty confirming whether
two attempts at locating the file have been performed, some applicants with lost files
have not been interviewed. Advocates should inquire as to whether a lost file is delaying
43
NQP 4 Training Manual II pgs. 7-9
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a person’s interview and insist that the INS honor its policy of creating a temporary file if
the original file has not been located.
3) Unfair Interviews. The INS does not want its examiners to conduct unfair or
mean-spirited naturalization interviews. It therefore welcomes information about
problems in interviews. Send a letter detailing as clearly as possible the examiner's bad
conduct and what affect that conduct had on the applicant.44 Please see the "Practice Tip"
in section 7.16 of Chapter 7 of this manual for suggestions of ways applicants, with help
from advocates, family members or friends can challenge unfair aspects of a
naturalization exam with an INS supervisor.
Example: Maria went to her interview confident that she knew all the answers to
the "100 questions" and could understand and speak enough English to answer
those questions and anything about her application. At her interview, though, her
examiner frowned when she answered questions about her application. He
phrased a question about the branches of U.S. government in a confusing way,
and exclaimed "wrong" triumphantly when Maria answered it incorrectly. He
wouldn't let her explain that she knew all about the branches of government if he
would just give her another try. He told her that if she had known anything about
U.S. government, she'd have known that answer. Because she was very tired
from having been up all night worrying about the interview, she broke into tears.
The examiner told her not to cry in the interview. She was unable to complete the
interview. The examiner said she failed the interview.
Maria told her legal worker what had happened and they worked
together to write a letter to the INS describing what had happened in the
interview, that Maria had been prepared to pass the exam, and that she would
have passed if the examiner had been fair. When Maria got her second
interview, she had a different examiner, and she passed her exam.
4) INS Inaction on a Case. As applications and interviews increased dramatically

several years ago, the INS struggled to keep up with the requirement that it make a
decision on a case within 120 days of the naturalization interview.45 If a case has
dragged on for much longer than average cases, write to the INS naturalization branch in
your district. List the applicant's name, A-number, and date of last action on the case
(e.g. application filed a year ago and no contact from the INS since; applicant passed
exam four months ago and hasn't gotten oath ceremony notice, etc.) See Chapter 11 for
more discussion of this issue.
44
Two sample "complaint letters" are included in Appendix 8-K. One explains the substantive issues the
applicant was unable to raise at her interview; the other describes inappropriate examining techniques by the
examiner. The INS responded to these letters by scheduling a new interview for the applicant, who is now a U.S.
citizen.
45
8 C.F.R. § 335.3(a).
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5) Meetings with the INS. Organizations and schools that work with naturalization
applicants can meet with local INS officials to find out local policies and procedures that
applicants and examiners should follow. These meetings can forge a relationship
between advocates and the INS, which will facilitate a valuable informal system of
feedback about the examination process. For more information about how to set up such
meetings in your community, you can order Establishing Naturalization Liaison Meetings
Between Community Agencies and the INS, from the ILRC.
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CHAPTER 9
LOYALTY OATH AND NATURALIZATION CEREMONY
§ 9.1 Introduction
The final step in the naturalization process requires taking an oath of allegiance to the
United States. A naturalization applicant takes this oath at a naturalization ceremony, either in
front of a judge or an INS official. Once she has taken the oath, she is a citizen of the United
States and receives a Certificate of Naturalization (INS Form N-550) to document this fact.
§ 9.2 Oath of Allegiance
All naturalization applicants must demonstrate that they are "attached to the principles of
the Constitution of the United States and well disposed to the good order and happiness of the
United States."1 Applicants satisfy this requirement by taking a loyalty oath when they are
sworn in as United States citizens.
§ 9.3 The Text of the Oath
The text of the oath of loyalty is found in 8 CFR § 337.1(a) and reads as follows:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of
whom or which I have heretofore been a subject or citizen; that I will support and
defend the Constitution and laws of the United States of America against all
enemies, foreign and domestic; that I will bear true faith and allegiance to the
same; that I will bear arms on behalf of the United States when required by the
law; that I will perform noncombatant service in the Armed Forces of the United
States when required by the law; that I will perform work of national importance
under civilian direction when required by law; and that I take this obligation
freely without any mental reservation or purpose of evasion; so help me God.
§ 9.4 The Meaning of the Oath
An oath of allegiance is a prerequisite to naturalization. Practitioners should discuss what

the oath means with clients, especially since the oath itself is filled with legal jargon. One way
to discuss the oath with clients may be to raise some of the following points:
1
INA § 316(a)(3).
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Taking the oath does not mean that you give up all ties and connections to the country
where you were born, but it does mean that you support the structure of government in the
United States and you will obey its laws. You can take the oath of allegiance even if you think
that changes could be made to make the government work better or more fairly, as long as you
support lawful means of making changes ("peaceful change").
Some people hesitate to become citizens because naturalization feels like an act of
disloyalty to the country where they were born. Practitioners should be prepared to discuss these
thoughts with clients and encourage them to talk with others who have made the decision to
become citizens (see § 9.16).
Example: Nicolasa is eligible to become a citizen, but feels hesitant because she
does not want to be disloyal to her country of birth, Peru. Her legal worker
encourages her to talk with other immigrants, especially people from Peru, who
have become citizens to see how they feel. Her legal worker gives her the names
of some former clients who have volunteered to speak with new clients who are
considering naturalization. After discussing naturalization with these people,
Nicolasa decides that she will still be able to strongly support Peru without giving
up the chance to become a U.S. citizen.
It is important to note that even though the oath says, "I renounce allegiance to any
foreign sovereign," U.S. law does not require that any naturalizing citizen give up his or her
citizenship of another country. Although dual citizenship is not encouraged, it is permitted by
the U.S. government. Many people who naturalize maintain their citizenship in another country
despite having taken the oath. Some other countries, however, do require their citizens to give
up the citizenship of their native countries in order to become a citizen of the U.S. Chapter 2 of
this manual discusses this issue in detail. This issue can be confusing.
Applicants Bearing Hereditary Titles or Orders of Nobility
Those who have hereditary titles or orders of nobility must expressly renounce such titles
or orders at the oath ceremony.2 Within the ceremony the applicant must recite the following: “I
further renounce the title of [give title(s)] which I have heretofore held” or “I further renounce
the order of nobility [give order of nobility] to which I have heretofore belonged.”3 Such
renunciation will be recorded as part of the proceedings.4
2
INA § 337(b), 8 USC § 1448(b).
3
8 CFR § 337.1(d).
4
INA § 337(b).
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§ 9.5 Exceptions to Taking the Oath of Loyalty
Children
The INS may waive the taking of the oath of allegiance for children who are unable to
understand its meaning.5 Whether the child’s inability to understand the oath results from
“normal mental immaturity or retarded mental development” the INS will waive the oath
requirement just the same.6
Religious or Moral Conviction
There are two principle parts of the oath of loyalty that some applicants have historically
wished to modify: "I will bear arms" and "so help me God." Both of these issues have been
addressed in the courts many times.
A conscientious objector can still take an unqualified oath of allegiance.7 People who
oppose bearing arms (carrying or using weapons, or providing direct support to those who do) or
all military service because of religious training or beliefs may take the oath, leaving out the part
where the oath says "I will bear arms" and "I will perform noncombatant services." This means
that they accept the oath in every way but they will not bear arms or perform noncombatant
services.8
Generally, the interpretation of what kinds of religious training and beliefs can form the
basis for the refusal to take that portion of the oath has been similar to interpretations in the
selective service context. The applicant's beliefs do not necessarily have to include a belief in a
supreme being, but rather a higher power to which all else is subordinate.9 The INS generally
follows a three-part test to see if the applicant qualifies for exemption from the promise to bear
arms in the oath.10 To qualify, applicants must show: (1) that they are opposed to any type of
service; (2) that the objection is based on religious principles; and (3) that the beliefs are sincere
and deeply held. Each of these tests must be satisfied.11
5
INA § 337(a).
6
INS Interpretations 322.3(b)(4).
7
Girouard v. U.S., 328 U.S. 61 (1946).
8
See INA § 337(a) and 8 CFR § 337.1(b).
9
INS Interpretations 337.2(b)(2)(ii), citing U.S. v. Seeger, 380 U.S. 163 (1965); Welsh v. U.S., 398 U.S. 333 (1970).
10
INS Interpretations 337.2(b)(2)(i).
11
INS Interpretations 337.2(b)(2)(i), citing Armstrong v. Laird, 456 F.2d 521 (1972); Clay v. United States, 403 U.S.
698 (1971).
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Those who cannot take the oath with the words "on oath" or "so help me God" shall
substitute the words "and solemnly affirm" for "on oath" and "so help me God" shall be
deleted.12 This group of applicants may include Quakers, Jehovah's Witnesses, or other
individuals opposed to taking oaths.
Example: Grace McHutchin, from Ireland, has been a Jehovah's Witness for
many years. Her religious training prevents her from taking "oaths" under any
circumstances. However, she can freely "affirm" that she will do something or
that something is true. Therefore, she agrees to affirm her loyalty to the United
States, and during the ceremony she makes the required substitutions while taking
the oath.
§ 9.6 The Oath and People with Disabilities
Generally, all applicants for naturalization are required to take the oath of allegiance.
However, the INS may grant an applicant a waiver of the oath of allegiance because s/he has
certain disabilities and applicants will be considered to be “attached to the principles of the
Constitution of the United States.”13 In other cases, INS examiners are instructed to accept less
formal means of communication from qualifying applicants to indicate that s/he understands the
nature of the oath of allegiance.
Waiver of the Oath of Allegiance for Individuals with Certain Disabilities
Applicants with certain disabilities may qualify for a waiver of the oath of allegiance. On
November 6, 2000, President Clinton signed a new law, which allows the Attorney General to
waive the oath requirement if in his/her opinion, the applicant can neither understand nor
communicate an understanding of the meaning of the oath due to a physical or developmental
disability or mental impairment.14
In the past, INS examiners could deny an applicant’s case based on a finding that the
applicant cannot understand the oath of allegiance because of his/her severe disability. With this
new waiver of the oath of allegiance, the applicant will be considered to have satisfied the
showing of attachment to the Constitution’s principles as set out in INA § 316(a)(3). The new
law applies to applications for naturalization filed before, on or after November 6, 2000, which is
the date of enactment of this new law. Thus, the waiver applies to applications regardless of the
filing date.
12
8 CFR § 337.1(b); INS Interpretations 337.7.
13
77 Interpreter Releases 1599 (Nov. 13, 2000).
14
77 Interpreter Releases 1599 (Nov. 13, 2000), citing S. 2812; Pub. L. No 106-448; 114 Stat. 1939.
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INS Recognized Indicators that a Naturalization Applicant with a Disability Understands the
Oath
If the INS does not grant the applicant a waiver of the oath of allegiance, there are other
options for qualifying applicants. Each INS naturalization examiner makes a decision about
whether individual applicants are competent to understand the oath.15 The INS examiners are
not supposed to expect an applicant with a disability to necessarily understand every word of the
oath, as long as s/he understands the nature of the oath. The INS is supposed to explain the oath
in simple terms to people who because of their disabilities have problems understanding the oath.
In some cases, examiners will ask the questions listed in Part 10, H of the N-400 form to
determine if the applicant understands the oath. Other times, the INS examiners will ask
different questions. According to the INS, sample lines of questioning could include whether or
not the applicant understands that s/he is becoming a U.S. citizen, is foreswearing allegiance to
his or her other country of nationality, and agrees to become a U.S. citizen.16
The INS has instructed its examiners to accept less formal means of acceptance of the
terms of the oath than have been accepted in the past. According to the INS, naturalization
examiners will accept a wide variety of predetermined signals from an applicant with a disability
that indicates that she understands the nature of the oath.17 Examples of these signals could
include: a head nod, eye blinking, or other signals specific to the individual that mean "yes" or
"no."
Example: Sarah cannot speak nor can she nod her head because of a physical disability.
However, Sarah has developed a form of communication with her sister. If Sarah's sister
asks her a question, Sarah will blink her eyes twice to indicate "yes" and once to indicate
"no." The INS examiner should let Sarah's sister ask the questions and accept the form of
communication the two sisters have developed.
Example: Aki the advocate accompanied her client, Sam, to his naturalization interview.
Sam had a disability, which among other things prevented him from understanding many
questions that the INS examiner asked. Additionally, he only answered "yes" and "no"
questions. When the examiner asked Sam about his allegiance to the U.S., he asked
questions such as: Do you swear allegiance to the U.S.? Will you bear arms on behalf of
the U.S.? Do you know what a war is? Sam didn't understand the questions and did not
answer them. So, Aki rephrased the questions in the following way to show the examiner
that Sam did indeed fulfill the requirement of being able to understand the oath of
allegiance: Do you want to be a citizen like your mother and father? (Sam answered
yes.) Do you want to go back to Romania (your home country)? (Sam answered no.)
Do you want to continue living with your parents? (Sam answered yes.) If your father
15
See Appendix 7-E.
16
See Appendix 7-E.
17
See Page 14 of Appendix 7-E. The ILRC’s position is that a family member of the applicant may tell the INS
examiner before the interview how the applicant plans to communicate.
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told you to help America, would you? (Sam answered yes.) Would you do anything to
hurt America? (Sam answered no.)
Aki then argued that the responses that Sam gave to the examiner demonstrated that Sam
can understand the oath of allegiance and he supports the U.S. government.18
In the event that the INS does not grant a waiver of the oath of allegiance or accept an
applicant’s less formal means of communicating that s/he understands the oath of allegiance,
advocates should consider appealing to the INS. If denied by the INS, they should appeal to the
federal district courts. Additionally, in such circumstances, we recommend an administrative
complaint against the INS under Section 504 of the Rehabilitation Act of 1973 with the
Department of Justice, Civil Rights Division’s Disability Rights Section on this issue. Please see
Appendix 9-B for a sample Section 504 administrative complaint and a blank copy of the form.
§ 9.7 Expedited Ceremonies for Persons with Serious Illness or Disabilities
Either a court or an INS administration of the oath may be expedited or may take place
outside of a public ceremony for certain compelling reasons. These reasons may include:
serious illness of the applicant or a family member, disability or advanced age, or urgent or
compelling circumstances related to travel or employment.19 Requests for expedited
administration of the oath should be submitted in writing to the district director of the office
having jurisdiction over the applicant.20
If an applicant has a serious disability or sickness that prevents her from appearing at the
public ceremony, the INS may arrange for the oath to be administered in a place other than the
district office.
Example: Suzu is applying for naturalization. A week after her successful

interview, she is in a serious car accident. The doctors predict that she will not be
able to leave the hospital for at least six months. Her legal worker helps her
convince the INS District Director to send a worker to the hospital to administer
the oath.
18
This example is adopted from an example, which Melinda Bird of Protection and Advocacy discussed during a
training in Los Angeles, California on February 14, 1997.
19
8 CFR § 337.3 (a)
20
8 CFR § 337.3 (c).
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Each office may have its own procedures for permitting expedited oaths and for
accommodating them, and advocates should find out what procedures to follow in each district.
The San Francisco INS office's procedure is for the applicant to write a letter that includes:21
(a) a request for an expedited oath of allegiance,

(b) the nature of the applicant's disability or illness,
(c) the reason that the disability or illness prevents him from attending the regularly-
scheduled oath ceremony, even with reasonable accommodations (discussed in
Chapter 7 of this manual),
(d) a request that the oath of allegiance be taken at a specified other site that
accommodates the applicant's physical needs (including the applicant's hospital,
senior home, private home, or other location in the applicant's neighborhood), and
(e) a letter from the applicant's treating physician in support of the request, which
includes a description of how the disability or illness prevents attendance at the
ceremony.
For a sample of a good policy memo that community based organizations and the INS
office in San Francisco wrote about making the naturalization process accessible to applicants
with disabilities, please see Appendix 9-C.
Practice Tip: This letter should also point out that in addition to requesting that the applicant be
able to take the oath of allegiance at a site other than the public ceremony, the regulations (8
C.F.R. § 337.3) provide that the oath be expedited -- that is, to accelerate the process. This is
particularly important for applicants whose health is deteriorating, and who need to take the oath
of allegiance as soon as they can. However, it is also advisable to find out whether it would be
practical to "expedite" the oath. If in spite of advocates' efforts, the "expedited" oath procedure
takes longer than the regularly scheduled ceremonies, some applicants may prefer to attend the
regular ceremony and should insist on accommodations that will enable them to do so.
§ 9.8 Changes in the Naturalization Process
Congress has made several dramatic, and not always consistent, changes in the
naturalization procedures over the past several years. Prior to 1990, naturalization was a judicial
process, and all naturalized citizens took the oath of allegiance in front of a judge. The
Immigration Act of 1990 entirely restructured the naturalization process to make it an
administrative process conducted exclusively by the INS. However, the Technical Corrections
Act of December 12, 1991, further changed the process, creating a procedure that gives both the
courts and the INS the power to conduct naturalization ceremonies and administer the oath of
allegiance.
21
A model request is included in Appendix 9-A.
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Additionally, since July 24, 1995, immigration judges have been allowed to administer
the oath of allegiance.22
§ 9.9 Jurisdiction -- INS or the Courts
Courts have exclusive authority23 for conducting naturalization ceremonies, but only for a
limited time period (45 days).24 A court in any jurisdiction must notify the INS in writing that it
wants to exercise this right. In San Francisco, San Diego, Fresno, San Jose, and Sacramento, for
example, courts have continued conducting naturalization ceremonies. Practitioners must check
with their local districts to see whether the local courts have exercised this option.
If a court states that it wants to conduct the naturalization ceremonies in its district, the
INS must deliver “such information as may be necessary to administer the oath of allegiance”
within 10 days of approval of the applications.25 The court then has 45 days to administer the
oath to the eligible applicants.26 If the court does not conduct a ceremony within the time
permitted, the applicant then is given the choice of having a court conduct the oath ceremony, or
participating in an INS ceremony.27
Any court with exclusive jurisdiction over the administration of the oath must notify the
INS of the time and place of a ceremony at least 60 days in advance.28
On the other hand, if a court does not choose to exercise its right to exclusive jurisdiction
over the administration of the oath, then the applicant may choose whether to attend a ceremony
conducted by the INS or a court.29 At the naturalization interview the INS must provide the
applicant with the upcoming dates and times of each ceremony, so the applicant may make an
informed choice.30 The applicant must notify the INS at the time of filing or, at the latest, at the
time of the interview, whether she wishes to go before a court or the INS for the administration
of the oath.31 Practitioners should be sure to discuss with clients the fact that they must make
this choice at the time of the interview.
22
8 CFR § 337.2(b)
23
INA § 310(b)(1)(B)
24
8 CFR § 310.3(c)(1)
25
INA § 310(b)(2)(A)(ii)(I).
26
INA § 310(b)(3).
27
INA § 310 (b)(3)(A) and (b)(1)(A)
28
8 CFR § 310.3(c)(2).
29
INA § 310(b)(1)(A).
30
8 CFR § 337.7(a)
31
8 CFR § 337.8(a).
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§ 9.10 Judicial Ceremonies
Judicial ceremonies will take place in two situations: first, when a court has exercised its
right to exclusive jurisdiction over the administration of the oath, or second, when the applicant
has chosen to have his oath administered by the courts. Upon approval of an application, the
INS must complete a form (N-646) to notify the clerk of the court that the applicant has been
approved for naturalization.32 In districts where the courts have exclusive jurisdiction, the INS
must submit this form within 10 days of approval.33 An INS representative must either attend all
judicial ceremonies or provide written notice.34
Personal appearance by an applicant is an absolute requirement at the naturalization

ceremony, except in unusual situations of illness or disability. However, even in these cases one
must still comply with the oath ceremony requirement, which can occur at an off-site location.
An eligible naturalization applicant may request that the INS allow the prospective citizen to
satisfy the oath requirement immediately after passing the naturalization interview.
Changing Oath Ceremonies
If an applicant has elected to take the oath at a court ceremony, but subsequently changes
her mind and wants the oath administered instead by the INS or an immigration judge, she must
make this request to the INS.35 The request must be filed with the INS office that granted the
naturalization application, in writing, stating the reason for the change.36 If the request is
granted, the applicant will be scheduled for the next available administrative oath ceremony.37
§ 9.11 Name Changes
An applicant for naturalization may choose to attend a court ceremony for the purposes of
obtaining a court-ordered name change at the time of naturalization.38 An applicant may petition
the court to change his/her name so that the new name may be used on the certificate of
32
8 CFR § 337.8(b).
33
8 CFR § 337.8(b).
34
8 CFR § 337.8(d)-(e).
35
8 CFR § 337.8(f).
36
8 CFR § 337.8(f).
37
8 CFR § 337.8(f).
38
Gordon and Mailman § 96.06[2]. Name changes are only available simultaneously if the applicant participates in a
court-administered naturalization ceremony. In San Francisco, for example, the name change policy allows the
applicant to tell the naturalization examiner during the naturalization interview that s/he wants to change his/her name
and the examiner helps the applicant complete a name change request. Then the examiner submits the name change
request to the court conducting the ceremony with the naturalization paperwork.
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naturalization.39 In this case, the certificate of naturalization should reflect the new name, and
the applicant should sign the certificate with his/her new name.40 The court should send a copy
of the court order to the INS along with the other required notices following a court ceremony.41
The Immigration and Nationality Act only allows applicants to change their names as
part of the naturalization process if they are taking their naturalization oaths in court.42 The law
does not give any power to the INS to change the applicant’s name.43
§ 9.12 INS Ceremonies
INS ceremonies will take place in two situations: first, when a court has exclusive
jurisdiction but has not administered the oath to an applicant within 45 days of receiving notice
of the applicant's eligibility, and second, when a court has not exercised exclusive jurisdiction
and the applicant has chosen to take the oath at an INS ceremony.44 INS naturalization
ceremonies are to be held at regular intervals, at least monthly.45 Ceremonies must be conducted
in a manner which "preserve the dignity and significance of the occasion."46
§ 9.13 Failure to Attend a Naturalization Ceremony
If the applicant successfully completes his/her interview but fails to attend the oath
ceremony, then the INS is supposed to reschedule the ceremony.47 If s/he misses a second oath
ceremony without “good cause” and after having been “duly notified” by the INS of an oath
appointment, the INS will assume the application has been abandoned. If this happens, the INS
will send a Motion to Reopen to the applicant to change its decision that had previously granted
naturalization. If the applicant can show the INS that s/he missed the oath ceremonies for “good
cause,” the INS will reschedule the applicant for a new oath ceremony. If there is no good cause,
the Motion to Reopen will be granted and the application will be denied.48
39
INA § 336(e).
40
8 CFR § 337.4.
41
8 CFR § 338.2.
42
See 8 CFR § 337.4.
43
Gordon and Mailman § 96.06[2].
44
8 CFR § 337.2(a).
45
8 CFR § 337.2(a).
46
8 CFR § 337.2(a).
47
8 CFR § 337.10.
48
See 8 CFR §§ 337.10 and 335.5.
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§ 9.14 Procedures During an INS or Judicial Ceremony
Whether a naturalization ceremony takes place with the INS or in a court, the format of
the ceremony is similar.
The ceremony could be very small (20-60 people), very large (3000-5000 people), or
somewhere in between. The very large ones are often held in public halls or arenas.
Applicants receive a notice (INS Form N-445) stating the time and place of the ceremony
they are expected to attend. If an applicant cannot attend a ceremony, he should immediately
reschedule his appearance for another day. Generally, all applicants must attend the ceremony in
person in order to take the oath and be sworn in as citizens of the United States.
Applicants must complete a short questionnaire on the back of the notice (N-445). The
questions all pertain to the applicant's continuing eligibility for naturalization. The questions
include issues such as whether the applicant has left the U.S. since her interview (and therefore
possibly disrupted the continuity of or abandoned her residence), whether the applicant has been
arrested since her interview (and therefore possibly had problems with good moral character),
whether she is still willing to bear arms, and whether she has divorced (if her naturalization is
based on three years of marriage to a United States citizen). If there is some kind of problem,
applicants will have the chance to resolve it during the ceremony.
At the naturalization ceremony, an applicant must present his completed questionnaire

and turn in his green card (I-151 or I-551). He also picks up his Certificate of Naturalization and
usually signs it in front of an INS or court representative.49 If an applicant is being granted a
name change by a court order at the same time as the ceremony, the applicant will sign the
certificate using his new name.50 If an applicant does not have his green card because he has lost
it or for some other reason, he will have to explain why he does not have it. The district director
can waive the requirement that the green card must be turned in if he finds that the card has been
lost or destroyed.51 The INS will closely question applicants without green cards to make sure
that what they are saying is true. If the INS believes the person, then he will be able to proceed
with the naturalization ceremony.52
Applicants must remain until the ceremony has ended, so that they can take the oath of
loyalty. Applicants who do not take the oath have not completed the naturalization process and
do not become United States citizens. Often, before or following the oath, the judge, an INS
representative, or a guest may make a short speech for the applicants and their families.
Applicants become naturalized citizens of the United States after taking the oath of
loyalty at the ceremony.53
49
8 CFR § 338.1(b).
50
8 CFR § 337.4.
51
8 CFR § 338.3.
52
INS Operating Instructions 335.2(c).
53
8 CFR § 337.9.
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§ 9.15 Applying for a U.S. Passport
Applicants should be encouraged to keep certificates of naturalization in a very safe

place, and not to use them routinely as proof of U.S. citizenship. An easily replaced proof of
citizenship is a United States passport. As soon as possible following the ceremony, newly
naturalized citizens can apply for a U.S. passport at many local post offices or a passport office.
It is a relatively inexpensive and rapid process. U.S. passports can be used to show citizenship
when crossing borders, accepting employment, and any other purposes.
§ 9.16 Gaining Knowledge from Clients
Clients who have naturalized can become important resources in the communities where
they live. They can offer firsthand information of how it felt to become a U.S. citizen, as well as
explain the specifics of what went on during the ceremony. They can help encourage other
residents to naturalize, thereby increasing the potential voting power of the immigrant
community. Increasing the political strength of immigrants and gaining more control over their
communities is an important goal of many immigrants. One way of achieving this goal can be
for naturalized citizens to encourage more and more immigrants to naturalize. Practitioners are
in an excellent position to draw on the knowledge and skills of naturalized citizens and to
encourage them to become involved in any community efforts toward that goal.
Example: Mario recently became a naturalized citizen. The legal worker who
assisted him, Antonia, asks him if he would be willing to speak at a community
meeting about why he decided to become a citizen. Her organization is
conducting a Naturalization Campaign to help increase the political power of the
immigrant community in their city.
Mario is glad to be able to help. Together he and Antonia review the reasons he
had mentioned for wanting to become a citizen. He tells her a little more about
how he felt at the time he applied and how he feels now that he has completed the
process. Together they write an outline of what he could say in his talk. Then he
practices in front of her and later at home with his family. The talk goes very well
and it helps convince people that becoming a citizen might be important and may
not be as difficult as they thought.
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CHAPTER 10
GROUP PROCESSING
§ 10.1 Introduction
Whenever large numbers of people are interested in the same process or application,
agencies, community groups and lawyers can consider using a group processing strategy. Group
processing involves working with a whole group of people to accomplish a common goal: in this
case, to submit applications for naturalization and prepare for naturalization interviews with the
INS. It has been used effectively in several immigration contexts, including preparing
applications for both phases of Amnesty, and for family visas.1
Naturalization applications are especially amenable to this group processing strategy.

First, the application process and the form are relatively simple. Second, the grounds of
eligibility are easily communicable. Moreover, the risk to applicants from a denial is less than in
some other immigration contexts, since here they would generally lose only their application for
citizenship and not their legal permanent resident status. (But please see Chapter 6 of this
manual for a discussion of the risks that may be presented for some applicants.)
The ILRC and many other organizations that conduct group processing have developed a
Redflag Checklist system. This system is designed to identify applicants who must see an expert
immigration attorney or authorized representative before applying for naturalization. This
system will help keep people from being unnecessarily deported. (See Appendix 2-B for a copy
of the Redflag Checklist in English, Spanish, and Chinese.)
Group processing generally consists of three basic parts: finding clients and preparing
them for the workshops; substantive workshops; and follow up. The naturalization group-
processing model includes the following steps:
STEP 1: An information session is held where potential applicants learn about and discuss
the advantages and disadvantages of and, the requirements and application
process for naturalization. In addition, legal workers screen out applicants who
fall within the Redflag Checklist categories so these applicants can obtain
individualized assistance from an attorney or accredited representative who
specializes in immigration law.
STEP 2: Applicants go home and each person fills out a draft of a naturalization
application and gathers required documents.
1
Naturalization group processing has been successfully utilized by dozens of organizations across the country
including the National Association of Latino Elected Officials (NALEO) in Los Angeles and Chicago in its
naturalization campaign.
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STEP 3: An application completion workshop is held where participants review their

applications in a group, fill out official N-400 forms and prepare them to mail to
the INS. Applicants with difficult cases, or who fall within the Redflag Checklist
categories, are instructed to meet individually with agency staff. In many cases,
these applicants need to visit individually with expert legal workers outside of the
group processing session so the applicant and the legal worker can decide if the
applicant should even apply for naturalization.
STEP 4: An interview preparation workshop is held where participants learn about

interview strategies and role-play their INS examinations.2
Group processing makes sense because it is efficient, it is effective, and it offers long-
term benefits to your clients.
It's efficient because a few community workers can explain and review lots of
applications at one time rather than scheduling individual appointments and explaining the same
thing over and over. More people can get help more quickly and cheaply -- saving both the
agency and the clients time and money.
Group processing workshops also serve as a perfect forum to recruit volunteers to help
with various parts of a community-based agency's program -- which in turn makes it easier for
agency workers to help more people.3
Example: One agency staff member and 3 volunteers at a community organization can
help 15-20 people fill out and send their naturalization applications in 2 hours. It would
have taken that staff member 7-1/2 to 10 hours to see each of the applicants individually
for half-hour appointments.
It is important to note that even though an agency offers workshops to assist the large
number of applicants with simple cases, the agency should still counsel clients with complicated
cases individually. Group processing should not lessen the quality of service offered -- on the
contrary, it usually improves the quality of service by freeing up agency time to spend on those
complicated cases.
It is effective because group processing helps clients better understand the process in
which they are involved. First, group workshops enable community workers to spend a little
more time explaining the process the applicants are going through since they only have to do it
2
This chapter and its appendices will give you enough information to begin presenting naturalization workshops.
The ILRC has published additional information on how to conduct group processing of naturalization applications
at citizenship fairs and in the classroom setting. See Minimizing Risks for Applicants at Citizenship Fairs and
Naturalization Group Processing in Citizenship Classes: A Guide for Teachers.
3
Volunteers' contributions to their communities can be varied and significant. We call them "lay advocates" to
reflect that they can do much more than fill a limited role in an agency office: they can advocate, teach, organize and
lead. Having trained lay advocates helps the immigrant community, the agency, and the volunteers themselves. For
more information on working with lay advocates, see Chapter 14.
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once to a group. In a workshop, members of the group are encouraged to ask questions and
volunteer information that they know. This increases the probability that issues that some
affected participants hadn't even thought about will be covered in an accessible manner.
Example: Susan sometimes got tired of explaining the law over and over to every new
naturalization client. She started making her explanations shorter and shorter and
encouraging questions from her clients less and less. But when she started making
presentations about the law at naturalization information sessions, she felt like her time
was well used, and she was impressed by how many thoughtful and helpful questions she
got, and how they made it possible to explain the law even better the next time.
Second, group processing facilitates active and participatory learning. Educators have
found that this is the most effective type of learning. Clients in group processing are put in
charge of their own cases. The group model relies on the fact that clients can do many parts of
the application process themselves, and can learn how to do most of the remaining parts.
Generally, they keep their own records, such as copies of their applications, and receive all
correspondence from the INS.4 This involvement makes clients very aware of what is going on
in their cases. They are more inclined to learn the reasons behind the different questions the INS
is asking in the application when they are working to figure out their own answers. Having been
involved in their applications every step of the way, they are better equipped to respond to
questions during an interview at the INS.
Finally, when people understand why the INS is asking each question on the
naturalization application, they may be less discouraged by the number of questions and
documentation needed, and will be more likely to complete the process.
Example: The N-400 asks for information about present and previous marriages. This
question seems picky, and invades the applicant's privacy. But if applicants understand
that the INS uses that information to determine whether or not the applicant's original
green card was gotten through marriage fraud, they may feel less anxious about the INS
making value judgments about their marriages, and less annoyed about having to take the
trouble to include so much information on the form.
It offers long-term benefits to your clients. Having applicants understand the process
they're involved in, helping them figure out how to fill out applications and gather documents,5
and facilitating them sharing information with one another also has the broader effect of making
them more informed and participating members of society. The skills they learn are also useful
for other aspects of their lives. Through group processing, participants are encouraged to teach
and learn from each other. This can build self-esteem and admiration for the skills and
knowledge of other participants as they get acknowledged for their contributions to the group.
Group processing itself, and the development of lay advocates, encourages collaboration with
other workshop participants at the workshops, and with other members of their communities in
4
The agency can keep these files instead if it chooses to represent the applicant.
5
Of course, many applicants -- particularly those who completed the paperwork necessary for Amnesty
-- will know quite a bit about filling out forms and gathering documents.
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their day to day lives. The teaching, learning and collaborating -- that is, the community
participation -- that participants undertake in group workshops are at the heart of what it means
to be a citizen.
Example: Irma attended a naturalization workshop where she learned about keeping
copies in files and sending things by certified mail. When Irma moved into a new
apartment, she filled out a copy of a security deposit checklist she'd gotten from a local
agency. She noted what condition everything was in her apartment. Irma made a copy of
the checklist for her files, sent the other to her landlord by certified mail, and kept the
mail receipt in her file. Because the apartment building was poorly maintained, she
encouraged her neighbors to send checklists and letters to the landlord explaining the
conditions in their apartments and asking for some improvements. The landlord made
some improvements. Also, when Irma was ready to move, she was able to recover her
entire security deposit because there was no question that any problems in her apartment
were there before she moved in.
It helps applicants and agencies minimize the risks involved in applying. As every
immigration advocate knows, some applicants for naturalization risk losing their lawful
permanent resident status and being deported if, through the application process, the INS learns
something about them that makes them deportable. This group processing model contains
important mechanisms for quality control and spotting problem cases.
First, because the requirements for naturalization, and each question on the N-400 are
reviewed in detail at two workshops, applicants themselves understand the risks involved in
applying. Workshop presenters should repeat several times throughout the workshops the "red
flag" issues applicants should look out for, like crimes, fraud in getting one's green card, or
abandonment of residence (see the list of red flags in Appendix 2-B). Applicants also
understand that they are in charge of their own cases, so that they are more inclined to take
responsibility for understanding the rules, and the risks involved -- rather than assuming all is
well unless someone asks them a specific question.
Second, agency workers and volunteers who review applications at the workshops should
be well trained about the general requirements for naturalization and about the potential problem
areas. They should also be trained to elicit information from applicants that might reveal
potential problems.
Third, group processing should be used conservatively. Applicants with problem cases
should hear on several occasions that if they have even a small potential problem, they should
see a naturalization expert who can help them with their cases. If a naturalization assistant learns
potentially harmful information about an applicant during individual review sessions, she should
instruct the applicant to see a naturalization expert.
Finally, group processing enables an agency to teach many applicants about the
requirements and risks of naturalization -- applicants who would otherwise apply on their own
without this important information.
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This model is flexible. Group processing workshops can be small or large depending on
the needs of the service community, and the resources of the agency presenting them.
Group processing workshops can generate fees. A $30 donation from each applicant
(assuming at least 10 applicants per workshop) more than meets the staff and materials cost of
the program to be self-sufficient, which remaining affordable and sufficiently "nominal" for INS
standards for BIA accredited representatives. (For more information on BIA accreditation,
please see 8 CFR § 292.2.)
§ 10.2 Overview of Naturalization Group Processing
Group processing is particularly appropriate for naturalization. First, helping people

complete applications for naturalization needs to be done efficiently because so many people are
applying. Second, encouraging applicants to be responsible and resourceful, and to collaborate
with other people in their communities toward a common goal, will help make them effective
citizens who can make a significant impact when they become naturalized.
Our naturalization group processing model includes three elements: 1) Outreach and
Preparing Clients for Workshops; 2) Workshops; and 3) Follow Up. These elements are
designed to allow clients to prepare much of the required information and documents themselves,
and to make the application process run smoothly and effectively. This chapter suggests a model
that agencies can follow to maximize the benefits of applicants working in groups through each
element -- each of which is briefly described below.
The first element is finding your clients and getting them prepared to complete their
applications through an Information Session. This workshop includes the following
components (each of which every agency already does in some form): Outreach, to let people
know about the possibility of applying for naturalization; Client Education about the process,
requirements and advantages and disadvantages of applying for naturalization, and an
introduction to the application itself; and Intake, or signing people up to participate in the
application completion workshop. Because each agency already does each of these things in
some form, a workshop that makes it possible to do all of them with a group of people can be a
real time-saver for overworked agency staff. Time which would otherwise be spent meeting
with people one-on-one and explaining the same thing over and over each day, can be used for
working on other things, including more complex cases.
A Group Processing program can offer two Workshops: An Application Completion

Workshop and An Interview Preparation Workshop. In the Application Completion
Workshop, agency workers explain the application, answer questions, and review the applicants'
work. But applicants do all the work of gathering required information and documents, filling
out the N-400, and preparing the application to mail. In the Interview Preparation Workshop,
agency workers can perform a model "skit" of an INS interview and then applicants can pair up
and do role-plays of the interviews themselves. This will save a great deal of time for those
advocates who role-play the interview with each client individually.
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Follow-up opportunities are necessary to help people who were unable to complete their
applications in the workshops, or who have special problems. Follow-up can be incorporated
into the pre-existing workshops, or an agency can set aside specific times for individual
meetings.
§ 10.3 The Introductory Workshop
Introductory workshops are generally held at a regular time and place in the community.
Everyone who calls the agency for naturalization information can be directed to these
workshops. People can also learn about these workshops through their churches, community
organizations, ESL and Citizenship classes, flyers throughout the community, referrals from
other agencies, word of mouth, and community and regional media. Outreach materials and
information should include some information about basic eligibility requirements so that most of
the people who come to the workshop will be able to apply.
The goals of this workshop are to educate potential naturalization applicants about the
process and requirements for naturalization, discuss why participants would want to apply, and
what concerns they have about applying (also known as "Advantages and Disadvantages"),
review the N-400 application to make it easier for applicants to gather required information in
preparation for the application completion workshop, and screen people who fall into the Redflag
Checklist categories.
§ 10.4 Introductory Workshop: Logistics
The workshop can take place in any space where there are enough tables and chairs for
all participants. A blackboard or butcher paper is useful but not necessary. The ILRC and other
agencies have held workshops successfully in the city library, churches, community agencies, the
municipal building, our own offices, and in the homes of participants. Ideally, seating should be
arranged so that participants can see one another (in a circle or a "U" shape), instead of looking
forward at the Workshop Leader as though she were a teacher.
§ 10.5 Introductory Workshop: Getting Started
We begin by introducing the workshop participants and the workshop program. Potential
applicants can introduce themselves -- by saying where they are from, or why they are interested
in naturalizing, for example. If the group is large, just the agency staff and volunteers should tell
the group their names -- so that participants will know to whom to direct questions. The
Workshop Leader should tell the group whether the agency plans to represent each of the
participants in the naturalization process, or whether it will just assist them as they work through
the process themselves.
The Workshop Leader should tell the participants that everyone will be working in a
group so that people can learn from one another. He or she should encourage people to ask
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questions and share information. But also note that because everyone there has limited time,
every question may not be able to be answered in the main group. Instead, if the questions are
ones several people share, they can be talked about in the group. But if one person has a lot of
questions that are particular to her, she should talk to an agency worker in more detail after the
workshop. Ask people to listen to other people's questions and answers so everyone can all learn
from them. Add that since the time and date for the application workshop will be set at the end
of the session, people should stay until the end.6
Agency workers and volunteers should then hand out the workshop packets, included in
Appendix 10-A, which contain a "practice" application in Spanish and lists of "advantages and
disadvantages," legal requirements, the naturalization process and documents to bring to the next
workshop.7 The Workshop Leader can point out the workshop schedule listed on the front page,
and note that this is the first workshop, where people can learn about naturalization and start the
application process. Review the agenda for the meeting, an example of which is listed below,
and say the meeting will last about an hour and a half.
§ 10.6 Introductory Workshop: Agenda
1. Advantages and Disadvantages of Applying (30 minutes)

2. Legal Requirements and Redflags (25 minutes)
3. Naturalization Process (10 minutes)
4. Review Application (30 minutes)
§ 10.7 Introductory Workshop: Discussion of Advantages and Disadvantages
The Workshop Leader should then stimulate a discussion about why participants would
want to naturalize, and what concerns they have. This group discussion brings the dry list of
advantages and disadvantages to life for the participants. But when people have stopped offering
reasons for naturalizing, also list any of the standard advantages and disadvantages (discussed in
Chapter 2: Initial Discussions with Potential Naturalization Applicants) that the group did not
mention. It is important to note the major disadvantage for some people: if the INS learns from
the application or interview that the applicant is deportable, he or she can be removed. Please
review naturalization requirements in Chapters 4, 5 and 6 carefully so you can both warn
applicants and answer questions they may have. Common problems include applicants having
abandoned their residences8, having broken certain criminal or immigration laws, or having
6
Some people will probably have to leave early. Have a volunteer get any people who leave early to put their
names and phone numbers on a sign-up sheet so the agency can call and tell them where and when the next
workshop will be.
7
The packets repeat information covered in the introductory workshop, but it serves to remind people of the
requirements and process for naturalization and the advantages and disadvantages. They can tell friends and
neighbors about naturalization with the information they take home in the packets.
8
Compare "Abandonment of Residence" to "Disruption of the continuity of residence." "Abandonment of
residence" is used in determining whether lawful permanent residence had been abandoned and can result in losing
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entered or reentered the U.S. when they qualified as a public charge. The Workshop Leader
should suggest that rather than giving up on applying for naturalization, people with these
problems should meet individually with agency staff or a lawyer to discuss additional factors
involved in applying.
Of course, if all of the participants in a group already know they plan to apply, this
discussion can be skipped.
§ 10.8 Introductory Workshop: Discussion of Requirements for

Naturalization and Redflag Danger Areas
Next, the Workshop Leader should lecture about the requirements as they are listed in the
packet included in Appendix 10-A. S/he must make sure to include a thorough explanation of
the Redflags. As part of this discussion, the Leader must explain all the Redflag Categories and
why it is important for all applicants to seek special assistance before applying for naturalization
if they fall within any of these categories. The Leader must explain that people who apply for
naturalization can end up being deported.
The most basic legal requirement to explain is whether or not one has enough years as a
permanent resident to qualify for naturalization. To find out whether they have met the time
requirement, participants can be encouraged to take out their green cards, look at the date they
became lawful permanent residents, and add five years. If they will reach five years in three
more months or less, the INS will accept their applications now. If it is longer, people should
wait until they are eligible to fill out their applications. Encourage them to stay for the whole
presentation so they'll learn everything they need to know about naturalization now.
One of the most sensitive and difficult issues to present is the Good Moral Character
requirement. When presenting this, make sure to re-explain the Redflag areas, especially the
ones dealing with criminal convictions and the risks involved in applying for people with
convictions or other deportable offenses.
If people have questions about potentially complex issues, a workshop is a great place for
people to think of, for example, ways to document continuity of residence, or what would be
examples of good moral character in a naturalization case.
Next, list the steps in the naturalization process (listed in the packet) so participants will
understand the timeline, instead of waiting passively in the hope that the agency will inform
them of important events. Tell the group how the series of workshops the agency is presenting
can help, and say the people in this group might be able to do much of the work together.
(..continued)
one's lawful permanent resident status, and becoming deportable. Disruption of continuity of residence can only
make someone temporarily ineligible for naturalization. Use of the term "Disruption of continuity of residence" is
mandated by 8 CFR § 316.5 (c)(1)(i).
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§ 10.9 Introductory Workshop: Application Review
The Workshop Leader should go through the application (which applicants have in their
packets), highlighting and explaining the complicated parts. Explaining the form at this point
will make it much easier for (and more likely that) the applicants will fill them out well before
the second workshop, and thus make it run smoothly. These complicated parts of the application
include9:
1) The applicants name. Specifically, the issue is which name do you write down
where? Thus, it is best if the leader reviews the exact directions in Part 1, Questions A,
B, C, and D of the application so each of the applicant's names is written down exactly
where and how it should be written down.
2) Remembering and writing down every single absence from the U.S. and
determining whether an absence will cause problems of disrupting continuity of residence
or abandonment of residence.
3) Listing all of the applicant's children, including children living in another country
and those who are over 18.
4) Any "Yes" answers in Part 10 that require explanations or a decision not to apply
for naturalization because it could cause the application to be denied and the applicant
could be placed in deportation proceedings.
§ 10.10 Introductory Workshop: Set Up Second Workshop
After the application review, the Workshop Leader should remind the participants that
the next step is to take the packets home, fill out the practice applications in the packet and get
the items listed in packet. Then they should come to an application workshop to complete and
send their applications. Together with the group, the Workshop Leader should determine a good
time to hold the application workshop. He or she should tell people that the next workshop will
begin right on time and that people who come more than 10 minutes late will be rescheduled for
another workshop.
§ 10.11 Introductory Workshop: Optional Presentations
If an agency wants to work with local community organizations to get immigrants

involved in community issues, this introductory workshop provides a great forum for
collaboration. Community leaders can lead the discussion about gaining more political power
through the vote and holding office. Or they could respond to people who fear losing the culture
of their home countries by giving participants examples of how new citizens helped preserve or
enhance their cultures by political participation.
9
See Chapter 8 for step-by-step explanation of the N-400 application.
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Example: In Oakland, California, a representative of a community group -- the Spanish

Speaking Citizens Foundation -- spoke to a group of people at an Introductory Workshop.
She told them that she had just applied for naturalization because she wanted to vote in a
School Board election, where a few votes could make a big difference, for Board
members who would support bilingual education programs in the Oakland schools. She
also noted that a good friend of the Spanish Speaking Citizens Foundation had just been
elected in the largely Latino district to the City Council. She said that in the City Council
he can promote Latino concerns.
This workshop, as well as the next, is also a good forum for representatives of English as
a Second Language and Citizenship classes to make presentations and get people signed up.
Some individual citizenship teachers might, if asked, set up a class specifically for workshop
participants so that they can continue to work together throughout the naturalization process.
§ 10.12 Applicants' Preparation for the Application Workshop
Between workshops, people who meet the eligibility requirements and want to naturalize
take the packets home, fill out their "practice" applications and gather the documents listed in
their packets to prepare for the next workshop. In addition, they must review the Redflag
Checklist included in their packets to determine if they have any problems with these dangerous
issues.
§ 10.13 The Application Workshop
The goals for this step are:
1. By the end of it, all participants who qualify for naturalization have their applications
filled out and ready to send to the INS.
2. Everyone who falls within a Redflag category will be screened out and sent to an
expert to determine if s/he should apply for naturalization, or if applying could alert
the INS that s/he is deportable.
During this session, the agency briefly walks through the application again, explaining
why everything is there and how it relates to the requirements for naturalization and the Redflag
danger areas. This makes people understand the requirements and their own answers better,
which in turn will help them answer easily and fully at their interviews. Because they already
worked through the applications at home, they know what things remain confusing and should be
encouraged to ask questions from which the whole group can benefit. They also should have all
their supporting documentation ready to send with their applications, and understand the future
steps in the naturalization process (how long the wait is, that they will need to know basic
English and Civics, what their INS interviews will be like, etc.)
If participants don't have everything ready to send by the end of this workshop, there are
a couple of ways you can follow up with them later. Follow up is described below in § 10.21.
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§ 10.14 Application Workshop: Logistics and Supplies
Ideally, this workshop will take place in the same location as the Introductory Workshop.
But the layout should be different because people will need tables for writing. The tables can be
separated, or they can be arranged in the shape of a U. The U shape allows the legal worker and
volunteers to easily view each participant while they give the presentation, to see who needs
individual assistance. The U shape, like the circle at the first workshop, also allows people to see
and share information with one another.
We try to prepare as many materials as possible in advance to make the workshops run
smoothly and relatively quickly. The things that need to be prepared are: the pre-addressed
envelopes (we have a stamp with the INS address to make this easier), certified mail slips and
return receipt requested cards, the checklists and file folders, and forms to provide information
that doesn't fit on the N-400 form. It is also useful to bring a sign-up sheet for all workshop
participants so that the agency can contact them.
We keep all the necessary supplies in boxes marked "Naturalization Workshop 1" and
"Naturalization Workshop 2" and carry those boxes to the appropriate workshops. The agency
worker in charge of a particular workshop should make sure that there are enough of every item.
A list of workshop supplies is listed below.
General Supplies Application Supplies10

* Pencils * N-400 forms in English
* Black pens (for N-400) * Preaddressed large Manila envelopes
* Butcher paper and markers or chalk for blackboard * Preaddressed Certified Mail slips and Return
* Paper clips Receipt Request cards

* Staplers * Forms for "additional pages"
* Liquid paper * File folders with checklists
* INS Change of address cards
* Copies of volunteer Recruitment flyer
* Copies of translations of Words commonly
used in Applications
* Sign-up sheet
* "To do" lists
§ 10.15 Application Workshop: Checking People In
As people arrive, have them write their names, addresses and phone numbers on a
prepared sign up sheet.11 Then an agency worker or volunteer should look over the applicants'
10
Copies of many of these items, including checklists, forms for information that does not fit on the N-400 form,
sign-up sheets, and "to do lists," are provided in various appendices.
11
Note that there is a place on the sign up sheet in Appendix 10-D for agency workers and applicants to check
off, after the workshop, whether their applications were completed in the workshop.
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"draft" applications to see how much is filled out. The agency should decide in advance how it
will handle people who haven't completely prepared, because good preparation is what makes the
workshops flow smoothly and quickly. If the applicant has done most of the time-consuming
work, or needs to ask questions before completing some parts, she should be encouraged to stay.
But if someone has not done any of the information gathering required, he should be rescheduled
for another workshop. Also, if the agency plans to represent the applicant at the interview, a
form G-28 and a retainer agreement should be filled out.
§ 10.16 Application Workshop: Application Review
This is the time when applicants fill in or correct the parts of their applications that they
were unsure about, or made mistakes on when they filled them out at home. The Workshop
Leader should walk through the application, explaining why everything is there and how it
relates to the requirements for naturalization. This makes people understand the requirements
and their own answers better, which will in turn help them answer easily and fully at their
interviews. Because they already worked through the application at home, they know which
things remain confusing. The Workshop Leader should encourage people to ask questions
because they might benefit the whole group. (See Chapter 3 for an overview of the legal
requirements and Chapter 8 for a detailed explanation of the application.) The workshop can
also be a good place to get advice from lots of people about how to remember things -- for
example when someone took a vacation outside of the U.S., and where she lived five years ago.
The Workshop Leader should remind applicants that in filling out the N-400 forms, they
must be honest. If an applicant fails to list bad things in order to hide them from the INS, she has
committed immigration fraud, and her naturalization can be taken away. On the other hand, if
there are problems with her eligibility (which can usually be determined by completing the
Redflag Checklist), she must speak with an agency worker individually to determine whether she
should apply and, if so, how she should explain those problems. Often the agency worker will
refer an applicant in such circumstances to an attorney or BIA accredited representative to
determine the best course of action and try to avoid removal.
§ 10.17 Application Workshop: Checking the Application
Agency workers and volunteers should then check the draft applications for accuracy and
any potential problems that the applicant and agency should address, and applicants should
transfer the information to the official N-400 forms.
Some applicants will still have information missing from their forms, like addresses of
employers or their Selective Service numbers. They should be given "to do lists" (See Appendix
2-A) and write down, with assistance from volunteers or agency workers, the information or
documents that they still need to get before they can send their applications to the INS.
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§ 10.18 Application Workshop: Preparing Applications to Send
Agency workers and volunteers help workshop participants get their applications and
documents ready to send. Each participant should be given a manila folder with an application
checklist (See Appendix 10-C) attached. Participants should put their completed applications
and required documents in the folder, and check each item off of the checklist when it is ready to
send. The Workshop Leader should give a brief lesson in document management -- that they
should copy and retain these and all important papers. Ideally, an agency will be able to provide
a copier at the workshops so that participants can copy their packets for their records and be able
to send them off right away. Otherwise, applicants should be instructed to make copies of
everything on their own before sending their applications.
§ 10.19 Application Workshop: Volunteers, Evaluations and Planning Next Workshop
The Workshop Leader or a volunteer should ask participants to volunteer to help with the
workshops or outreach for future workshops. A request made by a volunteer can include why
she decided to volunteer.
The Workshop Leader should ask participants to fill out evaluation forms and to let
agency workers know personally what changes they'd like to see in the workshops.
The Workshop Leader should tell participants when the agency plans to offer an
interview preparation workshop that will be close to their expected interview dates.
§ 10.20 Application Workshop: Resources for Interview Preparation
Once again, it is worth inviting representatives of citizenship and ESL classes to help
register those workshop participants who did not have a chance to sign up at the previous
workshop. If that is not possible, provide lists of available classes. In addition to helping
facilitate participants' entry into citizenship and ESL classes, an agency should provide them
with lists of resources that will help them prepare for their exams. Agencies should also
encourage participants to form study groups and meet with one another to prepare for the exams.
Make available at the workshop the list of "100 questions" from which the INS will take its exam
questions (see Appendix 7-A). An agency can also establish its own naturalization library by
purchasing copies of exam preparation materials to lend to workshop participants for limited
periods.
10.21 Follow-Up on Applications
The agency must decide in advance how it will handle questions that come up after the
workshop, people who do not finish in one session, requests for information or resources to help
prepare applicants for their interviews, and notifications of interview dates. This can be
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handled in a number of ways -- some of which are described below -- but it is critical that people
leave the workshop with a clear understanding of what they should do if they have more
questions, have not yet finished, or hear from the INS.
Agencies which will represent applicants at their INS interviews, and who have prepared
G-28 forms and checked the appropriate box on the N-400, should keep files on those applicants.
The INS should notify the agency as well as the applicants when the interview is scheduled. The
agency must contact the applicant as soon as they find out.12
Workshops. We suggest that people who have follow-up questions come to meet with
us at a regularly scheduled Introductory Workshop or another Application Completion
Workshop like the ones they've already attended. They can ask their remaining questions in the
large group, if the questions seem generally relevant or they can wait and talk to agency workers
after the workshop. It is good for people who have already gone through most of the process to
attend these workshops so they can explain to newcomers what to expect and how to prepare.
Applicants who receive notices from the INS of their interview dates can also bring those notices
to the information or application workshops.
When an agency worker, including a Workshop Leader, first learns that an applicant from
one of the application workshops has an interview date, she should either set a workshop date
immediately or tell the applicant that she will set one up very soon and will call to say when and
where it will be. Agency workers should contact each of the applicants from the earlier
workshop; tell them that they will probably learn of their interviews soon; and tell them about the
upcoming Interview Preparation Workshop. People who plan to attend the Interview Preparation
Workshop should be instructed to bring to the workshop any documentation they may be
required to take to their interviews. Agency workers can check over those documents at the
workshop.
Simultaneous sessions. Another alternative is to hold a separate session at the same time
as either an information session or a workshop, specifically for people with follow-up questions,
if physical space and availability of volunteers or agency staff permit.
Follow-up sessions at the agency. Participants with questions or INS interview dates
could also come to regularly scheduled follow up sessions to meet with legal workers or
volunteers (e.g. a two hour time slot, such as Fridays from 3:00 - 5:00).
Phone consultation or appointments with legal workers. Another, option is to allow

people to call and talk to a legal worker or make an appointment. This may not be as desirable
as other alternatives because once an agency staff member sits down with an applicant, it can
take a long time, and can lose the efficiency and effectiveness of group processing. However, it
may still be preferable for some agencies. Assigning certain time slots for these visits, and
limiting them only to non-routine cases may make them less burdensome. Individual
12
The agency should be sure its retainer agreement with the client includes a section requiring the client to keep
the agency informed of changes of address.
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appointments are, of course, critical for applicants who may have issues with grounds of
deportability or abandonment of residence issues.
§ 10.22 The Interview Preparation Workshop: Introduction
These workshops help prepare applicants for their interviews with the Immigration and
Naturalization Service, about a month before the applicants' expected interview dates. In the
interviews, applicants must answer questions in English about U.S. history and government and
about the information on their applications. The process can be very intimidating. So these
workshops help applicants prepare both for the substantive information they'll need to present at
the interviews and the confidence they'll need to get through them.
These workshops also provide an opportunity for participants to prepare amendments to

their applications and assemble documentation they will need for their interviews.
§ 10.23 Interview Preparation Workshop: Logistics and Supplies
This workshop should take place either in a large room, or a smaller one with other space
close by for participants to meet in to do role-plays. The general group discussion should ideally
be held in a circle.
Provide pens to write with and, if possible, butcher paper and markers or chalk and
blackboard.
§ 10.24 Interview Preparation Workshop: Getting Started
The Workshop Leader should note the earlier steps in the naturalization process and
congratulate the participants for having made it to this point. Then note that the interview is
where the INS staff makes a recommendation about whether the applicant should be allowed to
become a citizen, based on information the applicant provided in the application and on being
able to speak basic English (unless she qualifies for an exception or a disability waiver) and
answer questions about U.S. history and government. See Chapter 7 for requirements for literacy
and knowledge of U.S. government.
The Workshop Leader should tell participants that although the interview seems scary,
they all already know a lot about how to deal with things like interviews and tests, and that we
will work today to help them develop those skills. Point out that the interviewers are supposed to
take into account the skills and abilities of the applicants, and that the English they use during the
interview should just be "basic English."
Remind people that unlike interviews they may have had to become lawful permanent
residents such as during the Amnesty program, their right to live in the United States is not
generally at stake in naturalization interviews.13 If they fail, they can prepare and be interviewed
13
An important exception is a case where an applicant might be removable or have problems with abandonment
of residence. In this case, the applicant must speak to an agency worker.
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again within 90 days -- knowing more about the interview. Even if they fail again, they still
maintain their lawful status in the United States.
Then we review the agenda for the meeting, an example of which is listed below, and tell
the participants that the meeting will last about an hour and a half.
§ 10.25 Interview Preparation Workshop: Agenda
1. What the interview will look like (15 minutes)

2. Ways to handle an interview (15 minutes)
3. Role playing interviews (30 minutes)
4. Assemble documents for interviews (15 minutes)
5. Feedback on the Naturalization process (2 minutes)
6. Volunteers (2 minutes)
7. Evaluation (2 minutes)
§ 10.26 Interview Preparation Workshop: Description of the Interview
Someone who has recently been through an INS interview should talk about her
experience: tell how the room looked; how the interviewer greeted her; what it was like having
someone ask questions about things she had already answered on the application; whether the
interviewer gave her credit for getting the "gist" of a civics question right, etc. And she should
talk about techniques she may have used to prepare for the interview, to lessen her anxiety, and
to make the best of any difficult situations in the interview.14
In addition to helping applicants prepare for their interviews, these accounts will help
them see that it is not some mysterious process. Instead, it is just a bureaucrat asking a few
questions -- a situation like many they've faced successfully before.
§ 10.27 Interview Preparation Workshop: Discussion of Ways to Handle an Interview
The Workshop Leader should stimulate a group discussion of how to handle an interview.
Workshop participants have a wide range of experience in interview-type situations and will
have a lot to offer to this exchange. If participants seem stuck, the Workshop Leader can remind
them of some of the situations where they may have used relevant coping skills, like applying to
rent an apartment, enrolling children in school, or applying for the two phases of Amnesty.
If participants do not raise the following interview strategies, the Workshop Leader
should tell participants that they should practice using them to get ready for their interviews:
14
New Readers Press has produced a video called, Will They Pass? that includes a mock naturalization interview
and other tips on the interview process. An agency can order this video by calling 1-800-448-8878.
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a. Asking for clarification and rephrasing (e.g. "I'm not sure what you mean." "Can you
repeat the question?" "Could you say that in a different way?").
b. If the applicant answers a question that had been phrased unclearly, explaining that he
or she hadn't understood the question if the examiner challenges his or her answer.
("I said _________ because I didn't understand what you meant by _________.").
c. Asking the examiner to speak more slowly or clearly (e.g. "I didn't understand: could
you say that again more slowly?").
d. Buying time (e.g. "Can I think about this for a minute? I think I know the answer.").
e. Admitting a problem without losing face (I'm sorry I can't remember X, but I do
remember Y).
f. Asking for help ("I'm sorry, I don't remember the answer. I only had one citizenship
class. Could you ask me another question?")
g. Coming across as a "regular guy or gal" (dressing as one would for a job interview,
watching for signals to shake hands, maintaining appropriate eye contact, appropriate
distance).
h. Appearing knowledgeable ("I took a class and studied X, Y and Z, but I don't
remember this question.").
i. Throwing oneself at the mercy of the examiner ("I'm sorry, my English is still not
very good. I studied everything. But now I forgot.")
§ 10.28 Interview Preparation Workshop: Role Plays
First, agency workers and volunteers should do a skit of an INS interview where the
applicant is having a hard time. Workshop participants should suggest things the applicant can
do to get out of jams. The Workshop Leader should encourage participants to "do it," by taking
the role of the applicant and acting out their suggestions.
Then, participants should be divided into pairs for role-plays and told to return to the
main group in 20 minutes to talk some more. The Workshop Leader can suggest that the "INS
interviewers" mumble or phrase things awkwardly to give the "applicants" the opportunity to ask
the "interviewers" to clarify the question. The "interviewers" can also dictate sentences for the
"applicants" to write. The role-play pairs should go to parts of the room or building where they
can hear one another and, if they are nervous about "performing," can have some privacy. One
member of the pair will play the INS interviewer and the other, the applicant. When they have
finished their role-play, they should share ideas about what else the "applicant" could have done.
Then they should switch roles, role play the interview, and share ideas again.
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Warning: It is important to realize that many applicants do not want to share personal
information about their cases and lives with other applicants whom they do not know. Thus, it is
usually best to encourage applicants to make up the facts of their cases, or tell them to focus the
interview on the U.S. history and government exam.
After the role-plays, participants will come back to the meeting and share with the large
group any problems they thought might occur that they couldn't solve, and any new ideas they
developed during the role-plays. The agency worker will suggest that these role plays are just
models for what applicants can do after the workshop -- they can continue role playing the
interview with other participants or with their friends and family members.
§ 10.29 Interview Preparation Workshop: Review of Documents
Some applicants will have to take documents along with them to present to the INS
interviewer. These documents might include a copy of amendments the applicant may have sent
which reflect changes since the application was filed: marriage certificates; documentation of
continuous of residence; tax returns or support letters to prove the applicant has good moral
character, etc.
An agency worker should look through the documents to be sure that they are adequate to
prove what they need to: for example, that a document exists which shows the applicant intended
for the U.S. to be her home to prove she did not abandon her lawful permanent residence during
a long absence from the U.S. See Chapter 4 for a discussion of the legal requirements and how
an applicant can document the fact that she has not abandoned her residence.
§ 10.30 Interview Preparation Workshop: Request for Feedback on the

Interviews and the Process and Follow-Up Arrangements
The Workshop Leader should ask participants to try to remember how fair they thought
their interviews were -- and to tell an agency worker after the interview. (See Chapter 8 for
addressing interview problems.)
The Workshop Leader can also make note of how long it has taken between the time the
participants submitted their applications and their expected interview dates. They can ask
participants if they want to get involved in efforts like letter writing campaigns to get the INS to
speed the process up for future applicants. See Chapter 14 for suggestions of ways people can
work together to bring about change.
The Workshop Leader should tell the group how the agency plans to arrange for follow-
up questions and problems. The agency can choose among the suggestions listed in §10.21, or
develop its own plan. But it must be sure to make time available, and let the applicants know
they can take advantage of the opportunity.
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§ 10.31 Request for Volunteers and Evaluations
Although these workshop participants have heard this plea at least twice before, agency
workers should ask again if anyone would like to help other people apply for naturalization
through the workshops.
If an agency has created evaluation forms to gather information it needs to improve its
workshops, agency workers should hand out those forms now and ask participants to fill them
out and return them.
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CHAPTER 11
DENIALS, APPEALS, AND INS INACTION
Note to Readers: The ILRC has a manual entitled, How to Successfully Appeal Naturalization
Denials. This manual is dedicated to helping people with naturalization appeals.
A naturalization application can receive negative treatment by the INS either through
action or through inaction. In some cases, the INS examiner will deny the naturalization
application because the examiner believes that there is a reason the applicant should not become
a U.S. citizen. In other cases, the INS simply will not act on an application either by failing to
set up an interview or, once the interview has taken place, by failing to make a decision. In
either circumstance, you and your client should consider several options.
Practice Tip: If, during the interview, an unexpected problem comes up which may lead to a
denial, you can request that the INS examiner continue the interview to a later date. This will
give you the opportunity to address the problem in order to avoid an actual INS denial. Averting
a denial saves you and the client from anxiety and problems of having to either re-apply or
appeal a denial.
Under 8 CFR § 335.3(b), the INS examiner has the option of granting one continuance of
the initial interview in order to give the applicant "an opportunity to overcome deficiencies on
the application that may arise during the examination."1 The INS officer has to inform the
applicant in writing of the grounds that have to be overcome or the evidence that needs to be
submitted, and the applicant will have at least 60 days from the date of the first interview before
s/he has to reappear at the second interview.2 If s/he can not overcome the deficiency, his or her
application will be denied.3
If the INS examiner does not want to grant the continuance, clients and their advocates
should ask to speak to the examiner's supervisor. Try to convince the interviewer or the
1
The INS interviewer will most likely ask your client to sign a waiver of the requirement under 8 CFR § 310.5(a)
that the decision to deny or grant the naturalization application be made within 120 days of the initial interview.
Usually it is best not to sign this waiver but instead agree to produce the requested evidence as quickly as possible so
the INS still has to decide the case within 120 days of the initial interview.
2
8 CFR § 335.3(b).
3
8 CFR § 335.3(b).
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supervisor that granting the continuance and allowing additional evidence to be submitted will
waste less time than having to go through the entire process again.
§ 11.2 Denials
The INS may deny your client's application for a variety of reasons. Some of the reasons
the INS may deny the application include:
• Good moral character found to be lacking (failed to establish good moral character
during the period required by law);4
• Attachment and disposition lacking (failed to establish attachment to the principles of
the Constitution and favorable disposition to the United States during the period
required by law);
• Inability to read, write, or speak English;5
• Continuity of residence broken or residence requirements otherwise lacking (e.g.
abandonment of residence);
• Physical presence requirements lacking;
• Lawful admission for permanent residence lacking;6
• Lack of prosecution (applicant did not follow through on an application);
• Failure to pass educational examination (U.S. History and Government);7
• Has an order of deportation against her.8
This list is not exhaustive, but it provides the most common bases cited by INS in
denying naturalization applications.
Practice Tip: Discuss the risks of applying for naturalization with your client before s/he
applies. For example, if your client's history reveals something that may put him or her in
danger of being removed from the INS, your client may be unaware of this and her decision to
apply for naturalization should be made with this knowledge in mind.9 The client should
understand the predicament before an actual denial occurs.
4
See Chapter 6 for a discussion of the Good Moral Character requirement.
5
See Chapter 7 on English and U.S. History and Government Requirements.
6
See Chapter 5 on Residence Requirements.
7
See Chapter 7 on English and U.S. History and Government Requirements.
8
See Chapter 6 on Ineligibility to Naturalize.
9
Possible reasons a person could be found removable include: committing certain crimes (see Chapter 6), being
inadmissible at the time of admission (see Chapter 4), abandonment of residence (see Chapter 4) or being initially
ineligible for the receipt of the green card (see Chapter 4).
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Obviously not everyone whose naturalization application is denied will face removal or
deportation. As discussed above, the INS may deny the application for a variety of reasons,
many of which will not put your client at risk for removal or deportation. Even though you
conclude that the client is not at risk, clients generally appreciate being included in the decision-
making and assessment process, such as explaining the law and welcoming questions, because
their future is at stake. This gives the client a sense of input and control over this important
matter, and often allows the client to feel comfortable enough to share additional information
about his or her case with you.
In Appendix 8-K, you will find a sample letter written to respond to an INS
recommendation for denial of a naturalization application.
If an applicant fails the English or history and government exams during his
naturalization interview, he is entitled to be re-tested within 90 days.10 If an applicant, after
having been notified of the scheduled re-exam date, fails to appear for this second exam without
good cause and without notifying the INS first, the applicant will be considered to have failed the
second exam.11 Before an applicant may request a postponement of the second exam to a date
that is more than 90 days after the initial exam, the applicant must agree in writing to waive the
requirement that the INS render a decision within 120 days of the initial interview and instead
permit the INS to render a decision on the application within 120 days of the second interview.12
For more information on the English and U.S. history and government exams, please see Chapter
7 of this manual.
If the INS receives damaging information which might jeopardize an application that has
already been granted, but the applicant has not yet been sworn in, the INS can remove the
applicant from the list of people waiting to take the oath. The INS will remove the name of the
applicant from any list of granted applications and prevent his or her administration of the
naturalization oath.13 The INS must notify such an applicant in writing about the damaging
information, and give the applicant 15 days to respond. If the applicant can overcome the
damaging information, the application will be granted and the applicant will be scheduled for an
oath ceremony. If the applicant cannot overcome the information, the application will be
reopened and denied.14
10
See 8 CFR § 312.5(a).
11
See 8 CFR § 312.5(b).
12
See 8 CFR § 312.5(b)
13
8 CFR § 312.5(a).
14
8 CFR § 335.5.
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Administrative Closure For Failure to Appear
A naturalization application may be administratively closed if the applicant fails to

appear for a scheduled interview and fails to notify the INS within 30 days.15 The notification
must be in writing, state the reason or reasons for missing the interview and request another
interview. An applicant may reopen a previously closed application by submitting in writing a
request to reopen16 within one year from when the application was closed. Such a request to
reopen is free.17 If the applicant does not request to reopen the application within one year, the
INS will consider the application to have been abandoned and shall dismiss the application
without further notice to the applicant.18
Failure to Appear at a Continued Interview & Failure to Provide Information Requested by the
INS (i.e. Failure to Prosecute Application After Initial Interview)
In order to decide whether to grant or deny an application, the INS may request that an
applicant who attended his naturalization interview attend another interview (called a continued
interview), or provide the INS with additional documents. The INS must notify all applicants of
any requests for continued interviews or additional documentation in writing.19 The INS must
send the notice to the applicant’s last known address or give the notice to the applicant in
person.20 Usually, the INS makes such requests in writing (on Form N-14) and gives the
applicant the form in person during the interview. Yet, even after receiving such a request in
writing, an applicant might still fail to show up at a continued interview, or fail to provide the
INS with documents the INS requested. The INS will consider such an applicant as failing to
prosecute his naturalization application if the applicant fails to attend the continued interview, or
fails to submit the requested documents within a reasonable period of time, and does not show
good cause for such failure.21 If the applicant fails to respond within 30 days of the notification,
the INS must decide the application based on the information it has already received.22
15
8 CFR § 335.6(a).
16
A “request to reopen” is really formally called a “request for reopening.”
17
8 CFR § 335.6(b).
18
8 CFR § 335.6(c).
19
See 8 CFR § 335.7
20
See 8 CFR § 335.7
21
See 8 CFR § 335.7
22
See 8 CFR § 335.7
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§ 11.3 The Appeal Process23
If the INS denies the application for naturalization, the applicant will be served24 (sent or
given in a way that follows certain legal rules) with a written notice within 120 days of the
naturalization interview that states the reason(s) for the denial.25 The notice of denial must
clearly state why the application was denied, the law that applies to this finding of ineligibility,
and the legal conclusions reached by the examiner in making the decision to deny
naturalization.26 The notice of denial must also inform the denied applicant that s/he has a right
either to accept the decision or to request a hearing before an immigration officer.27
Request for Hearing on Denials
If the applicant receives a denial notice, s/he may request a hearing, 30 days from the
time of denial,28 before an immigration officer within the same office.29 Some call this request
an "administrative appeal." If a timely request is filed, the INS will schedule a review hearing
before an immigration officer other than the officer who initially issued the denial.30 The
reviewing immigration officer must hold the same or a higher level of the first officer.31 The
hearing must be scheduled within a "reasonable" amount of time, not to exceed 180 days.32
During this review, the applicant can submit any new evidence or testimony that might
support his or her application.33 In reviewing the application, the reviewing officer has a good
deal of discretion to determine how the earlier decision will be re-considered.34 The reviewing
officer can review the naturalization application, retest the applicant’s literacy or knowledge of
civics, affirm or reverse the original decision, receive new evidence, conduct a full de novo
23
A naturalization appeal is often called a “Request for Hearing,” a “Naturalization Appeal,” or an “Administrative
Appeal.”
24
The service of the denial notice can be made either in person or by certified mail to the applicant herself or it may
be served upon the attorney or representative of the applicant. 8 CFR § 336.1(c).
25
8 CFR § 336.1(a).
26
8 CFR § 336.1(b).
27
8 CFR § 336.1(b).
28
8 CFR § 336.2 (a).
29
INA § 336(a).
30
8 CFR § 336.2(b).
31
8 CFR § 336.2(b).
32
8 CFR § 336.2(b).
33
8 CFR § 336.2(b).
34
8 CFR § 336.2(b).
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(new) hearing, or use a less formal review procedure "as he or she deems reasonable and in the
interest of justice."35
Administrative reviews must be filed within 30 days after the applicant receives the
notice of denial.36 Form N-336 is used for an administrative review and a fee of $195 must be
included.37
Briefs, written statements and additional evidence may be submitted with the request for
review. Extensions for submission of briefs and additional evidence may be granted for good
cause only and must be requested within the original 30 days after denial.38
Requests for review must be made in a timely manner. Untimely filings will be rejected
by the INS39 and treated as motions to reopen or reconsider if they meet the requirements of such
motions.40 If the request for review is properly filed, the INS will schedule the review hearing
within 180 days of filing the request.41
Judicial Review
The INS has 180 days to decide an appeal.42 If the INS upholds its earlier denial, and the
applicant feels that this decision was incorrectly made, the applicant can then file an appeal with
the local federal district court.43 The appeal must be filed within 120 days of the INS final
determination. The federal district court must make an entirely new decision on the person’s
application, and must give the person a hearing, if s/he wants one.44 The INS has stated that
before applicants can appeal to federal court, they are required to make an administrative appeal
35
8 CFR § 336.2(b).
36
8 CFR § 336.2(a).
37
8 CFR § 103.7(b).
38
These instructions appear on the N-336 itself.
39
The filing fee will not be returned if filed after 30 days from the initial denial. 8 CFR § 336.2(c) (2) (i).
40
Motions to Reopen: (a) state new facts to be proved at reopened proceedings and (b) motion supported by
affidavits or other documentary evidence. Motions to Reconsider: (a) state reasons for reconsideration and (b)
motion must be supported by pertinent precedent decisions. See 8 CFR §§ 103.5(a)(2), 336.2(c)(ii) for the
requirements for Motions to Reopen and Motions to Reconsider.
41
8 CFR § 336.2(b).
42
See 8 CFR § 336.2(b).
43
INA § 310(c). The proper court is the district court for the district in which the person resides. See also 8 CFR §
310.5(b).
44
INA § 310(c).
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to the INS. According to the regulations, the applicant has to “exhaust…those administrative
remedies available” in order to seek judicial review.45
Advocates should argue that if the INS takes more than the permitted 180 days to make a
decision on the appeal, then the applicant should be able to take the case to federal district court
either on appeal under INA § 310(c) or a writ of mandamus.46
Advocates should argue that a federal district court judge can naturalize someone while
s/he is in removal proceedings. The reasoning behind this is that while INA § 318 prohibits the
Attorney General from considering a naturalization application of one who is in removal
proceedings, it does not prohibit a federal district court judge from doing so.47
Practice Tip: Some practitioners have argued that there is no 120-day deadline for filing with
federal district courts when appealing the INS’ denial of a naturalization application. In fact, the
Tenth Circuit Court of Appeals recently ruled that the INS does not have the authority to enforce
a 120-day deadline on filing naturalization appeals to federal district courts.48 The court focused
on INA § 310(c), which gives federal district courts jurisdiction to review denials of
naturalization applications. Since INA § 310(c) does not contain a time period for reviewing
denied naturalization applications, the court held that the appeal must be filed within six years of
the final determination by INS, according to the Administrative Procedure Act.49
§ 11.4 Other Options
An appeal of an unfavorable decision on a naturalization application is not the only

option available to a client. Alternatives ranging from re-applying to persuading a congressional
representative to introduce a "private bill" in Congress (only possible when an applicant has
exhausted his/her administrative and judicial remedies) can be considered and discussed with the
client. Once your client is aware of the different options, s/he may or may not want to go
through the appeal process. The important thing is that your client makes his/her decision with
all the information in mind.
One option is to simply submit a new application and try again. If the reason for the
denial of the first application was something that time or more documentation can "fix," then re-
45
8 CFR § 336.9(d).
46
8 CFR § 310.5., See § 11.6.
47
See INA § 318.
48
77 Interpreter Releases 1670, citing Nagahi v. INS, 219 F.3d 1166 (10th Cir. 2000) where the court found that 8
CFR § 336.9(b) is invalid.
49
77 Interpreter Releases 1670.
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applying may be the way to go. There is no penalty (except for filing fees) for re-applying, nor
is there a limit on the number of times a person may apply.50
A second (yet difficult) option is to get Congress to pass a "private bill." Congress has
the power to pass legislation to benefit a single individual; however, in practice, Congress does
not do so frequently. Such legislation is known as a "private bill." The bill might grant
permanent residence, citizenship, a waiver, or some other remedy. The bill can be introduced in
either the U.S. Senate or the House of Representatives (see Appendix 11-A for a copy of the
rules on private immigration bills adopted by the House and Senate Immigration
Subcommittees).
During this process, there is not an automatic stay of deportation unless, at some point, a
Committee of the House or Senate requests a report from the INS on the case. The House Rules
state that, in the past, the INS has honored requests for departmental reports by staying
deportation until final action is taken on the private bill. However, the House Rules also state
that a request for a report will be made only in those cases designed to prevent extreme hardship
to the beneficiary (the applicant) or to the beneficiary's U.S. citizen spouse, parent, or child.
To start the process, you and the client should approach your local Congressperson or
Senator with the facts of the case. If the member of Congress is interested, s/he will introduce
the legislation. A subcommittee reviews the bill. Both the House and the Senate must pass the
bill, and then the President decides whether to sign it and make it law.
The difficulties related to this approach are made clear by the House of Representatives’
Rules on private bills. The Statement of Policy requires that the immigration subcommittee
review "only those cases that are of such an extraordinary nature that an exception to the law is
needed." In addition, it will not review a private bill until all administrative and judicial
remedies have been exhausted. The House Rules also explicitly state that any private bill asking
that a naturalization requirement be waived or that naturalization be expedited, will generally be
viewed unfavorably by the immigration subcommittee. For this reason, you should save this as a
last resort for an extremely sympathetic case that has no other possible relief.
A third option is that an applicant may request, in writing, that his/her application be
withdrawn. If the district director consents to the withdrawal, the application will be denied
without further notice to the applicant and without further prejudice to any future application.51
If the district director does not consent to the withdrawal, the application shall be adjudicated on
its merits.52
50
Of course, depending on individual circumstances, there may be harsh circumstances connected to the initial
application. For example, your client may face removal from the U.S. as a result of facts that were discovered by
the INS examiner through the application or the interview that followed.
51
8 CFR §335.10.
52
8 CFR §335.10.
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The key is to make it clear to your client that there are options available if his/her
application is denied. The decision by the INS does not have to be the final outcome. The easiest
option is to simply re-apply, especially if the reason for the initial denial can be "cured" either by
additional time or by additional evidence. However, in some cases the best option is to appeal
the case and, if the appeal is denied, to request a de novo hearing in federal court because some
federal court judges may be more sympathetic than INS examiners on naturalization
requirements.
§ 11.5 INS Inaction
What happens when the INS fails to act on an application? The answer depends on
whether or not the interview has taken place. Unfortunately, the INA provides no remedies in
the event the INS fails to schedule an interview after receiving the application.53 The INA only
provides for remedies if the INS fails to adjudicate an application within a given time period
after the interview.
As discussed above, the INS has 120 days after the interview to make a determination to
grant or deny the application.54 If at the end of the 120 days, the INS has failed to make a
decision on the application, the applicant has the right to seek judicial review of the pending
application by the district court in the applicant's area.55 The applicant must seek relief with the
U.S. District Court that has jurisdiction over the area in which s/he lives. The court then has the
right either to determine the issue on the merits, or to send it back to the INS with appropriate
instructions.56
One such form of inaction was recently adjudicated. Last year, a district court held that
the INS should not extend the 120-day period by requiring additional documentation that
“inherently cannot be delivered until after the limitation period.”57 Once the INS has ample
information to make a decision on an application based on the existing documents, it cannot sit
on an application after the 120-day period; they must either approve or deny it.
As mentioned above, if the INS denies the application and the applicant appeals the
decision directly to the INS within 30 days after the denial, the INS has up to 180 days from the
date the appeal was filed to make a second decision.58 If the appeal is denied, or if the 180 days
pass with no action taken by the INS, the applicant has the right to bring the case to federal
53
There is however, the possibility of filing a Writ of Mandamus (See discussion in this section).
54
8 CFR § 310.5(a).
55
INA § 336(b). See also 8 CFR § 310.5(a).
56
8 CFR § 310.5(a).
57
78 Interpreter Releases 1412, citing Miller v. INS, Civ. Action No. 7:01CV00178 (W.D. Va. May 28, 2001).
58
8 CFR § 336.2(b).
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district court. The court will have de novo powers to completely re-consider and adjudicate the
petition.59
In addition to legal avenues to make the INS act upon a naturalization application, clients
and their advocates also can pressure the INS through the media, congressional representatives,
and organizing campaigns. Advocates and other leaders in the community can also put pressure
on their local INS officials (supervisors, officers-in-charge, district directors, etc) through
already established relationships and liaison meetings to encourage the INS to act. In situations
where an INS office has a pattern of letting applications languish, advocates and other leaders
can put pressure on the national headquarters of the INS to encourage the local INS to speed up
the process. For more information on this subject, please see Chapter 14.
§11.6 Writ of Mandamus
If the INS fails to schedule an interview, you and your client may want to consider the
possibility of filing a Writ of Mandamus with the district court in your area.60 Mandamus
actions are actions filed against the INS to force them to adjudicate a petition.61 The district
court's mandamus jurisdiction is invoked under 28 USC § 1361. It is an action to compel an
officer or employee of the INS (or other Government agency) to perform a duty owed to a party.
If you and your client decide to pursue this option, the Federal Rules of Civil Procedure, as well
as local District Court Rules must be followed. The mandamus procedure may be your only
option if you cannot convince the INS to proceed with the case in a timely manner. The
successful mandamus action simply gets the ball rolling again and forces the INS to make a
decision. Please note that only attorneys can represent applicants in federal court and all
Mandamus Actions are heard in federal court.
59
INA § 310(c).
60
Of course, before filing a Writ of Mandamus, you should try to resolve the situation through less complicated
avenues. For example, you can write a letter to the INS stating your client's situation and asking that the INS
address the problem. If this proves ineffective, then you should consider the possibility of filing a Writ of
Mandamus. For a sample letter, see Appendix 8-F.
61
Jeffrey v INS, 710 F.Supp 486 (S.D. N.Y. 1989).
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CHAPTER 12
ACQUISITION AND DERIVATION OF CITIZENSHIP
§ 12.1 Overview of Acquisition and Derivation of Citizenship
The Fourteenth Amendment to the United States Constitution provides that anyone born
in the United States and subject to the jurisdiction of the United States1 is a U.S. citizen. People
born in Puerto Rico,2 the Virgin Islands,3 or Guam4 are U.S. citizens at birth as well. Anyone
born in the Panama Canal Zone whose father or mother was a U.S. citizen is also a U.S. citizen.5
Additionally, anyone born in the Republic of Panama is a U.S. citizen if at least one parent was a
U.S. citizen working for the Panama Railroad Company or the U.S. government.6
In addition to these birth possibilities and naturalization, people also can become citizens
through acquisition and derivation of citizenship. A person who is or becomes a citizen
through any of these means has all the rights of a U.S. citizen.7
Although many people confuse acquisition with derivation because they have some
similarities, they are different ways of obtaining citizenship. The easiest way to differentiate
between the two is that acquisition of citizenship occurs when a child born outside of the U.S.
"acquires" citizenship at birth because of the citizenship status of one or both of her parents.
Derivation of citizenship is when a child who is a lawful permanent resident "derives" or
becomes a citizen because one or both of her parents is or becomes a citizen. In either instance,
someone could become a U.S. citizen without knowing it. In order to prove such citizenship, all
that one needs to do is prove that the requirements for acquisition or derivation were satisfied.
1
INA § 301(a). The major exception to the rule that everyone born in the United States is a U.S. citizen applies to
children born to high-ranking foreign diplomats while in the U.S. See 8 CFR § 101.3(b) and INS Interpretations
301.1(a)(4). Because foreign diplomats are not subject to the jurisdiction of the United States, their children do not
acquire citizenship when born here. Thus, unless someone born in the U.S. was the child of a foreign diplomat in the
U.S., the child became a U.S. citizen at birth. However under 8 CFR §§ 101.3(a)(1) and 101.3(c), these children may
become lawful permanent residents upon birth in the U.S.
2
INA § 302.
3
INA § 306.
4
INA § 307.
5
INA § 303(a).
6
INA § 303(b).
7
A major exception is that a naturalized citizen can lose her citizenship through denaturalization proceedings if she
committed fraud on her naturalization or original visa application. For more information on denaturalization and loss
of U.S. citizenship, see Chapter 13.
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§ 12.2 Introduction to Acquisition of Citizenship
In some circumstances a U.S. citizen may transmit citizenship to her child, even though
the child is born outside of the U.S. This is known as acquisition of U.S. citizenship.8 Children
who qualify are U.S. citizens at birth.
Acquisition of citizenship is an important possibility that should be explored for all

clients, including those facing deportation. Many legal advocates have clients who are actually
U.S. citizens and do not realize it. If a client is a citizen, the INS cannot remove him and he has
the right to stay in the United States. Every client must be asked whether her parents and/or
grandparents were U.S. citizens. Whether the parents or grandparents became U.S. citizens at
birth or through naturalization makes no difference for the purposes of determining whether a
client acquired citizenship at birth.
PLEASE NOTE: Acquisition or derivation of citizenship is not to be confused with

obtaining a certificate of citizenship under INA § 322. Although one can become a U.S. citizen
through acquisition or derivation, both include the automatic granting of citizenship. Under §
320, in order for the child to obtain a certificate of citizenship, the U.S. citizen parent should
apply on the child's behalf to the INS on form N-600. The child must be under the age of 18, and
be living in the U.S. with the U.S. citizen parent pursuant to a lawful admission. This process is
often called, "A section 320 naturalization application." For more information on this topic
please see Chapter 7-5.
§ 12.3 Who Can Acquire Citizenship at Birth Outside of the U.S.?
Five issues will affect whether a person born outside of the United States is a U.S.
citizen. They are:
(1) whether the person's parents were married when she was born;
(2) the person's date of birth;
(3) whether one or both of the parents was a U.S. citizen when the person was born;
(4) how long the citizen parent resided in the U.S. prior to the person's birth; and
(5) whether the person has satisfied requirements for residency in the U.S.
Please Note: Although illegitimate children can acquire citizenship at birth outside of the U.S.
under certain circumstances (see section 12.3, B), adopted and stepchildren can never acquire
citizenship at birth outside of the U.S.
Turn to Appendix 12-A in the back of this unit. The information on CHART A and
CHART B can help you and a client determine whether she acquired U.S. citizenship at birth.
Remember, even if the client's parents were born outside of the United States, check to see if one
of the client's grandparents may have been born in the United States. Then you can use the
8
See INA §§ 301, 309.
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charts to check if one or both of the client's parents acquired U.S. citizenship at birth through
their parents (the client's grandparents). If one of the client's parents did acquire U.S. citizenship,
then U.S. citizenship may have been transmitted from the client's parent to the client.
§ 12.4 How To Use The Charts
To use the charts, first determine whether the child's parents were married when the child
was born.9 If his parents were married when he was born, refer to CHART A and the
explanation of how to use it. These are sometimes called "legitimate" children. If his parents
were not married when he was born (i.e., the child was born "out of wedlock"), refer to CHART
B and the explanation of how to use it. These children are sometimes called "illegitimate."
A. "Legitimate" Children Born Outside of the U.S.
Remember, use this chart when you are working with a client whose parents were
married when she was born.
To use CHART A, follow these four steps and be sure to check the notes at the bottom of
the chart for additional information:
STEP 1: Determine the date of birth of the child born outside of the U.S. and select the
appropriate box in the column labeled "PERIOD" on the chart.
STEP 2: Depending on whether one or both of the child's parents were U.S. citizens when
the child was born, select the appropriate box to the immediate right of the
box you selected in STEP 1. This box is in the column labeled "PARENTS."
STEP 3: Go to the box to the immediate right of the box you selected in STEP 2. This
box is in the column labeled "RESIDENCE REQUIRED OF USC PARENT."
This box tells you how long the U.S. citizen parent must have resided in the
United States prior to the birth of the child. If, at the time of the child's birth,
the U.S. citizen parent met the applicable residence requirements, the child
acquired U.S. citizenship at her birth.
9
In general, a child is considered "illegitimate" at birth for immigration purposes if the child is born out of wedlock.
However, whether or not a child is "legitimate" at birth, even for immigrant visa purposes depends on the law of the
place where the child was born. Some countries have eliminated any distinction between children born in and out of
wedlock as of certain dates; all children born in these countries are considered "legitimate." See Lau v. Kiley, 563 F.2d
543 (2d. Cir. 1977). For a list of countries that have abolished the distinction between legitimate and illegitimate, see
Daniel Levy, U.S. Citizenship and Naturalization Handbook (2002 Edition, published by West Group). Practitioners
should argue the reasoning in the Lau case should apply in acquisition cases, even though the definition of a child
under Title III of the INA differs from the definition of a child under Title II the INA.
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STEP 4: Go to the box to the immediate right of the box you selected in STEP 3. This
box is in the column labeled "RESIDENCE REQUIRED OF CHILD." It
indicates the type and length of residence in the United States the child must
have in order not to lose citizenship acquired at birth. This requirement is also
called the retention requirement. This means that U.S. citizenship attaches at
birth but will only be retained (kept) if the person complies with the residence
requirement.10
Example: Magdalena and Juan were both born and raised in Puerto Rico and therefore
are U.S. citizens. In 1980, when both were age 20, they married. In 1983, they moved to
Mexico where their child Eduardo was born on February 16, 1989.
Since Eduardo's parents were married before he was born, refer to CHART A. Because
Eduardo was born in 1989, his claim would be governed by the rules that apply to births
on or after November 14, 1986. His claim would be through two U.S. citizen parents.
When such a claim is made for this period, the rules require that at least one of the
parents must have made his or her principal dwelling place in the U.S. or its outlying
possessions prior to the birth of the child. In this case both parents meet the requirements
because both lived in Puerto Rico, an outlying possession of the U.S. Thus, Eduardo
acquires U.S. citizenship at birth.
Example: Jorge was born in Peru in 1945. His mother, Raquel, is a U.S. citizen who
lived in the U.S. until she was 23 years old. She married Jorge’s father, Miguel, a citizen
of Peru, in 1943. Jorge moved to the U.S. in 1990. He investigated at that time whether
he had acquired citizenship from his mother. He discovered that, although he acquired
citizenship from his mother (because she lived in the U.S. for the required amount of
time: ten years, five of which were after age 16), he lost that citizenship because he did
not meet the requirement of living in the U.S. when he was younger (two years
continuous presence between the ages of 14 and 28). However, Jorge can regain U.S.
citizenship acquired from his mother by attending a ceremony where he takes an oath of
allegiance to the U.S.11
10
Anyone born outside the U.S. between 1934 and 1952 and acquiring citizenship from a U.S. citizen parent, must
fulfill a retention requirement or lose his/her citizenship that attached at birth. The Immigration and Nationality
Technical Corrections Act of 1994 made the requirement more liberal by giving people a way to meet it other than
by living in the U.S. People who have not fulfilled the residence requirement now are permitted to regain their
citizenship by taking an oath of allegiance to the United States. See the Immigration and Nationality Technical
Corrections Act of 1994 § 103(a) and INA § 324(d)(1). Note, however, there are still physical presence
requirements for the U.S. citizen parent of the child who acquired U.S. citizenship by birth abroad. For more
information, please see the charts in Appendix 12-A.
11
Id.
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PLEASE NOTE: A child born abroad can “acquire” citizenship regardless of when she was
born and whether she was born to a U.S. citizen mother or a U.S. citizen father. Initially,
children born prior to 1934 to U.S. citizen mothers were not able to acquire citizenship.
However, the Immigration and Nationality Technical Corrections Act of 1994 changed that law.
Now, a person born abroad before 1934 to a U.S. citizen mother can “acquire” citizenship in the
same way as a person born at the time to a U.S. citizen father. This provision applies
retroactively -- anyone who qualifies, whether he or she has previously sought citizenship or not,
can benefit from this change. There are no requirements of physical presence in the U.S. under
this provision. 12
Practitioner's Tip: Advocates should remember to ask naturalization applicants and other
immigration clients whether they have parents or grandparents who are U.S. citizens.
B. Children Born Out of Wedlock and Outside of the U.S.
This section applies to children whose parents were not married when the children were
born.
To use CHART B you must first determine which of the following apply:
- the child has not been legitimated;

- the child has been legitimated or acknowledged by a U.S. citizen father; or
- the child has been legitimated by an alien father.
This information will direct you to which part of CHART B to use.
Practitioner's Tip: The definition of "legitimation" can be complicated and practitioners must
research the law to see if a "legitimation" has occurred.13 The law governing whether or not a
"legitimation" has occurred is the law of the child's or the father's residence or domicile.14
12
Immigration and Nationality Technical Corrections Act of 1994 § 101 and INA § 301(h).
13
For more information on "legitimation" for naturalization purposes please see INA § 309. For information on
"legitimation" generally for immigration purposes, please see INA § 101(b)(1)(C)-(D), 8 CFR § 204.2(c)(2)(iii), Matter
of Pineda, Int. Dec. 3112 (BIA 1989), Matter of Patrick, 19 I&N Dec. 726 (BIA 1988), and Immigration Law and
Procedure by Gordon and Mailman.
14
INA § 101(c)(1).
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If the child has not been legitimated or acknowledged by a U.S. citizen father, refer to
PART 1. First, determine the date of birth of the child and select the appropriate box in the first
column. The box to the immediate right of this box will tell you the requirements that must be
met for the child to acquire U.S. citizenship at birth. If a U.S. citizen father has legitimated or
acknowledged the child please refer to PART 2.
Next select the appropriate box in the column labeled "Date of child's birth." Go to the
box to the immediate right of the box you have selected to read the requirements for the age and
procedure of legitimation of the child. If the "legitimation" meets these requirements, refer to
CHART A and use the law, which applies to people whose parents were married at the time of
their birth. In other words, at this point follow the four steps described in § 12.4, Part A above.
Example: Maribel, a native of Mexico, became a naturalized U.S. citizen in

1947, after living in the U.S. for ten years. In 1949 she returned to Mexico where
she gave birth to Jaime on May 5, 1951. Jamie's father was a Mexican citizen.
Jaime's parents were not married when he was born, and he has never been
"legitimated" by his father. Did Jaime acquire citizenship at birth?
Since Jaime's parents were not married when he was born, and he has not been
"legitimated," refer to PART 1 of CHART B. Because Jaime was born in 1951,
his claim is governed by the rules, which apply for births prior to December 24,
1952. His claim is through his U.S. citizen mother. When such a claim is made
for this period, the rules require that the mother must have had a principal
dwelling place in the U.S. or its outlying possessions prior to the child's birth.
Maribel, Jaime's mother, meets this requirement since she lived in the U.S. from
around 1937 to 1949. Therefore, Jaime acquired U.S. citizenship at birth.
Example: Alfredo was born in New York on March 17, 1925. His parents were
natives and citizens of Mexico. In 1928, the whole family moved to Mexico
where Alfredo has lived ever since. In Mexico, Alfredo fathered a child,
Mauricio, who was born on June 21, 1948. Mauricio's mother, Nicolasa, is a
native and citizen of Mexico. Alfredo and Nicolasa have never been married, but
Alfredo legitimated Mauricio under Mexican law in 1949. Mauricio wants to
know if he acquired U.S. citizenship at birth.
Since Mauricio's parents were not married when he was born, refer to CHART B.
He cannot acquire U.S. citizenship through his mother because she is not a U.S.
citizen. Since he was legitimated by a U.S. citizen father you refer to PART 2 of
CHART B. Because Mauricio was born in 1948, his claim is governed by the
rules, which apply for births between January 13, 1941 and December 24, 1952.
For this time period, the law requires that the child must have been legitimated
under the law of the place the father lived before the child reaches 21. Since
Mauricio was legitimated under Mexican law when he was one year old, this
requirement has been met. The next step is to refer to CHART A and apply the
law pertinent to children born in a foreign country to married parents.
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Mauricio's claim is governed by the rules for births between January 13, 1941 and
December 24, 1952. Mauricio's claim is based on having one citizen parent and
one alien parent. When such a claim is made, the rules require that the citizen
parent must have resided in the U.S. or its outlying possessions for ten years prior
to the birth of the child. Alfredo did not meet this requirement since he lived in
the U.S. only from 1925 to 1928. Therefore, Mauricio did not acquire U.S.
citizenship at birth. However, since Mauricio's father is a U.S. citizen, if his
father is still alive he can file a visa petition on Mauricio's behalf so that Mauricio
could immigrate to the U.S. and become a lawful permanent resident.
§ 12.5 Documenting a Claim of Acquisition of Citizenship
If, according to the charts, the client acquired citizenship, the next task is to prove that
each requirement was met. Documentation of each fact is needed. Once the documentation is
available, the client can seek a U.S. Passport,15 a Certificate of Citizenship (N-600),16or a Report
of Birth Abroad of a Citizen of the United States of America (FS-240).
The three main facts, which must be proven when applying for a U.S. Passport,
Certificate of Citizenship, or Report of Birth Abroad of a Citizen of the United States of America
are:
- the citizenship status of the client's parents;

- the residence, if necessary, of the parents and of the client (as stated above, these
requirements change depending on the circumstances and the law in effect at the time
of the client's birth); and
- the parent-child relationship (birth certificate and if necessary, proof of legitimacy of
child; i.e. marriage certificate, legitimation order, etc.)
Practice Tip: Generally the child’s birth certificate will be sufficient proof of the parent-child
relationship. In some instances, however, the child’s U.S. citizen parent might not be listed on
15
There have been some BIA decisions that have held that a passport is not evidence of citizenship. See INS
Interpretations 341.2(a)(11) for a more complete explanation. In fact, in Matter or S-, 3 I.&N. Dec. 589, 603 (1949),
the BIA specifically said it is the responsibility of the INS and the BIA to determine whether or not the appellants in
Matter of S- were nationals of the U.S. under the immigration laws that Congress passed. Thus, it is the ILRC's
recommendation for everyone who derived or acquired citizenship to obtain a certificate of citizenship by filing a N-
600 application with the INS.
Although only the U.S. passport office of the Department of State approves passport applications and issues
passports, generally one can apply for a U.S. passport at a passport office or a U.S. post office. Yet, not all passport
offices or all counties are authorized to accept passport applications. Advocates are encouraged to determine whether or
not their local post offices and/or county offices accept passport applications.
16
Please note that the INS is presently revising the N-600. Also see Appendix 12-D for a sample completed N-600
form.
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March 15, 2002
the birth certificate, the birth certificate might not be available, and/or the INS might question the
authenticity or veracity of the birth certificate. Under certain circumstances there are other ways
to prove parentage such as through baptismal certificates, other birth records, affidavits, and
interviews. Additionally, in most instances, the child and parent can undergo DNA testing to
prove the parent-child relationship. In a cable dated February 8, 2001 and called “New DNA
Testing Guidelines for Visas and Citizenship” (Cable Number 01-State-22995), the State
Department issued guidelines on DNA testing to prove the parent-child relationship in visa
petition and citizenship cases. 17 It is important to note that the Department of State issued these
guidelines and thus only Department of State officials, not INS officers, must follow them. Yet,
where beneficial, advocates should try to use the information in this cable to help their clients
prove citizenship whether they have to prove it to the Department of State of the INS.
Proving that a client's parents were U.S. citizens can be tricky. For example, a client's
parents may not alive. If they were born in the U.S., finding the parents' birth certificates is the
place to begin. This may not be a simple task. You and the client may need to consult with the
state offices of vital statistics in the state where the client's parents were born. See
www.vitalcheck.com.
Proof of residence may be even more difficult to obtain. After all, it may have been 50
years since the client's father last lived in the U.S. Be sure to ask your client to think of as many
leads as he can for gathering this information. You and your client may be able to think of
available documents such as school records, rent receipts, employer records, bank accounts,
utilities records, military records, affidavits from others and even criminal records. The Social
Security Administration, Internal Revenue Service, and schools are all useful places to look for
such proof. Any experience you and your client may have had in documenting other types of
immigration cases such as legalization or suspension cases will help you think of where to look
for documents. Older relatives will also be helpful in these situations.
To prove the parent-child relationship, one should use a birth certificate that states who
the child's parents are. If the birth certificate is unavailable, one could try to use medical records,
religious records, school records, or witness affidavits. Additionally, if the parents are still alive,
a blood test or DNA test can show the parent-child relationship.18
Example: Gordon was born in mainland China on June 30, 1943, and is the son
of Chang and Helen. Chang and Helen were married before Gordon was born.
Helen is a native and citizen of China. Chang was born in the United States in
1913 and left to go to China with his parents in 1916. He returned to the U.S. as a
U.S. citizen in 1924. Chang resided in the United States until 1939, when he
returned to China again to live. Although Gordon and Chang knew that Chang
was a U.S. citizen, it was not until 1980, when Gordon came on a visit to the U.S.
17
See 78 Interpreter Releases, Page 532, March 19, 2001.
18
See Miller v. Albright, 523 U.S. 420, 437 (1997) (establishing blood relationship by clear and convincing
evidence under INA § 309(a)(1) does not require genetic testing).
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and spoke to an immigration attorney, that Gordon realized that he also might
have a claim to U.S. citizenship.
Since Gordon's parents were married before he was born, we refer to CHART A
to determine if he has a claim to U.S. citizenship. Since Gordon was born in
1943, his claim to U.S. citizenship must meet the rules for the period January 13,
1941 to December 24, 1952. Since he is claiming through one citizen parent and
one alien parent, the citizen parent, Chang, must have resided in the U.S. for ten
years prior to Gordon's birth, five of which must have been after Chang was age
16. Chang's residence in the U.S. from 1924 to 1939 satisfies this requirement.
However, for the period in which Gordon was born there is an additional retention
requirement for those who claim U.S. citizenship by acquisition. It requires that
Gordon must have resided in the U.S. for two years between the ages of 14 and
28. When Gordon came to the U.S. for the first time in 1980, he was already over
the age of 28. He did not meet the retention requirement. However, if a person is
unaware of a claim to citizenship, failure to meet the retention requirement will
not bar the claim. (See note 5 on Chart A.) Since the facts indicate that Gordon
was not aware of his claim until after entering the U.S. in 1980, he still acquires
U.S. citizenship.
You will need your client's help in preparing the case. In the example above, the legal
worker will need to work with Gordon to prove that Gordon's father met the residence
requirements necessary for Gordon to acquire citizenship. Leads may be obtained by asking
Gordon, relatives, or family friends what they know about Chang’s life in the U.S. Any ties to
the past such as scrapbooks or old stories might reveal what Chang did while in the country.
Additionally, the legal worker will need to prove that Chang was indeed a citizen and that
Gordon was his son.
§ 12.6 Derivation of Citizenship
A child who is a lawful permanent resident can become a citizen automatically if, under
certain circumstances, one or both of her parents naturalizes or, under different circumstances, at
least one of her parents is a U.S. citizen through other means. This process is called derivation
of citizenship.19 Derivation of citizenship is different from acquisition of citizenship and from
applying for naturalization on your own. Every client must be asked whether or not she is or has
ever been a lawful permanent resident and whether or not her parents are U.S. citizens. A client
who derives citizenship through the citizenship of his/her parents has the same rights as any U.S.
citizen.
19
See INA § 320, as amended by the Child Citizenship Act of 2000. The Child Citizenship Act of 2000 greatly
simplified derivative citizenship for most children, and especially for adopted children.
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§ 12.7 Who Can Derive Citizenship
As with the laws on acquisition of citizenship, the laws governing derivation of

citizenship have changed several times. Therefore you and your clients may sometimes need to
refer to the old laws. The law in effect at the time that the last requirement for derivation was
met in your client's case is the law that applies to your client. Each law requires different
combinations of the six issues listed above. The chart in Appendix 12-B can help you and your
clients determine whether or not they are U.S. citizens through derivation.
Although illegitimate and adopted children born outside the U.S. can derive citizenship
under certain circumstances (see Chart C on Derivation of Citizenship, Appendix 12-B),
stepchildren born outside the U.S. can never derive citizenship.20
§ 12.8 Using the Chart to Determine Derivative Status
To use the chart follow these three steps:
STEP 1: Determine if your client was a lawful permanent resident before turning 18,21
and whether one or both of his/her parents naturalized before the client's 18th
birthday. If the client was born on or after 2/27/83, it would be sufficient if
either parent were a citizen by birth in the U.S. or through naturalization. If the
last act for determining eligibility for derivation of citizenship occurred before
1/13/41, then for the applicant to have derived citizenship s/he must have been a
lawful permanent resident before his/her 21st birthday, and one or both of
his/her parents must have naturalized before the applicant's 21st birthday.
Regardless of when the client was born, if STEP 1 is fulfilled, then continue to
STEP 2. If not, then your client does not qualify for derivative status.
STEP 2: Go to the boxes on the right side of the chart that are listed under the heading
"Requirements." Determine which, if any, of the requirements in any one of
these boxes the client fulfills. The client cannot qualify by fulfilling a mere
majority of the requirements listed in a box. He must fulfill all the requirements
listed in at least one of the boxes or else he cannot qualify for derivative status.
20
INA section 101(c).
21
It is the ILRC's position, and we believe advocates should argue, that the definition of “prior to the 18th birthday”
or “prior to the 21st birthday” means prior to the end of the day of the 18th birthday or 21st birthday. Thus, the ILRC
believes, that “prior to the 18th birthday” in this context really means “prior to or on the 18th birthday” and “prior to
the 21st birthday” really means “prior to or on the 21st birthday.” See INS Interpretations section 320.2 and Matter of
L-M- and C-Y-C-, 4 I. &N. Dec. 617 (1952). Yet, INS officers may not agree with the ILRC's position that the
definition of "prior to the 18th birthday" or "prior to the 21st birthday" means "prior to or on the 18th birthday" or
"prior to or on the 21st birthday."
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March 15, 2002
STEP 3: If you and your client have determined he fits squarely into one of the boxes on
the right side, see if the date at which the last qualifying act was completed fits
into the time period specified in the left column. If it does, then he derived U.S.
citizenship and he is a U.S. citizen. If it does not, then he did not derive U.S.
citizenship and he is not a U.S. citizen.
Example: Gwen was born in Israel in 1950. When Gwen was born, her mother
was a citizen of Israel and her father a citizen of the U.S. Her father had lived in
the U.S for only two years before Gwen’s birth. In 1955, the entire family moved
to the U.S. Gwen and her mother entered as lawful permanent residents. In 1963,
Gwen's mother became a naturalized citizen of the U.S. Gwen has never been
married.
Gwen derived citizenship automatically when her mother naturalized in 1963.

Gwen is subject to the rules in effect during the period covering 12-24-52 to
10/5/78 on the chart in Appendix 12-B. The last qualifying act for Gwen's
derivation of status happened in 1963 when her mother naturalized. At this time
she was under 18 and was a lawful permanent resident of the U.S.22
It is important to note that Gwen did not acquire U.S. citizenship at birth through
her U.S. citizenship father because her father had not lived in the U.S. for a long
enough period of time before Gwen’s birth.
Example: Sanjiv was born in India in 1929. Sanjiv and both his parents came to
the U.S. as lawful permanent residents in 1940. In 1950 both of Sanjiv's parents
naturalized.
Sanjiv did not derive citizenship through the naturalization of his parents. Sanjiv
is subject to the rules in effect during the period covering 1-31-41 to 12-23-52.
He falls into this period because the last qualifying act for his derivation happened
in 1950 when both his parents naturalized. Under the rules in effect during 1950,
Sanjiv would not qualify for derivative status. Although both his parents
naturalized and he was a lawful permanent resident at the time, he was over 18
when they naturalized. Sanjiv can still apply for naturalization himself because
he has been a lawful permanent resident for more than five years.
Please note: Clients whose last qualifying act was completed on or after December 24,
1952 must have satisfied all of the necessary conditions prior to their 18th birthday, otherwise
they do not qualify for derivation of citizenship.
22
Please note that Gwen did not acquire U.S. citizenship at birth because her U.S. citizen father had only lived in the
U.S. for two instead of the required ten years before Gwen's birth.
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March 15, 2002
If all of the conditions have been met, the child derived citizenship regardless of the order
in which the conditions occurred.23
Example: Jose, who was born in 1966, and both his parents became lawful permanent
residents in 1968. Jose's mother became a U.S. citizen in 1974. At this time Jose was not
a citizen because only one of his two parents naturalized. Jose's father never naturalized
and died in 1975. It is the ILRC's position that Jose became a U.S. citizen through
derivative citizenship when his father died in 1975 because before Jose's 18th birthday
his surviving parent had naturalized and Jose was a permanent resident. The order of
these events is insignificant as long as they all occurred prior to Jose's 18th birthday. It
also doesn't matter that Jose is now 31 years old. Jose became a citizen in 1975, at the
age of 9.
Example: Eda, who was born in 1963, and both her parents became lawful permanent
residents in 1967. Eda's mother became a U.S. citizen in 1973. At this time Eda's father
had not yet applied for citizenship, and therefore Eda was not a citizen. Eda's mother and
father divorced in 1978 and Eda remained living with her mother. It is the ILRC's
position that Eda became a U.S. citizen through derivative citizenship when her mother
and father divorced in 1978 because before Eda's 18th birthday her parent who
naturalized had legal custody of her. The order of these events is insignificant as long as
they all occurred prior to Eda's 18th birthday. It also doesn't matter that Eda is now 35
years old. Eda became a citizen in 1978, at the age of 15.
It is the ILRC's position, and we believe that advocates must argue, that the definition of
“prior to the 18th birthday” or “prior to the 21st birthday” means prior to the end of the day of the
18th birthday or 21st birthday. Thus, it is our position that “prior to the 18th birthday” in this
context really means “prior to or on the 18th birthday” and “prior to the 21st birthday” really
means “prior to or on the 21st birthday.”24
Example: Mario was born on August 7, 1977. His parents became U.S. citizens on June
3, 1980. He entered the U.S. as a lawful permanent resident on August 1, 1994. Mario
has been living with his U.S. citizen parents since 1994. Because the last qualifying act
occurred in 1994, Mario must satisfy the requirements under the “10/5/78 to 2/26/01”
row or the “2/26/83 to present” row found in Appendix12-B. Mario would satisfy the
requirements found under both of these categories and thus he became a U.S. citizen
automatically through derivation of citizenship.
23
See Department of State, Passport Bulletin - 96-18, issued November 6, 1996, entitled "New Interpretation of Claims
to Citizenship Under Section 321(a) of the INA." This Passport Bulletin says that any person claiming to be a U.S.
citizen through his/her parent or parents' naturalization, and who can show that after December 24, 1952 and before the
child's 18th birthday all of the conditions necessary to derive citizenship were met, is a U.S. citizen. The BIA cited this
Passport Bulletin in In re Julio Augusto Fuentes-Martinez Interim Decision #3316 (BIA April 25, 1997).
24
See Footnote 19.
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March 15, 2002
Please Note: The chart in Appendix 12-B on derivative citizenship contains information
regarding citizenship through adoptive parents.25
§ 12.9 Child Citizenship Act of 2000
The “Child Citizenship Act of 2000” significantly changed the rules for citizenship for
certain children born outside the United States. Under the new rules, anyone who on after
February 27, 2001 is under 18, unmarried, a lawful permanent resident, and who is in the legal
and physical custody of at least one U.S citizen parent, is automatically a U.S. citizen.
Example: Chan was born on July 13, 1987 in Korea. Chan, his mother and father all became
lawful permanent residents of the U.S. in 1990. His mother naturalized in 1998. Chan’s father
has not yet naturalized. Chan lived with both his parents in the U.S. Under the “Child
Citizenship Act of 2000,” Chan became a U.S. citizen automatically on February 27, 2001
because at that time he was under 18, unmarried, a lawful permanent resident, and was living
with and in the physical custody of his U.S. citizen mother. It is no longer required that both
parents are U.S. citizens or that if only one is a U.S. citizen, that that parent have sole custody.
§ 12.10 Legal Custody for Purposes of Derivative Citizenship For Children

Who Do Not Qualify Under the Child Citizenship Act of 2000
Under certain circumstances there is a requirement that the parent who is a citizen have
legal custody of the child for derivative citizenship. If the parents have a joint custody decree
(legal document), then both parents have legal custody for purposes of derivative citizenship.
When the parents have divorced or separated and the decree does not say who has custody of the
child and the U.S. citizen parent has physical custody (meaning the child lives with that parent),
the child can derive citizenship through that parent provided all the other conditions are met.26
According to INS Interpretations 320.1, in the absence of a state law or adjudication of a

court dealing with the issue of legal custody, the parent having actual uncontested custody of the
child is regarded as having the requisite legal custody for "derivation purposes," provided the
required "legal separation" of the parents has taken place; see also, INS Interpretations 320.1(b).
Where the actual parents of the child were never lawfully married, there could be no legal
25
See INA § 321(b), repealed by the Child Citizenship Act of 2000.
26
See United States Department of State Passport Bulletin - 96 -18, issued November 6, 1996, entitled "New
Interpretation of Claims to Citizenship Under Section 321(a) of the INA" which referenced Passport Bulletin 93-2,
issued January 8, 1993.
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separation.27 Thus, under all derivation laws except for the Child Citizenship Act of 2000,
illegitimate children cannot derive citizenship through a father's naturalization unless the father
has legitimated the child, the child is in the father's legal custody, and the mother was either a
citizen (by birth or naturalization) or the mother has died. Where the actual “parents” of the
child were never lawfully married, there could be no legal separation.
Citizenship derived through the mother by a child who was illegitimate at birth will not
be lost due to a subsequent legitimation.28
Example: Laura was born in 1982 in Scotland. Her mother and father never got married.
Laura and her father became lawful permanent residents of the U.S. on August 13, 1983.
Laura lived with her father while her mother, who was not a citizen of the U.S., remained
in Scotland. Laura's father became a U.S. citizen in 1990. Laura's father legitimated her
under the laws of Scotland when she was one year old. Laura did not derive citizenship
even though her parents were not, and still are not, married because although she was
legitimated by her father, her mother was still alive, was not a U.S. citizen, and her
parents could not "legally separate" because they were never married. Please refer to
Appendix 12-B for more information on this topic.
It is important to note that if Laura's mother had been the U.S. citizen and her father an
alien, Laura could have derived citizenship through her mother, if her mother had custody of
Laura and her father had not legitimated her. If, after Laura derived naturalization through her
U.S. citizen mother, her alien father had legitimated Laura, Laura would have remained a citizen
of the U.S.
§ 12.11 Definition of Legal Custody For Purposes of Derivation of Citizenship For Children
Who Qualify Under the Child Citizenship Act of 2000 and Who Are Legitimate
One of the requirements for section 320 citizenship is that the U.S. citizen parent has
legal and physical custody of the child.29 The INS regulations set forth several different
scenarios in which the INS presumes, absent evidence to the contrary, that the parent has the
necessary legal custody to apply for section 320 citizenship for his/her child.30
27
“Legal separation” of the parents as used in section 314(c) of the Nationality Act of 1940 and as used in the
context of derivative citizenship in the Immigration and Nationality Act of 1952 means either a limited or absolute
divorce obtained through judicial proceedings. Where the actual “parents” of the child were never lawfully married,
there could be no legal separation. [See, INS Interpretations 320.1(a)(6), citing, In the Matter of H –, 3 I.&N. Dec.
742 (1949).]
28
See Gordon, Mailman, and Yale-Lohr, Immigration Law and Procedure, Volume 7, Chapter 98, § 98.03[4](e).
29
INA 320.
30
See 8 CFR § 320.1.
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March 15, 2002
First, the INS will presume, absent evidence to the contrary, that both parents have legal
custody for purposes of §320 citizenship where their biological child currently resides with them
and the parents are married, living in marital union, and not separated.31
Example: Jesus’ mother and father are U.S. citizens. He lives with both of his parents
and they are married. Both of Jesus’ parents have legal custody of Jesus for section 320
purposes.
Second, the INS will presume, absent evidence to the contrary, that a parent has legal
custody for purposes of §320 citizenship where his/her biological child lives with him/her and
the child's other parent is dead.32
Example: Chan's father died. Chan lives with his U.S. citizen mother. Chan's mother
can apply for §320 citizenship.
Third, the INS will presume, absent evidence to the contrary, that a parent has legal
custody for purposes of § 320 citizenship if the child was born out of wedlock, the parent lives
with the child, and the parent has legitimated the child while the child was under 16 and
according to the laws of the legitimating parent or child's domicile.33
Example: When Mosha was born his mother and father were not married. Mosha's U.S.
citizen father legitimated Mosha. Mosha's father has legal custody and can apply for
§320 citizenship for Mosha.
Fourth, that in a case where the child's parents are legally separated or divorced and a
court or other appropriate governmental entity has legally awarded that the parents have joint
custody of the child, the INS will presume, absent evidence to the contrary, that such joint
custody means that both parents have legal custody of the child for purposes of § 320
citizenship.34
Example: Maria's mother and father got divorced four years ago and her parents were
awarded joint custody of Maria. Maria's U.S. citizen mother or father can apply for § 320
citizenship because both her mother and father have legal custody for § 320 purposes (so
long as Maria is living with the parent who submits the application on Maria’s behalf).
Fifth, in a case where the parents of the child have divorced or legally separated, the INS
will presume, absent evidence to the contrary, that the parent who is awarded legal custody of the
child by a court or other appropriate government agency, has legal custody for purposes of §320
citizenship.35
31
8 CFR § 320.1(1)(i).
32
8 CFR § 320.1(ii).
33
INA §101(c) and 8 CFR §320.1(1)(iii).
34
8 CFR §320.1(2).
35
8 CFR §320.1(2). Practitioners also should make the argument that although legal custody may be obtained by
judicial or statutory award, in the absence of judicial or statutory grant of custody, the parent having actual
uncontested custody is to be regarded as having legal custody. In Matter of M—, 3 I&N 850 (1950) (interpreting
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March 15, 2002
Example: Sara's mother and father got divorced two years ago and her U.S. citizen
mother obtained legal and physical custody of Sara. Sara's mother but not her father can
apply for §320 naturalization for Sara because her mother has legal and physical custody
of Sara.
Example: Joe's mother and father got divorced two years ago and his lawful permanent
resident father obtained legal and physical custody of Joe, while his U.S. citizen mother
merely obtained visiting rights. Neither parent can apply for § 320 citizenship for Joe
because his father is not a U.S. citizen and his mother does not have legal custody.
Sixth, the regulations state the there may be other factual circumstances under which the
INS will find that a U.S. citizen parent has legal custody for purposes of §320 citizenship.36
Advocates and their clients should be creative in thinking of other ways to prove that the INS
should determine that a U.S. citizen parent has legal custody if the parent - child relationship
does not fit into one of the categories listed above.
§ 12.12 Definition of Legal Custody For Derivation of Citizenship

For Children Qualifying Under the Child Citizenship Act of 2000
and Who were Born Out of Wedlock (Illegitimate Children)
The Child Citizenship Act of 2000 could pose a problem for children born out of wedlock
(i.e., children who were illegitimate at birth). As stated earlier, the parent of a child can only
apply for §320 citizenship for that child if the parent has legal custody.37 The INS regulations
require that a parent can have legal custody of a child born out of wedlock if the child has been
legitimated before the child's 16th birthday and under the laws of the parent or child's domicile.38
Practice Tip: Some countries do not differentiate between legitimate and illegitimate children
and thus, for section 320 citizenship purposes, such children born out of wedlock will be
considered legitimate.39
….continued
section 314(c) of the 1940 Act, which is identical to the now repealed INS section 321(a)(3)—the reasoning should
remain valid, though the law it is interpreting has been repealed); INS Interpretations 320.1(a)(6) and 320.1(b).
36
8 CFR §320.1(2).
37
INA § 320.
38
8 CFR § 320.1(1)(iii) and 101(c).
39
See Matter of Hernandez, 19 I.&N., Dec. 14, 16 (BIA 1983).
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March 15, 2002
This legitimation requirement will be a large hurdle for most people for a number of
reasons. First, the legitimation must take place before the child turns 16. Once s/he turns 16, it
is too late for the legitimation to count for § 320 citizenship purposes.40 Second, many people do
not think about or know about the legitimation process. Third, although there usually are
legitimation procedures in most, if not all, states and other jurisdiction for a father to legitimate
his child, many, if not all states and other jurisdictions, have no legal process for mothers to
legitimate a child born out of wedlock. Thus, one strict interpretation of the regulations is that
although a child born out of wedlock could be within the legal custody of his/her father and thus
become eligible for citizenship if the father legitimates the child, because a mother cannot
legitimate a child, she cannot have legal custody of a child born out of wedlock, and thus she
cannot apply for a child to become a citizen under section 320.
Example: Bill’s mother and Father never got married. Bill’s father became a U.S.
citizen when Bill was five years old. Bill’s father legitimated Bill when Bill was eight
years old and then they started living together. Bill’s father can submit a section 320
application on behalf of Bill.
Example: Frieda’s mother and father never married. Frieda’s mother is a U.S. citizen.
Frieda lives with her U.S. citizen mother. The INS might argue that because Frieda
cannot legitimate Frieda, her mother cannot have legal custody of Frieda and thus cannot
submit a section 320 citizenship application on behalf of Frieda. Advocates would argue
differently (see below).
The ILRC and many other practitioners believe that a child should be able to qualify
whether legitimate or not if the mother is applying for the child because there should be a
presumption that an unwed mother has legal custody of her child. This is the argument the BIA
adopted in In Re Rivers, 17 I&N 419 (BIA 1980). This was a case about qualifying for a visa that
found that unless there is a legal decree granting legal custody to one parent or there is a local
law that says otherwise, there is a presumption that an unwed mother has legal custody unless the
father has legitimated the child. If the father has legitimated the child then the presumption is
that both have legal custody.41 The INS, along with most, if not all, states and other jurisdictions
works with the presumption that the natural mother has the necessary relationship with her child
to establish a parent-child relationship.42 The idea behind this is that giving birth to a child has
long been recognized as enough to establish maternity and a parent-child relationship. Although
the strict reading of the 8 CFR 320 does not recognize this presumption, and further recognizes
40
In the Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001), the BIA held that the Child Citizenship Act of
2000 was not retroactive for people who did not qualify as of, or after, the affective date of the Act (February 27,
2001). See also Nehme v INS, 252 F.3d 415 (5th Cir. 2001). Although in both of these cases the court and the BIA
were deciding the retroactivity issue regarding INA §320 as amended by the Child Citizenship Act of 2000, one can
assume that both the 5th Circuit Court of Appeals and the BIA would come to the same conclusion regarding
INA§320 as amended by the Child Citizenship Act of 2000.
41
See also § 97.02[2][b] of Immigration Law and Procedure, by Gordon, Mailman, and Yale-Loehr, citing 8 CFR
320.2(b)(1)(iii)]. Although this belief is based on an old regulation [8 CFR 320.2(b)(1)(iii)] that was written for the
old naturalization of children statute that has been changed twice since 1994, the ILRC and other practitioners are
optimistic that the INS will interpret the law and regulations to allow mothers to apply for section 320 citizenship for
children born out of wedlock.
42
See INA section 309; 7 Foreign Affairs Manual, 1133.4-2; and Tuan Anh Nguyen v. INS, 121S.Ct. 2052, 2061
(2001).
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March 15, 2002
only legitimation as a showing of legal custody in the case of a child born out of wedlock, such
an interpretation is not consistent with the treatment of natural mothers under U.S. immigration
and citizenship law.
Practice Tip: There are two other arguments one should use to try to persuade the INS to
approve a §320 citizenship application filed by a U.S. citizen mother of a child who was born out
of wedlock. First, the regulations state that there may be other factual circumstances under
which the INS will find the U.S. citizen parent to have legal custody for purposes of §320
citizenship.43 It seems as though the scenario of a U.S. citizen mother applying for a child born
out of wedlock would be one of the those "other factual circumstances" under which the INS
should find the U.S. citizen parent to have legal custody for purposes of §320 citizenship.
Second, as mentioned above the regulations state that a parent has legal custody for purposes of
§ 320 citizenship if the child was born out of wedlock, the child has been legitimated, and the
child currently resides with the natural parent.44 Although the logical reading of this regulation
could be that only the parent who legitimates the child can apply for the child to receive §320
citizenship, the regulations do specifically state that only the parent who legitimates the child can
be the one to apply for the child to become a citizen under §320. Thus, one should argue that
either natural parent could apply for the child to become a citizen under §320 so long as either
parent has legitimated the child.
Example: Franz was born in Austria in 1992. His mother and father never married. His
mother moved to the U.S. and, after living in the U.S. for six years, she became a U.S.
citizen. Franz's father remained a Austrian citizen. Franz's father legitimated Franz
according to Austrian law. Franz's mother recently moved back to Austria and Franz
moved in with her. Franz's mother and her advocate should argue that because Franz's
father legitimated Franz and thus Franz has now met the legitimation requirement, and
because Franz now lives with his U.S. citizen mother, his mother should be able to apply
for citizenship for Franz under §320.45
43
8 CFR § 320.1(2).
44
INA §101(c) and 8 CFR §320.1(1)(iii).
45
See 8 CFR 320.1(iii).
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§ 12.13 Submitting an Application For and Documenting a

Claim of Derivative Citizenship46
Merely deriving status as a U.S. citizen is usually not enough for clients. Clients may
need proof of their status as citizens, especially if they are in deportation proceedings. Clients
who have derived citizenship should apply for a Certificate of Citizenship on Form N-60047 or a
U.S. passport.48
Practitioner's Tip: Note that even without a Certificate of Citizenship or a U.S. passport a
client who qualifies for derivative status is a U.S. citizen and may have been one for a long time.
Explain to such clients that they already are U.S. citizens, but that they need to obtain documents
in order to prove that fact.
If the client's parents are applying for naturalization and believe their child (or children)
can derive status, the parents should complete Form N-600 (or N-643 for an adopted child) for
each qualifying child and submit these forms once the parents get sworn in as U.S. citizens. The
application must be filed at the INS district office or sub office that has jurisdiction over the
child’s and U.S. citizen parents’ residence.49
A. For a natural born child of a U.S. citizen parent.
A completed N-600 application form should be accompanied by:50
1. Proof of child’s status as a lawful permanent resident.

2. Proof of citizenship of the parent who is applying for the child.
3. A copy of the child's birth certificate or record.
5. If the child’s parents were previously married, proof of dissolution of the prior
marriage (e.g., a death certificate of the prior spouse or a divorce decree).
46
The information provided in this section is from 8 CFR §320. Although 8 CFR §320 are the INS regulations
applicable to someone applying for a certificate of citizenship under INS §320 as amended by the Child Citizenship
Act of 2000, one could argue that they do not apply to those applicants applying for a certification of citizenship
under the law before the Child Citizenship Act of 2000. Yet, advocates can use 8 CFR §320 as guidance for
documenting a claim of derivative citizenship even if the applicant is applying under the derivative citizenship laws
prior to the Child Citizenship Act of 2000.
47
For more information on Certificates of Citizenship, please see 8 CFR § 341.
48
See footnote 15.
49
8 CFR §320.3(a).
50
8 CFR 320.3(b)(1).
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6. If the child was born out of wedlock, proof that the child was legitimated (if
applicable).
7. In the case of a child whose parents are divorced or legally separated, proof that
the child is in the legal and physical custody of the U.S. citizen parent.
8. If applicable, evidence of all legal name changes of the child, the child’s U.S.
citizen parent, and the child’s U.S. citizen grandparent.
9. A $185 fee.
Practice Tip: Generally the child’s birth certificate will be sufficient proof of the parent-child
relationship. In some instances, however, the child’s U.S. citizen parent might not be listed on
the birth certificate, the birth certificate might not be available, and/or the INS might question the
authenticity or veracity of the birth certificate. Under certain circumstances there are other ways
to prove parentage such as through baptismal certificates, other birth records, affidavits, and
interviews. Additionally, in most instances, the child and parent can undergo DNA testing to
prove the parent-child relationship. In a cable dated February 8, 2001 and called “New DNA
Testing Guidelines for Visas and Citizenship” (Cable Number 01-State-22995), the State
Department issued guidelines on DNA testing to prove the parent-child relationship in visa
petition and citizenship cases. 51 It is important to note that the Department of State issued these
guidelines and thus only Department of State officials, not INS officers, must follow them. Yet,
where beneficial, advocates should try to use the information in this cable to help their clients
prove citizenship whether they have to prove it to the Department of State of the INS.
B. For an adopted child of a U.S. citizen parent.
A completed N-643 filed by the U.S. citizen adoptive parent, and supporting documents
should be accompanied by52:
1. Proof of child’s status as a lawful permanent resident.

2. Proof of citizenship of the parent who is applying for the child.
3. A copy of the child's birth certificate or record.
5. If the child’s parents were previously married, proof of dissolution of the prior
marriage (e.g., a death certificate of the prior spouse or a divorce decree).
6. If the child was born out of wedlock, proof that the child was legitimated (if
applicable).
7. In the case of a child whose parents are divorced or legally separated, proof that
the child is in the legal and physical custody of the U.S. citizen parent.
51
See 78 Interpreter Releases, Page 532, March 19, 2001.
52
8 CFR 320.3(b)(1).
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8. If applicable, evidence of all legal name changes of the child, the child’s U.S.
citizen parent, and the child’s U.S. citizen grandparent.
9. An adoption decree showing that the U.S. citizen parent adopted the child before
the child's 16th birthday.
10. A notarized written statement by the adoptive parent that the adopted child has
resided with and been in the legal custody of the citizen adoptive parent for at
least two years prior to the date the Form N-643 was filed.
11. A $145 fee.
C. For an orphan adopted child of a U.S. citizen parent the parents must submit the same
documentation as that listed above except for item number 10. Instead, the applicant
must include evidence that the orphan adopted child is or was the beneficiary of an
approved Form I-600.53
An applicant for a certificate of citizenship and his/her U.S. citizen parent(s) must appear
for the INS interview unless the INS waives the interview.54
§ 12.14 How to Appeal a Denial of a § 320 Citizenship Application
If the INS district director denies an application for a certificate of citizenship under INA
§320, the applicant can appeal the denial to the Administrative Appeals Unit (AAU). The
applicant must file the appeal on INS Form I-290B, Notice of Appeal to the Administrative
Appeals Unit. The applicant must file the appeal within 30 days of service of the INS' decision
denying the original application.55
If the INS has denied an application for a certificate of citizenship under INA §320 and
the applicant failed to submit a timely appeal of the decision to the AAU, the INS will reject any
other applications for a certificate of citizenship under INA §320 that the same applicant submits
and instead instruct the applicant to submit a motion to reopen or reconsider to the INS.56
53
8 CFR 320.3(b)(8).
54
8 CFR §320.4.
55
8 CFR §320.5(b).
56
8 CFR §320.5(b).
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CHAPTER 13
LOSS OF UNITED STATES CITIZENSHIP
It is possible for any citizen of the United States to lose citizenship. The seriousness of
this possibility compels immigration practitioners to be familiar with the law and procedure of
loss of United States citizenship. This is especially true because many citizens are not aware of
what acts might cause them to lose their citizenship. Once citizenship has been lost, the person
becomes an alien subject to the grounds of exclusion and deportation. Therefore, the role of the
immigration practitioner when assisting clients to obtain citizenship includes the responsibility to
warn clients about the grounds for losing citizenship.
The two primary ways of losing citizenship are through revocation of naturalization and
expatriation. Only citizens who obtained citizenship by naturalization can lose it through
revocation, or denaturalization, as it is often called. However, all citizens, including those who
obtained citizenship through naturalization, can lose citizenship through expatriation
PLEASE NOTE: Revocation of naturalization and expatriation are very complicated areas of
immigration law. For this reason, the following explanation of revocation and expatriation is
complex in nature. Individuals facing revocation or expatriation should only seek assistance
from BIA accredited representatives or lawyers familiar with these issues.
For more information on the subject of losing U.S. citizenship, please see Immigration
Law and Procedure by Gordon, Mailman, and Yale-Lohr (published by Mathew Bender), the
U.S. Citizenship and Naturalization Handbook, by Daniel Levy (2000 Edition, published by
West Group), and Gary Endelman, How To Prevent Loss of Citizenship: Parts I and II, 89-11
and 89-12 Immigration Briefings (November and December 1989).
§ 13.2 Revocation of Naturalization
There are several grounds for revocation of naturalization. Some are more specific than
others. Naturalization can be revoked when it has been "illegally procured" or procured by
"concealment of a material fact or by willful misrepresentation."1 Affiliation with a communist
or other proscribed organization within five years is also grounds for revocation.2 Additionally,
a person’s citizenship is subject to revocation if s/he is convicted of knowingly procuring
naturalization in violation of the law or of contempt of court for refusal to testify before a
congressional committee concerning his/her subversive activities.3 Finally, a person granted
1
INA § 340(a).
2
INA § 340(c).
3
INA § 340(e) and (a).
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citizenship through active-duty service in the military is subject to revocation for less than
honorable discharge from the armed forces.4 These grounds of revocation are discussed below.5
§ 13.3 Illegal Procurement of Naturalization
A major ground for revocation of naturalization is the illegal procurement of

naturalization and the naturalization certificate.6 Denaturalization is appropriate on this basis if
any of the statutory requirements for naturalization have not been met at the time of
naturalization.7 Thus, naturalization can been revoked as illegally procured for a failure to meet
the substantive requirements of residence in the United States,8 good moral character,9 and
attachment to the principles of the U.S. and favorable disposition to the good order of the U.S.10
Example: Gilberto was born in Brazil. He became a lawful permanent resident in June
1990. Between June 1990 and March 1995 Gilberto was out of the United States for a
total period of 42 months. He applied for U.S. citizenship and was naturalized in July
1995. Could Gilberto lose his citizenship? Yes. Gilberto did not meet the physical
presence requirement for naturalization. Between the time that he became a lawful
permanent resident and the time he naturalized he was only present in the United States
for a period of approximately 19 months. The law requires physical presence in the
United States for at least half of the five years residency requirement. This means that
Gilberto had to be physically present in the United States for at least 30 months for him
to be eligible for naturalization. Since he was not, he may have his citizenship revoked.
Courts have refused to revoke citizenship on illegal procurement grounds when the
defects involved were not considered sufficiently substantial.11 Thus, for example,
denaturalization was denied when the citizen had been naturalized while under the minimum
age.12 An excellent argument against revocation exists where noncompliance with a statutory
4
INA § 329(c).
5
Prior to 1994, a person who took up foreign residence within one year of naturalization was possibly subject to
revocation. The passage of the Immigration and Nationality Technical Corrections Act of 1994 repealed this
ground for revocation (See, INTCA § 104(b)).
6
INA § 340(a).
7
U.S. v. Ginsberg, 243 U.S. 472 (1917); INS Interpretations 340.2(a)(3)(i).
8
See, e.g., United States v. Cantini, 212 F. 925 (3d Cir. 1914); United States v. Parisi, 24 F. Supp. 414 (D. Md. 1938).
9
See, e.g., United States v. Unger, 26 F.2d 114 (S.D.N.Y. 1928).
10
Cf. Schneiderman v. United States, 320 U.S. 118 (1943).
11
INS Interpretations 340.2(a)(3)(iv).
12
United States v. Butikofer, 228 F. 918 (D. Idaho 1916).
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prerequisite did not stem from the petitioner's own wrongdoing.13 Some courts have followed
this construction where the citizen was free from fault or committed no "affirmative act."14
Misrepresentations constitute illegal procurement of naturalization when fraud is

committed while obtaining lawful permanent residence or in obtaining naturalization. A
misrepresentation in obtaining permanent residence renders illegal any subsequent naturalization
derived from that initial act.15 In addition, a misrepresentation made either during the visa or
naturalization proceedings constitutes “false testimony” which bars the person from establishing
good moral character, even if the information is not material.16 However, it must be proven that
the applicant gave false testimony under oath, and that the misrepresentation was made “with the
subjective intent of obtaining immigration benefits.”17
Practice Tip: Although the following case regarding false testimony was in regard to a
naturalization proceeding, applicants may still make the same successful argument in a
denaturalization proceeding. False testimony provided by an applicant must be made with an
intent to deceive according to the U.S. District Court for the Northern District of Illinois.18 The
applicant answered “no” when asked in the naturalization application if she had “ever been
arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any
law or ordinance excluding traffic violations?” Although the applicant had been arrested, all
charges had been dropped. In a prior decision, the Supreme Court ruled that “testimony that is
false because of a misunderstanding and incorrect advice is not sufficient to deny citizenship for
lack of good moral character.”19
13
INS Interpretations 340.2(a)(3)(iv).
14
See, e.g., United States v. Srednik, 19 F.2d 71 (3d Cir. 1927); United States v. Richmond, 17 F.2d 28 (3d Cir. 1927).
15
Fedorenko v. United States, 449 U.S. 490 (1981). The case involved a former Nazi war criminal who had
misrepresented facts in order to enter the United States initially. The Court ruled that since entry with a valid,
unexpired immigrant visa was a prerequisite to naturalization, citizenship had been illegally procured. See also
United States v. Schmidt, 923 F.2d 1253 (7th Cir. 1991); United States v. Baumann, 764 F. Supp. 1335 (E.D. Wis.
1991); United States v. Tittjung, 753 F. Supp. 251 (E.D. Wis. 1990); United States v. Sokolov, 814 F.2d 864 (2d Cir.
1987); United States v. Kairys, 782 F. 2d 1374 (7th Cir. 1986). Note however, that the passive accommodation of
Nazis by a former Latvian police officer during the German occupation of Latvia during World War II was not the
type of persecution of civilians which would warrant cancellation of naturalization based on illegal procurement
and misrepresentation. United States v. Sprogis, 763 F.2d 115 (2d Cir. 1985).
16
Kungys v. United States, 485 U.S. 759, 779-80 (1988). Note that in order for a misrepresentation to constitute a
lack of good moral character, it must have occurred within the statutory period of required good moral character.
17
See, footnote 13 above.
18
See 77 Interpreter Releases 602 (May 8, 2000), citing Plewa v. INS, 77 F. Supp.2d 905 (N.D. Ill. 1999).
19
See 77 Interpreter Releases 602 (May 8, 2000) citing Kungys v. U.S., 485 U.S. 759 (1988).
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Lower courts are divided on whether nonmaterial misrepresentations at the naturalization

proceeding, in the context of illegal procurement, result in denaturalization. The Ninth Circuit,
in the context of denaturalization based on criminal conduct, requires that the misrepresentation
be material, while the Southern District of New York, has taken the opposite view.20 Please refer
to the law in your area to determine the applicable standard.
§ 13.4 Material Concealment or Misrepresentation
Naturalization can also be revoked when it has been procured by "concealment of a

material fact or by willful misrepresentation."21 The basis for denaturalization under this
provision is fraud.22 The standard for fraud, set under a prior statue, holds that fraud "connotes
perjury, falsification, concealment, [and] misrepresentation."23
The central focus in cases of denaturalization based on "concealment of a material fact or

by willful misrepresentation" appears to be on determining materiality.24 Unless the
concealment or misrepresentation relates to a material fact, there is no basis for denaturalization.
The concept of “materiality” is currently in disarray. The Supreme Court’s most recent
opportunity to clarify materiality failed to produce a clear majority position. Consequently, the
Court’s prior discussion on materiality continues to be of great relevance.
Initially, the Supreme Court held that in order to sustain denaturalization on these
grounds, there had to be clear and convincing evidence that either (1) facts were suppressed
which, if known, would have warranted denial of citizenship, or (2) their disclosure might have
been useful in an investigation possibly leading to the discovery of other facts warranting denial
of citizenship.25 Circuit courts, however, differed in the manner in which they applied this test.26
20
See, U.S. v. Puerta, 982 F.2d 1297 (9th Cir. 1992); but see also U.S. v. Rogers, 898 F.Supp. 219 (S.D.N.Y. 1995).
21
INA § 340(a).
22
INS Interpretations 340.2(b)(1)(i); see, e.g., United States v. Title, 132 F. Supp. 185 (S.D. Cal. 1955), aff'd 263 F.2d
28 (9th Cir. 1959).
23
United States v. Knauer, 328 U.S. 654 (1946).
24
INS Interpretations 340.2(b)(1)(ii). Note that the government must prove four separate issues: “(1) that the
naturalized citizen concealed or misrepresented a fact; (2) that the misrepresentation or concealment was willful;
(3) that the fact was material; and (4) that the naturalized citizen procured citizenship as a result of the
misrepresentation or concealment” (Daniel Levy, U.S. Citizenship and Naturalization Handbook).
25
Chaunt v. United States, 364 U.S. 350 (1960).
26
See e.g., United States v. Sheshtawy, 714 F.2d 1038 (10th Cir. 1983) (holding that materiality had not been
established though the person had falsely answered “no” to the question of whether or not he had ever been
arrested, since Chaunt requires more than falsification which forestalls an investigation which “might have
resulted” in the defeat of the petition for naturalization); United States v. Fedorenko, 597 F.2d 946 (5th Cir. 1979)
(finding that materiality was established where the defendant lied on his naturalization petition about his military
service in the German army, since it is only necessary to prove that the misrepresented facts “might, if disclosed,
have led to the discovery of other facts which would have justified denial of citizenship.”)
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In 1988, the Court rendered its most recent test of materiality.27 The case involved a
defendant who allegedly participated in the killing of Jews in Lithuania in 1941. On his
application for a nonpreference quota immigrant visa and then again on his subsequent
naturalization application, he had misstated his date and place of birth, and his occupation and
place of residence during the war years. A majority of the Court felt that there was sufficient
basis for denaturalization based on illegal procurement.28 However, only a plurality agreed that
materiality had been established with respect to concealment.
According to the plurality opinion, materiality is established if a statement is “predictably

capable of affecting” or has “a natural tendency to influence” the decisions of the INS.29 Once
materiality is established it is also necessary to prove that the applicant procured naturalization
by means of the misrepresentations.30 The Court found that falsehoods in the visa process do not
come within INA § 340(a), and therefore the misrepresentations of the date and place of birth
were not material since they did not have a natural tendency to influence the INS decision in the
naturalization proceedings.31
Example: Ilya was born in Russia and entered the United States legally in 1975. In
1976, he became a legal permanent resident. In 1982, Ilya applied for naturalization, and
was granted citizenship in 1983. The naturalization petition asked whether the applicant
had ever been arrested or charged for any crime in the United States. Ilya answered no
even though he had been arrested several times a year prior to applying for naturalization.
Can Illya lose his citizenship? Yes, if Ilya knew his arrests would predictably affect the
INS’s decision whether or not to grant naturalization. In addition, because Ilya made an
effort to lie or deceive the INS of his ultimate convicted of selling drugs, a felony, it is
clear that he only obtained naturalization because of the willful misrepresentation he
made on his petition.
The concept of “willfulness” in a misrepresentation can be quite subjective. In 2001, a

district court found that citizenship was illegally procured in the case of a former armed guard at
a Nazi-operated forced-labor camp.32 The former guard had applied for and obtained a
Displaced Persons Act visa while he was in Germany, living in a displaced person’s camp from
27
Kungys v. United States, 485 U.S. 759 (1988).
28
See, discussion in §13.3 on illegal procurement of naturalization.
29
Kungys, 485 U.S. at 771, 772.
30
Kungys, 485 U.S. at 776.
31
Note however, that the Ninth Circuit has chosen to follow Justice Brennan’s concurrence in Kungys. Justice
Brennan’s opinion , while agreeing with the procedure set out by the plurality opinion, places an additional
requirement on the government to “produce evidence sufficient to raise a fair inference that a statutory
disqualifying fact actually existed.” The Ninth Circuit has accordingly held that even a willful misrepresentation
is not material unless the government can link it to some statutory ground of ineligibility. See, Puerta, F.2d at
1304.
32
United States v. Wasylyk, 162 F. Supp. 2d 86 (2001).
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1945-1949.33 He claimed that he could not speak, read or write English at the time, so he relied
on volunteer translators who asked him to sign the visa documents without explaining what they
said.34 While the former guard claimed that he did not knowingly persecute civilians, his
undisputed service rendered him ineligible to obtain this visa.35 Even though due to the fact that
he relied on translators when working on his visa he did not “willfully” misrepresent his previous
service, the court found his participation in the Nazi plan of persecution a heinous enough act to
conclude that he did willfully misrepresent himself in order to obtain a visa.36
§ 13.5 Communist or Other Proscribed Membership
Becoming a member of the communist party or another organization proscribed in INA §

313 within five years of a person's naturalization, serves as prima facie evidence that the "person
was not attached to the principles of the Constitution and was not well disposed to the good order
and happiness of the United States at the time of naturalization."37 This provision is only
applicable to those persons who naturalized after December 24, 1952.
There are no reported cases of revocation of naturalization on this ground.
§ 13.6 Citizenship Unlawfully Procured
A naturalized citizen who is convicted criminally of knowingly procuring naturalization

in violation of the law under 18 USC § 1425 also loses his/her citizenship.38 Upon conviction,
the presiding court revokes and declares void the order naturalizing the person, and declares the
certificate of naturalization canceled.39 Note that a criminal prosecution and a civil action to
revoke citizenship are generally regarded as distinct causes of action.40 An acquittal in a
criminal proceeding does not preclude civil denaturalization proceedings.41
33
6 Bender’s Immigration Bulletin 1082, citing United States v. Wasylyk.
34
See Id.
35
See Id.
36
See also, U.S. v. Szehinskyj, 104 F. Supp. 2d 480 (E.D. Pa. 2000); United States v. Tittjung, 235 F.3d 330 (7th Cir.
2000).
37
INA § 340(c).
38
INA § 340(e).
39
INA § 340(e).
40
INS Interpretations 340.1(e).
41
Sourino v. U.S., 86 F.2d 309 (5th Cir. 1936).
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Practice Tip: Mental State Requirement. Some courts have found that for an applicant to be
convicted of unlawful procurement of naturalization, it is not enough that the applicant submitted
an application for naturalization with false information.42 The applicant must have the requisite
mental state to have unlawfully procured naturalization under 8 USC § 1425. The applicant
must have knowingly misstated information regarding his or her criminal record on the
application or interview for naturalization, or must know that he or she is ineligible for
naturalization due to a conviction of a crime.43
§ 13.7 Refusal to Testify before a Congressional Committee
A person’s conviction for contempt for refusing to testify before a congressional

committee concerning his/her subversive activities constitutes a ground for revocation.44 The
refusal to testify must take place within ten years of obtaining citizenship.45
§13.8 Less Than Honorable Discharge from the Armed Forces
Any person granted citizenship through active-duty service in the military during time of
war is subject to revocation for less than honorable discharge from the armed forces any time
after the naturalization.46 Proof of less than honorable discharge must be provided by a duly
authenticated certification from the executive department under which the person was serving at
the time of separation.47
§ 13.9 Denaturalization Proceedings
There are two types of denaturalization proceedings: judicial and administrative. Prior to
1990, a judicial proceeding was the only means of revoking citizenship. In 1990, when
naturalization was transformed into a mainly administrative proceeding, the INA was amended,
42
U.S. v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999).
43
See 76 Interpreter Releases 53 (January 10, 2000) citing U.S. v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999).
A Second Circuit district court in U.S. v. Jacques Dessange, Inc,. 103 F. Supp.2d 701 (2000) distinguishes its case
from Pasillas because in Pasillas, § 1425 is interpreted to have a mental state requirement, whereas the § in
Jacques Dessange, Inc has no such mental state requirement.
44
INA § 340(a).
45
INA § 340(a).
46
INA § 329(c).
47
INA § 329(c).
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transferring the power to grant naturalization decisions from the courts to the Attorney General.48
The INS then interpreted its new power to grant citizenship to include the power to
administratively revoke citizenship without a court proceeding. The INS’ efforts to rely
extensively on administrative procedures have been thwarted by a class action lawsuit filed on
March 5, 1998. As a result, the INS has been permanently enjoined nationwide from using
administrative procedures.49 The Ninth Circuit issued a permanent injunction on February 14,
2001, which means that the INS does not have the power to administratively denaturalize
persons.
A. Judicial Proceedings
The district director having jurisdiction over the person's place of residence initiates
denaturalization judicial proceedings. Upon determining that a prima facie case for revocation
has been made, the district director sends a report to the regional commissioner, and if it appears
that the naturalization was obtained in violation of the criminal law, to the United States
Attorney for possible criminal prosecution.50 The report must take the form suggested in the INS
Operations Instructions.51
An advocate's efforts on behalf of a naturalized citizen before the initiation of formal

proceedings may be particularly effective. Policy guidelines recommend that proceedings not be
instituted if "many years have elapsed" since the person's naturalization and the citizen has since
"conducted himself as a good citizen and possesses the necessary qualifications for
citizenship."52 Additionally, the text states that the proceedings are not for the purpose of
correcting "error and irregularities in the naturalization which would properly have been the
subject of consideration at the hearing or of correction on appeal."53 Early intervention is
especially important because once denaturalization proceedings have been instituted, such
equitable considerations cannot be used to waive the harsh consequences of revocation.54
Although a revocation action may be initiated in any court having naturalization

jurisdiction, the Civil Division, Department of Justice generally institutes such proceedings.55
Revocation proceedings are civil suits in equity; therefore, the Federal Rules of Civil Procedure
48
INA §§ 310(a) and 340(h).
49
Gorbach v. Reno, Case No. C98-278R (W.D. Wash., July 9, 1998) (Preliminary Injunction).
50
8 CFR § 340.2(a) and (b).
51
Operations Instructions 340.1-2.
52
INS Interpretations 340.1(f), quoting from a previously written Department of Justice Circular Letter No. 107.
53
INS Interpretations 340.1(e).
54
United States v. Fedorenko, 455 F.Supp. 893, 918 (S.D. Fla. 1978).
55
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apply.56 Thus, a person whose derivative citizenship status may be affected by the judgement
may be permitted timely intervention in the action.
Revocation proceedings are initiated by the U.S. Attorney who files a complaint with the
clerk showing that revocation is warranted. Additionally, an affidavit of good cause setting forth
concrete evidentiary matters establishing good reason for the revocation of citizenship must be
submitted with the complaint by the government.57 Under INA § 340(b), the person is entitled to
60 days notice. Personal service of process must be made unless the naturalized person is absent
from the United States or from the judicial district in which he or she last resided, in which event
service of the requisite process may be made by publication. A judgment of default is valid in a
revocation proceeding provided there is complete compliance with all the procedural requisites.58
However, if the circumstances in a given case are such that it would be an injustice to deny the
person a further opportunity to defend his or her citizenship status against attack, such judgment
may be set aside under the Federal Rules of Civil Procedure.59
The burden of proof in revocation of naturalization proceedings is on the government.

The charges must be supported by clear, unequivocal, and convincing evidence.60 This is
considered a "high degree of proof" in order to revoke naturalization.61 Thus if the government
relies heavily on deposition testimony as evidence to justify revocation, it runs the risk of failing
to meet this exacting standard.62
B. Administrative Proceedings
Practice Warning: Although we will review the regulations for administrative revocation
proceedings, the INS is presently forbidden to initiate such proceedings.
A permanent injunction to stop administrative proceedings for denaturalization was

approved on February 14, 2001. A permanent injunction bars an action forever once it is issued.
This outcome is the result of a decision made by the Ninth Circuit granting a nationwide
temporary injunction on July 9, 1998, after finding that the INS does not have the power to
revoke naturalization as it has the power to confer naturalization.
56
See, United States v. Jerome, 115 F. Supp. 818 (S.D.N.Y 1953).
57
United States v. Zucca, 351 U.S. 91 (1956).
58
59
See, Klapprott V. United States, 335 U.S. 601 (1949).
60
See, Baumgartner v. United States, 322 U.S. 665 (1944); Schneiderman v. United States, 320 U.S. 118 (1943).
61
See, e.g., United States v. Kessler, 213 F.2d 53 (3d Cir. 1954).
62
See, e.g., United States v. Kungys, 571 F. Supp. 1104 (D.N.J.1983).
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Prior to the injunction by the federal court, the INS started administratively revoking
naturalization. Persons who have been issued Notices of Intent to Revoke Naturalization
(NOIRs) and persons who have already had their citizenship revoked by the INS based on 8 CFR
§ 340 are to be sent individual court-prescribed notices of the permanent injunction.63
On October 24, 1996, 8 CFR § 340 went into effect, establishing an administrative
process whereby an INS district director may reopen and reconsider applications for
naturalization.64 Thus, in addition to judicial denaturalization, the Attorney General retains the
power to “correct, reopen, alter, modify, or vacate an order” of naturalization.65 However, as of
July 9, 1998 the INS is preliminary enjoined from continuing with administrative
denaturalization proceedings.66 In granting the preliminary injunction, the District Court found
that the plaintiffs had raised a sufficiently serious question concerning the INS's statutory
authority to authorize and implement administrative denaturalization proceedings. Moreover,
citizens, who had been served with a notice of intent to revoke naturalization by the INS were
faced with an imminent threat of being subjected to an allegedly unlawful procedure, therefore
the balance of harm tipped heavily in their favor.
Under the regulations, administrative revocation can be invoked only if the INS obtains
credible and probative evidence that (1) shows that naturalization was granted by mistake OR (2)
was not known to the INS officer during the original naturalization proceeding and:
1) Would have a material effect on the outcome of the original naturalization, and would
have proven that the applicant was not, in fact, eligible for naturalization, OR
2) Would have proven that the applicant’s application was based on fraud,
misrepresentation, or concealment of a material fact.67
Internal guidance provided by the INS Central Office to the field emphasizes an
important policy behind the law. INA § 340(h) is only intended for cases when the individual is
statutorily ineligible to naturalize and when the factual basis for that finding does not depend on
credibility determination of witnesses.68
Administrative Revocation proceedings are initiated by the INS sending a “Notice of

Intent to Revoke” to the naturalized citizen. Under 8 C.F.R. § 340.1(b), the INS must give
proper notice to the applicant. The district director must provide a written notice of intent to
reopen naturalization proceedings and to revoke naturalization. The notice will advise the
63
See 78 Interpreter Releases 9 (March 5, 2001).
64
INA § 340(h).
65
INA § 340(h).
66
Gorbach v. Reno, Case No. C98-278R (W.D. Wash., July 9, 1998) (Preliminary Injunction).
67
8 C.F.R. § 340.1(a).
68
INS Implementation Guidance: INA §340(h), published in Interpreter Releases Vol. 74 No. 12 pg. 555 (March 28,
1997).
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naturalized citizen facing revocation of his or her right to respond to the notice and request a
hearing before an immigration officer. 8 CFR § 340.1(b)(3) requires the notice of intent to be
served by certified or registered mail, or another method of personal service. If the notification
is sent by mail, the return receipt MUST be signed. Receiving notice via regular mail is not
considered proper notice.
8 CFR § 340.1(b)(1) requires that the notice of intent to reopen naturalization

proceedings and to revoke naturalization be served on the naturalized citizen no later than two
years after the effective date of the order admitting that individual to citizenship. Cases requiring
extensive investigation of possible grounds for naturalization revocation and those falling outside
the two-year limit must be brought under INA § 340(h), judicial revocation of naturalization.
The applicant’s response must be submitted within 60 days of service of the notice. The
days start counting from the date of service of the notice, not from the date of the notice.69 If the
envelope with the actual post office stamp has not been retained, three days are added to the date of
the notice.70 Although 8 CFR § 340.1(b)(4)(i) states that the applicant may submit a response to
the notice of intent to reopen naturalization proceedings and to revoke naturalization, failure to
respond under 8 CFR § 340.1(b)(4)(ii) is deemed an admission of the stated grounds for
reopening and revoking naturalization. Thus, the applicant may lose the opportunity to
challenge the INS. Since many applicants may not seek assistance or legal representation
immediately, the window of opportunity to respond once one becomes aware of the situation may
be very short. However, a response should be filed to preserve citizenship and the ability to
challenge the proceedings. Under 8 CFR § 340.1(b)(5), counsel may represent the applicant
during reopening proceedings.
WARNING: The new INS administrative process to revoke (take away) someone's citizenship
is extremely strict. If a naturalized citizen does not respond to an INS notice within a certain
number of days, it will be much harder for the person to keep her U.S. citizenship. If a client
brings you a paper with a title similar to "Notice to Reopen and Revoke Naturalization," deal
with the case immediately! If you are not an expert in this area, immediately refer the case to
someone else, and make the person understand the time pressure. Call an immigration support
center for help.
With the notice, the INS must include “all evidence, which the district director believes,
warrants reopening of the proceeding.”71 Advocates should request a copy of the individual’s file
by submitting a Freedom of Information Act Request (FOIA) to the INS if the information
provided by the INS with the notice is inadequate. The ILRC believes that the INS should agree to
grant an extension on the deadline to submit a response when the advocate seeks further
information on the charges. The applicant has a right to a hearing.72 Whether the applicant
69
8 C.F. R. § 340.1(b)(3).
70
8 C.F. R. § 103.5a(b).
71
8 C.F. R. §340.1(b)(2)(i).
72
8 C.F.R. § 340.1(b)(3).
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intended to deceive the INS is a factual determination; therefore, the applicant should request a
hearing to explain that any misstatement was not willful.
At the hearing, the INS has the burden of proving by clear, convincing, and unequivocal
evidence that the grounds for reopening and revoking naturalization that are set forth in the notice
are met.73 The INS’ burden of proof in administrative denaturalization proceedings is one of
“clear, unequivocal, and convincing evidence,” the same burden of proof applied in judicial
denaturalization proceedings.74 If your case was given a final decision before March 31, 2000
using the lower “credible and probative” standard was used, you should appeal to the INS, stating
that the case be reconsidered by using the higher “clear, unequivocal, and convincing” standard of
proof.75
The district director has 180 days to render a written decision. The district director’s
decision to reopen naturalization proceedings and to revoke naturalization will be final, unless the
applicant seeks administrative or judicial review within the period specified by law or regulation.
Adverse decisions can be appealed to the Administrative Appeals Unit in the INS Central Office
by filing Form I-290B within 30 days.76 An applicant may appeal a negative AAU decision to the
United States District Court under INA § 310(c).
If the district director decides to revoke naturalization, s/he shall order the applicant to
surrender the certificate of naturalization.77 The district director is required to notify the
Department of State, Office of Passport Services, Washington, D.C. when the applicant’s
certificate of naturalization has been canceled. Until the Service cancels the certificate of
naturalization, the person remains a citizen of the United States.
If the applicant’s response to the notice of intent and/or the hearing raise a “genuine factual
issue about the propriety of the applicant’s naturalization, so that the resolution will depend on the
credibility of witnesses,” the district director should not reopen the naturalization decision. In
those cases, the district director must terminate the administrative revocation proceedings and
determine whether to refer the case for judicial revocation proceeding pursuant to INA section
340(a) and 8 CFR section 340.2.78 The government bears the burden of proof in a judicial
revocation proceeding.
If INS is correct in revoking naturalization, then an advocate needs to examine the facts to
see if the individual is also deportable. A person whose naturalization has been revoked reverts to
73
8 C.F.R. § 340.1(b)(6).
74
See 77 Interpreter Releases 424 (April 3, 2000).
75
See 77 Interpreter Releases 424 (April 3, 2000).
76
8 C.F.R. § 340.1(e).
77
INA § 340.1(g)(3).
78
See, INS Implementation Guidance: INA § 340(h); 8 CFR section 340.1, Standards for Issuance of Notice to
Reopen Naturalization Proceedings and to Revoke Naturalization, November 21, 1996.
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the status of lawful permanent residence. Revocation grounds are not automatically a basis for
removal. In order to deport the individual, the individual must fall within one of the grounds of
deportation, and the INS must initiate and be successful in removal proceedings.
§ 13.10 Effect on Derivative Citizens
When a person has derived United States citizenship through the naturalization of a
parent, if the parent's naturalization is revoked, the citizenship of the derivative may be affected
as well. Since the effect of a revocation decree is to declare that the naturalized person was
never naturalized, it is arguable that any citizenship status dependent upon that of the naturalized
person is necessarily extinguished upon entry of the decree of the cancellation.79 The general
rule is that revocation of the naturalization of a parent on grounds of concealment of a material
fact or willful misrepresentation is destructive of the citizenship status and rights of the children
claiming under the naturalization.80
However, some derivatively naturalized citizens may be saved by the exception found in
INA § 340(d). It states that derivative citizens of a person whose naturalization was revoked
under § 340(c) (subsequent membership in a proscribed organization) or § 329 (less than
honorable discharge from the armed forces after obtaining citizenship through active-duty
service in the military) do not lose their derivative citizenship benefits if the person claiming
derivative rights is residing in the United States at the time of the revocation. Nor does
revocation on the ground of illegal procurement affect the citizenship status and rights of a
derivative.81
Example: Gilberto's citizenship was revoked in a prior example. Gilberto’s

daughter, Innocenta, derived her citizenship through her father when she was 16
years of age. However, Gilberto’s citizenship was revoked because he had not
met the physical presence statutory requirement at the time he applied for
naturalization due to his absences from the U.S. There was no evidence that
Gilberto willfully misrepresented facts during his naturalization process.
Therefore, Innocenta will not lose her citizenship even though her father's
citizenship was revoked.
§ 13.11 Expatriation and Renunciation
In theory, loss of citizenship through expatriation, as a result of statute or treaty, must

involve voluntary action on the part of the person.82 Because INA § 349 sets forth specific bases
79
See, e.g. United States ex rel Harrington V. Scholtfeldt, 136 F.2d 935 (7th Cir. 1943); INS Interpretations 340.3(a).
80
81
82
Cf. Rogers v. Bellei, 401 U.S. 815 (1971).
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for expatriation which might not comport with a lay person's concept of voluntariness, it is
important for the practitioner to keep in mind the Supreme Court interpretation of the concept of
voluntary relinquishment.
Construing the Supreme Court's major pronouncement on this issue in Afroyim v. Rusk,83
the Attorney General has concluded that voluntary relinquishment of citizenship is not confined
to a written renunciation, but also may be indicated by other actions, provided such actions are in
derogation of allegiance to the United States.84 An act which does not reasonably manifest a
transfer of a person's allegiance, or a person's abandonment of allegiance to the United States,
cannot be made a basis for expatriation. Moreover, even if an action is within those listed in the
statute as expatriative acts and it is the type considered to be "in derogation of allegiance" to the
United States, Afroyim permits the individual to raise the issue of the person's actual intent.85
In Vance v. Terrazas,86 the Supreme Court clarified the intent requirement for
expatriation first stated in Afroyim v. Rusk,87 and imposed a heavy burden on the government to
prove expatriation. After Afroyim, it was clear that performing an expatriating act as defined by
INA § 349 was not enough to result in loss of citizenship. The government must prove that the
individual intended to terminate his or her citizenship. The individual’s subjective intent towards
his or her U.S. citizenship status at the time of the expatriating act is the crucial factor. The
Supreme Court in Afroyim, however, did not resolve whether voluntarily performing an
expatriating act defined by INA § 349 would be sufficient to satisfy the intent requirement and
result in loss of citizenship.
The Supreme Court refused to equate voluntary performance of an expatriating act as

conclusive evidence of intent in Vance, holding that the government must prove by a
preponderance of the evidence (i.e. more likely than not) the issue of intent, separate and apart
from performing an expatriating act. The Supreme Court, did not require that intent be
established by direct evidence, but concluded that intent can be inferred from circumstantial
evidence. Therefore, it is important for an advocate to ask the client detailed questions about the
events both before and after the expatriating act.
A citizen’s subsequent conduct may serve to refute that the individual possessed the
requisite subjective intent despite voluntarily performing an expatriating act. For example,
contemporaneous statements that the individual continues to regard him or herself as a U.S.
citizen; filing U.S. income tax returns as a citizen; registering for military service; using a U.S.
83
387 U.S. 253 (1967).
84
INS Interpretations 349, app. A; see also Instructions Issued on Expatriation, 60 Interpreter Releases 925 (1983).
85
INS Interpretations 349.1(d)(2)(i).
86
444 U.S. 252 (1980).
87
387 U.S. 253 (1967).
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passport to enter the U.S.; registering children born after the expatriating act as U.S. citizens; or
voting in elections may serve to negate subjective intent at the time of the expatriating act.88
INA § 349(a) provides seven ways in which a citizen of the United States may lose
citizenship, which are discussed more fully in §§ 13.12 through 13.17. Before embarking on that
discussion, however, it must be noted that neither voting in a foreign election89 nor desertion
from the United States armed forces are now regarded as proper grounds of expatriation.
§ 13.12 Naturalization in a Foreign Country
An individual can lose United States citizenship when the person obtains naturalization in
a foreign country with the intention of relinquishing U.S. citizenship.90 The person must apply
for naturalization, be at least 18 years old, and be naturalized in a foreign country.91 If the
foreign naturalization proceeding does not require that the applicant renounce allegiance to the
U.S., the government may have a difficult time proving that the individual had the intent to
relinquish U.S. citizenship.92 Because of the age requirement, this ground of revocation is not
effective if a parent or guardian filed the application on behalf of the child.
Example: Heather, an U.S. citizen, married Ricardo, a citizen of Venezuela. Shortly

after their wedding, the couple moved to Venezuela. Several years later, Heather became
concerned that she would forfeit the opportunity to inherit Ricardo’s property unless she
became a Venezuelan citizen. For that reason, she applied for naturalization in
Venezuela and as part of the process voluntarily renounced allegiance to the United
States. Because Heather naturalized in a foreign country and voluntarily renounced
allegiance to the United States, she has lost her U.S. citizenship.
§ 13.13 Oath of Allegiance to Foreign State
United States citizenship can be lost if a person takes an oath of allegiance to a foreign
state.93 However, the oath must be "meaningful" in order to be regarded as an act of derogation
88
See, generally Gary Endelman, How to Prevent Loss of Citizenship: Parts I and II, 89-11 and 89-12 Immigration
Briefings (Nov. and Dec. 1989).
89
Afroyim v. Rusk, 387 U.S. 253 (1967).
90
INA § 349(a)(1).
91
INA § 349(a)(1).
92
Endelman, 89-11 Immigration Briefings at 15. Naturalization in Canada, England and France does not require
renunciation of allegiance of former country.
93
INA § 349(a)(2).
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of allegiance to the United States because expatriation depends on the intent of the citizen.94
Furthermore, the person must be at least 18 years old.
For example, in Baker v. Rusk,95 a native-born United States citizen who had been raised
and educated in Canada voluntarily took a required barristers' and solicitors' oath in connection
with his admission to practice law in Canada. The court found that he was not expatriated, even
though the oath included an unqualified pledge of allegiance to the British Crown. The court
was impressed by the defendant's testimony that he cherished and never intended to relinquish
United States citizenship, that he never voted in Canada, and that he did not perform any act
inconsistent with United States citizenship.
§ 13.14 Service in Foreign Armed Forces
Entry or service in the armed forces of a foreign state is grounds for expatriation if such
armed forces engaged in hostilities against the United States or if the person serves as an
officer.96 This ground does not apply to a person who engaged in the conduct while under age
18.97
Even if the citizen enters the armed forces of a country not engaged in hostilities with the
United States, the action could still be deemed in derogation of the United States allegiance if the
person took such action with the intention of relinquishing citizenship or if there is persuasive
evidence of such intent.98
§ 13.15 Employment by Foreign Government
There exist two grounds under which employment by a foreign government may give rise
to expatriation: (1) when such employment or holding of a post under the foreign government is
accepted, and the person acquires nationality of the foreign state; and (2) when the employment
requires an oath or declaration of allegiance.99 The person must be at least 18 years old.
The Attorney General has construed this provision to require the acceptance of an
important political office, post, or employment in a foreign government to be regarded as action
94
95
296 F. Supp. 1244 (C.D. Cal. 1969).
96
INA § 349(a)(3. See also, U.S. v. Schiffer, 836 F. Supp. 1164 (E.D. Pa, 1993).
97
INA § 351(b).
98
99
INA § 349(a)(4).
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in derogation of allegiance to the United States.100 It is ordinarily considered that the following
are important political positions for purposes of INA § 349(a)(4): chief of a foreign state or a
significant geographical subdivision; a cabinet member or high-level official of an executive
department of a foreign state; a mayor or chief executive officer of a city; a member of the
national, provincial, or municipal legislature; and the military or civilian chief of the armed
forces of a foreign state.101
Public school teachers have been held not to hold an important political position.102
Furthermore, lower echelon police officers and those holding clerical employment do not fall
within these grounds.103
The oath requirement of the second part of INA § 349(a)(4) is met as long as an oath of
allegiance is required for the position even though the person did not actually take the oath.104
However, the oath must place the person in complete subjection to the foreign state. Where the
oath exacts no more than a promise to do what every resident -- citizen and noncitizen alike -- of
a foreign country must do, namely, obey the laws, it does not come within the statute.105
Example: Alexander, an U.S. citizen moved to Sweden with his family when he was a
young boy. As a young adult he became very involved in politics and at the age of 21
was offered a position with the Swedish government as an administrative assistant in the
local mayor’s office. As a prerequisite for employment, Alexander was required to take
an oath promising to work diligently, respect his co-workers and obey the laws of
Sweden. Could Alexander lose his citizenship as a result of his employment? No.
Although Alexander is over 18 years of age and is employed by a foreign government, he
has not taken an oath that declares his allegiance to Sweden. Nor is his position an
important political post that would indicate a desire to relinquish his U.S. citizenship.
§ 13.16 Renunciation of Citizenship
The INA provides for expatriation upon renunciation of United States citizenship.106
Expatriation may occur upon the formal renunciation before a diplomatic or consular officer of
100
101
102
Matter of Becher, 12 I.&N. Dec. 380 (Atty. Gen. 1967).
103
104
See, Matter of Acosta, 10 I.&N. Dec. 675 (BIA 1964).
105
Fletes-Mora v. Rogers, 160 F. Supp. 215 (S.D. Cal. 1958).
106
INA § 349(a)(5).
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the United States in a foreign state.107 A formal written renunciation in the United States may
also give rise to expatriation.108
Because these provisions require written renunciation, it is generally quite easy for the
government to establish renunciation. For example, under INA § 349(a)(5), a State Department
form is used which contains the following statement:
I desire to make a formal renunciation of my American nationality,

as provided by [statute], and pursuant thereto I hereby absolutely
and entirely renounce my nationality in the United States, and all
rights and privileges thereunder pertaining and abjure all allegiance
and fidelity to the United States of America.109
Furthermore, renunciation is not contingent upon acquiring the nationality of another

country; in such circumstances, statelessness can result.110
A finding of expatriation is not appropriate, however, when the person can establish that
renunciation was impelled by economic duress that is sufficient to negate free choice.111 Note
however, that the Board of Appellate Review (BAR) of the State Department upheld a U.S.
citizen's expatriation where the individual claimed his renunciation of citizenship was made
under duress from members of his political party.112 The BAR held that the appellant had not
provided any evidence of duress, since “self-serving statements are not enough to meet the
appellant’s burden.” 113
§ 13.17 Treason or Forceful Overthrow
The commission of an act of treason against or an attempt to forcefully overthrow the

United States is grounds for expatriation.114 Treason is defined in Article III of the United States
Constitution as levying war against the United States, or adhering to its enemies or giving them
aid and comfort. Thus, treason may be committed with expatriative effect by a citizen residing
107
INA § 349(a)(5). See, also 22 C.F.R. § 50.50.
108
INA § 349(a)(6). See, also INS Interpretations 349.7(b).
109
See, Davis v. District Director, 481 F. Supp. 1178 (D.D.C. 1979).
110
See, Davis v. District Director, 481 F. Supp. 1178 (D.D.C. 1979); see, also Jolley v. INS, 441 F.2d 1245 (5th Cir.
1971), cert. denied, 404 U.S. 946 (1971).
111
See, the unpublished decision, Matter of Randall, 66 Interpreter Releases 843 (BIA 1989).
112
Matter of M- F- A- , No. 93-1 (March 18, 1993), also discussed in 70 Interpreter Releases, 490, April 12, 1993.
113
See, note 101 above.
114
INA § 349(a)(7).
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within or outside the territorial limits of the United States and its outlying possessions.115 Any
native-born or naturalized citizen convicted by a court martial or court of competent jurisdiction
of committing any act of treason will be expatriated.116
§ 13.18 Expatriation Procedures
Except for the formal renunciation process of INA §§ 349(a)(5) and (6), there are no set
procedures for losing citizenship through expatriation. When an act of expatriation has occurred,
the person has in theory lost United States citizenship at that time.
Note that whenever a consular official of the United States has reason to believe that a
person has lost United States nationality while in a foreign state, that fact must be reported to the
Department of State.117 If nationality has been lost, a certificate of loss of citizenship or
expatriation is issued to the person.118 However, the person has a right to appeal the Department
of State's determination to the Board of Appellate Review within one year.119 BAR decisions are
final but the person can initiate judicial proceedings for a declaration of U.S. Nationality.120
Procedurally, the issue of whether or not a person has lost citizenship through
expatriation could arise, for example, in deportation proceedings as well. In such a situation, the
government must show by a preponderance of the evidence that expatriation has occurred.121
This slight burden of proof has been upheld by the Supreme Court.122 Furthermore, a person
who has committed any of the acts specified in INA § 349(a)123 shall be "conclusively
presumed" to have done so voluntarily.124 This section makes the government's case much easier
once such an act has been committed.
115
Tomoya Kawakita v. United States, 343 U.S. 717 (1952).
116
8 USCS § 1481(a)(7)
117
INA § 358.
118
22 CFR § 50.41.
119
22 CFR § 50.51.
120
INA § 360(a).
121
INA § 349(b).
122
See, Vance v. Terrazas, 444 U.S. 252 (1980).
123
See, §§ 13.11-13.16.
124
INA § 349(b).
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§ 13.19 New Ground of Inadmissibility for People Who Renounced Their Citizenship
Former U.S. citizens who the Attorney General determines to have renounced their
citizenship to avoid taxation are inadmissible.125 There is no waiver available for this ground of
inadmissibility. This rule applies to all former citizens who renounce their U.S. citizenship on or
after September 30, 1996.
125
INA § 212(a)(10)(E).
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CHAPTER 14
OTHER IMMIGRATION REMEDIES --

GAINING LEGAL STATUS FOR FAMILY MEMBERS,
OUTREACH, AND COMMUNITY ORGANIZING
14.1 Introduction
Several years ago Graciela came to your office for help with her amnesty papers.
Recently she returned to your office and you helped her naturalize. Now that she is a
U.S. citizen, she wants to help her brother immigrate to the U.S. Her brother, who lives
in San Diego and is undocumented, wants to know how he can protect himself in case the
INS picks him up.
This chapter provides brief descriptions of the most important alternative immigration
remedies, what can be done for those who are undocumented and have no relief in sight, and
some suggestions of ways to organize in the immigrant community around the issues of
citizenship and rights.
This chapter is included in the naturalization manual to provide an overview of how

people gain lawful permanent residency and other kinds of immigration status. Naturalization
applicants are lawful permanent residents already, but they may have questions about how they
can help family and friends. After all, helping one's family immigrate to the U.S. is often one of
the major reasons why people naturalize. It is also valuable to know what can be done for people
who are not lawful permanent residents and have no immigration relief available.
IMPORTANT NOTE: This chapter is not a complete text on immigration law. If you are not
an experienced immigration practitioner, you should refer people who might apply for
immigration relief to experienced practitioners for evaluation. If you want to learn more about
any of these areas, each section will provide information about manuals on that form of relief.
At the end of Part One, a bibliography of general books on immigration law is provided.
This chapter includes information on organizing within the immigrant community. Your
clients, especially those who have become naturalized, may need your assistance in forming
organizations to make themselves heard. Those who are U.S. citizens now can vote, but voting
is only one way to participate in civic society and work to better society. Working together with
other immigrants and in coalition with other groups in our society may be necessary to create
favorable changes.
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Practice Tip -- Use A Long Term Option Analysis of Possible Immigration Relief Available
At the beginning of a non-naturalization case, an immigration practitioner should analyze

the other immigration remedies or possibilities that are or may be available to the client in the
future. Non-immigration attorneys doing pro bono cases should obtain the assistance of an
immigration specialist to analyze these long-term options. See Appendix 14-C.
PART ONE -- OTHER REMEDIES UNDER THE IMMIGRATION LAWS
14.2 Family Visa Petitions -- "Immediate Relatives" of U.S. Citizens
United States citizens and permanent residents in many cases can "immigrate" close
family members. The citizen or permanent resident can petition to make the relative a permanent
resident.
The system for family immigration is divided into two categories:
o immediate relatives of U.S. citizens, and
o the "preference system," which includes other close relatives of U.S. citizens as
well as spouses and children of lawful permanent residents.
The advantage of being an immediate relative category instead of in the preference

system is that immediate relatives are not subject to the official waiting lists of the preference
system. An immediate relative can immigrate as soon as the interviews and INS processing are
completed (a process which can take several months). Someone immigrating under the
preference system may have to wait many years after filing the visa petition before s/he can start
the final processing to become a permanent resident.
This section will discuss the Immediate Relative Category. To qualify as an immediate
relative, the beneficiary must be the spouse, child (defined as unmarried and under 21 years of
age), or parent of a United States citizen.
Example: Abdul Cassim entered the U.S. without inspection from Egypt in 1990. In 2001 he
married Claire Benet, who is a naturalized U.S. citizen. Claire can file an immediate relative
petition for Abdul.
A lawful permanent resident that hopes to become a naturalized citizen should consider
applying for her relative immediately, under a preference petition, without waiting until she is a
citizen. See discussion in 14.3.
A person can actually become a permanent resident through a family member in either of
two processes: adjustment of status in the U.S. (if the person qualifies for this), or consular
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processing in the home country. The Legal Immigration Family Equity (LIFE) Act permits the
spouse and minor children of U.S. citizens who are abroad to apply for a K visa once the family
visa petition has been filed. This visa enables the spouse and child to enter the U.S. and remain
here during the adjustment of status process. For information on adjustment and consular
processing, see 14.5.
14.3 Family Visa Petitions -- The Preference System for Relatives

of U.S. Citizens and Permanent Residents
People who do not fall within the immediate relative category, (i.e. are not the spouse,
parent or minor, unmarried child of a U.S. citizen), may be able to immigrate through the
preference category.
First and Third Preference: Older Children of U.S. Citizens. In immigration terms,
once the offspring of a U.S. citizen has turned 21 she is no longer a "child" but is a "son or
daughter." Once a person turns 21 or gets married, he or she no longer qualifies as a beneficiary
of an immediate relative petition by a U.S. citizen because he or she no longer fits the statutory
definition of "child." In this case, the petitioner can file a family first preference if his son or
daughter is unmarried or a family third preference petition if the son or daughter is married.
The waiting lists for first preference are almost always shorter than those for third preference.
One significant exception to this rule (as of March, 2002) is Mexico. The waiting list for third
preference is shorter than first preference for Mexicans.
Fourth Preference: Brothers and Sisters of U.S. Citizens. A U.S. citizen who is at
least 21 years of age can petition for a brother or sister. The waiting lists for siblings often are
eight years or longer.
Second Preference: Spouses and Unmarried Sons and Daughters of Lawful

Permanent Residents. Lawful permanent residents have the right to file family second
preference visa petitions (I-130 petitions) to immigrate their spouses and unmarried sons and
daughters. Sons and daughters who are 21 years of age or older will be placed in a different
category called "2B" and face a longer waiting list than spouses and children under 21.
Children under 21 and spouses are in the "2A" category. The LIFE Act created a
temporary visa, the V visa, for individuals who are in the process of obtaining lawful permanent
resident (LPR) status based on a 2A visa petition that has been pending for three years. The
lawful permanent resident must have filed the visa petition on or before December 21, 2000.
Persons may apply for this visa from within the U.S. or abroad. Persons granted the V visa will
be able to remain in the U.S. with work authorization until the underlying visa application is
approved or denied.
Upgrading Second Preference Petitions Once the Petitioner Has Become a U.S.
Citizen. If a lawful permanent resident filed for a relative under the preference system and then
becomes a naturalized U.S. citizen, she can "upgrade" any visa petitions still pending to the
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Immediate Relative category from family second preference. This is a quicker process than
filing a new, immediate relative visa petition.
Example: Sonia became a lawful permanent resident March 1993. In February 1998,
Sonia filed a visa petition to immigrate her husband Sarwan under the second preference,
since she was not yet eligible for citizenship. Sonia naturalized in February 1999. Her
advocate quickly upgraded Sarwan's visa petition from 2nd preference to immediate
relative, and Sarwan gained his permanent resident status in 2000. In 2003 Sarwan will
be eligible to naturalize as long as he remains married to Sonia. If he divorces Sonia,
Sarwan will have to wait until the year 2005 to be eligible for naturalization.
While some clients may feel that it is not worth the bother to file a second preference
petition if they are applying for naturalization, this may not be true. If the naturalization case is
delayed or denied, they may have to rely on the second preference petition and they will be glad
that they filed it earlier so that their family member could get on the waiting list.
§ 14.4 Self-Petitioning Visas for Battered or Abused Spouses or

Children of U.S. Citizens or Lawful Permanent Residents
In October 1994, Congress passed the Violence Against Women Act that provided relief
for alien spouses and children who had been battered or abused in the United States by U.S. The
regulations are found at 8 CFR 204.2(c).
Spouses and children of citizens and permanent residents can file immigrant visa
petitions for themselves if they can show that their spouse or parent battered them or subjected
them to extreme cruelty and that they are of good moral character.
A. WHO CAN APPLY
VAWA allows certain abused spouses and children to self-petition for lawful permanent
residence and thus a green card. The following persons are eligible to self-petition under
VAWA:
• abused spouses of U.S. Citizens (USCs) or lawful permanent residents (LPRs)
Example: Guadalupe’s US citizen husband, Ron, began abusing her as soon as

they got married. Guadalupe can qualify for VAWA.
• non-abused spouses of USCs or LPRs if their children have been abused by the
USC or LPR spouse, even if the children are not related to the USC or LPR
abuser;
Example: Jane, from England, is married to Sam, a permanent resident of the

U.S. Together they have a child. Sam has not yet petitioned for Jane or their
child. Sam has been abusing their child but does not bother Jane. Both Jane and
her child can qualify for VAWA.
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• abused “intended spouses” of USCs and LPRs [the term “intended spouse,”
means an alien who believes that he or she has married a USC or LPR and for
whom a marriage ceremony was actually performed, but whose marriage is not
legitimate solely because of the U.S. citizen or lawful permanent resident
spouse’s bigamy];
Example: Jessica married Adam, a LPR, in 1998. For the past year Adam has
been abusing Jessica. Adam failed to tell Jessica that he never divorced his first
wife who he married in 1990. Even though Jessica’s marriage is not valid, she
still qualifies for VAWA as an intended spouse.
• abused children of USCs or LPRs and, as derivatives, their children; and
• non-abused or abused children included in a self-petitioning parent’s VAWA

application as derivatives, even if the children are not related to the USC or LPR
abuser.
Example: Although Ron has been abusing Guadalupe, he has never hurt their
three-year-old daughter, Sofia. Nonetheless, Sofia qualifies for VAWA as a
derivative of her mother’s self-petition.
B. BASIC REQUIREMENTS
To be eligible to self-petition, the battered spouse or intended spouse of a USC or LPR

must demonstrate the following:
• good moral character
• that the marriage or intended marriage was entered into in good faith;
• that during the marriage, the self-petitioner or his or her child has been battered or
subjected to extreme cruelty committed by the USC or LPR spouse;
• residence, past or present, with the USC or LPR spouse; and
Example: Paula lived with her U.S. citizen spouse for two years. During that
time he often would come home drunk and beat her up. Paula left her husband
and went to a shelter for refuge. Paula can apply for VAWA because, although
she does not presently live with her husband, she did live with him in the past.
• either (a) current residence in the United States or (b) if living abroad, that the
abusing spouse is an employee of the U.S. government or a member of the
uniformed services or subjected the self-petitioner or the self-petitioner’s child to
battery or extreme cruelty in the United States.
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Example: Laura’s husband abused her for several months while they lived
together in the U.S. Laura had to escape the abuse so she moved back to her
hometown in Michoacan, Mexico. Laura can still qualify for VAWA even though
she is now living in Mexico.
Similarly, the child of an abusive USC or LPR must establish:
• good moral character;
• past or present residence with the USC or LPR parent;
• that during that residence, the child has been battered by or been the subject of
extreme cruelty committed by the USC or LPR parent; and
• either (a) current residence in the U.S. or (b) if living abroad, that the abusing
parent is an employee of the U.S. government or a member of the uniformed
services or subjected the child to abuse in the United States.
The law and Immigration and Naturalization Service’s (INS’) regulations provide the
following details on how some of the self-petition provisions are to be interpreted:
Good faith marriage. The self-petitioning spouse must establish that the marriage or
intended marriage was entered into in good faith. The most important factor in establishing a
good faith marriage is whether the couple intended to establish a life together at the time of the
marriage. Conduct after a couple is married - - even separation shortly thereafter - - is relevant
only to establish intent at the time the marriage was entered into.
Example: Mary, from England, married John, a U.S. citizen. Although they shared
an apartment, they never were in love. They got married because John wanted to
help Mary get a green card. After being married for six months, John told Mary that
he would only apply for her green card if she had sex with him. She refused and he
started beating her.
Mary would not be eligible for VAWA relief because they did not get married in
“good faith.” Instead, they got married to get Mary a green card.
Marital relationship. The rules provide that certain abused spouses whose marriage has
been terminated within the past two years may still self-petition. A battered spouse formerly
married to a USC or LPR may self-petition only if 1) the legal termination of the marriage
occurred less than two years from the date the VAWA petition is to be filed and 2) the
termination was directly related to the domestic violence. In addition, the battered spouse of a
deceased USC may self-petition up to two years after the USC’s death. The death of the abusive
USC after the filing of a VAWA petition, in no way jeopardizes the self-petitioner’s eligibility.
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Important Note: Battered spouses married to LPR’s are not afforded the same protection if
their abusive spouse dies. The death of an abusive LPR bars a self-petitioner from qualifying for
VAWA, even if the LPR dies after the filing of the petition.
Marriage or remarriage of self-petitioners. A self-petitioner is free to remarry once the

VAWA application has been approved. However, remarriage prior to receiving an approval
terminates eligibility.
Parent-child relationship. The self-petitioning child must be unmarried and under 21

years of age when the self-petition is filed. He or she must also be the child of the abusive USC
or LPR parent, but need not be the child of a self-petitioning spouse. Aside from children born
in wedlock, the term “child” includes certain stepchildren, adopted children, and children born
out of wedlock. If assisting a child in one of these circumstances, please consult with an
immigration specialist to determine if the child qualifies to self-petition.
The self-petitioning child does not have to be in the abuser’s legal custody, nor will
changes in parental rights or legal custody affect the status of the child’s self-petition. The child
will not lose his/her opportunity to continue to be eligible for a work permit and LPR status.
Example: Sven is now 22 years old. Yet, because he filed the VAWA application
while he was 20 years old and unmarried he can still qualify for VAWA relief.
Derivative children. Children of the abused spouse who are unmarried and under age 21
qualify for derivative status provided they are included on the spouse’s self-petition. Children of
the abused spouse are not required to have been the victims of abuse, nor do they have to have
resided in the United States. As with self-petitioning children, a derivative child, upon attaining
21 years of age, will not lose his/her opportunity to continue to be eligible for a work permit and
LPR status.
Example: Maria has applied for VAWA because her U.S. citizen spouse has been
beating her. If the INS approves Maria’s application, then her six-year old son Rafael,
can become a permanent resident too as part of her application.
Status of abuser. Normally, a battered spouse or child can only self-petition if the
batterer is a USC or LPR. However, where the USC has lost or renounced citizenship because of
an incident of domestic violence, the abused spouse and children may self-petition up to two
years after the USC’s change of status. Similarly, if a LPR’s loses status because of an incident
of domestic violence, the abused spouse and children may self-petition up two years from the
LPR’s loss of status. Changes in the abuser’s citizenship status or loss of the abuser’s permanent
residence after the filing of a self-petition do not preclude the granting of the self-petition or the
self-petitioner’s obtaining lawful permanent residence status.
Example: Maria is married to Juan, a permanent resident. Juan has been abusing Maria
for several months. Finally, Maria called the police and Juan was arrested. Eventually,
he was deported because he had been convicted of a domestic violence crime. Maria is
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still eligible for VAWA because Juan was deported for a domestic violence crime less
than two years ago.
Definition of abuse. To qualify as abuse under the statute, the spouse or child must show
that he or she "has been battered or has been the subject of extreme cruelty" perpetrated by a
spouse or parent. Abuse is defined as “any act or threatened act of violence, including any
forceful detention, which results or threatens to result in physical or mental injury.” It includes a
broad range of acts and behaviors, including physical, sexual, and psychological acts, as well as
economic coercion.
Under the INS’ definition of battery or extreme cruelty, the phrase includes, but is not
limited to, “being the victim of any act or threatened act of violence, including any forceful
detention, which results or threatens to result in physical or metal injury. Psychological or
sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or
forced prostitution shall also be considered acts of violence.”
Other abusive acts that may not initially appear violent but are part of an overall pattern
of violence are also part of the definition. Violence against another person or thing may be
considered abuse if it can be established that the act was deliberately used to perpetrate extreme
cruelty against the victim. The INS’ definition is supposed to be flexible and sufficiently broad
to encompass all types of domestic battery and extreme cruelty.
Extreme cruelty includes social isolation of the victim, accusations of infidelity,

incessantly calling, writing, or contacting her; interrogating friends and family members;
stalking; threats; economic abuse; not allowing victim to get a job; controlling all money in the
family; or degrading the victim.
Resources. There may be groups in your area who are expert in this filed and can
provide assistance. Or, contact the National Immigration Project of the National Lawyers Guild
in Boston (617-227-9727) or AYUDA in Washington, D.C. (202-387-4848), who are experts.
§ 14.5 Becoming a Permanent Resident:

Adjustment of Status and Consular Processing
When the time comes to apply to immigrate through a family member (meaning, any
time in the case of an immediate relative, and when the waiting period has elapsed in the case of
someone in the preference system) the person will go through one of two processes: adjustment
of status in the U.S., or processing at the U.S. consulate in the home country. At both places, the
person will have to show again that she has the required family relationship with a citizen or
permanent resident, and that she is not required to wait longer. She also will have to show that
she does not come within one of the "grounds of inadmissibility" that can bar people from
becoming permanent residents.
This section will discuss adjustment of status, consular processing, and, briefly, the
grounds of inadmissibility. Again, please remember that this summary does not provide
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enough information for a reader to handle a case. Immigration cases are complex and have
high risks; only an experienced practitioner should handle a family visa case. The chapter is
intended to give you information and an overview so that you can tell your clients generally what
will occur.
A. Adjustment of Status
Some people who immigrate through family members will be able to do this in the U.S.
through a process called adjustment of status. Those who are able to adjust status will not have
to return to their home country for their immigrant visa interview. They can have the interview
in the U.S. Some applicants must pay a $1,000.00 penalty in addition to the regular filing fees,
in order to adjust.
1. Section 245(a) Non-Penalty Cases
Under INA 245(a), an applicant for adjustment of status will not have to pay a penalty if
she can prove that she:
(1) was inspected and admitted to the U.S. (i.e., she did not come across the border
illegally);
(2) has filed, or will file with the adjustment application, a visa petition for which she
qualifies;
(3) is "immediately eligible to immigrate" (i.e., has a current date on a preference waiting
list or is an "immediate relative" of a U.S. citizen; and
(4) has never worked without employment authorization or been out of a lawful
immigration status. However, the last requirement does not apply to "immediate
relatives" of U.S. citizens, that is spouses and unmarried children under 21.1
In addition, like all applicants for permanent residence, the person must not come within
a ground of inadmissibility, or if she does, the ground must be waived.
Example: Sarwan, Sonia's husband, entered on a tourist visa in 1995 and overstayed.
He is now in unlawful status since his visa expired in August of 1995. He had been
working without authorization since September 1995. When they filed his second
preference visa he did not qualify for adjustment of status on two grounds: he was not
immediately eligible for a visa since he was on a waiting list, and he had been working
without authorization. He was trying to decide whether he should pay the INS fine or go
to the U.S. Consulate in India to process his visa when it was his time to immigrate.
When his wife Sonia naturalized, Sarwan not only became immediately eligible for a
visa, but he also no longer had to meet the ground that he had never worked without
permission and he was not barred for not having been in legal status, so they will now be
able to complete processing in the U.S. through adjustment of status without paying a
penalty.
1
See INA § 245; 8 CFR § 245 et seq.
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2. Section 245(i) Penalty Cases
Many people who entered the United States without inspection, who overstayed a
nonimmigrant visa, or who worked illegally also can apply for adjustment of status, as long as
they pay an extra $1,000 penalty. This form of adjustment however is only available for people
whose visa applications were filed on or before April 30, 2001. Persons who submitted their visa
applications between January 15, 1998 and April 30, 2001 must also demonstrate that they were
physically present in the U.S. on December 21, 2000.
To qualify for 245(i) adjustment, the person must be immediately eligible to immigrate,
i.e. must be the beneficiary of an immediate relative visa petition or a preference petition with a
current priority date. Like all applicants for permanent residency, the person must not be
inadmissible, unless the government has waived the grounds of inadmissibility.2
People who apply under 245(I) must pay a $1000.00 penalty in addition to the regular
adjustment fee. The only exceptions to this requirement are:
-- children who are under the age of seventeen at the time of the filing of the adjustment
application; and
-- spouses and children (currently unmarried and under the age of twenty-one) of the
petitioner who qualify for Family Unity and have submitted a Family Unity Application.
Under § 301 of the Immigration Act of 1990, the requirements for Family Unity are: a)
the applicant is the spouse or child of a legalized alien; b) the applicant entered the U.S.
before May 5, 1988; and c) in the case of the child, the applicant was under 21 years old
on May 5, 1988. If the legalized relative got amnesty under the SAW farm worker
program, the cutoff date is November 30, 1988, not May 5, 1988. The child, however,
must have entered the U.S. before May 5, 1988 in order to qualify for this exception to
the $1000 penalty. Persons who were under 21 as of the cutoff date but are now over 21
may still qualify for Family Unity, but do not qualify to have the penalty fee waived. See
8 CFR 245.10(b). For information on Family Unity, see 14.6.
B. Consular Processing
If an applicant is not in the U.S. or is not able to become a permanent resident through
adjustment of status in the U.S., the person can apply for consular processing in his or her home
country. In that process, the petitioner files papers with a service center in the U.S. and
beneficiary eventually has an appointment at the office of a U.S. consulate abroad.
2
Others eligible to adjust under § 245(I) include: persons who originally entered under the Visa Waiver Pilot
Program, those who entered in transit without a visa, or who are alien crewmen. Some persons, such as a K-1
fiancé/e who did not marry the U.S. citizen petitioner, are not eligible to adjust even under § 245(I).
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There are some risks and penalties associated with consular processing. Some people
(generally, those who would have paid the $1,000 fine to adjust status in the U.S., but were
unable to qualify because their petitions were filed after April 30, 2001) will be penalized under
the new grounds of inadmissibility based on unlawful presence in the U.S.
C. Grounds of Inadmissibility, including Unlawful Presence in the United States
Every person who immigrates through a family member (or most other ways) must show
that she does not come within a ground of inadmissibility, or if she is inadmissible, she must
persuade the government to waive the ground. The grounds of inadmissibility are found at INA
§ 212(a).
Some of the grounds of inadmissibility are incorporated into the "good moral character"
requirement for naturalization, and so are familiar to naturalization caseworkers. These include
grounds based on alien smuggling and all of the criminal grounds such as moral turpitude and
drug offenses (including being an addict or abuser.)
There are other grounds of inadmissibility such as being HIV positive, having been found
by an administrative court to have committed document fraud, being a drug addict or abuser, or
being someone who is likely to become a "public charge." The public charge ground of
inadmissibility for family immigrants became much more strict in 1997.
Along with these grounds, 1996 legislation3 created completely new grounds of
inadmissibility and deportability based upon unlawful presence in the United States. People who
entered the United States without inspection, remain in the United States unlawfully for a
specified period of time and then leave the U.S. are inadmissible for being present without
admission or parole. INA 212(a)(6)(A). People who are unlawfully present in the United
States between 180 days and one year are inadmissible for three years if they leave the United
States and then apply for admission abroad. The "count" began on April 1, 1997, i.e., time in the
U.S. before that date will not count toward the 180 days. There are periods of time which do
not count as “unlawful presence” for the bar, including the time in which the person is under 18
year of age, has a pending asylum application (and has not worked without authorization), and is
under the protection of the Family Unity program. In some cases victims of spousal abuse are
exempted from the bars. The exceptions are found in INA 212(a)(9)(B)(iii). Also, there are
discretionary waivers for spouses, and sons and daughters of U.S. citizens and permanent
residents.
Similarly, people who are unlawfully present in the United States for over one-year
(beginning April 1, 1997) are inadmissible for ten years if they leave the United States and then
apply for admission abroad. The same exceptions apply in the ten-year bar as in the three-year
bar. The bars will only apply once the person has left the U.S
3
This change was made by IIRIRA, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and
portions of it went into effect on April 1, 1997.
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Determining whether a person qualifies for 245(i) is crucial to avoiding these harsh
penalties. If a person is able to adjust under 245(i) s/he will avoid this ground of inadmissibility
because s/he will receive his/her lawful status in the U.S. without traveling abroad and triggering
the unlawful presence bars. If the person does not qualify for 245(i) then s/he will have to go to
the United States Consul abroad in order to get an immigration visa. However, the moment the
person leaves to go to his or her consular visa appointment, s/he will inadmissible under
unlawful presence bars.
Finally, persons who were unlawfully present in the U.S. for over a year (beginning April
1,1997) or who were ordered deported or removed from the U.S., left the U.S. and who then re-
entered or attempted to re-enter illegally are subject to a permanent bar from immigrating to the
U.S. The person cannot even apply for a discretionary waiver until ten years after the illegal re-
entry or attempted re-entry.
All the grounds of inadmissibility are extremely dangerous and fairly difficult to
understand. Advocates should keep abreast of new information.
14.6 Family Unity Program
Many people obtained permanent residency through an immigration "amnesty" program

in the late 1980's.4 To deal with the fact that many families contained some persons who
qualified for amnesty and others who did not, Congress created a separate "Family Unity"
provision. This provides permission to be in the United States and work authorization for certain
spouses and children of people who legalized through amnesty.5
The applicant must:
(1) have entered the U.S. before a specified date in 1988 and resided in the U.S. since
then. (The date is May 5, 1988 for children and spouses of persons who legalized
through amnesty’s 245A program and December 1, 1988 for children and spouses of
persons who legalized through the SAW program for agricultural workers); and
(2) on the same specified date in 1988 must have been the spouse or unmarried son or
daughter of someone who received status as a lawful permanent resident or lawful
temporary resident through the amnesty program. There are other grounds that disqualify
a person from family unity. For more information, please see the ILRC’s packet on
Family Unity.
Family Unity only provides temporary protection to be in the U.S. and employment
authorization. It is a helpful aid while the person waits to be able to immigrate through the
4
The legalization program allowed certain people who had resided in the U.S. since 1982 to become permanent
residents. INA 245A. The Special Agricultural Worker or "SAW" program allowed people who had worked for a
certain amount of time as farm workers to become permanent residents. INA § 210.
5
INA § 245A, and 8 CFR § 245.6
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relative that received amnesty. In other words, it is a good way for someone who is on the
waiting list for an immigrant visa to remain in the U.S. with permission to live and work.
Example: Rosa became a permanent resident through amnesty. Her husband Manuel
and her son Luis, 16, are eligible for Family Unity protection because they have resided
in the U.S. since before the May 5, 1988 eligibility cut-off date. They meet the other
eligibility requirements because on May 5, 1988, they were the unmarried child under 21
(Luis) and the spouse (Manuel) of a legalized person (Rosa). Rosa's other son, Roberto,
has never lived in the U.S. He is not eligible for Family Unity because he has not resided
here since May 1988. Her daughter Angela, who was born in 1964, also is not eligible
for Family Unity because she was over 21 on May 5, 1988.
14.7 Asylum and Restriction of Removal
People who have a well-founded fear of being persecuted in their home country or who
have actually been persecuted in the past can qualify for asylum so long as the persecution was
based race, religion, nationality, membership in a particular social group, or political opinion.6
Asylum is available by applying affirmatively to the INS or as a defense to removal proceedings
before an immigration judge. A year after winning asylum, a person can apply for permanent
residence.7 Four years after being granted status as a lawful permanent resident, the individual
can apply for naturalization.8
Restriction of removal under INA 241(b)(3) is available to people in removal

proceedings whom the judge determines would have their life or freedom threatened on account
of race, religion, nationality, membership in a particular social group, or political opinion. The
standard for restriction of removal is whether or not the applicant would have a clear probability
of persecution if she were to return to her home country.9 Restriction of removal and asylum are
similar except the standard in asylum is well-founded fear of persecution, which is lower than the
standard of clear probability of persecution for restriction of removal.10
Under restriction of removal, the successful applicant does not become eligible to
become a lawful permanent resident and will not be able to apply for naturalization.
For additional information on asylum and withholding, see the ILRC's manual, Winning
Asylum Cases.
6
INA § 208
7
INA § 209.
8
8 CFR § 209.2(f).
9
INS v. Stevic, 104 S.Ct. 2489 (1984).
10
INS v. Cardoza-Fonseca, 107 S.Ct. 1207 (1987).
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14.8 Cancellation of Removal for Non-Permanent Residents
People who have lived in the U.S. for ten years or more may be eligible to apply for
cancellation of removal under INA § 240A(b). If the person wins her case, she can become a
lawful permanent resident of the United States. Cancellation of removal is a defense in removal
proceedings; it is not an affirmative application, and a person cannot simply walk into an INS
office and file the papers. One can apply for cancellation of removal only if one is in removal
proceedings. Thus, if a client applies for cancellation of removal, is denied, and then loses all
appeals, he or she will be forced to leave the United States.
Cancellation of removal is designed to balance the U.S. government's desire to limit

immigration and its concern for being fair to people who have developed roots, made
contributions to society, and whose citizen and permanent resident family members would suffer
exceptional and extremely unusual hardship if they were deported. Almost all cancellation or
removal applicants are undocumented, either because they entered the U.S. without inspection or
they came in on a nonimmigrant visa such as a student visa and overstayed.
To qualify for cancellation of removal, an applicant must show that:
1) s/he has been physically present in the United States for a continuous period of at
least ten years. The ten year period stops when the government serves the applicant with
a notice to appear or when the person has committed an offense which renders him or her
inadmissible or deportable;
2) s/he has had good moral character during those ten years;
3) his or her removal would cause exceptional and extremely unusual hardship to the
applicant's spouse, parent, or child, who is a citizen or a lawful permanent resident of
the United States; and
4) s/he has not been convicted of certain offenses (See, INA 212(a)(2), 237(a)(2), or
237(a)(3)).11
Cancellation of removal is a discretionary form of immigration relief. Even if the

applicant meets all of the above requirements, the immigration judge may still deny the case in
an act of discretion. In deciding whether or not to exercise favorable discretion, the immigration
judge will balance the positive and negative aspects of the applicant's life.
11
See INA § 240 A(b)
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WARNING! IT IS RISKY TO PLACE YOUR CLIENT IN REMOVAL PROCEEDINGS

IN ORDER TO APPLY FOR CANCELLATION
It is much more difficult to win a cancellation case than a case under the old suspension law,
especially because of the "exceptional and extremely unusual" hardship requirement.
Practitioners should not take steps to have removal proceedings initiated for their clients in order
to apply for cancellation except in very strong cases. For the most part, practitioners should
pursue cancellation cases only when there clients are already in removal proceedings.
The following groups of people are not eligible for cancellation of removal:
People who already received cancellation of removal, suspension of deportation, or

212(c) relief;
1) people who persecuted others, or are inadmissible or deportable under the anti-terrorist
grounds;
2) crewmen who entered after June 30, 1964; and
3) certain "J" visa exchange visitors (either those who received graduate medical
education or failed to satisfy their two year requirement of returning to their home
country).12
Cancellation of Removal for Battered or Abused Spouses or Children. Persons who

are battered or abused by a U.S. citizen or permanent resident spouse or parent can apply
for a special form of cancellation of removal. See, INA 240A(b)(2). Battered spouses
and children can obtain cancellation of removal if:
1) s/he has been battered or subjected to extreme cruelty in the U.S. by a spouse or parent
who is a U.S. citizen or permanent resident or s/he is the parent of a child who has been
battered or subjected to extreme cruelty in the U.S. by a U.S. citizen or permanent
resident;
2) s/he has been continuously physically present in the U.S. for at least three years prior
to submitting his or her application;
3) s/he has had good moral character for the three-year period;
4) the applicant (or the applicant's child or non-abuser parent) would suffer extreme
hardship if the applicant were removed from the United States; and
5) the applicant is not inadmissible or deportable under grounds relating to crimes or
terrorism, and has not been convicted of an aggravated felony.13
12
INA § 240A(c)
13
See INA § 240A(b)(2)
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March 15, 2002
The 4,000 Person Limit. Only 4000 applicants may be granted cancellation of removal
and adjust status each fiscal year. INA 240A(e).
NACARA: On November 19, 1997, President Clinton signed into law the Nicaraguan
Adjustment and Central American Relief Act (NACARA). Section 203 allows Salvadoran and
Guatemalan individuals who were: 1) Asylum applicants on or before April 1, 1990; or 2) Had
Temporary Protective Status(TPS); or 3) Were registered class members of the American Baptist
Church lawsuit (ABC), to qualify for cancellation of removal under the prior suspension of
deportation requirements instead of under the stricter guidelines of cancellation of removal.
Thus, to qualify for permanent residence, these persons must have been living in the U.S.
continuously for seven years, have good moral character, and prove that deportation would cause
extreme hardship to him or herself, or to a spouse or minor child who is a U.S. citizen or
permanent resident. The Department of Justice’s interim regulations created a rebuttable
presumption of extreme hardship for Salvadorans and Guatemalans who qualify as principals (on
their own) for NACARA. This makes it very easy for most of these applicants to meet this
hardship standard. The interim regulations also permit most eligible persons to apply for
cancellation under NACARA through the INS’ asylum offices. Many former Soviet bloc nations
may also apply for NACARA. There is no filing deadline for this provision. See Winning
NACARA Suspension Cases published by the ILRC.
In addition, NACARA included a provision (section 202) permitting Nicaraguan and

Cuban nationals continuously present in the U.S. since December 1, 1995 to obtain Legal
Permanent Residence. Qualified persons must apply by April 1, 2000. Congress enacted a
similar, but not identical provision for Haitians, entitled the Haitian Refugee Immigration
Fairness Act of 1998. The filing deadlines for these programs have passed.
14.9 Cancellation of Removal for Long-Term Permanent Residents
Lawful permanent residents who commit certain crimes or other actions can be found
deportable and placed in removal proceedings. Or, the permanent resident can travel abroad for
too long or at a time when she is inadmissible, and be refused entry upon her return. Some
permanent residents in this situation can defend themselves against removal by applying for
cancellation of removal under INA § 240A(a).
To qualify for removal, the person
-- must have been in the United States for seven years after some kind of legal admission,
and must have been a permanent resident for at least five years;
-- must not have been granted cancellation of removal, 212(c) relief, or suspension of
deportation before filing this application; and
14-16
March 15, 2002
-- must not have been convicted of an aggravated felony.14
Most importantly, the resident must convince the judge that the positive factors for
allowing her to remain in the U.S. outweigh the reasons for ordering removal. The rehabilitation
of the applicant is usually one of the key issues in these cases. If successful, the person will
retain his or her lawful permanent resident status.
Only 4000 people each year may adjust status pursuant to cancellation of removal. See
"1997 Interim Note: the 4,000 Person Limit" in 14.8, above.
For more information on Cancellation of Removal for permanent residents, please see the
ILRC's manual A Guide for Immigration Advocates.
14.10 Diversity Visas
Natives of certain countries can apply for and obtain immigrant visas under the Diversity
Visa Program.15 The advantage of this program is that the applicant doesn't need a family
member or employer to petition for him or her but, instead, can apply on his or her own. The
government issues a total of 55,000 immigrant visas each year. Only natives of certain
designated countries that have relatively low immigration to the United States can qualify for
these visas. The following countries will not qualify for the 2001 Diversity Lottery program:
Mexico, Canada, Colombia, the Dominican Republic, El Salvador, Jamaica, China, Haiti, India,
South Korea, Pakistan, Philippines, Vietnam, and the United Kingdom (except Northern Ireland).
14.11 Temporary Protected Status (TPS)

and Delayed Enforced Departure (DED)
Temporary Protected Status is available for people from countries that the U.S.
government has designationed based on either civil strife or a natural disaster (such as the
earthquakes in El Salvador). Periodically the Attorney General designates which countries'
nationals will have Temporary Protected Status, and for how long.16
People with Temporary Protected Status are allowed to work in the United States while
they have this status. People who receive Temporary Protected Status must register with the
government every year. The government can deny a person Temporary Protected Status if the
person fails to register.
14
See INA § 240A(a)
15
INA § 203(c)
16
INA § 244
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March 15, 2002
As of the writing of this manual, people from various countries, such as Nicaragua,
Honduras, El Salvador, Liberia, Lebanon, Kuwait, Somalia, and Bosnia-Herzegovina have
benefited from this program. For ongoing information about which countries are designated for
TPS, consult the periodical Interpreter Releases, which is found in most law libraries.
At the end of all TPS programs, the INS may issue a Notice to Appear to the applicant
and begin removal proceedings,17 although the INS has not done this in the past. Thus, there are
risks involved in this program. All practitioners and their clients must carefully discuss the
risks and benefits of the program. Ultimately the client must weigh these risks and benefits and
decide whether or not to apply.
14.12 Legalization Extension Cases and "Late Amnesty" Provision of LIFE
The Immigration Reform and Control Act of 1986 (IRCA) created a legalization or
"amnesty" program. There were two types of amnesty programs offered -- one for agricultural
workers and the other for those living in the United States since before January 1, 1982. The
application periods for the two legalization programs have already passed.
There have been a number of federal class action lawsuits filed on behalf of people who
did not apply for legalization initially. The Legal Immigration Family Equity (LIFE) Act grants
registered class members in three of these lawsuits the opportunity to reapply for legalization.
The lawsuits are Catholic Social Services v. Meese, LULAC v. INS, and Zambrano v. INS. In
each case, the immigrant class members will have to apply for adjustment of status under the
modified legalization provisions within 12 months of the date the INS promulgates the
regulations implementing the new law. Class members will have to prove that they resided
continuously in the U.S. unlawfully from January 1, 1982 through May 4, 1988.
We recommend that practitioners obtain more information through the website of the Center for
Human Rights and Constitutional Law at www.centerforhumanrights.org/AmnestyIndex.html.
14.13 Other Immigration Remedies
There are other possible immigration remedies for clients. Some of these include, but are
not limited to: citizenship by acquisition or derivative citizenship (people who acquired
citizenship without knowing it and therefore cannot be deported; discussed in detail in
Chapter 12), registry (for someone who has lived in the U.S. since before January 1, 1972, has
good moral character and is admissible as an immigrant), and employment-based immigrant
visas. Some people may also be eligible for non-immigrant visas such as student visas. A
discussion of these remedies is beyond the scope of this manual. For more information, please
see Handling Immigration Cases by Bill Ong Hing.
17
Because of the settlement in the American Baptist Church v. Thornburgh case, the details of what happens to
many of the Salvadoran TPS/DED recipients are different from what happens at the end of the TPS programs for
people from other countries.
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March 15, 2002
PART TWO -- OUTREACH AND COMMUNITY ORGANIZING
14.14 Community Information Sessions:

Publicizing Naturalization and Other Immigration Remedies
Publicizing naturalization and other ways to immigrate is extremely important.

Immigrants need to know what is available to them so they can decide what remedies to pursue.
Usually legal workers inform immigrants about any possible immigration remedies during an
individual interview, which takes place in the legal worker's office. However, many
organizations have had success with group information sessions as well.
Information sessions are a way to tell people what immigration remedies may be
available to them and to answer their questions in a group setting. Every week or every two
weeks, interested community members can come to an information session held at a place
familiar to them (such as a church, library, community center or apartment building). At these
sessions a topic of general interest is presented. The topics can vary week to week. Examples of
topics include: naturalization, family visas, political asylum, and cancellation of removal. Each
presentation can last as little as five to fifteen minutes and can include lectures, demonstrations,
role-plays, skits, videos, or the like.
After the presentation, people are encouraged to ask their individual immigration
questions. These questions are asked aloud so the entire group can hear them. Thus, the whole
group gets to learn from the answers. Additionally, since many people have similar questions in
mind, questions and answers do not have to be repeated several times. Another nice thing that
happens is that, often, others attending the session can answer some of the questions that are
asked. This isn't surprising since others in the session may in the past have been in the same
position as the person asking the question.
Example: At a recent information session, an individual who wanted to apply for

naturalization stated that he did not speak English very well nor did he know very much
about U.S. history, and he was worried about how he could possibly qualify for
naturalization. Several community members who had become citizens through
naturalization were at the information session to help petition for their relatives. They
explained to the group how someone could enroll in a citizenship class that prepares
people for the test. Additionally they mentioned that the applicant does not need to speak
perfect English or know everything about U.S. history. One of the participants gave
sample questions to the group and even passed around a copy of the 100 questions most
commonly asked. The group learned a lot and felt much more at ease.
Practice Tip: It is useful to distribute handouts explaining the different immigration remedies
during the information sessions. The written materials will reinforce what the participants heard
and provide something that they can take home to review. For an example of one type of
handout, see Appendix 14-A.
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March 15, 2002
It's a good idea to set aside time at the end of the session (or after the session) for
individuals who have questions dealing with sensitive issues (e.g., criminal problems). That way
they can raise issues in private that they do not want to bring up in front of the whole group. Be
sure to mention at the beginning that there will be time at the end for questions that people do not
want to discuss in front of others.
This type of information session can be a great learning tool for both the immigrant
community and legal workers.
14.15 Know Your Rights Sessions
As we all know, some clients have no immigration remedies. They do not qualify for any
immigration relief. If they are arrested, sometimes their best or only defense to deportation is to
exercise their rights. These rights include the right to remain silent and the right to consult a
lawyer. All people living in the U.S., documented or undocumented, have these rights. While a
complete discussion of these rights is beyond the scope of this manual, excellent training videos,
materials, and informational handouts are available from various immigrant rights programs and
coalitions around the country. Contact the ILRC if you have difficulty locating these resources.
It is important that immigrants know their rights. These rights must be publicized in the
immigrant community. Flyers should be distributed in the immigrants' native languages. See
Appendix 14-B for samples of "Know Your Rights" handouts in English and Spanish.
Information sessions and community education workshops should be held explaining these
rights, how people can use them and how INS might abuse them.
Example: Matilde went to a Know Your Rights workshop in her apartment building.
Recently, while she was leaving for work, she noticed that the INS was entering the
parking lot. Immediately she returned to her apartment and started calling her neighbors.
She told them the INS was in the building. She told them not to open the door for the
INS unless they had a search warrant and not to answer any questions. She then called a
local community agency that sent a couple of legal workers to observe possible rights
violations by the INS.
We have had real success conducting Know Your Rights sessions. They are informative
for the participants and inspirational for the trainers. Many trainers are lay advocates whom we
have trained, and who have in turn held workshops to teach others in the community. The lay
advocates hold the workshops in churches, at their work, at their apartments and at community
organizations.
A primary purpose of these workshops is to prepare people to know what to do in case

there is an immigration raid. The topics of these workshops might include: how to defend
yourself during an INS raid (or if you get picked up by the INS); what you can do if you witness
an INS abuse, and what family members or friends of someone who is picked up in a raid need to
do. In addition, the workshops explain some of the different deportation defenses such as
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March 15, 2002
cancellation of removal, which some people may be eligible for in the future. Besides sharing
information with a group of people, these workshops include a lot of time for discussion so that
everyone (trainers included) can talk and learn from one another's experiences.
Example: Cristina went to a Know Your Rights presentation at her church. She wanted
to learn more about it. She went to a few more presentations, and then volunteered to
have one in her apartment and invite her friends, neighbors and family.
14.16 Lay Advocates
Lay advocates are people living and working in the immigrant community who assist
other immigrants in finding help with their immigration problems. Lay advocates can be
individuals who help friends, family, co-workers, co-parishioners, or co-apartment dwellers, or
they can be individuals associated with an organization (such as a church or an immigrants'
rights group). They do the work on a volunteer basis to help a friend, family, or a stranger.
Often lay advocates are fellow immigrants who have had the time and the ability to develop
skills that others in their community have not. Sometimes they are immigrants who went
through the immigration process and learned a lot from it.
Lay advocates can do a variety of things. They can help translate, collect documents,
complete forms, explain the INS bureaucracy maze, make phone calls, testify in hearings, and
provide a voice for immigrant clients. A good lay advocate, like a good lawyer, not only helps
the client solve the problem at hand but also helps the client understand and develop his or her
own skills to become a better problem-solver.
Example: Mae Wong lives in an apartment building with many other Chinese
immigrants. Mae speaks English and Cantonese. She has been trained in how to
complete forms. Several of her neighbors come to Mae for help in translating and writing
in the answers on the immigration forms. Mae recently went with one neighbor, who is
shyer than Mae, to the INS while her neighbor checked on the status of her naturalization
case.
Legal workers should think creatively about how lay advocates could assist in their work.
Legal workers may wish to provide some training to lay advocates. The information sessions
discussed in 14.14 might be a good opportunity to start the training process. The more
dedicated lay advocates can volunteer (or work part-time) for the legal workers, and by doing so,
learn even more about immigration procedures. Well-trained and well-supervised lay advocates
can provide an important link between the agencies and the immigrant community. In fact, they
are so effective because they have a good understanding of a client's immigration situation, are
very accessible to the clients because they live in the community and are more trusted by the
client community.
Example: Epi, a lawful permanent resident from Tonga, prepared his naturalization
application during a group processing session workshop in his community. After the
workshop, he volunteered to assist in other workshops, since he was already familiar with
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March 15, 2002
the forms and had gone through the process himself. With a little extra training, he
became an invaluable assistant to the workshop leaders, and eventually began conducting
part of the workshops.
14.17 Community Organizing:

Organizing Immigrants to Educate
Policy Makers and Improving INS Procedures
Obviously, more generous laws can help immigrants legalize the status of their family
members and keep them out of deportation proceedings. Organized efforts of immigrants have
been successful in bringing about some positive changes in the Immigration Act of 1990, such as
the TPS and Family Unity programs. Unfortunately, the most recent immigration laws seriously
hurt immigrants by making it more difficult for undocumented immigrants to legalize their status
and by making it more difficult for immigrants and citizens to bring their family members to the
United States. The new welfare laws also make it more difficult for many non-citizens to get
governmental benefits including Supplemental Security Income (SSI) and Temporary Assistance
to Needy Families (TANF, formerly called Aid to Families with Dependent Children or AFDC).
There are millions of immigrants, many of whom are eligible for naturalization or have recently
naturalized. It is very important that immigrants become citizens and participate in the political
process in order to change the laws that hurt immigrants and their families.
The immigrants themselves must play the central role in these efforts to educate the
public and our policy makers. Immigrants have the biggest direct stake in our immigration
policy. Additionally, they can provide the most direct and eloquent testimony to the need for
legislative change. Such efforts provide an important opportunity for the new immigrants to
become involved in the process of social and political change in the U.S.
In the future, efforts might be waged around other issues affecting immigrants such as:
defending immigrants' constitutional rights during immigration raids and in removal
proceedings; making it easier for undocumented immigrants to legalize their status; making it
easier for citizens and residents to bring over family members without regard to the family's
economic status; improving the schools for the children of immigrants and ensuring that
immigrant children are allowed to attend school; or electing more immigrant legislators and
politicians.
Immigrants who organize and fight collectively can help influence specific INS policy.
Changes can be made on general INS policies and in the way the INS is handling a specific case.
14.18 Organizing Suggestions
When there is an issue that the immigrant community is particularly interested in

changing or a case that the immigrant community thinks is being handled unfairly by the INS,
immigrants and legal workers can work together to change INS policies. Generally, immigrants
do the best job of identifying issues that are most vital to their communities. Legal workers (who
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March 15, 2002
are familiar with the INS structure and policies) play an important role in working with
immigrants as partners in these efforts.
To help kick off an organizing campaign, the immigrant organizers can call (and
publicize through the media in the native language of the community they are trying to organize)
a community informational meeting. The meeting serves five main purposes: to publicize the
issue in question, to gather input on whether or not the community thinks the issue is important
enough to fight about, to gather support for the issue, to elicit input on how to bring about the
desired change, and to encourage members of the community to help with the campaign.
14.19 Family Fairness/Family Unity:

An Organizing Campaign Example
There have been numerous organizing campaigns within immigrant communities. Below
we will outline an example of how a campaign might have started around the Family
Fairness/Family Unity issue. Although it is not an exhaustive outline of an organizing campaign,
the outline below could be used for other organizing campaigns in addition to Family Fairness.
This outline summarizes the events in the present tense as if they are occurring presently.
1. INTEREST IN THE ISSUE: During 1988, several clients approached Lorenzo the Legal
Worker. These clients had received lawful permanent resident status through the legalization
program, but their children had not because they entered the U.S. after 198218 Thus, their
children remained undocumented. The clients expressed outrage and fear. They were outraged
that the INS could grant legal status to so many parents but not to their minor children. The
parents and their families were fearful because they did not want the INS to deport their children
and force the families to separate. In fact, the children and spouses of a couple of the angry
clients were in deportation proceedings already. They needed help but there was no relief in
sight unless the INS instituted some policy helping these family members. The clients wanted to
do something and they wanted Lorenzo to help.
2. INITIAL PLANNING: Lorenzo and a couple of the clients decided to do something about
this situation. They decided to hold a community meeting to try to bolster support for the issue.
The clients knew there were lots of people who were in the same situation as they were. They
knew they would only get things done if they did it together. It was important that Lorenzo let
the clients take charge of the planning for the campaign.
3. OUTREACH AND PUBLICITY FOR THE MEETING: First, they had to pick a place to
hold the meeting. It was best to pick somewhere that immigrants would feel comfortable. Places
like a church, community agency or community hall at which immigrants would be familiar
would be best. Second, they decided to contact other agencies in their community to see if they
would want to work together to plan the meeting. Third, they developed a flyer to distribute
announcing the meeting. They distributed this flyer at community agencies, churches,
18
Due in large part to campaigns like the ones described here, Congress passed the Family Unity Law allowing
some relatives of amnesty recipients to obtain permission to live and work in the U.S. See §14.5.
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March 15, 2002
laundromats, markets, restaurants and other local sites. Lorenzo sent it to other clients and ex-
clients who might be interested. They contacted the Spanish-speaking radio, television, and
newspapers. Since the local radio and television allow community agencies to make free public
service announcements, Lorenzo helped the clients come up with an announcement. They knew
that strong outreach and publicity efforts make a world of difference.
4. THE MEETING: The planning group came up with the following suggestions for what to
cover during the meeting:
- present the family fairness issue;
- emphasize the importance of the immigrants' role in the process of change and
encourage the group that they can help influence change;
- let people in the audience present their family fairness problems (give them plenty of
room to contribute, to tell their stories and help plan future events, activities and
policies. The more room they have, the more likely they will contribute in the future.
They are the best champions for their cause.);
- distribute a list asking for the names, addresses and telephone numbers of people who
are interested in future activities;
- prior to the meeting, have a tentative date for a follow-up meeting. The participants
may wish to change this date, but it is good to be prepared;
- identify participants who will be leaders and others who will volunteer time (this is
often not possible until the follow-up meeting); and
- solicit and give ideas of concrete activities the group can tackle in the future.
5. FOLLOW-UP MEETINGS: After identifying a date, time and place for the follow-up
meeting, the planning group arranges for a core group of participants (usually prospective leaders
and volunteers) to meet prior to the larger follow-up meeting. This core group plans the follow-
up meeting. They set an agenda and decide which one of them will be responsible for each item
of the agenda. At the follow-up meeting, they debate whether to have regular meetings (such as
every month) or occasional meetings. Participants are encouraged to bring family, friends, co-
workers and neighbors to the meetings.
Follow-up meetings and planning meetings will provide opportunities to train the leaders
and volunteers. Many of the leaders and volunteers already are good organizers, speakers and
lobbyists. With a little training on the legal requirements, these leaders and volunteers will be
outstanding advocates for the Family Fairness cause.
The group decides to have regular meetings and to form a committee. They decide it is
important for the committee to have concrete activities in which the members can participate.
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March 15, 2002
14.20 A Network of Immigrant-Based Committees
Many communities have local networks and coalitions that join forces to help work for
immigrants' rights. These networks and coalitions are made up of immigrants, organizations that
work with immigrants and other concerned organizations and individuals. Networks and
coalitions have helped on numerous immigrants' rights issues, such as the TPS and the Family
Unity provisions of the Immigration Act of 1990.
Several communities have formed groups on specific immigration issues. There are
naturalization committees in many communities. If there is not one in your community, you
could form one. These committees are helpful for sharing information on any changes in the
legal requirements, INS procedures, outreach, and lobbying. Local immigrant-based committees
can form and can be part of regional and national networks.
Many coalitions and other organizations have set up regular naturalization liaison
meetings between the local INS offices and community based organizations. These liaison
meetings give the INS and community based organizations the opportunity to share information,
clarify policy, and in some instances the organizations can encourage and push the INS to be
more flexible in its approach to naturalization cases. For more information on how to set up
naturalization liaison meetings, you can order the ILRC's packet called, "Establishing
Naturalization Liaison Meetings Between Community Agencies and the INS."
Immigrant-based committees as well as immigrant rights advocates and coalitions should

also seek organizational endorsements for better and fairer immigration policies. Immigrant and
refugee organizations, civil liberties groups, local governmental bodies, and church groups all
should be approached to support these campaigns.
14.21 Working with the Media
Information from the public can influence Congress and the INS' policies. One way for
immigrants, legal workers and community organizers to reach the general public is through the
media. Publicizing particularly dramatic cases can do much of this. They should also present
positions to the media on changes in policy. As immigrants and their legal workers work with
the media more and more, they will begin to develop working relationships with the key players
at newspapers, radio and television stations. These people will be able to help the cause down
the road by providing media coverage that portrays immigrants and the issues that concern them
in an unbiased and realistic way.
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NATURALIZATION: A GUIDE FOR

LEGAL PRACTITIONERS AND OTHER

IMMIGRANT LEGAL RESOURCE CENTER

Naturalization: A Guide for Legal Practitioners and Other Community Advocates

1.1 Introduction to Citizenship...............................................................................................................1-1

Chapter 2 Initial Discussions with Clients

2.1 Overview of Working with Clients to Complete the Naturalization Process...................................2-1

Chapter 3 Overview of Naturalization, the Legal Requirements, and the

3.1 What is Naturalization?....................................................................................................................3-1

Chapter 4 Lawfully Admitted For Permanent Residence

4.1 Introduction ......................................................................................................................................4-1

4.4 Ineligible for Admission as a Lawful Permanent Resident..............................................................4-3

Chapter 5 Residence And Presence Requirements

5.1 Introduction ......................................................................................................................................5-1

Chapter 6 Good Moral Character and Statutory Bars to Eligibility

6.1 Introduction ......................................................................................................................................6-1

Chapter 7 Requirement: English, History and Government

7.1 Introduction ......................................................................................................................................7-1

7-5.1 Introduction .................................................................................................................................7.5-1

Chapter 8 The Application Process and Interview

8.1 Introduction to the Naturalization Process ......................................................................................8-1

8.5 Expedited Naturalization Application Processing .........................................................................8-21

Chapter 9 Loyalty Oath and Naturalization Ceremony

9.1 Introduction .....................................................................................................................................9-1

Chapter 10 Group Processing

10.1 Introduction ..................................................................................................................................10-1

10.20 Application Workshop: Resources for Interview Preparation...................................................10-13

Chapter 11 Denials, Appeals, and INS Inaction

11.1 Introduction ..................................................................................................................................11-1

Chapter 12 Acquisition and Derivation of Citizenship

12.1 Overview of Acquisition and Derivation of Citizenship..............................................................12-1

Chapter 13 Loss of United States Citizenship

13.1 Introduction ..................................................................................................................................13-1

Chapter 14 Other Immigration Remedies-Gaining Legal Status for Family Members,

14.1 Introduction ..................................................................................................................................14-1

2-A. Naturalization Application “To do List” (English & Spanish)

4-A. Checklist to Determine if a Naturalization Applicant Might Be Deportable

6-A. Requesting Criminal Records

7-5-A, 7-5-B. Memos from INS regarding Naturalization of Children

8-A. N-400 Naturalization Application (blank & completed samples plus

8-K. Sample Letters Contesting INS Decision to Recommend Denial of

9-A. Sample Letter to INS Regarding Homebound Swearing-In Ceremonies

10-A. Group Processing Packets

11-A. Rule on Private Immigration Bills to Congress for Naturalization

12-A. Acquisition of Citizenship Charts

14-A. Outreach Flyers Describing Ways to Immigrate (English & Spanish)

§ 1.1 Introduction to Citizenship

§ 1.2 Overview of the Basic Requirements For Naturalization

- be a lawful permanent resident (see Chapter 4);

§ 1.3 How To Use This Manual

This naturalization manual is designed to assist paralegals, clerical workers, volunteers,

§ 1.4 Contents of the Manual

This manual is divided into 15 chapters. Chapter 3 is an overview of the legal

§ 1.5 Key Definitions

INITIAL DISCUSSIONS WITH CLIENTS

§ 2.1 Overview of Working with Clients to Complete the Naturalization Process

§ 2.2 Explaining Naturalization

- have been a lawful permanent resident for at least five years;3

- be able to have a fairly simple conversation in English.5 At some point (probably

If a law, requirement, or procedure is particularly complex, or if the client’s case introduces

Practice Tip. A discussion of the requirements, process, advantages and disadvantages

§ 2.3 Advantages and Disadvantages

"Now that we have thought through the requirements of naturalization together