Selected Immigration Laws 

Christopher Tompkins 
Attorney At Law
225 Broadway, Suite 700 
New York, NY 10007
212  962-5363 
[email protected]

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The following selected immigration laws are frequently applied but may not necessarily apply to a particular legal matter.  As in all cases, an immigration lawyer should be consulted. 

SELECTED LAWS CONCERNING ADJUSTMENT OF STATUS TO PERMANENT RESIDENCY 



INA: ACT 245 - ADJUSTMENT OF STATUS OF NONIMMIGRANT TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE


Sec. 245. [8 U.S.C. 1255] 

(a) The status of an alien who was inspected and admitted or paroled into the United States 1/ or the status of any other alien having an approved petition for classification as a VAWA self-petitioner 1aa/ may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if


(1) the alien makes an application for such adjustment,


(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and


(3) an immigrant visa is immediately available to him at the time his application is filed.


(b) Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 202 and 203 within the class to which the alien is chargeable for the fiscal year then current. 

(c) 1/ Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to

(1) an alien crewman;

(2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States;

(3) any alien admitted in transit without visa under section 212(d)(4)(C) ;

(4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ;

(5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ;

(6) an alien who is deportable under section 237(a)(4)(B) ; 1a/

(7) 2/ any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or

(8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.


(d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216 . The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) 2aa/ except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) . 

(e) (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien's status adjusted under subsection (a).


(2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the United States.


(3) Paragraph (1) and section 204(g) shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien's admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a la wful petition) for the filing of a petition under section 204(a) or 2aa/ subsection (d) or (p) of section 214 with respect to the alien spouse or alien son or daughter. In accordance with regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence. 

(f) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216A . 

(g) In applying this section to a special immigrant described in section 101(a)(27)(K) , such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States. 

(h) In applying this section to a special immigrant described in section 101(a)(27)(J) -


(1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States; and


(2) in determining the alien's admissibility as an immigrant-


(A) 11d/ paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), and (9)(B) of section 212(a) shall not apply, and


(B) the Attorney General may waive other paragraphs of section 212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. The relationship between an alien and the alien's natural parents or prior adoptive parents shall not be considered a factor in making a waiver under paragraph (2)(B). Noth ing in this subsection or section 101(a)(27)(J) shall be construed as authorizing an alien to apply for admission or be admitted to the United States in order to obtain special immigrant status described in such section. 

(i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--


(A) who--


(i) entered the United States without inspection; or


(ii) is within one of the clas ses enumerated in subsection (c) of this section; 2a/


(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--


(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or


(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/


(C) 2a/ who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such a pplication a sum equaling $1,000 3/ as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who-


(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986;


(ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and


(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section. and


(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-


(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and


(B) an immigrant visa is immediately available to the alien at the time the application is filed.


(3) 4/ (A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 286.


(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the 4a/ Breached Bond/Detention established under section 286(r) , 4a/ except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 286(m) .


(j) 5/ (1) If, in the opinion of the Attorney General-


(A) a nonimmigrant admitted into the United States under section 101(a)(15)(S)(i) has supplied information described in subclause (I) of such section; and


(B) the provision of such information has substantially contributed to the success of an authorized criminal investigation or the prosecution of an individual described in subclause (III) of that section, the Attorney General may adjust the status of the alien (and the spouse, married and unmarried sons and daughters, and parents of the alien if admitted under that section) to that of an alien lawfully admitted for permanent residence if the alien is not described in section 212(a)(3)(E) . 

(2) If, in the sole discretion of the Attorney General-


(A) a nonimmigrant admitted into the United States under section 101(a)(15)(S)(ii) has supplied information described in subclause (I) of such section, and


(B) the provision of such information has substantially contributed to-


(i) the prevention or frustration of an act of terrorism against a United States person or United States property, or


(ii) the success of an authorized criminal investigation of, or the prosecution of, an individual involved in such an act of terrorism, and


(C) the nonimmigrant has received a reward under section 36(a) of the State Department Basic Authorities Act of 1956, the Attorney General may adjust the status of the alien (and the spouse, married and unmarried sons and daughters, and parents of the alien if admitted under such section) to that of an alien lawfully admitted for permanent residence if the alien is not described in section 212(a)(3)(E) .


(3) Upon the approval of adjustment of status under paragraph (1) or (2) 6/ , the Attorney General shall record the alien's lawful admission for permanent residence as of the date of such approval and the Secretary of State shall reduce by one the number of visas authorized to be issued under sections 201(d) and 203(b)(4) for the fiscal year then current.


(k) 7/ An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C) , under section 203(b)(4) ) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if-- 

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission; 

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days-- 

(A) failed to maintain, continuously, a lawful status; 

(B) engaged in unauthorized employment; or 

(C) otherwise violated the terms and conditions of the alien's admission.


(l) 8/ (1) If, in the opinion of the 11/ Secretary of Homeland Security, or in the case of subparagraph (C)(i), in the opinion of the Secretary of Homeland Security, in consultation with the Attorney General, as appropriate 11b/ a nonimmigrant admitted into the United States under section 101(a)(15)(T)(i) --


(A) has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a nonimmigrant under section 101(a)(15)(T)(i) , 11/ or has been physically present in the United States for a continuous period during the investigation or prosecution of acts of trafficking and that, in the opinion of the Attorney General, the investigation or prosecution is complete, whichever period of time is less;


(B) 11b/ subject to paragraph (6), has, throughout such period, been a person of good moral character; and 11b/


(C) (i) has, during such period, complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, 11b/


(ii) the alien would suffer extreme hardship involving unusual and severe harm upon removal from the United States, 11/ the Secretary of Homeland Security, 11b/ may adjust the status of the alien (and any person admitted under section 101(a)(15)(T)(ii) 8a/ as the spouse, parent, sibling, 8a/ or child of the alien) to that of an alien lawfully admitted for permanent residence; or 11b/


(iii) 11b/ was younger than 18 years of age at the time of the victimization qualifying the alien for relief under section 101(a)(15)(T) .


(2) Paragraph (1) shall not apply to an alien admitted under section 101(a)(15)(T) who is inadmissible to the United States by reason of a ground that has not been waived under section 212 , except that, if the 11/ Secretary of Homeland Security considers it to be in the national interest to do so, the 11/ Secretary of Homeland Security , in the 11/ Secretary of Homeland Security discretion, may waive the application of--


(A) paragraphs (1) and (4) of section 212(a) ; and


(B) any other provision of such section (excluding paragraphs (3), (10)(C), and (10(E)), if the activities rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in section 101(a)(15)(T)(i)(I) .


(3) 10/ An alien shall be considered to have failed to maintain continuous physical presence in the United States under paragraph (1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days, 11b/ unless--

(A) the absence was necessary to assist in the investigation or prosecution described in paragraph (1)(A); or

(B) an official involved in the investigation or prosecution certifies that the absence was otherwise justified.


(4) 10/ (A) The total number of aliens whose status may be adjusted under paragraph (1) during any fiscal year may not exceed 5,000.


(B) The numerical limitation of subparagraph (A) shall only apply to principal aliens and not to the spouses, sons, daughters, siblings, 8a/ or parents of such aliens.


(5) 10/ Upon the approval of adjustment of status under paragraph (1), the 11/ Secretary of Homeland Security shall record the alien's lawful admission for permanent residence as of the date of such approval.

(6) 11b/ For purposes of paragraph (1)(B), the Secretary of Homeland Security may waive consideration of a disqualification from good moral character with respect to an alien if the disqualification was caused by, or incident to, the trafficking described in section 101(a)(15)(T)(i)(I) .

(7) 11b/ The Secretary of Homeland Security shall permit aliens to apply for a waiver of any fees associated with filing an application for relief through final adjudication of the adjustment of status for a VAWA self-petitioner and for relief under sections 101(a)(15)(T), 101(a)(15)(U), 106, 240A(b)(2) , and 244(a)(3) (as in effect on March 31, 1997).


(m) 9/ 10/ (1) The 11a/ Secretary of Homeland Security may adjust the status of an alien admitted into the United States (or otherwise provided nonimmigrant status) under section 101(a)(15)(U) to that of an alien lawfully admitted for permanent residence if the alien is not described in section 212(a)(3)(E) , unless the Secretary 11c/ determines based on affirmative evidence that the alien unreasonably refused to provide assistance in a criminal investigation or prosecution, if --


(A) the alien has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a nonimmigrant under clause (i) or (ii) of section 101(a)(15)(U) ; and


(B) in the opinion of the 11a/ Secretary of Homeland Security, the alien's continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.


(2) An alien shall be considered to have failed to maintain continuous physical presence in the United States under paragraph (1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days unless the absence is in order to assist in the investigation or prosecution or unless an official involved in the investigation or prosecution certifies that the absence was otherwise justified.


(3) Upon approval of adjustment of status under paragraph (1) of an alien described in section 101(a)(15)(U)(i) the 11a/ Secretary of Homeland Security may adjust the status of or issue an immigrant visa to a spouse, a child, or, in the case of an alien child, a parent who did not receive a nonimmigrant visa under section 101(a)(15)(U)(ii) if the 11a/ Secretary considers the grant of such status or visa necessary to avoid extreme hardship.


(4) Upon the approval of adjustment of status under paragraph (1) or (3), the 11a/ Secretary of Homeland Security shall record the alien's lawful admission for permanent residence as of the date of such approval.

(5)(A) 11c/ The Secretary of Homeland Security shall consult with the Attorney General, as appropriate, in making a determination under paragraph (1) whether affirmative evidence demonstrates that the alien unreasonably refused to provide assistance to a Federal law enforcement official, Federal prosecutor, Federal judge, or other Federal authority investigating or prosecuting criminal activity described in section 101(a)(15)(U)(iii) .
(B) 11c/ Nothing in paragraph (1)(B) may be construed to prevent the Secretary from consulting with the Attorney General in making a determination whether affirmative evidence demonstrates that the alien unreasonably refused to provide assistance to a State or local law enforcement official, State or local prosecutor, State or local judge, or other State or local authority investigating or prosecuting criminal activity described in section 101(a)(15)(U)(iii) .


Regulations

8 CFR PART § 245.1 - Eligibility.

(a) General. Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. A special immigrant described under section 101(a)(27)(J) of the Act shall be deemed, for the purpose of applying the adjustment to status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States. (Revised 10/1/94; 59 FR 51091)


(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and § 245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091)


8 CFR PART § Sec. 245.2 - Application.

(a) General --

(1) Jurisdiction . USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1). (Paragraph (a) (1) revised 5/12/06; 71 FR 27585 ) (Amended 7/1/94; 59 FR 33903 ) (Paragraph (a)(1) revised effective 4/1/97; 62 FR 10312 ) 

(2) Proper filing of application -- 

(i) Under section 245 . (A) An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act See § 245.1(g)(1) to determine whether an immigrant visa is immediately available. (Paragraph (a)(2)(i) revised 7/31/02; 67 FR 49561 )


(B) If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i) , section 203(a) or section 203(b)(1) , (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 and 245 . For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.


(C) A visa petition and an adjustment application are concurrently filed only if:


( 1 ) The visa petitioner and adjustment applicant each file their respective form at the same time, bundled together within a single mailer or delivery packet, with the proper filing fees on the same day and at the same Service office, or;


( 2 ) the visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before or after July 31, 2002, and the adjustment applicant files the adjustment application, together with the proper filing fee and a copy of the Form I-797, Notice of Action, establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, at the same Service office at which the visa petitioner filed the visa petition, or;


( 3 ) The visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before, or after July 31, 2002, and the adjustment applicant files the adjustment application, together with proof of payment of the filing fee with the Service and a copy of the Form I-797 Notice of Action establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, with the Immigration Court or the Board of Immigration Appeals when jurisdiction lies under parag raph (a)(1) of this section.


(ii) Under the Act of November 2, 1966 . An application for the benefits of section 1 of the Act of November 2, 1966 is not properly filed unless the applicant was inspected and admitted or paroled into the United States subsequent to January 1, 1959. An applicant is ineligible for the benefits of the Act of November 2, 1966 unless he or she has been physically present in the United States for one year (amended from two years by the Refugee Act of 1980). 

(3) Submission of documents -- (i) General. A separate application shall be filed by each applicant for benefits under section 245 , or the Act of November 2, 1966. Each application shall be accompanied by an executed Form G - 325A, if the applicant has reached his or her 14th birthday. Form G - 325A shall be considered part of the application. An application under this part shall be accompanied by the document specified in the instructions which are attached to the application. 

(ii) Under section 245 . An application for adjustment of status is submitted on Form I - 485, Application for Permanent Residence. The application must be accompanied by the appropriate fee as explained in the instructions to the application. 

(iii) Under section 245(i) . An alien who seeks adjustment of status under the provisions of section 245(i) of the Act must file Form I-485, with the required fee. The alien must also file Supplement A to Form I-485, with any required additional sum. (Added 10/1/94; 59 FR 51091 ) 

(iv) Under the Act of November 2, 1966 . An application for adjustment of status is made on Form I - 485A. The application must be accompanied by Form I - 643, Health and Human Services Statistical Data Sheet. The application must include a clearance from the local police jurisdiction for any area in the United States when the applicant has lived for six months or more since his or her 14th birthday. (Redesignated as (iv) 10/1/94; 59 FR 51091 ) 

(4) Effect of departure --


(i) General . The effect of a departure from the United States is dependent upon the law under which the applicant is applying for adjustment. 

(ii) Under section 245 of the Act . (A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjust ment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act. (Paragraph (a)(4)(ii) revised effective 7/1/99; 64 FR 29208 )


(B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisio ns of section 212 and 235 of the Act.


(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa ( if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status. (Revised 11/1/07; 72 FR 61791)


(D) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful V status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is admissible as a V nonimmigrant. (Added 9/7/01; 66 FR 46697 ) 

(iii) Under the Act of November 2, 1966 . If an applicant who was admitted or paroled subsequent to January 1, 1959, later departs from the United States temporarily with no intention of abandoning his or her residence, and is readmitted or paroled upon return, the temporary absence shall be disregarded for purposes of the applicant's ``last arrival'' into the United States in regard to cases filed under section 1 of the Act of November 2, 1966. 

(5) Decision --


(i) General . The applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial. (Amended 7/1/94; 59 FR 33903 )


(ii) Under section 245 of the Act. If the application is approved, the applicant's permanent residence shall be recorded as of the date of the order approving the adjustment of status. An application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State. No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in proceedings under 8 CFR part 240. Also, an applicant who is a parolee and meets the two conditions described in § 245.2(a)(1) may renew a denied application in proceedings under 8 CFR part 240 to determine admissibility. At the time of renewal of the application, an applicant does not need to meet the statutory requirement of section 245(c) of the Act, or § 245.1(g), if, in fact, those requirements were met at the time the renewed application was initially filed with the director. Nothing in this section shall entitle an alien to proceedings under section 240 of the Act who is not otherwise so entitled. (Amended effective 11/28/11; 76 FR 53764) (Amended 7/1/94; 59 FR 33903) (Amended 10/1/94; 59 FR 51091) (Revised effective 4/1/97; 62 FR 10312)


(iii) Under the Act of November 2, 1966 . If the application is approved, the applicant's permanent residence shall be recorded in accordance with the provisions of section 1. No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in proceedings under 8 CFR part 240 . Also, an applicant who is a parolee and meets the two conditions described in § 245.2(a)(1) may renew a denied application in proceedings under 8 CFR part 240 to determine admissibility. (Amended 7/1/94; 59 FR 33903 ) (Revised effective 4/1/97; 62 FR 10312 )


(b) Application under section 2 of the Act of November 2, 1966 . An application by a native or citizen of Cuba or by his spouse or child residing in the United States with him, who was lawfully admitted to the United States for permanent residence prior to November 2, 1966, and who desires such admission to be recorded as of an earlier date pursuant to section 2 of the Act of November 2, 1966, shall be made on Form I - 485A. The application shall be accompanied by the Permanent Resident Card, Form I - 151 or I - 551, issued to the applicant in connection with his lawf ul admission for permanent residence. No appeal shall lie from the decision. If the application is approved, the applicant will be furnished with a replacement of his Form I - 151 or I - 551 bearing the new date as of which the lawful admission for permanent residence has been recorded. (Amended effective 7/6/09; 74 FR 26933 ) (Amended 7/1/94; 59 FR 33903 ) (Amended effective 1/20/99; 63 FR 70313 )


(c) Application under section 214(d) of the Act . An application for permanent resident status pursuant to section 214(d) of the Act shall be filed on Form I-485. A separate application shall be filed by each applicant. If the application is approved, USCIS shall record the lawful admission of the applicant as of the date of approval. The applicant shall be notified of the decision and, if the application is denied, of the reasons therefor. No appeal shall lie from the denial of an application but such denial shall be without prejudice to the alien's right to renew his or her application in proceedings under 8 CFR part 240 . (Amended effective 7/6/09; 74 FR 26933 ) (Amended 7/1/94; 59 FR 33903 ) (Revised effective 4/1/97; 62 FR 10312 )


8 CFR PART § 245.5 Medical Examination.

Pursuant to section 232(b) of the Act, an applicant for adjustment of status shall be required to have a medical examination by a designated civil surgeon, whose report setting forth the findings of the mental and physical condition of the applicant, including compliance with section 212(a)(1)(A)(ii) of the Act, shall be incorporated into the record. A medical examination shall not be required of an applicant for adjustment of status who entered the United States as a nonimmigrant spouse, fiance, or fiancee of a United States citizen or the child of such an alien as defined in section 101(a)(15)(K) of the Act and § 214.2(k) of this chapter if the applicant was medically examined prior to, and as a condition of, the issuance of the nonimmigrant visa; provided that the medical examination must have occurred not more than 1 year prior the date of application for adjustment of status. Any applicant certified under paragraphs (1)(A)(ii) or (1)(A)(iii) of section 212(a) of the Act may appeal to a Board of Medical Officers of the U.S. Public Health Service as provided in section 234 of the Act and part 235 of this chapter. (Amended 8/14/01; 66 FR 42587 )(Amended effective 4/1/97; 62 FR 10312 ) 


8 CFR PART §  Sec. 245.6 Interview.

Each applicant for adjustment of status under this part shall be interviewed by an immigration officer. This interview may be waived in the case of a child under the age of 14; when the applicant is clearly ineligible under section 245(c) of the Act or 245.1 of this chapter; or when it is determined by the Service that an interview is unnecessary.


8 CFR PART § Sec. 245.10 Adjustment of status upon payment of additional sum under Public Law 103-317. 

(a) Definitions . As used in this section the term: (Added 3/26/01; 66 FR 16383 )


(1)(i) Grandfathered alien means an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act) of:


(A) A petition for classification under section 204 of the Act which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or


(B) An application for labor certification under section 212(a)(5)(A) of the Act that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed.


(ii) If the qualifying visa petition or application for labor certification was filed after January 14, 1998, the alien must have been physically present in the United States on December 21, 2000. This requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien as described in this section.


(2) Properly filed means:


(i) With respect to a qualifying immigrant visa petition, that the application was physically received by the Service on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing as provided in § 103.2(a)(1) and (a)(2) of this chapter; and


(ii) With respect to a qualifying application for labor certification, that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.


(3) Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.


(4) Circumstances that have arisen after the time of filing means circumstances similar to those outlined in § 205.1(a)(3)(i) or (a)(3)(ii) of this chapter.


(b) Eligibility . An alien who is included in the categories of restricted aliens under § 245.1(b) and meets the definition of a "grandfathered alien" may apply for adjustment of status under section 245 of the Act if the alien meets the requirements of paragraphs (b)(1) through (b)(7) of this section: (Redesignated as paragraph (b) and introductory text revised 3/26/01, previously paragraph (a); 66 FR 16383 )


(1) Is physically present in the United States;


(2) Is eligible for immigrant classification and has an immigrant visa number immediately available at the time of filing for adjustment of status;


(3) Is not inadmissible from the United States under any provision of section 212 of the Act, or all grounds for inadmissibility have been waived; (Revised effective 4/1/97; 62 FR 10312 )


(4) Properly files Form I-485, Application to Register Permanent Residence or Adjust Status on or after 
October 1, 1994, with the required fee for that application; (Revised effective 3/26/01; 66 FR 16383 )


(5) Properly files Supplement A to Form I-485 on or after October 1, 1994; (Revised effective 3/26/01; 66 FR 16383 )


(6) Pays an additional sum of $ 1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and (Revised effective 4/1/97; 62 FR 10312 ) (Revised 7/23/97; 62 FR 39417 )


(7) Will adjust status under section 245 of the Act to that of lawful permanent resident of the United States on or after October 1, 1994. (Revised effective 3/26/01; 66 FR 16383 )


(c) Payment of additional sum . An adjustment applicant filing under the provisions of section 245(i) of the Act must pay the standard adjustment application filing fee as specified in § 103.7(b)(1) of this chapter. Each application submitted under the provisions of section 245(i) of the Act must be submitted with an additional sum of $1,000. An applicant must submit the additional sum of $1,000 only once per application for adjustment of status submitted under the provisions of section 245(i) of the Act. However, an applicant filing under the provisions of section 245(i) of the Act is not required to pay the additional sum if, at the time the application for adjustment of status is filed, the alien is: (Redesignated as paragraph (c) and revised 3/26/01, previously paragraph (b); 66 FR 16383 ) (Introductory text revised effective 4/1/97; 62 FR 10312 ) (Introductory text revised 7/23/97; 62 FR 39417 )


(1) Unmarried and less than 17 years of age;


(2) The spouse of a legalized alien, qualifies for and has properly filed Form I-817, Application for Voluntary Departure under the Family Unity Program, and submits a copy of his or her receipt or approval notice for filing Form I-817; or


(3) The child of a legalized alien, is unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt or approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in this chapter. (Amended 3/26/01; 66 FR 16383 )(Revised 7/23/97; 62 FR 39417 )


(d) Pending adjustment application with the Service or Executive Office for Immigration Review filed without Supplement A to Form I-485 and additional sum. An alien who filed an adjustment of status application with the Service in accordance with § 103.2 of this chapter will be allowed the opportunity to amend such an application to request consideration under the provisions of section 245(i) of the Act, if it appears that the alien is not otherwise ineligible for adjustment of status. The Service shall notify the applicant in writing of the Service's intent to deny the adjustment of status application, and any other requests for benefits that derive from the adjustment

application, unless Supplement A to Form I-485 and any required additional sum is filed within 30 days of the date of the notice. If the application for adjustment of status is pending before the Executive Office for Immigration Review (EOIR), EOIR will allow the respondent an opportunity to amend an adjustment of status application filed in accordance with § 103.2 of this chapter (to include Supplement A to Form I-485 and proof of remittance to the INS of the required additional sum) in order to request co nsideration under the provisions of section 245(i) of the Act. (Revised 3/26/01; 66 FR 16383 ) (Revised 7/23/97; 62 FR 39417 ) (Revised 10/23/97; 62 FR 55152 )


(e) Applications for Adjustment of Status filed before October 1, 1994 . The provisions of section 245(i) of the Act shall not apply to an application for adjustment of status that was filed before October 1, 1994. The provisions of section 245(i) of the Act also shall not apply to a motion to reopen or reconsider an application for adjustment of status if the application for adjustment of status was filed before October 1, 1994. An applicant whose pre-October 1, 1994, application for adjustment of status has been denied may file a new application for adjustment of status pursuant to section 245(i) of the Act on or after October 1, 1994, provided that such new application is accompanied by: the required fee; Supplement A to Form I-485; the additional sum required by section 245(i) of the Act; and all other required initial and additional evidence. (Revised 3/26/01; 66 FR 16383 ) (Revised 7/23/97; 62 FR 39417 ) (Amended 10/23/97; 62 FR 55152 )


(f) Effect of section 245(i) on completed adjustment applications before the Service . (1) Any motion to reopen or reconsider before the Service alleging availability of section 245(i) of the Act must be filed in accordance with § 103.5 of this chapter. If said motion to reopen with the Service is granted, the alien must remit to the Service Supplement A to Form I-485 and the additional sum required by section 245(i) of the Act. If the alien had previously remitted Supplement A to Form I-485 and the additional sum with the application which is the subject of the motion to reopen, then no additional sum need be remitted upon such reopening. (Paragraph (f) revised 3/26/01; 66 FR 16383 ) (Paragraph (f) added 7/23/97; 62 FR 39417 ) (Paragraph (f) revised 9/30/97; 62 FR 50999 ) (Paragraph (f) revised 10/23/97; 62 FR 55152 )


(2) An alien whose adjustment application was adjudicated and denied by the Service because of ineligibility under section 245(a) or (c) of the Act and now alleges eligibility due to the availability of section 245(i) of the Act may file a new application for adjustment of status pursuant to section 245(i) of the Act, provided that such new application is accompanied by the required fee for the application, Supplement A to Form I-485, additional sum required by section 245(i) of the Act and all other required and additional evidence.


(g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status . Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engage d, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the Act, persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. Any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Act. (Paragraph (g) added 7/23/97; 62 FR 39417 )


(h) Asylum or diversity immigrant visa applications . An asylum application, diversity visa lottery application, or diversity visa lottery-winning letter does not serve to grandfather the alien for purposes of section 245(i) of the Act. However, an otherwise grandfathered alien may use winning a diversity visa as a basis for adjustment. (Added 3/26/01; 66 FR 16383 )


(i) Denial, withdrawal, or revocation of the approval of a visa petition or application for labor certification . The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien's family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate.

(Added 3/26/01; 66 FR 16383 )


(j) Substitution of a beneficiary on an application for a labor certification . Only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under section 245(i) of the Act. An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien. (Added 3/26/01; 66 FR 16383 )


(k) Changes in employment . An applicant for adjustment under section 245(i) of the Act who is adjusting status through an employment-based category is not required to work for the petitioner who filed the petition that grandfathered the alien, unless he or she is seeking adjustment based on employment for that same petitioner. (Added 3/26/01; 66 FR 16383 )


(l) Effects of grandfathering on an alien's nonimmigrant status . An alien's nonimmigrant status is not affected by the fact that he or she is a grandfathered alien. Lawful immigration status for a nonimmigrant is defined in § 245.1(d)(1)(ii) . (Added 3/26/01; 66 FR 16383 )


(m) Effect of grandfathering on unlawful presence under section 212(a)(9)(B) and (C) of the Act . If the alien is not in a period of stay authorized by the Attorney General, the fact that he or she is a grandfathered alien does not prevent the alien from accruing unlawful presence under section 212(a)(9)(B) and (C) of the Act. (Added 3/26/01; 66 FR 16383 )


(n) Evidentiary requirement to demonstrate physical presence on December 21, 2000. (1) Unless the qualifying immigrant visa petition or application for labor certification was filed on or before January 14, 1998, a principal grandfathered alien must establish that he or she was physically present in the United States on December 21, 2000, to be eligible to apply to adjust status under section 245(i) of the Act. If no one document establishes the alien's physical presence on December 21, 2000, he or she may submit several documents establishing his or her physical presence in the United States prior to, and after December 21, 2000. (Added 3/26/01; 66 FR 16383)


(2) To demonstrate physical presence on December 21, 2000, the alien may submit copies of documents issued by the former INS or EOIR such as arrival-departure forms or notices to appear in immigration court.. (Revised effective 11/28/11; 76 FR 53764)

(3) To demonstrate physical presence on December 21, 2000, the alien may submit other government documentation. Other government documentation issued by a Federal, state, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than December 21, 2000. For this purpose, the term Federal, state, or local authority includes any governmental, educational, or administrative function operated by Federal, state, county, or municipal officials. Examples of such other documentation include, but are not limited to:


(i) A state driver's license;


(ii) A state identification card;


(iii) A county or municipal hospital record;


(iv) A public college or public school transcript;


(v) Income tax records;


(vi) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, state, or local governmental agency keeping such record;


(vii) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, state, or local governmental agency keeping such record;


(viii) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards.


(4) To demonstrate physical presence on December 21, 2000, the alien may submit non-government documentation. Examples of documentation establishing physical presence on December 21, 2000, may include, but are not limited to:


(i) School records;


(ii) Rental receipts;


(iii) Utility bill receipts;


(iv) Any other dated receipts;


(v) Personal checks written by the applicant bearing a bank cancellation stamp;


(vi) Employment records, including pay stubs;


(vii) Credit card statements showing the dates of purchase, payment, or other transaction;


(viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;


(ix) If the applicant established that a family unit was in existence and cohabiting in the United States, documents evidencing the presence of another member of the same family unit; and


(x) For applicants who have ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records.


(5)(i) The adjudicator will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.


(ii) In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority (i.e., the Service or EOIR). It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application.

8 CFR PART §§ 245.22 Evidence to demonstrate an alien's physical presence in the United States on a specific date. 


(a) Evidence . Generally, an alien who is required to demonstrate his or her physical presence in the United States on a specific date in connection with an application to adjust status to that of an alien lawfully admitted for permanent residence should submit evidence according to this section. In cases where a more specific regulation relating to a particular adjustment of status provision has been issued in the 8 CFR, such regulation is controlling to the extent that it conflicts with this section.


(b) The number of documents . If no one document establishes the alien's physical presence on the required date, he or she may submit several documents establishing his or her physical presence in the United States prior to and after that date.


(c) DHS-issued documentation. An applicant for permanent residence may demonstrate physical presence by submitting DHS-issued (or predecessor agency-issued) documentation such as an arrival-departure form or notice to appear in immigration proceedings. (Revised effective 11/28/11; 76 FR 53764)


(d) Government-issued documentation . To demonstrate physical presence on the required date, the alien may submit other government documentation. Other government documentation issued by a Federal, State, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than the required date. For this purpose, the term Federal, State, or local authority includes any governmental, educa tional, or administrative function operated by Federal, State, county, or municipal officials. Examples of such other documentation include, but are not limited to:


(1) A state driver's license;


(2) A state identification card;


(3) A county or municipal hospital record;


(4) A public college or public school transcript;


(5) Income tax records;


(6) A certified copy of a Federal, State, or local governmental record that was created on or prior to the required date, shows that the applicant was present in the United States at the time, and establishes that the applicant sought in his or her own behalf, or some other party sought in the applicant's behalf, a benefit from the Federal, State, or local governmental agency keeping such record;


(7) A certified copy of a Federal, State, or local governmental record that was created on or prior to the required date, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, State, or local governmental agency keeping such record; or


(8) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards. Such evidence will only be accepted to document the physical presence of an alien who was in attendance and under the age of 21 on the specific date that physical presenc e in the United States is required.


(e) Copies of records . It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application. If the alien is not in possession of such a document or documents, but believes that a copy is already contained in the Service file relating to him or her, he or she may submit a statement as to the name and location of the issuing Federal, State, or local government agency, the type of document and the date on which it was issued.


(f) Other relevant document(s) and evaluation of evidence . The adjudicator will consider any other relevant document(s) as well as evaluate all evidence submitted, on a case-by-case basis. The Service may require an interview when necessary.


(g) Accuracy of documentation . In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority.

SELECTED LAWS CONCERNING NATURALIZATION


INA: ACT 316 - REQUIREMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE DISPOSITION TO THE UNITED STATES


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


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

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

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

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

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

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


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

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

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

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

(2) An applicant for naturalization under this subsection may be administered the oath of allegiance under section 337(a) by any district court of the United States, without regard to the residence of the applicant. Proceedings under this subsection shall be conducted in a manner consistent with the protection of intelligence sources, methods and activities. 

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




INA: ACT 318 - PREREQUISITES TO NATURALIZATION; BURDEN OF PROOF


Sec. 318. [8 U.S.C. 1429] Except as otherwise provided in this title, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immigrant visa, if a ny, or of other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry, in the custody of the Service. Notwithstanding the provisions of section 405(b) , and except as provided in sections 328 and 329 no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act; and no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act: Provided, That the findings of the Attorney General in terminating removal proceedings o r in canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed binding in any way upon the Attorney General with respect to the question of whether such person has established his eligibility for naturalization as required by this title.


INA: ACT 319 - MARRIED PERSONS AND EMPLOYEES OF CERTAIN NONPROFIT ORGANIZATIONS


Sec. 319. [8 U.S.C. 1430] 

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


(b) Any person, 

(1) whose spouse is 

(A) a citizen of the United States, 

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


(C) regularly stationed abroad in such employment, and 

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


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

(c) Any person who 

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

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

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

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

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

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


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


(A) the United States; and


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


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



INA: ACT 320 - Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired 


Sec. 320. [8 U.S.C. 1431] (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:


(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.


(2) The child is under the age of eighteen years.


(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.


(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1) .


INA: ACT 322 - Children born and residing outside the United States; conditions for acquiring certificate of citizenship 


Sec. 322. [8 U.S.C. 1433] (a) A parent who is a citizen of the United States 2/ (or,if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 320 . The Attorney General shall issue a certificate of citizenship to such applicant 2/upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:


(1) At least one parent 3/ (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization. 

(2) The United States citizen parent--


(A) has 4/ (or, at the time of his or her death, had) been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or 

(B) has 4/ (or, at the time of his or her death, had) a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.


(3) The child is under the age of eighteen years.


(4) 5/ The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application). 

(5) 6/ The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.


(b) Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 337(a) , upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.


(c) Subsections (a) and (b) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1) .


(d) 7/ In the case of a child of a member of the Armed Forces of the United States who is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member--


(1) any period of time during which the member of the Armed Forces is residing abroad pursuant to official orders shall be treated, for purposes of subsection (a)(2)(A), as physical presence in the United States;


(2) subsection (a)(5) shall not apply; and


(3) the oath of allegiance described in subsection (b) may be subscribed to abroad pursuant to section 1701(d) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136; 8 U.S.C. 1443a).


INA: ACT 328 - NATURALIZATION THROUGH SERVICE IN THE ARMED FORCES OF THE UNITED STATES


Sec. 328. [8 U.S.C. 1439] 

(a) A person who has served honorably at any time in the Armed Forces of the United States for a period or periods aggregating 1/ one year, and who, if separated from such service, was never separated except under honorable conditions, may be naturalized without having resided, continuously immediately preceding the date of filing such person's application, in the United States for at least five years, and in the State or district of the Service in the United States in which the application for naturalization is filed for at least three months, and without having been physically present in the United States for any specified period, if such application is filed while the applicant is still in the service or within six months after the termination of such service. 

(b) A person filing a application under subsection (a) of this section shall comply in all other respects with the requirements of this title, except that- 

(1) No residence within a State or district of the Service in the United States shall be required; 

(2) Notwithstanding section 318 insofar as it relates to deportability, such applicant may be naturalized immediately if the applicant be then actually in the Armed Forces of the United States, and if prior to the filing of the application, the applicant shall have appeared before and been examined by a representative of the Service; 

(3) The applicant shall furnish to the 2/ Secretary of Homeland Security, prior to any final hearing upon his application, a certified statement from the proper executive department for each period of his service upon which he relies for the benefits of this section, clearly showing that such service was honorable and that no discharges from service, including periods of service not relied upon by him for the benefits of this section, were other than 2/ honorable (the certificate or certificates herein provided for shall be conclusive evidence of such service and discharge); and


(4) notwithstanding any other provision of law, no fee shall be charged or collected from the applicant for filing the application, or for the issuance of a certificate of naturalization upon being granted citizenship, and no clerk of any State court shall charge or collect any fee for such services unless the laws of the State require such charge to be made, in which case nothing more than the portion of the fee required to be paid to the State shall be charged or collected.


(c) In the case such applicant's service was not continuous, the applicant's residence in the United States and State or district of the Service in the United States, good moral character, attachment to the principles of the Constitution of the United States, and favorable disposition toward the good order and happiness of the United States, during any period within five years immediately preceding the date of filing such application between the periods of applicant's service in the Armed Forces, shall be alleged in the application filed under the provisions of subsection (a) of this section, and proved at any hearing thereon. Such allegation and proof shall also be made as to any period between the termination of applicant's service and the filing of the application for naturalization. 

(d) The applicant shall comply with the requirements of section 316(a) of this title, if the termination of such service has been more than six months preceding the date of filing the application for naturalization, except that such service within five years immediately preceding the date of filing such application shall be considered as residence and physical presence within the United States. 

(e) Any such period or periods of service under honorable conditions, and good moral character, attachment to the principles of the Constitution of the United States, and favorable disposition toward the good order and happiness of the United States, during such service, shall be proved by duly authenticated copies of the records of the executive departments having custody of the records of such service, and such authenticated copies of records shall be accepted in lieu of compliance with the provisions of section 316(a) . 

(f)  Citizenship granted pursuant to this section may be revoked in accordance with section 340 if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years. Such ground for revocation shall be in addition to any other provided by law, including the grounds described in section 340. The fact that the naturalized person was separated from the service under other than honorable conditions shall be prove d by a duly authenticated certification from the executive department under which the person was serving at the time of separation. Any period or periods of service shall be proved by duly authenticated copies of the records of the executive departments having custody of the records of such service.

(g)  Not later than 6 months after receiving an application for naturalization filed by a current member of the Armed Forces under subsection (a), section 329(a), or section 329A, by the spouse of such member under section 319(b), or by a surviving spouse or child under section 319(d), United States Citizenship and Immigration Services shall-

(1) process and adjudicate the application, including completing all required background checks to the satisfaction of the Secretary of Homeland Security; or

(2) provide the applicant with-

(A) an explanation for its inability to meet the processing and adjudication deadline under this subsection; and

(B) an estimate of the date by which the application will be processed and adjudicated.

(h)  The Director of United States Citizenship and Immigration Services shall submit an annual report to the Subcommittee on Immigration, Border Security, and Refugees and the Subcommittee on Homeland Security of the Senate and the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and the Subcommittee on Homeland Security of the House of Representatives that identifies every application filed under subsection (a), subsection (b) or (d) of section 319 , section 329(a) , or section329A that is not processed and adjudicated within 1 year after it was filed due to delays in conducting required background checks.


Regulations

8 CFR PART § Sec. 316.2 Eligibility.


(a) General. Except as otherwise provided in this chapter, to be eligible for naturalization, an alien must establish that he or she:


(1) Is at least 18 years of age;


(2) Has been lawfully admitted as a permanent resident of the United States;


(3) Has resided continuously within the United States, as defined under § 316.5, for a period of at least five years after having been lawfully admitted for permanent residence; (Revised 2/3/95; 60 FR 6647)


(4) Has been physically present in the United States for at least 30 months of the five years preceding the date of filing the application;


(5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, has resided, as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence; (Amended effective 11/28/2011, 76 FR 53764)


(6) Has resided continuously within the United States from the date of application for naturalization up to the time of admission to citizenship;


(7) For all relevant time periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and


(8) Is not a person described in Section 314 of the Act relating to deserters of the United States Armed Forces or those persons who departed from the United States to evade military service in the United States Armed Forces.


(b) Burden of proof. The applicant shall bear the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant's initial entry or any subsequent reentry. (Revised 9/24/93; 58 FR 49912)



8 CFR PART § Sec. 316.4 Application; documents.


(a) The applicant shall apply for naturalization in accordance with instructions provided on the form prescribed by USCIS for that purpose. (Revised effective 11/28/11, 76 FR 53764)(Previous paragraph (a)(2) amended effective 1/20/99, 63 FR 70313; amended 3/29/98, 63 FR 12979 and delayed effective 3/20/96, 60 FR 14353) (Previous paragraph (a)(3) redesignated effective 3/29/98, 63 FR 12979)

(b) At the time of the examination on the application for naturalization, the applicant may be required to establish the status of lawful permanent resident by submitting the original evidence, issued by the Service, of lawful permanent residence in the United States. The applicant may be also required to submit any passports, or any other documents that have been used to enter the United States at any time after the original admission for permanent residence. (Removed, and redesignated effective 11/28/11 - previously paragraph (c), 76 FR 53764)(Previous paragraph (b) added effective 3/29/98, 63 FR 12979)(Previous paragraph (c) redesignated 3/29/ 98, 63 FR 12979)


8 CFR PART §  Sec. 316.5 Residence in the United States.


(a) General. Unless otherwise specified, for purposes of this chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6), an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.


(b) Residences in specific cases.


(1) Military personnel. For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under part 328 of this chapter, the applicant's residence shall be:


(i) The State or Service District where the applicant is physically present for at least three months, immediately preceding the filing of an application for naturalization, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act;


(ii) The location of the residence of the applicant's spouse and/or minor child(ren); or


(iii) The applicant's home of record as declared to the Armed Forces at the time of enlistment and as currently reflected in the applicant's military personnel file.


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


(i) Where that institution is located; or


(ii) In the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process.


(3) Commuter aliens. An applicant who is a commuter alien, as described in § 211.5 of this chapter, must establish a principal dwelling place in the United States with the intention of permanently residing there, and must thereafter acquire the requisite period of residence before eligibility for naturalization may be established. Accordingly, a commuter resident alien may not apply for naturalization until he or she has actually taken up permanent residence in the United States and until such residence has continued for the required statutory period. Such an applicant bears the burden of providing evidence to that effect.


(4) Residence in multiple states. If an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed.


(5) Residence during absences of less than one year.


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


(ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in § 316.2(a)(5) when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization. 

    (6) Spouse of military personnel. Pursuant to section 319(e) of the Act, any period of time the spouse of a United States citizen resides abroad will be treated as residence in any State or district of the United states for purposes of naturalization under section 316(a) or 319(a)of the Act if, during the period of time abroad, the applicant establishes that he or she was: (Paragraph (b)(6) added effective 11/28/11, 76 FR 53764)

        (i) The spouse of a member of the Armed Forces;

        (ii) Authorized to accompany and reside abroad with that member of the Armed Forces pursuant to the member's official orders; and

        (iii) Accompanying and residing abroad with that member of the Armed Forces in martial union in accordance with 8 CFR 319.1(b).


(c) Disruption of continuity of residence


(1) Absence from the United States.


(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)


(A) The applicant did not terminate his or her employment in the United States;


(B) The applicant's immediate family remained in the United States;


(C) The applicant retained full access to his or her United States abode; or


(D) The applicant did not obtain employment while abroad.


(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under § 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)


(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. (Revised 2/3/95; 60 FR 6647)


(3) Removal and return. Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part. (Revised effective 4/1/97; 62 FR 10312)


8 CFR PART § Sec. 316.10 Good moral character.


(a) Requirement of good moral character during the statutory period.


(1) An applicant for naturalization bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character. This includes the period between the examination and the administration of the oath of allegiance.


(2) In accordance with Section 101(f) of the Act, the Service shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen in the community of residence. The Service is not limited to reviewing the applicant's conduct during the five years immediately preceding the filing of the application, but may take into consideration, as a basis for its determination, the applicant's conduct and acts at any time prior to that period, if the condu ct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character.


(b) Finding of a lack of good moral character.


(1) An applicant shall be found to lack good moral character, if the applicant has been:


(i) Convicted of murder at any time; or (Revised 9/24/93; 58 FR 49913)


(ii) Convicted of an aggravated felony as defined in Section 101(a)(43) of the Act on or after November 29, 1990. (Revised 9/24/93; 58 FR 49913)


(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:


(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in Section 212(a)(2)(A)(ii)(II) of the Act;


(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;


(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;


(iv) Admits committing any criminal act covered by paragraphs (b)(2)(i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;


(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);


(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;


(vii) Is or was involved in prostitution or commercialized vice as described in Section 212(a)(2)(D) of the Act;


(viii) Is or was involved in the smuggling of a person or persons into the United States as described in Section 212(a)(6)(E) of the Act;


(ix) Has practiced or is practicing polygamy;


(x) Committed two or more gambling offenses for which the applicant was convicted;


(xi) Earns his or her income principally from illegal gambling activities; or


(xii) Is or was a habitual drunkard.


(3) Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:


(i) Willfully failed or refused to support dependents;


(ii) Had an extramarital affair which tended to destroy an existing marriage; or


(iii) Committed unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec.316.10(b)(1) or (2).


(c) Proof of good moral character in certain cases


(1) Effect of probation or parole. An applicant who has been on probation, parole, or suspended sentence during all or part of the statutory period is not thereby precluded from establishing good moral character, but such probation, parole, or suspended sentence may be considered by the Service in determining good moral character. An application will not be approved until after the probation, parole, or suspended sentence has been completed.


(2) Full and unconditional executive pardon.


(i) Before the statutory period. An applicant who has received a full and unconditional executive pardon prior to the beginning of the statutory period is not precluded by Sec.316.10(b)(1) from establishing good moral character provided the applicant demonstrates that reformation and rehabilitation occurred prior to the beginning of the statutory period.


(ii) During the statutory period. An applicant who receives a full and unconditional executive pardon during the statutory period is not precluded by Sec.316.10(b)(2)(i) and (ii) from establishing good moral character, provided the applicant can demonstrate that extenuating and/or exonerating circumstances exist that would establish his or her good moral character.


(3) Record expungement.


(i) Drug offenses. Where an applicant has had his or her record expunged relating to one of the narcotics offenses under Section212(a)(2)(A)(i)(II) and Section 241(a)(2) (B) of the Act, that applicant shall be considered as having been "convicted" within the meaning of Sec. 316.10(b)(2)(ii), or, if confined, as having been confined as a result of "conviction" for purposes of Sec. 316.10(b)(2)(iv).


(ii) Moral turpitude. An applicant who has committed or admits the commission of two or more crimes involving moral turpitude during the statutory period is precluded from establishing good moral character, even though the conviction record of one such offense has been expunged.



(4) Readmission after a deferred inspection or exclusion proceeding. An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under Sec. 316.2(a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.


(d) Application for benefits with respect to absences; appeal.


(1) Preservation of residence under Section 316(b) of the Act.


(i) An application for the residence benefits under section 316(b) of the Act to cover an absence from the United States for a continuous period of one year or more shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's employment commences, but must be filed before the applicant has been absent from the United States for a continuous period of one year.


(ii) An approval of Form N-470 under Section 316(b) of the Act shall cover the spouse and dependent unmarried sons and daughters of the applicant who are residing abroad as members of the applicant's household during the period covered by the application. The notice of approval, Form N-472, shall identify the family members so covered.


(iii) An applicant whose Form N-470 application under Section 316(b) of the Act has been approved, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, raises a rebuttable presumption that the applicant has relinquished a claim of having retained lawful permanent resident status while abroad. The applicant's family members who were covered under Section 316(b) of the Act and who were listed on the applicant's Form N-472 will also be subject to the rebuttable presumption that they have relinquished their claims to lawful permanent resident status.


(2) Preservation of residence under Section 317 of the Act. An application for the residence and physical presence benefits of Section 317 of the Act to cover any absences from the United States, whether before or after December 24, 1952, shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's absence from the United States or the performance of the functions or services described in Section 317 of the Act.


(3) Approval, denial, and appeal. The applicant under paragraphs (d)(1) or (d)(2) of this section shall be notified of the Service's disposition of the application on Form N-472. If the application is denied, the Service shall specify the reasons for the denial, and shall inform the applicant of the right to appeal in accordance with the provisions of part 103 of this chapter.


8 CFR PART § Sec. 316.11 Attachment to the Constitution; favorable disposition towards the good order and happiness.


(a) General. An applicant for naturalization must establish that during the statutorily prescribed period, he or she has been and continues to be attached to the principles of the Constitution of the United States and favorably disposed toward the good order and happiness of the United States. Attachment implies a depth of conviction which would lead to active support of the Constitution. Attachment and favorable disposition relate to mental attitude, and contemplate the exclusion from citizenship of applica nts who are hostile to the basic form of government of the United States, or who disbelieve in the principles of the Constitution.


(b) Advocacy of peaceful change. At a minimum, the applicant shall satisfy the general standard of paragraph (a) of this section by demonstrating an acceptance of the democratic, representational process established by the Constitution, a willingness to obey the laws which may result from that process, and an understanding of the means for change which are prescribed by the Constitution. The right to work for political change shall be consistent with the standards in paragraph (a) of this section only if the changes advocated would not abrogate the current Government and establish an entirely different form of government.


(c) Membership in the Communist Party or any other totalitarian organization. An applicant who is or has been a member of or affiliated with the Communist Party or any other totalitarian organization shall be ineligible for naturalization, unless the applicant's membership meets the exceptions in Sections 313 and 335 of the Act and § 313.4 of this chapter.