Understanding Basic Naturalization Requirements and        Exceptions and Modifications to Those Requirements             ...
Now here is the specific language of interest for this essay:           “The Congress shall have Power....           To es...
preceding the date of filing the application for naturalization, or during the period between the    date of filing the ap...
(c) Physical presence     The granting of the benefits of subsection (b) of this section shall not relieve the applicant  ...
Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select  Committee on Intelligence and the ...
break at (c)(1)(i) as long                                    as it does not fall short of                                ...
United States interests                                     abroad.INA § 319 (d)   8 U.S.C. § 1430(d)     Pertains to: sur...
of U.S. Military who                                                       accompany such member                          ...
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Understanding basic naturalization requirements and exceptions and modifications to those requirements

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Understanding basic naturalization requirements and exceptions and modifications to those requirements

  1. 1. Understanding Basic Naturalization Requirements and Exceptions and Modifications to Those Requirements By Joseph P. Whalen (August 9, 2012)The Constitution does not guarantee any right to naturalization. It did and does allowCongress to craft a “[U]niform Rule of Naturalization”. See Constitution, Article I,Section 8.Let’s take a closer look at that particular Section of the Constitution. Here is the wholetext of Section 8. “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Page 1 of 8
  2. 2. Now here is the specific language of interest for this essay: “The Congress shall have Power.... To establish an uniform Rule of Naturalization ..... and ..... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” As things stand today in August 2012, the Constitutionally-permitted “uniform rule” isfar from uniform. That said, the main embodiment of the “uniform rule” is found inINA § 316, especially subsection (a), and even more narrowly in clause (1), shownnext. The discussion will resume following the statutory excerpt. INA § 316 [8 U.S.C. §1427] Requirements of naturalization (a) Residence No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (b) Absences Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately Page 2 of 8
  3. 3. preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 1447(a) of this title [INA § 336(a)], shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General 1 that he did not in fact abandon his residence in the United States during such period. Absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence, except that in the case of a person who has been physically present and residing in the United States, after being lawfully admitted for permanent residence, for an uninterrupted period of at least one year, and who thereafter is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or is employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an American firm or corporation, or is employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence, no period of absence from the United States shall break the continuity of residence if— (1) prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence from the United States, the person has established to the satisfaction of the Attorney General that his absence from the United States for such period is to be on behalf of such Government, or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries in such firm or corporation, or to be employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence; and (2) such person proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose. The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection shall also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person.1 All but one reference to the Attorney General should now be as a reference to the Secretary ofHomeland Security. The reference at INA § 316(d) should remain unchanged OR read as areference to BOTH Cabinet Level Officials. This is also true of and even more plainly seen inthe proviso of INA § 318. Page 3 of 8
  4. 4. (c) Physical presence The granting of the benefits of subsection (b) of this section shall not relieve the applicant from the requirement of physical presence within the United States for the period specified in subsection (a) of this section, except in the case of those persons who are employed by, or under contract with, the Government of the United States. In the case of a person employed by or under contract with Central Intelligence Agency, the requirement in subsection (b) of this section of an uninterrupted period of at least one year of physical presence in the United States may be complied with by such person at any time prior to filing an application for naturalization.(d) Moral character No finding by the Attorney General that the applicant is not deportable shall be accepted as conclusive evidence of good moral character.(e) Determination In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicants conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicants conduct and acts at any time prior to that period.(f) Persons making extraordinary contributions to national security (1) Whenever the Director of Central Intelligence, the Attorney General and the Commissioner of Immigration determine that an applicant otherwise eligible for naturalization has made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities, the applicant may be naturalized without regard to the residence and physical presence requirements of this section, or to the prohibitions of section 1424 of this title, and no residence within a particular State or district of the Service in the United States shall be required: Provided, That the applicant has continuously resided in the United States for at least one year prior to naturalization: Provided further, That the provisions of this subsection shall not apply to any alien described in clauses (i) through (v) of section 1158(b)(2)(A) of this title [INA § 208(b)(2)(A)(i)-(v) — Statutory Bars to Asylum]. (2) An applicant for naturalization under this subsection may be administered the oath of allegiance under section 1448(a) of this title [INA § 337] by any district court of the United States, without regard to the residence of the applicant. Proceedings under this subsection shall be conducted in a manner consistent with the protection of intelligence sources, methods and activities. (3) The number of aliens naturalized pursuant to this subsection in any fiscal year shall not exceed five. The Director of Central Intelligence shall inform the Select Committee on Page 4 of 8
  5. 5. Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives within a reasonable time prior to the filing of each application under the provisions of this subsection. (June 27, 1952, ch. 477, title III, ch. 2, §316, 66 Stat. 242; Pub. L. 97–116, §14, Dec. 29, 1981, 95 Stat. 1619; Pub. L. 99–169, title VI, §601, Dec. 4, 1985, 99 Stat. 1007; Pub. L. 101–649, title IV, §§402, 407(c)(2), (d)(1), (e)(1), Nov. 29, 1990, 104 Stat. 5038, 5041, 5046; Pub. L. 104–208, div. C, title III, §308(g)(7)(F), Sept. 30, 1996, 110 Stat. 3009–624; Pub. L. 109–149, title V, §518, Dec. 30, 2005, 119 Stat. 2882.)It is obvious that INA § 316(a) is the closest thing we have to the underlying“Uniform Rule” mentioned in the Constitution. All other “bases fornaturalization” cross-reference and/or modify this basic statutory provision in oneway or another. Let’s take a quick look at some of those “modifications”.INA § 316(b) 8 U.S.C. § 1427(b) Relates to extended absence benefits and breaks in continuity of residence for naturalization purposes. Form N-470 is regulated at 8 CFR § 316.5(d) but derives from this statutory source. Also, the “remedy” stated at 8 CFR § 316.5(c)(1)(ii) derives from this statutory source. The “rebuttable presumption” at 8 CFR § 316.5(c)(1)(i)(A-D) derives from this statutory source. The remedy at (c)(1)(ii) also cures the unrebutted Page 5 of 8
  6. 6. break at (c)(1)(i) as long as it does not fall short of the statutory minimum required time as an LPR found at INA § 334(a).INA § 316(c) 8 U.S.C. § 1427(c) Further modifies physical presence requirements for U.S. Government employees or contract employees and even further modifies the exception for CIA employees and contractors.INA § 316(f) 8 U.S.C. § 1427(f) Special naturalization authority modifying physical presence and residence requirements for “Persons making extraordinary contributions to national security”.INA § 317 8 U.S.C. § 1428 Extended absence benefits for persons performing religious duties.INA § 319(a) 8 U.S.C. § 1430 LPR spouse of USC. Three rules of three years.INA § 319(b) 8 U.S.C. § 1430 Expedited naturalization for LPR spouse of USC when USC spouse is employed abroad in a qualifying capacity.INA § 319(c) 8 U.S.C. § 1430 LPR employee of recognized bona fide non- profit principally engaged in conducting abroad through communications media the dissemination of information which significantly promotes Page 6 of 8
  7. 7. United States interests abroad.INA § 319 (d) 8 U.S.C. § 1430(d) Pertains to: surviving spouse, child, or parent of a United States citizen, whose citizen spouse, parent, or child dies during a period of honorable service in an active duty status in the Armed Forces of the United States... Pub. L. 108–136, §1703(h), inserted “, child, or parent” after “surviving spouse” and “, parent, or child” after “whose citizen spouse”, and substituted “who, in the case of a surviving spouse, was living” for “who was living”. Pub. L. 108–136, §1703(f)(1), inserted at end “For purposes of this subsection, the terms ‘United States citizen’ and ‘citizen spouse’ include a person granted posthumous citizenship under section 1440–1 of this title.”INA § 319 (e) 8 U.S.C. § 1430(e) Pub. L. 110–181 added subsec. (e) Permits overseas naturalization for spouses Page 7 of 8
  8. 8. of U.S. Military who accompany such member abroad on official orders.INA § 322 8 U.S.C. § 1433 and Expedited naturalization 1433a for child of USC who does not qualify under NOTE: Section 1443a regular statutory was enacted as part of the provisions AND is National Defense residing abroad with USC Authorization Act for parent OR grandparent or Fiscal Year 2004, and not guardian IF filed within 5 as part of the Immigration years of USC parents’ and Nationality Act. death.The sections listed above are NOT a complete and comprehensive list. Militarymembers have additional provisions, including posthumous citizenship which canlead to derivative benefits. Merchant mariners (seamen) have their own provision.Former citizens have provision to regain citizenship. Minor children of naturalizingparents and children born abroad to USCs have a myriad of statutes to deal with.The most obscure provision still having an effect in 2012, can be traced back toover two centuries ago in 1802 (see Revised Statutes § 1993).Have fun exploring these “modifications” to the “uniform rule” and remember thatCongress is empowered to continue to make changes. Just wait. Page 8 of 8

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