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

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

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

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

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

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

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

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

Crimes Against The Person

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

Crimes Against Property

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

Sexual and Family Crimes

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

Crimes Against the Government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) Conditional Bars to Establishing Good Moral Character .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Legalization or Special Agricultural Worker (SAW) fraud . The legalization regulations at 8 CFR 245a.3(n)(4(ii) and 8 CFR 245a.4(b)(23)(iv) permit information contained in granted legalization files (W16 and W26) to be used at a later date to make a decision on a naturalization application. Naturalization may be denied if the applicant fraudulently gained lawful permanent residence through a legalization application USCIS can establish was fraudulent. You may not use information contained in SAW files (S16 and S26) to make a decision on a naturalization application . The confidentiality clause prohibits you from questioning an applicant regarding any information provided by the applicant relative to his or her SAW application. See section 210(a)(6)(A) of the Act. Further, Matter of Masri , 22 I&N Dec. 1145 (BIA 1999) states the following:

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

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

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

74.1 General Information and Introduction to Form N-400

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

74.2(a) Part 1: Information About You

74.2(b) Part 2 of the N-400

74.2(c) Part 3 of the N-400

74.2(d) Part 4 of the N-400

74.2(e) Part 5 of the N-400

74.2(f) Part 6 of the N-400

74.2(g) Part 7 of the N-400

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

74.2(i) Part 9 of the N-400

74.2(j) Part 10 of the N-400

74.2(k) Part 11 of the N-400

74.2(l) Part 12 of the N-400

74.3 Closing Actions

Citizenship, Acquisition and Derivation, Child Citizenship Act

Citizenship: Acquisition and Derivation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


The general requirements for “Acquisition” are:


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– naturalization of parent(s).

– legal custody when there has been a legal separation.

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

–naturalization of a surviving parent

– lawful admission for permanent residence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(f) Adjudicating the Application .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

(3) Supplementary Actions .


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

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

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

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

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

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

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

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

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

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

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

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

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

USCIS Civil Surgeons Locator, Adjustment of status, Permanent Resident, Green Card, Civil Surgeons Illinois, Medical Exam Form I-693

All applicants for adjustment of status are required to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the U.S. Citizenship and Immigration Service (USCIS). The designated civil surgeon is responsible for the entire medical examination, and will record the results on Form I-693. The required medical exam consists of a physical examination, a tuberculin (TB) skin test and a serologic (blood) test. The designated civil surgeon must perform these tests in accordance with the Technical Instruction for the Medical Examination of Aliens in the United States, published by the Centers for Disease Control and Prevention (CDC). The Form I-693 will be given to you in a sealed envelope to present to the USCIS. You should not open the sealed envelope. The requirements of the medical examination are as follows:

PHYSICAL EXAMINATION: Required of ALL applicants.

TUBERCULIN (TB) SKIN TEST: Required of ALL APPLICANTS TWO YEARS OF AGE AND OLDER. Applicants under the age of two may be required to have a tuberculin skin test if tuberculosis is suspected, if the applicant has a history of contact with a known TB case, and/or if there is any other reason to suspect TB. A chest x-ray is required only if the reaction to the TB skin test is 5mm or greater.

SEROLOGIC (BLOOD) TEST: Required of ALL APPLICANTS 15 YEARS OF AGE AND OLDER. The serologic test will include tests for the virus that causes the acquired immune deficiency syndrome (AIDS). Applicants under the age of 15 must be tested if there is reason to suspect HIV infection.

USCIS Civil Surgeons Locator
https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator. office_type=CIV
______________________________

From: Michael Aytes /s/ Associate Director, Domestic Operations
Date: January 3, 2007

Re: Extension of Validity of Medical Certifications on Form I-693

This memorandum temporarily extends the validity of civil surgeon endorsements on Form I-693 for certain adjustment of status applicants.

For adjustment of status applicants, the endorsement of a civil surgeon on Form I-693, Medical Examination of Aliens Seeking Adjustment of Status, is generally valid for one year. Some adjustment of status applications are concurrently filed with an immigrant visa petition as provided for at 8 CFR 245.2(a) (2).

These applications are filed with a Form I-693 as required by 8 CFR 245.5. Some of these applications remain pending for more than the one-year validity period.

In a policy memorandum dated January 11, 2006, U.S. Citizenship and Immigration Services (CIS) extended the validity of the civil surgeon endorsement on Form I-693 until the adjustment of status application could be adjudicated. This policy was issued in consultation with the Centers for Disease Control and Prevention (CDC) and is limited to those applications where no Class A or Class B medical condition was certified. The policy is in effect until January 1, 2007.

Due to the continuing backlog of some concurrently filed adjustment of status applications, the validity of the civil surgeon’s endorsement on Form I-693, when submitted in support of a concurrently filed adjustment of status application as provided for at 8 CFR 245.2(a) (2), is extended until the time of adjudication if no Class A or Class B medical condition is certified by the civil surgeon. This policy will be in effect until January 1, 2008.

Download Memo: http://www.uscis.gov/files/pressrelease/I693MedExt010307.pdf

_____________________________________________________

Medical Examinations.

(a) Medical Grounds of Inadmissibility Defined . Section 212(a)(1)(A) of the Act designates four categories that render an applicant for a visa, admission, or adjustment of status inadmissible on medical grounds. The medical grounds are determined according to the regulations published by the Department of Health and Human Services (HHS) at 42 CFR part 34. The required medical exam, discussed in Chapter 23.3(b), below, must be performed according to the specific guidelines published by the Centers for Disease Control and Prevention (CDC). These are the Technical Instructions for the Medical Examination of Aliens in the United States , used by civil surgeons in the United States, and the Technical Instructions for the Medical Examination of Aliens , used by panel physicians abroad. ( Technical Instructions) . The Technical Instructions have the force of a regulation. See 42 CFR 34.3(f). They can be accessed online at: www.cdc.gov/ncidod/dq/technica.htm . If the medical condition found by the panel physician or civil surgeon falls under any of the four categories described below, the civil surgeon or panel physician must certify it as Class A in order for the applicant to be inadmissible on medical grounds. Class B medical conditions are defined at 42 CFR § 34.2(e) as physical or mental abnormalities, diseases, or disabilities serious in degree or permanent in nature amounting to a substantial departure from normal well-being; however, they do not render the applicant inadmissible on medical grounds. Waivers are discussed in Chapter 41.3.

(1) Section 212(a)(1)(A)(i) of the Act . This ground of inadmissibility covers individuals who are found to have a communicable disease of public health significance, including, “. . . infection with the etiologic agent for acquired immune deficiency syndrome.” The HHS regulations that define a communicable disease of public health significance are found at 42 CFR § 34.2(b). The following eight conditions are listed: chancroid; gonorrhea; granuloma inguinale; acquired immune deficiency syndrome (HIV/AIDS); Hansen’s disease (infectious leprosy); lymphogranuloma venereum; infectious state syphilis; and infectious tuberculosis (TB). Note that, for TB, only Class A TB renders the applicant inadmissible under section 212(a)(1)(A)(i) of the Act. Under current CDC guidelines, Class A TB means tuberculosis that is clinically active and infectious (communicable).

(2) Section 212(a)(1)(A)(ii) of the Act . This ground covers only immigrant visa and adjustment of applicants who have not received all of the required vaccinations. See Chapter 23.3(g) further below.

(3) Section 212(a)(1)(A)(iii) of the Act . This ground covers individuals who have a physical or mental disorder or harmful behavior associated with that disorder. It is further divided into two subcategories:

(I) Current physical or mental disorders, with harmful behavior associated with that disorder; and

(II) Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

Note 1: Harmful behavior is defined under section 212(a)(1)(A)(iii) of the Act as behavior that “. . . may pose, or has posed, a threat to the property, safety, or welfare of the alien or others . . . .”

Note 2: Mental retardation no longer renders an applicant inadmissible on medical grounds, unless the civil surgeon or panel physician determines that the applicant is also exhibiting or has exhibited in the past, associated harmful behavior, as described in Note 1.

(4) Section 212(a)(1)(A)(iv) of the Act . This ground of inadmissibility covers individuals who are found to be drug abusers or drug addicts. The Technical Instructions published by the CDC refer to the nonmedical use of a psychoactive substance, and make an exception for experimentation. The CDC has instructed civil surgeons and panel physicians to use their clinical judgement and/or seek a consultation when facing a situation where the applicant’s medical history indicates past nonmedical use of a psychoactive substance or when there is a clinical question as to whether the use was experimental or part of a pattern of abuse. If you have valid reasons to question the com pleteness or accuracy of the medical exam report, you may direct the applicant to return to the civil surgeon or panel physician for a reexamination or ask the CDC to review the medical report.

(b) Aliens Required to Have a Medical Examination . Because section 212(a)(1)(A) of the Act states that all medical-related grounds of inadmissibility are determined “. . . in accordance with regulations prescribed by the Secretary of Health and Human Services,” the applicant’s own admission is not sufficient to uphold a finding of inadmissibility on medical grounds. A medical examination performed by panel physician designated by the Department of State or a civil surgeon designated by the district director is required. Hill v. INS, 714 F 2d. 1470 (9 th Cir. 1983). The following requirements apply with respect to medical examinations.

(1) Immigrant Visa Applicants . Per section 221(d) of the Act, all individuals applying for an immigrant visa must submit to a medical examination before the visa is issued.

(2) Refugees Applying for Admission under Section 207 of the Act . Per section 207(c)(1) of the Act, all individuals applying for admission as refugees must, among other requirements, establish that they are admissible to the United States, or establish eligibility for a waiver as provided under section 207(c)(3) of the Act. Because the medical grounds of inadmissibility under section 212(a)(1)(A) of the Act apply, a medical exam is required. For a discussion of the vaccination requirements specifically as they apply to refugees, refer to Chapter 23.3(g)(4)(C).

(3) Adjustment of Status Applicants . Per section 245(a)(2) of the Act, an individual applying for adjustment of status to that of a permanent resident must be “eligible to receive an immigrant visa and [be] admissible to the United States for permanent residence. . . .” Thus, to comply with the visa issuance requirements of sections 221(d) and 245(a)(2) of the Act, and the medical grounds of inadmissibility under section 212(a)(1)(A) of the Act, all individuals applying for adjustment of status under section 245 of the Act are required to ha ve as part of their applications for adjustment of status:

• A valid medical examination (Form I-693, Medical Examination of Aliens Seeking Adjustment of Status ), properly endorsed by a physician authorized to conduct medical examinations for this purpose; and

• A certificate establishing compliance with the vaccination requirements described in section 212(a)(1)(A)(ii) of the Act, unless otherwise exempt. For ease of reading, the vaccination supplement to Form I-693 is referred to in this guidance as the “vaccination sign-off.”

(4) Presumption of Lawful Admission Cases, Section 249 Registry Cases, and Section 289 Indian Cases . A medical examination is not required.

(5) Nonimmigrants .

(A) General . Per section 221(d) of the Act, a consular officer may, prior to the issuance of a nonimmigrant visa, require the applicant to submit to a physical or mental examination or both, if considered necessary to determine whether the applicant is eligible to receive the visa. Similarly, CBP officers at ports-of-entry may require a nonimmigrant (arriving with or without a visa) to submit to a medical examination if necessary to determine whether a medical ground of inadmissibility under section 212(a)(1)(A) of th e Act applies.

(B) Nonimmigrants under Section 101(a)(15)(K) or (V) of the Act . Individuals outside the United States applying for nonimmigrant visas under any provision of section 101(a)(15)(K) or (V) of the Act must undergo a medical exam by a panel physician as part of the visa application process. Individuals in the United States applying for change of status to that of a “V” nonimmigrant pursuant to section 214(o) of the Act must submit with their application a medical exam report (Form I-693) completed by a designated civil surgeon. The vaccination requirements of section 212(a )(1)(A)(ii) of the Act do not apply at this stage of the process. See also Chapter 23.3(g)(4)(J).

(c) Authorized Civil Surgeons . If Form I-693 and the accompanying vaccination supplement have been endorsed by anyone other than a designated civil surgeon, they must be returned to the applicant for corrective action. To verify whether the physician that performed the medical exam is a civil surgeon, go to the USCIS website. The list of designated civil surgeons is found at the end of each individual office profile. Select the office and check the civil surgeon list maintained in the local office profile for the USCIS district where the medical exam was performed. If you cannot access this information from the USCIS intranet, refer to Appendix 23-1 of this field manual from the latest version of I-LINK. The civil surgeon listing found in Appendix 23-1 is divided into three parts (23-1A, 23-1B, and 23-1C) representing the Eastern, Central, and Western regions, respectively. Note, however, that the civil surgeon list maintained on the website is updated daily. Therefore, try to clarify any discrepancies through your district/sub-office and/or your regional point of contact (POC), before you return the case for evidence (RFE the case). If you have reaso n to doubt the authenticity of the endorsement by a civil surgeon within your district, refer to the file maintained in your district office. If you have doubts about the authenticity of an endorsement by a civil surgeon located in another district, consult informally (i.e., by telephone and fax machine) with the Adjudications section of that district office. If informal consultation does not clear up all doubts, refer the matter formally through a request for an auxiliary investigation (see AFM Chapter 10.14 ). See AFM Chapter 83 for the procedures to be followed for certifying, reviewing, and decertifying civil surgeons.

(d) Submission of the Medical Examination Report . According to Form I-485, Application to Register Permanent Residence or Adjust Status , which was last revised on February 27, 2000, the following instructions apply:

• Applications Filed at a Service Center : Individuals applying through a USCIS Service Center (including asylees adjusting under section 209 of the Act), must submit the medical examination report with the adjustment of status application. Note that refugees need only submit the vaccination supplement to Form I-693 (not the entire Form I-693) if there were no medical grounds of inadmissibility that arose during the initial medical exam performed overseas. See 8 CFR § 209.1(c).

• Applications Filed at a District Office : Individuals applying for adjustment of status through a district or sub-office do not submit Form I-693 with the initial filing. Rather, they should be provided instructions about the medical examination in conjunction with the notice of their in-person interview. See Chapter 23.3(g) for information about the specific situations applicable to K and V nonimmigrants.

(e) Validity of Medical Certifications.

(1) General . [Revised as of January 3, 2008; AD 07-22.] Form I-693 is normally valid for a period of 1 year from the date it was endorsed by the civil surgeon. In accordance with the agreements reached between USCIS and the CDC, if the adjustment of status application has been pending for over 1 year and Form I-693 was included with the initial filing, the adjudicating officer may accept a medical exam report that is more than 1 year old because of the pending adjustment of status application, IF there was no Class A or B medical condition noted. This agreement is in effect until January 1, 2008. See January 3, 2007, Extension of Validity of Medical Certifications on Form I-693. http://www.uscis.gov/files/pressrelease/I693MedExt010307.pdf

(2) K and V nonimmigrants . A new medical exam is not required in order to apply for adjustment of status to that of a lawful permanent resident, if one of the following scenarios exists:

• The applicant is a K or V nonimmigrant and the medical exam did not reveal any Class A or B medical condition, and the application for adjustment of status was filed within 1 year of the date of the original medical exam. If these requirements are met, the medical exam remains valid until the date USCIS adjudicates the adjustment of status application; or

• The applicant is a K or V nonimmigrant who received a conditional waiver under section 212(g) of the Act in conjunction with the K or V nonimmigrant visa or the change of status to V. The section 245 adjustment of status application must be filed with USCIS within 1 year of the date of the original medical exam, and the applicant must submit evidence of compliance with the specific terms and conditions imposed on the waiver. The medical exam remains valid until the date USCIS adjudicates the adjustment of status application. If these requirements have not been met, a new medical examination is required. And, if that new medical examination reveals a Class A medical condition, a new waiver application will also be required. In such cases, determine whether the applicant complied with the terms and conditions of the first waiver. That determination should be given considerable weight in the adjudication of a subsequent waiver application.

Note: Although there may be cases where a new medical exam is not required, compliance with the vaccination requirements is still required, as the vaccination sign-off was not included as part of the original medical exam report. See Chapter 23.3(g)(4)(J).

(f) Review of Form I-693 . For those applicants required to undergo a complete medical exam, review Form I-693 to ensure compliance with the following requirements:

(1) Form I-693 Must Be Signed by a Designated Civil Surgeon . To verify whether the physician who performed the medical exam is a designated civil surgeon, refer to the instructions in Chapter 23.3(b).

(2) Form I-693 Must Be Completed Legibly in English and Must Be in a Sealed Envelope . The results must be typed or printed legibly and placed in an envelope sealed by the civil surgeon. If Form I-693 has not been dated and signed by the civil surgeon, has not been completed legibly in English, or if the envelope was not sealed by the civil surgeon or there is evidence of tampering with the sealed envelope, return a copy of the I-693 to the applicant for corrective action.

(3) Form I-693 Must Clearly Indicate That All Required Tests Were Performed and the Results . The medical examination must include all evaluations/assessments/tests necessary to determine whether the applicant is inadmissible on medical grounds under section 212(a)(1)(A) of the Act. Findings of physical and mental disorders and drug abuse must be indicated in the "Remarks" section of Form I-693. If an applicant has been referred for further evaluation for a communicable disease of public health significance, physical or mental disorders with associated harmful behavior, psychoactive substance abus e or other physical or mental abnormalities, diseases or disabilities, the medical report must be accompanied by a definitive diagnosis (or a short list of likely diagnoses) and a statement as to whether the presence or absence of a Class A or Class B medical condition has been established. If the findings have not been clearly stated, return a copy of Form I-693 to the applicant for corrective action.

(4) Form I-693 Must Be Accompanied by a Properly Completed Vaccination Supplement, Unless the Applicant Is Applying for “Adjustment” of Status to V . For a complete discussion of the vaccination requirements and review of the vaccination supplement, refer to Chapter 23.3(g). For a discussion of waiver issues related to the vaccination requirements, see Chapter 41.3(b).

(5) Required Testing . All applicants must undergo a general physical examination and a mental status evaluation. In addition, other tests may be required depending on the applicant’s age and/or possible exposure to a particular disease. If all required tests/evaluations have not been performed, return a copy Form I-693 to the applicant for corrective action.

• Tuberculin (TB) Skin Test : All applicants 2 years of age and older must have a tuberculin skin test (TST). Civil surgeons may require an applicant who is less than 2 years of age to have a TST if he or she has a history of contact with a known TB case, or if there is any other reason to suspect TB disease. If the applicant’s reaction to the TST is 4 millimeters or less, no further testing is required. A chest X-ray is required only when the reaction to the TST is 5 millimeters or more. If the civil surgeon has performed a chest x-r ay for TB, but not a TST, the USCIS office that granted the civil surgeon designation should advise the civil surgeon in writing of the deficiency and of the need to comply with CDC’s Technical Instructions . Forward a copy of the letter and Form I-693 to CDC at the following address:

Chief, Migration Health Assessment Section

Division of Global Migration and Quarantine (E03)

Centers for Disease Control and Prevention (CDC)

Atlanta, Georgia 30333.

If the same civil surgeon receives two such letters of corrective action, the District Director may take appropriate steps to revoke the civil surgeon designation. See Chapter 83.4(c).

• Serologic (blood) tests . All applicants 15 years of age and older must undergo serologic (blood) testing for syphilis and human immunodeficiency virus (HIV) infection. Applicants under the age of 15 must undergo serologic testing if there is reason for the civil surgeon or for DHS to suspect infection.
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Vaccinations.

Section 212(a)(1)(A)(ii) of the Act requires all immigrant visa and adjustment of status applicants to establish that they have been vaccinated against certain vaccine-preventable diseases. Section 212(g)(2) of the Act authorizes waivers in certain instances. To implement the vaccination requirements and the corresponding waiver provisions, USCIS developed streamlined procedures whereby certain individuals may be granted a waiver without the need to file a form or pay a fee. Furthermore, those applicants who are not covered under the streamlined procedures may apply for a waiver on an individual basis. Refer to Chapter 41.3(b) for additional information about these procedures.

(1) Vaccination Requirements Defined . Section 341 of the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) created an additional medical ground of inadmissibility under section 212(a)(1)(A)(ii) of the Act relating to vaccinations. Individuals who are subject to the vaccination requirements who have not complied (or who are unable to submit acceptable proof of compliance) are inadmissible under section 212(a)(1)(A)(ii) of the Act, unless they are fully vaccinated or receive a waiver.

(2) Effective Date . The vaccination requirements became effective on the IIRIRA enactment date, September 30, 1996, and apply with respect to all immigrant visa and adjustment of status applications filed on or after that date.

(3) Required Vaccinations . Section 212(a)(1)(A)(ii) of the Act specifies the following vaccinations: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type b, and hepatitis B. Section 212(a)(1)(A)(ii) of the Act states that the applicant is also required to have any other vaccinations recommended by the Advisory Committee on Immunization Practices (ACIP). The ACIP provides guidelines on appropriate doses of vaccines at specific intervals for specific age groups. The varicella, influenza, and pneumococcal vaccines are also required, because they are currently recommended by the ACIP.

(4) Applicability . Section 212(a)(1)(A)(ii) of the Act states that the vaccination requirements apply with respect to anyone who “. . . seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence . . . .” Thus, the applicability of the vaccination requirements depends on the specific immigration benefit the applicant is seeking. The following list clarifies these distinctions for purposes of section 212(a)(1)(A)(ii) of the Act:

(A) Adjustment of Status and Immigrant Visa Applicants . All adjustment of status and immigrant visa applications filed on or after September 30, 1996, must be sufficient to establish compliance with the vaccination requirements under section 212(a)(1)(A)(ii) of the Act or eligibility for a waiver. The waiver provisions and application procedures are addressed in Chapter 41.3 of this field manual.

(B) Refugees Making an Initial Application for Admission under Section 207 of the Act . USCIS has determined that the vaccination requirements do not apply to individuals seeking admission to the United States as refugees under section 207 of the Act, because there is no application for an immigrant visa or for adjustment of status at this stage of the process. Therefore, the results of a medical examination performed abroad for a refugee seeking admission to the United States under section 207 of the Act need not include the results of a vaccination assessment. DHS officers at ports-of-entry shoul d not refuse admission to refugees solely because they have not yet complied with the vaccination requirements.

(C) Refugees Applying for Adjustment of Status under Section 209 of the Act . Refugees must satisfy the vaccination requirements under section 212(a)(1)(A)(ii) of the Act when they apply for adjustment of status under section 209 of the Act, 1 year following their admission under section 207 of the Act.

The regulations at 8 CFR § 209.1(c) state that "[u]nless there were medical grounds for exclusion at the time of arrival, a United States Public Health Service medical examination is not required." The term “medical ground for exclusion” means only Class A medical conditions. Therefore, a refugee who received a medical exam in conjunction with the initial application for admission under section 207 of the Act generally does not need to repeat the entire medical exam. He or she does, however, need the vaccin ation sign-off from the civil surgeon when adjusting under section 209 of the Act 1 year later. Consequently, USCIS officers should not require refugees to repeat the entire medical exam if it did not reveal a Class A medical condition. A refugee who was found to have any Class B medical condition that would result in any medical ineligibility under section 212(a)(1)(A) of the Act, without proper medical care or follow up, must submit evidence establishing compliance with any follow up examinations or treatment, as may have been required as a condition of the original admission.

Although a new medical examination may not be required, the refugee must nevertheless establish compliance with the vaccination requirements of section 212(a)(1)(A)(ii) of the Act at the time of adjustment under section 209 of the Act, by submitting a vaccination supplement completed by a designated civil surgeon or in certain cases, by a state or local health department official. For information about the designation of state and local health departments as civil surgeons for refugees adjusting under secti on 209 of the Act who need only the vaccination sign-off, refer to Chapter 83.4(b) of this field manual.

(D) Asylees Making an Initial Application for Asylum under Section 208 of the Act . Individuals applying for asylum under section 208 of the Act are not subject to the vaccination requirements under section 212(a)(1)(A)(ii) of the Act. They are not required to undergo a medical exam.

(E) Asylees Applying for Adjustment under Section 209 of the Act . If the asylum application is approved and the individual applies for adjustment of status under section 209 of the Act and 8 CFR § 209.2 at least 1 year later, a complete medical exam is required, including a vaccination assessment, as required under section 212(a)(1)(A)(ii) of the Act. See 8 CFR § 209.2(d).

Note : Regarding Kurdish asylees paroled under Operation Pacific Haven, the INS determined, in consultation with the Centers for Disease Control and Prevention (CDC), that medical examinations performed under Operation Pacific Haven for Kurdish asylees either before arrival or while on Guam are acceptable for purposes of adjustment of status under section 209 of the Act and 8 CFR § 209.2. Kurdish asylees were given copies of these medical reports and should include them with the adjustment application. If the Ku rdish asylee no longer has a copy of the medical report, a new medical exam must be performed by a designated civil surgeon, including the vaccination assessment. In all cases, the adjustment application under 8 CFR § 209.2 submitted by a Kurdish asylee must also include the vaccination sign-off.

(F) Registry Applicants under Section 249 of the Act . Aliens applying for the creation of a record of admission for permanent residence are not required to undergo a medical examination or comply with the vaccination requirements. This is because section 212(a)(1) of the Act is not among the grounds of inadmissibility or ineligibility specified in section 249 of the Act.

(G) North American Indians . American Indians born in Canada who meet the requirements described in the regulations at 8 CFR §§ 289.1 and 289.2 may be regarded as having been lawfully admitted for lawful permanent residence. Because such lawful admission is recorded on Form I-181, and neither an immigrant visa nor an adjustment of status application is required, the applicant is not required to establish compliance with the vaccination requirements. Therefore, officers at ports-of-entry should not consider the vaccination requirement s in determining the eligibility of North American Indians seeking benefits under section 289 of the Act and 8 CFR part 289.

(H) Children of Returning Residents (XA and NA Babies) . This group covers children born abroad either subsequent to the issuance of an immigrant visa to a parent applying for admission while the visa remains valid, or during the temporary visit abroad of a mother who is a national or permanent resident of the United States. Until further notice, continue admitting these two groups of children under the procedures in effect prior to the implementation of IIRIRA (i.e., with no medical or vaccination requirement).

(I) Nonimmigrants . Except as provided in paragraphs (J) and (K), individuals applying for a nonimmigrant visa under any provision of section 101(a)(15) of the Act or for admission to the United States as a nonimmigrant, are not required to comply with section 212(a)(1)(A)(ii) of the Act relating to vaccinations.

(J) Special Considerations for K and V Nonimmigrants . The plain language in section 212(a)(1)(A)(ii) of the Act regarding the vaccination requirements refers to applicants for immigrant visas and for adjustment of status. Applicants for visas under section 101(a)(15)(K) or (V) of the Act are not applicants for immigrant visas at this stage of the process. DOS and USCIS have agreed that the required medical examination for K and V nonimmigrants outside of the United States will include the vaccination assessment described in section 212(a)(1)(A)(ii) of the Ac t. The vaccination assessment will be performed in anticipation of the adjustment of status application, to give the applicants the opportunity to retrieve the records for those vaccinations they have already received, while they are still abroad. Individuals in the United States applying for change of status to V will not be required to undergo a vaccination assessment in conjunction with their medical exam, but civil surgeons are not precluded from advising them about the vaccination requirements in antic ipation of their adjustment of status application.

While some panel physicians may elect to indicate the vaccinations already received on the vaccination supplement, consular officers will not refuse the K or V visa and CBP officers will not refuse admission to a K or V nonimmigrant, solely because all of the vaccination requirements have not been met. When the panel physician's report indicates that the applicant lacks certain required vaccines, consular officers will attach a single-page addendum to Form DS-2053 (Formerly Form OF-157), Medical Examination for Immigrant or Refugee Applicant , and the accompanying worksheets, advising the applicant of the need to comply with the vaccination requirements upon the application for adjustment of status in the United States.

(K) Vaccination Requirements for K and V Nonimmigrants Adjusting Status to That of Lawful Permanent Resident under Section 245 of the Act . In certain instances, K and V nonimmigrants are not required to repeat the original medical examination that was performed to obtain that nonimmigrant classification. See Chapter 23.3(d)(2). When this is the case, only the vaccination sign-off is required. The vaccination sign-off must have been done by a designated civil surgeon. If the applicant obtained a K or V nonimmigrant visa overseas, the medical exam report completed by the panel physician overseas, Form DS-2053 and accompanying worksheets, should already be in the alien’s A-File, if it was surrendered at the port-of-entry with the visa packet. Note that, in completing the vaccination sign-off, the designated civil surgeon may accept the vaccination supplement to Form DS-2053 completed by the panel physician overseas and proof of additional vaccines received following the applicant's admission to the United States. If the applicant was granted a change of status to V in the United States under section 214(o) of the Act, the medical exam report completed by the civil surgeon should be in the A-file created at the time that the change of status was initially granted. The applicant will need to return to the civil surge on for the vaccination sign-off. If, however, the requirements of Chapter 23.3(d)(2) have not been met, a new medical examination is required, including the vaccination assessment specified under section 212(a)(1)(A)(ii) of the Act.

(L) Exceptions for Orphans . On November 12, 1997, the President signed into law Pub. L. 105-73. This bill amended section 212(a)(1)(A)(ii) of the Act by creating section 212(a)(1)(A)(ii)(C) to provide exceptions to the vaccination requirements for internationally adopted children 10 years of age or younger. This exception covers children 10 years of age or younger classified as orphans under section 101(b)(1)(F) who are applying for immigrant visas as immediate relatives under section 201(b) of the Act (IR-3 and-4 visas). In order f or the child to benefit from the exception, the adopting parent(s) must sign an affidavit prior to visa issuance. The adopting parent(s) must affirm that the child will receive the required vaccination within 30 days of admission to the United States or at the earliest time that it is medically appropriate. However, noncompliance with the vaccination requirements following the child's admission to the United States is not a ground for removal under section 237 of the Act.

DOS has developed a standard affidavit form to ensure that adopting parents are aware of the possibility of an exception from the vaccination requirements provided under section 212(a)(1)(A)(ii)(C) of the Act, and of their obligation to ensure that the child is vaccinated following admission. The affidavit must be made under oath or affirmation in the presence of either the consular officer or a notary public, and the completed form must be included with Form OF 157.

When the adoptive or prospective adoptive parent cannot sign the affidavit in good faith because of religious or moral objections to vaccinations, the child will require a waiver under section 212(g)(2)(C) of the Act. The requirements for this waiver are described in Chapter 41.3(b) of this field manual.

Criminal Penalties for Marriage Fraud -- 8 U.S.C. § 1325(c) and 18 U.S.C. § 1546

Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. § 1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325 by adding § 1325(c), which provides a penalty of five years imprisonment and a $250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." Under 8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens, including spouses, who are otherwise qualified for admission as immigrants, must be admitted as such, without regard to other, ordinary numerical limitations.

The typical fact pattern in marriage fraud cases is that a U.S. citizen and an alien get married. They fulfill all state law requirements such as medical tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the alien in order to entitle the alien to obtain status as a permanent resident of the United States; the parties do not intend to live together as man and wife. A legal issue arises where the parties tell the INS they are married, and they subjectively believe they are telling the truth because they have complied with state marriage requirements. The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded INS. See Lutwak v. United States, 344 U.S. 604 (1953). Lutwak was followed in United States v. Yum, 776 F.2d 490 (4th Cir. 1985); Johl v. United States, 370 F.2d 174 (9th Cir.1966), and Chin Bick Wah v. United States, 245 F.2d 274 (9th Cir.), cert. denied, 355 U.S. 870 (1957). But see, United States v. Lozano, 511 F.2d 1 (7th Cir.), cert. denied, 423 U.S. 850 (1975); United States v. Diogo, 320 F.2d 898 (2d Cir. 1963). But cf, United States v. Sarantos, 455 F.2d 877 (2d Cir. 1972).

There have been situations where a bona fide marriage turns sour but the alien induces the U.S. citizen spouse to maintain the marriage as a ruse only as long as necessary for the alien to obtain status as a permanent resident alien. There is a line of cases holding that the viability of the marriage, if initially valid, is not a proper concern of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. § 1186a, were designed, inter alia, to eliminate the Qaisi type loophole by establishing a two-year conditional status for alien spouses seeking permanent resident status, and requiring that an actual family unit still remain in existence at the end of the two year period.