Eligibility Requirements for Naturalization, Lawfully Admitted for Permanent Residence

1. Lawfully Admitted for Permanent Residence
2. Continuity of Residence
3. Residency: Jurisdiction
4. Physical Presence
5. Good Moral Character
6. Attachment to the Constitution, English and Civics

Lawfully Admitted for Permanent Residence:

Naturalization applicants must establish that they were “Lawfully Admitted for Permanent Residence”. Every applicant for naturalization must meet this requirement for naturalization unless he or she is specifically exempt. The law provides that special classes of persons may be naturalized based upon active duty service in the United States Armed Forces during specified periods of hostilities. Applicants who qualify for naturalization under these sections of the law are exempted from establishing lawful p ermanent resident status. The law also allows non-citizen nationals to be naturalized without having to be lawfully admitted for permanent residence provided that all other requirements are met.

(a) Introduction . The immigration and nationality laws prescribe eligibility requirements for aliens seeking status benefits in the United States. The highest of those status benefits is naturalization- the process by which an alien is conferred United States citizenship. Section 316(a) and section 318 of the Act outline a general requirement that applicants for naturalization must have previously been “lawfully admitted for permanent residence”. This portion of the manual deals with the relation of the term “lawfully admitted for permanent residence” to eligibility for naturalization. It will also discuss excepted classes of aliens who are eligible to be naturalized without having been lawfully admitted for permanent residence.

b) “ Lawfully Admitted for Permanent Residence” as a Basic Requirement for Naturalization . Generally, to be eligible for naturalization an alien must establish that he or she has been lawfully admitted to the United States for permanent residence. An applicant has the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant’s initial entry or any subsequent reentry. When an alien files an application for naturalization with USCIS , he or she must provide evidence of lawful permanent residence in the United States in the form of photocopies (front and back) of Forms I-551 (Permanent Resident Card), or any other entry document. See section 316(a)(1) of the Act, 8 CFR 316.2(a) , 8 CFR 316.2(b) and 8 CFR 316.4(a)(2) .

(c) Definition of “Lawfully Admitted for Permanent Residence” . The term “lawfully admitted for permanent residence” is defined in the Act as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having been changed.” See section 101(a)(20) of the Act. For purposes of benefits under the Act, an “immigrant” is every alien except an alien who is within one of the classes of nonimmigrant aliens. See section 101(a)(15) of the Act.

(d) Documenting Lawful Permanent Resident Status . USCIS issues a Permanent Resident Card (PRC) to each alien who has been lawfully admitted for permanent residence as evidence of his or her status. The PRC contains the bearer’s alien registration number, name, date of birth, and other biographic information. It also contains the date and the classification under which the alien was accorded lawful permanent resident (LPR) status. This information is used to determine whether an alien may be eligible for naturalization. You must ensure that the date the applican t was granted lawful permanent residence and all other biographic information are the same on the card, application, and the A-file.

Adult permanent resident aliens are required to have the PRC in their possession at all times as evidence of their status. See section 264(e) of the Act. When an applicant who claims to have been lawfully admitted for permanent residence is not in possession of a permanent resident card at the time of his or her naturalization interview, official records of the Service and USCIS must be consulted. You may be able to verify the applicant’s claimed status by carefully reviewing the contents of the A-file. The A-file is a record of the applicant’s interaction with the Service and USCIS. The Central Index System (USCIS) may also be a useful source t o check information as to an applicant’s immigration status. See Chapter 72.2 of this field manual, Examination Preparation, for a complete list of information that an A-file should include.

(e) Burden of Proof to Establish Lawful Permanent Resident Status . Applicants have the burden of proving that they have been lawfully admitted to the United States for permanent residence. The burden of proof shall be upon such person to show that he or she entered the United States lawfully, and the time, place, and manner of such entry into the United States. For example, an applicant who entered the United States as the unmarried child of a United States citizen must establish that he or she was unmarried at the time of visa issuance as well as at the time of entry to the United States.

The applicant must also establish that his or her lawful permanent resident status has not been abandoned or terminated.

At the time of the examination of the application for naturalization, the applicant must be required to establish the lawful permanent resident status by submitting the original evidence, issued by the Service or USCIS, of lawful permanent residence in the United States. The applicant may also be required to submit any passports, or any other documents that have been used to enter the United States at any time after the original admission for permanent residence. See section 318 of the Act, 8 CFR 316.4(a)(2) and 8 CFR 316.4(c) .

(f) Special Classes Exempted from the “Lawfully Admitted for Permanent Residence” Requirement . Two distinct classes of applicants are exempt from establishing lawful admission for permanent residence as a requirement for naturalization. These distinct classes include certain non-citizen nationals of the United States and aliens or non- citizen nationals who have served in the armed forces of the United States under certain specified conditions that are detailed as follows:

(1) Non-citizen Nationals of the United States . The Act provides in section 325 that a “ national of the United States” may, if otherwise qualified, be naturalized if he or she:

• becomes a resident of any State, and

• complies with all other applicable requirements of naturalization laws, except that such applicant can also satisfy the residence and physical presence requirements of sections 316 and 319 of the Act by “residence and physical presence within any of the outlying possessions of the United States.” ( Section 101(a)(29) of the Act defines “outlying possessions of the United States” as American Samoa and Swains Island.)

Nationals of the United States are those individuals born in an outlying possession, i.e. American Samoa or Swains Island. See also section 308 of the Act.

Since these non-citizen nationals of the United States are not aliens within the definition of section 101(a)(3) of the Act, permanent resident alien immigrant visa requirements do not apply to them, and they do not possess a PRC. Consequently, lawful admission for permanent residence is not a requisite for their naturalization. See section 325 of the Act and 8 CFR 325.2

(2) Military Service under Certain Specified Conditions . Section 329 of the Act establishes another class of persons who may be exempt from the “lawfully admitted for permanent residence” requirement, on the basis of active duty service in the United States Armed Forces during specified periods of hostilities. Under that section, any person who, while an alien or non-citizen national of the United States, has served honorably in an active-duty status in the military, air, or naval forces of the United States during:

• World War I (April 6, 1917-November 11, 1918),

• World War II (September 1, 1939-December 31, 1946),

•Korea (June 25, 1950-July 1, 1955),

•Vietnam (February 28, 1961-October 15, 1978),

•Persian Gulf (August 2, 1990-April 11, 1991),
•Operation Enduring Freedom (September 11, 2001-present), or

•any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force, as designated by the President in an executive order and who, if separated from such service, was separated under honorable conditions, may be naturalized provided that all other requirements are met. The terms “served honorably” and “separated under honorable conditions” refer to service or separation from service, which the executive department under which the applicant served has certified to have been honorable.

Persons applying for naturalization under Section 329 of the Act are exempt from the general requirement of having been lawfully admitted for permanent residence. However, to be exempt from this requirement, applicants must establish that at the time of enlistment or induction into the Armed Forces of the United States they were physically present in the United States or its outlying possessions. An applicant who cannot meet this requirement must be a lawful permanent resident on the day he or she files an application for naturalization.

(3) World War II Participants born in the Philippines . The law provides for another special class of aliens who have served honorably in the United States Armed Forces during a certain time period to naturalize provided certain requirements are met. In accordance with section 405 of the Immigration Act of 1990 (IMMACT) , natives of the Philippines with active duty service during World War II may naturalize in compliance with 8 CFR 329.2 , provided that they meet all other requirements that are unique to this special class of aliens. This special class of aliens is also exempt from the lawfully admitted for permanent residence requirement as with other applicants that file for naturalization under 8 CFR 329 . However, in order for an application for naturalization under section 405 of IMMACT to be considered, the application must have been filed with the Service no earlier than November 29, 1990, and no later than February 3, 1995. To qualify for naturalization under section 405 of (IMMACT) , an applicant must in addition to meeting the eligibility requirements stated in 8 CFR 329.2 establish that he or she:

•was born in the Philippines,

• served honorably during the period of September 1, 1939-December 31, and 1946. In an active-duty status under the command of the United States Armed Forces in the Far East or within the Commonwealth Army of the Philippines, the Philippine Scouts, or recognized guerrilla units, and

•resided in the Philippines prior to the service described in bullet number two.

See 8 CFR 329.5 . Regulations require these applicants to submit certain documents to establish eligibility. Also, the examination on an application filed under section 405 of IMMACT may be conducted in the United States or in the Philippines depending on the applicant’s place of residence. In addition, irrespective of the requirement that the administrative oath ceremony must be conducted in the United States, the administrative oath ceremony for these applicants may be held within the geographical limits of the Philippines, provided the examination on the application was conducted in the Philippines.

Was the Marriage Entered into for Immigration Purposes? Is the marraige "Bona fide" for immigration purposes?

In order to be granted permanent residency, your spouse's relationship with you must be established and your spouse must be admissible to the United States under the immigration law. Also, the marriage must be bona fide, not merely a sham to get the non US citizen spouse a green card. The USCIS takes fraudulent marriage seriously and you will be asked to provide supporting documents to show that the marriage is valid.

Over the past two decades, Congress and the CIS have grown increasingly suspicious of marriages. Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against federal immigration law to consider immigration in deciding to get married. Considering immigration benefits will only be a problem if those were the ONLY reason to marry. So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status. Despite this, and despite the fact that it can be impossible to determine why people marry, the CIS makes this determination every day. Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying. Also, if the couple does not live together, the CIS will be very suspicious, even more so if they have never lived together. Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The CIS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the CIS. In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide. The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation. Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

The CIS has discretion to suspect and then accordingly to investigate a marriage which may bring immigration benefits to the aliens. If the CIS has reasons to suspect that the marriage is a "sham marriage", the CIS officers have the authority to investigate. Usually, the CIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. Also, the CIS officers may arrange interviews with the couple at their residence or at local CIS offices. _________________________________

Whether an alien qualifies as a spouse depends upon three factors:

(1) the validity of the marriage under the law of the jurisdiction where it was performed;

(2) whether the marriage was entered into in order to confer an immigration benefit on the alien (a sham marriage); and

(3) the current status of the marriage.

The only legally-sanctioned marriage defined by the INA to be invalid for immigration purposes is one in which the two parties were not physically in the presence of each other at the time of the marriage ceremony, unless the marriage was subsequently consummated. Other marriages may be invalid at their inception because one of the parties lacked legal capacity or because the marriage is against the law of the jurisdiction.

The most common impediment to a valid marriage, however, is the objection that one of the parties lacked capacity to marry because of the invalidity of a prior divorce. Any prior divorce must meet the legal standards of the jurisdiction where the divorce decree is entered, and must be recognized in the jurisdiction where the subsequent marriage occurs. While all U.S. divorces are considered valid determining the validity of divorces in foreign jurisdictions is often a complicated task. This difficulty can be compounded when the foreign jurisdiction recognizes "custom-ary" divorces and marriages; in such instances, it is necessary to study the actual facts of the divorce or marriage proce-dure or ceremony to determine whether the proper ritual was followed.

Even if a marriage is valid at its inception, it may be considered sham for immigration purposes if it was entered into to confer an immigration benefit on the alien. The general authority to investigate the bona fides of a marriage rela-tionship for purposes of conferring an immigration benefit appears in section 204(b) of the INA. The basic test in all cases will be whether the parties entered into the marriage sharing the intention to establish a life together. Thus, the fact that the couple is presently divorced or separated does not necessarily negate the validity of the marriage for immi-gration purposes, although such circumstances may raise questions as to the bona fides of the marriage. In addition to this general investigatory authority, section 204(c) of the INA bars the approval of a visa petition for a person who pre-viously obtained, or attempted or conspired to obtain, immigration benefits by reason of a marriage determined to have been entered into for purpose of evading the immigration laws.

Several other provisions added by the Immigration Marriage Fraud Amendments of 1986 (IMFA) are also designed to combat sham marriages.

First, the INS cannot approve the spousal second preference petition of permanent residents who have been accorded their status based on a prior marriage unless:

(1) a period of five years has elapsed after the alien acquired the permanent resident status;

(2) the alien establishes through clear and convincing evidence that the prior marriage was not entered into for purposes of evading the immigration laws; or

(3) the prior marriage was terminated through the death of the petitioner's spouse.

Second, an immigrant visa petition cannot be approved for an alien who has married after commencement of deportation, exclusion, or removal proceedings until the alien has resided outside of the United States for two years after the marriage. The alien can obtain a "bona fide marriage" waiver of the foreign residence requirement if the alien establishes by clear and convincing evidence that:

(1) the marriage was entered in good faith and in accordance with the laws of the place where the marriage took place;

(2) the marriage was not entered into for the purpose of procuring the alien's entry as an immigrant; and

(3) no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparing petitions) for the filing of a petition on behalf of the alien.

Finally, under IMFA, aliens who obtain an immigration benefit on the basis of a marriage entered into within two years of the time the benefit is conferred will be granted conditional resident status for a period of two years. Before this period ends, the couple must file a joint petition to remove the conditional basis of the alien's residence; failure to do so results in automatic termination of the alien's resident status. When the conditional resident is unable or unwilling to obtain the cooperation of the citizen or resident spouse or parent, he or she will be required to file an application for waiver of the joint petition requirement. There generally is no requirement that a marriage currently be viable in order for it to be the basis for conferring immigration benefits. In most cases, as long as the couple entered into a bona fide marriage and have neither divorced nor legally separated pursuant to a formal written instrument, they will be considered spouses for immigration purposes.

(1) In the absence of adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Interim Decision 2750 (BIA 1980), clarified and reaffirmed. Matter of Cavazos, 1980 BIA LEXIS 2; 17 I. & N. Dec. 215

(2) A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the immigration laws does not enable an alien spouse to obtain immigration benefits.

(3) Where the parties enter into a valid marriage, and there is nothing to show that they have since obtained a legal separation or dissolution of that marriage, a visa petition filed on behalf of the alien spouse should not be denied solely because the parties are not residing together.

(4) Although the separation of spouses in and of itself is not a valid basis for denial of a visa petition based upon a determination that the marriage is not viable, a separation is a relevant factor in determining the parties' intent at the time of their marriage, i.e., whether the marriage is a sham. (Matter of McKee, 1980 BIA LEXIS 17; 17 I. & N. Dec. 332)

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The following is a list of some of the typical questions asked during an adjustment of status interview. During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

MARRIAGE INTERVIEW-SAMPLE QUESTIONS

During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

Name and address.

Name and Date of Birth of Spouse.

When and where did you meet your spouse?

Describe this 1st meeting.

Did you make arrangements to meet again?

Did you exchange phone numbers?

When did you meet next?

Where were you living at the time? Where was your spouse living?

When did you decide to get married? Where were you at the time?

Did you live together before marriage?

When and where did you get married? How did you and your spouse get to the church, courthouse, etc.?

Who were the witnesses to the ceremony?

Did you exchange wedding rings?

Where had you purchased these rings? Did you and your spouse purchase them together?

Did you have a reception after the ceremony?

Where was it held?

Do you have any photos of the ceremony and /or reception?

Describe the reception.

Did any of your, and your spouse's, family members attend? If so, who?

Did you go on a honeymoon? If so, when and where?

If you did not have a reception, what did you do after the wedding ceremony?

Where did you live after the wedding?

Describe the place where you lived right after the marriage. Number of bedrooms and bathrooms; furnishings; color of walls, floor coverings, appliances, etc; type of air conditioning, heating, etc; # of telephones, televisions, etc. Do you have cable television?

Where did you get the furniture? Was it already there, did you buy it, was it a gift, or did it come from your, or your spouse's, previous residence?

If brought to the house or apartment, describe how it was transported.

Describe your bedroom. Where do you keep your clothes? Where does your spouse keep his or her clothes? Where are the bathroom towels kept? Where do you keep the dirty clothes?

Where is the garbage kept in the kitchen?

On what day of the week is the garbage picked up?

Where do you shop for groceries? Do you go together with your spouse? How do you get there?

Where do you work? What days of the week do you work?

What hours do you work? What is your salary?

What is your telephone # at work?

When was the last vacation you had from work?

Did you and your spouse go anywhere together at that time?

When was the last vacation you and your spouse took together?

Where did you go? How did you get there? Describe it.

Where does your spouse work? What days of the week? What hours? What is the salary, if you know?

What is your spouse's telephone # at work?

When was the last time your spouse got a vacation from work?

Do you know your spouse's family members? If so, which ones? If your spouse has children from a previous marriage, their names, ages, where they live, and where they go to school, if applicable.

Where do you live now? (If different from where you lived right after the marriage, then go over the same questions as above). How much is the rent? When is it paid? How do you pay it?

Do you have a bank account together? Where? What kind of account? (Checking, savings).

Are both of you listed on the account? (Do you have a bank letter, cancelled checks, etc.?)

Did you file a joint tax return this year? Do you have a copy with you?

Do you own any property together? What property? Did you bring copies of the documents with you?

What kind of automobile do you and your spouse have? Describe them.

Do you have an Insurance policy listing your spouse as the beneficiary? If so, do you have a copy?

Have you taken any trips or vacations together? Do you have photos from these trips?

Do you have any utility bills, or receipts from items you have purchased together?

What other documentation do you have to show that you are living together as husband and wife?

Do you have any pets? What kind, what are their names, and describe them?

What did you do for Christmas, New Year's, your anniversary, or you or your spouse's last birthday? Did you exchange gifts? If so, what kind of gift?

Did you or your spouse go to work yesterday? If so, at what time did you and/or your spouse leave the house and return?

Who cooks the meals at the house?

What is your spouse's favorite food? What is your favorite food?

Does your spouse drink coffee? If so, does he or she use cream and/or sugar?

Did you eat dinner together last night? Did anyone else have dinner with you? What did you have?

What time was dinner served? Who cooked it?

Did you watch TV after dinner? What shows did you watch?

At what time did you go to bed? Who went to bed first?

Did you have the air conditioning or heater on?

Who woke up first this morning? Did an alarm clock go off?

Did you or your spouse take a shower?

Did you come to the interview together? Who drove?

Did you have breakfast? Where and what did you eat?

Please remember that the number and types of questions that can be asked is almost limitless. Therefore, you and your spouse should review your entire lives together prior to attending the immigration interview. Even married couples living together for many years sometimes have difficulties remembering all of the facts of their relationship. Be prepared and take original documents with you. Then you will have no problem passing the interview and obtaining permanent residence in the United States.