8 U.S.C. § 1427 — Requirements of naturalization

Page 491 TITLE 8—ALIENS AND NATIONALITY § 1427 1 See References in Text note below. § 1425. Ineligibility to naturalization of deserters from the Armed Forces A person who, at any time during which the United States has been or shall be at war, de- serted or shall desert the military, air, or naval forces of the United States, or who, having been duly enrolled, departed, or shall depart from the jurisdiction of the district in which enrolled, or who, whether or not having been duly enrolled, went or shall go beyond the limits of the United States, with intent to avoid any draft into the military, air, or naval service, lawfully ordered, shall, upon conviction thereof by a court mar- tial or a court of competent jurisdiction, be per- manently ineligible to become a citizen of the United States; and such deserters and evaders shall be forever incapable of holding any office of trust or of profit under the United States, or of exercising any rights of citizens thereof. (June 27, 1952, ch. 477, title III, ch. 2, § 314, 66 Stat. 241.) § 1426. Citizenship denied alien relieved of serv- ice in Armed Forces because of alienage (a) Permanent ineligibility Notwithstanding the provisions of section 405(b) 1 but subject to subsection (c), any alien who applies or has applied for exemption or dis- charge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a cit- izen of the United States. (b) Conclusiveness of records The records of the Selective Service System or of the Department of Defense shall be conclusive as to whether an alien was relieved or dis- charged from such liability for training or serv- ice because he was an alien. (c) Service in armed forces of foreign country An alien shall not be ineligible for citizenship under this section or otherwise because of an ex- emption from training or service in the Armed Forces of the United States pursuant to the ex- ercise of rights under a treaty, if before the time of the exercise of such rights the alien served in the Armed Forces of a foreign country of which the alien was a national. (June 27, 1952, ch. 477, title III, ch. 2, § 315, 66 Stat. 242; Pub. L. 100–525, § 9(v), Oct. 24, 1988, 102 Stat. 2621; Pub. L. 101–649, title IV, § 404, Nov. 29, 1990, 104 Stat. 5039.) Editorial Notes REFERENCES IN TEXT Section 405(b), referred to in subsec. (a), is section 405(b) of act June 27, 1952, ch. 477, title IV, 66 Stat. 280, which is set out as a Savings Clause note under section 1101 of this title. AMENDMENTS 1990—Subsec. (a). Pub. L. 101–649, § 404(1), inserted ‘‘but subject to subsection (c)’’ after ‘‘section 405(b)’’. Subsec. (c). Pub. L. 101–649, § 404(2), added subsec. (c). 1988—Subsec. (b). Pub. L. 100–525 substituted ‘‘Depart- ment of Defense’’ for ‘‘National Military Establish- ment’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–649 applicable to exemp- tions from training or service obtained before, on, or after Nov. 29, 1990, see section 408(e) of Pub. L. 101–649, set out as a note under section 1421 of this title. § 1427. Requirements of naturalization (a) Residence No person, except as otherwise provided in this subchapter, shall be naturalized unless such ap- plicant, (1) immediately preceding the date of filing his application for naturalization has re- sided continuously, after being lawfully admit- ted 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 applica- tion for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admis- sion 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 pe- riod for which continuous residence is required for admission to citizenship, immediately pre- ceding the date of filing the application for nat- uralization, or during the period between the date of filing the application and the date of any hearing under section 1447(a) of this title, shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States dur- ing such period. Absence from the United States for a contin- uous period of one year or more during the pe- riod 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 per- son who has been physically present and resid- ing in the United States, after being lawfully ad- mitted for permanent residence, for an uninter- rupted 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 Page 492 TITLE 8—ALIENS AND NATIONALITY § 1427 corporation, or is employed by a public inter- national 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 resi- dence, 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 be- fore 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 devel- opment of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such coun- tries in such firm or corporation, or to be em- ployed 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 admit- ted for permanent residence; and (2) such person proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose. The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection shall also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person. (c) Physical presence The granting of the benefits of subsection (b) of this section shall not relieve the applicant from the requirement of physical presence with- in 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 Agen- cy, the requirement in subsection (b) of an unin- terrupted 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 sus- tained the burden of establishing good moral character and the other qualifications for citi- zenship specified in subsection (a) of this sec- tion, the Attorney General shall not be limited to the applicant’s conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such deter- mination the applicant’s conduct and acts at any time prior to that period. (f) Persons making extraordinary contributions to national security (1) Whenever the Director of Central Intel- ligence, the Attorney General and the Commis- sioner of Immigration determine that an appli- cant otherwise eligible for naturalization has made an extraordinary contribution to the na- tional 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 require- ments 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 provi- sions of this subsection shall not apply to any alien described in clauses (i) through (v) of sec- tion 1158(b)(2)(A) of this title. (2) An applicant for naturalization under this subsection may be administered the oath of alle- giance under section 1448(a) of this title by any district court of the United States, without re- gard to the residence of the applicant. Pro- ceedings under this subsection shall be con- ducted in a manner consistent with the protec- tion of intelligence sources, methods and activi- ties. (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 Intel- ligence and the Committee on the Judiciary of the Senate and the Permanent Select Com- mittee 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.) Editorial Notes AMENDMENTS 2005—Subsec. (g). Pub. L. 109–149, § 518, temporarily added subsec. (g) reading as follows: ‘‘(1) The continuous residency requirement under sub- section (a) of this section may be reduced to 3 years for an applicant for naturalization if— ‘‘(A) the applicant is the beneficiary of an approved petition for classification under section 1154(a)(1)(E) of this title; ‘‘(B) the applicant has been approved for adjust- ment of status under section 1255(a) of this title; and ‘‘(C) such reduction is necessary for the applicant to represent the United States at an international event. ‘‘(2) The Secretary of Homeland Security shall adju- dicate an application for naturalization under this sec- tion not later than 30 days after the submission of such application if the applicant— ‘‘(A) requests such expedited adjudication in order to represent the United States at an international event; and Page 493 TITLE 8—ALIENS AND NATIONALITY § 1427 ‘‘(B) demonstrates that such expedited adjudication is related to such representation. ‘‘(3) An applicant is ineligible for expedited adjudica- tion under paragraph (2) if the Secretary of Homeland Security determines that such expedited adjudication poses a risk to national security. Such a determination by the Secretary shall not be subject to review. ‘‘(4)(A) In addition to any other fee authorized by law, the Secretary of Homeland Security shall charge and collect a $1,000 premium processing fee from each applicant described in this subsection to offset the ad- ditional costs incurred to expedite the processing of ap- plications under this subsection. ‘‘(B) The fee collected under subparagraph (A) shall be deposited as offsetting collections in the Immigra- tion Examinations Fee Account.’’ See Termination Date of 2005 Amendment note below. 1996—Subsec. (f)(1). Pub. L. 104–208 substituted ‘‘clauses (i) through (v) of section 1158(b)(2)(A) of this title’’ for ‘‘subparagraphs (A) through (D) of section 1253(h)(2) of this title’’. 1990—Subsec. (a). Pub. L. 101–649, § 407(c)(2), sub- stituted references to applicant and application for ref- erences to petitioner and petition wherever appearing. Pub. L. 101–649, § 402, substituted ‘‘and who has re- sided 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’’ for ‘‘and who has resided within the State in which the pe- titioner filed the petition for at least six months’’ in cl. (1). Subsec. (b). Pub. L. 101–649, § 407(d)(1)(A), (B), sub- stituted ‘‘the Attorney General’’ for ‘‘the court’’ in first par. and subpar. (2) of second par., and ‘‘date of any hearing under section 1447(a) of this title’’ for ‘‘date of final hearing’’ in first par. Pub. L. 101–649, § 407(c)(2), substituted references to applicant and application for references to petitioner and petition wherever appearing. Subsec. (c). Pub. L. 101–649, § 407(c)(2), substituted ref- erences to applicant and application for references to petitioner and petition wherever appearing. Subsec. (d). Pub. L. 101–649, § 407(c)(2), substituted ref- erence to applicant for reference to petitioner. Subsec. (e). Pub. L. 101–649, § 407(d)(1)(C), substituted ‘‘the Attorney General’’ for ‘‘the court’’. Pub. L. 101–649, § 407(c)(2), substituted references to applicant, applicant’s, and application for references to petitioner, petitioner’s, and petition wherever appear- ing. Subsec. (f). Pub. L. 101–649, § 407(e)(1), redesignated subsec. (g) as (f) and struck out former subsec. (f) which read as follows: ‘‘Naturalization shall not be granted to a petitioner by a naturalization court while registra- tion proceedings or proceedings to require registration against an organization of which the petitioner is a member or affiliate are pending under section 792 or 793 of title 50.’’ Subsec. (f)(1). Pub. L. 101–649, § 407(d)(1)(D), sub- stituted ‘‘within a particular State or district of the Service in the United States’’ for ‘‘within the jurisdic- tion of the court’’. Pub. L. 101–649, § 407(c)(2), substituted references to applicant for references to petitioner wherever appear- ing. Subsec. (f)(2). Pub. L. 101–649, § 407(d)(1)(E), amended first sentence generally. Prior to amendment, first sen- tence read as follows: ‘‘A petition for naturalization may be filed pursuant to this subsection in any district court of the United States, without regard to the resi- dence of the petitioner.’’ Subsec. (f)(3). Pub. L. 101–649, § 407(c)(2), substituted reference to application for reference to petition. 1985—Subsec. (g). Pub. L. 99–169 added subsec. (g). 1981—Subsec. (b). Pub. L. 97–116 inserted provision that the spouse and dependent unmarried sons and daughters who are members of the household of a per- son who qualifies for the benefits of this subsection also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person. Statutory Notes and Related Subsidiaries CHANGE OF NAME Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence com- munity deemed to be a reference to the Director of Na- tional Intelligence. Reference to the Director of Cen- tral Intelligence or the Director of the Central Intel- ligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a ref- erence to the Director of the Central Intelligence Agen- cy. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense. TERMINATION DATE OF 2005 AMENDMENT Pub. L. 109–149, title V, § 518(b), Dec. 30, 2005, 119 Stat. 2882, provided that: ‘‘The amendment made by sub- section (a) [amending this section] is repealed on Janu- ary 1, 2006.’’ EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Pub. L. 97–116, set out as a note under section 1101 of this title. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. EXPEDITED NATURALIZATION Pub. L. 104–293, title III, § 305, Oct. 11, 1996, 110 Stat. 3465, as amended by Pub. L. 106–120, title III, § 307, Dec. 3, 1999, 113 Stat. 1612, provided that: ‘‘(a) IN GENERAL.—With the approval of the Director of Central Intelligence, the Attorney General, and the Commissioner of Immigration and Naturalization, an applicant described in subsection (b) and otherwise eli- gible for naturalization may be naturalized without re- gard to the residence and physical presence require- ments of section 316(a) of the Immigration and Nation- ality Act [8 U.S.C. 1427(a)], or to the prohibitions of sec- tion 313 of such Act [8 U.S.C. 1424], and no residence within a particular State or district of the Immigration and Naturalization Service in the United States shall be required. ‘‘(b) ELIGIBLE APPLICANT.—An applicant eligible for naturalization under this section is the spouse or child of a deceased alien whose death resulted from the in- tentional and unauthorized disclosure of classified in- formation regarding the alien’s participation in the conduct of United States intelligence activities and who— ‘‘(1) has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least one year prior to naturalization; and ‘‘(2) is not described in clauses (i) through (iv) of section 241(b)(3)(B) of such Act [8 U.S.C. 1231(b)(3)(B)]. ‘‘(c) ADMINISTRATION OF OATH.—An applicant for nat- uralization under this section may be administered the oath of allegiance under section 337(a) of the Immigra- tion and Nationality Act [8 U.S.C. 1448(a)] by the Attor- ney General or any district court of the United States, without regard to the residence of the applicant. Pro- ceedings under this subsection shall be conducted in a manner consistent with the protection of intelligence sources, methods, and activities. Page 494 TITLE 8—ALIENS AND NATIONALITY § 1428 1 See References in Text note below. ‘‘(d) DEFINITIONS.—For purposes of this section— ‘‘(1) the term ‘child’ means a child as defined in subparagraphs (A) through (E) of section 101(b)(1) of the Immigration and Nationality Act [8 U.S.C. 1101(b)(1)], without regard to age or marital status; and ‘‘(2) the term ‘spouse’ means the wife or husband of a deceased alien referred to in subsection (b) who was married to such alien during the time the alien par- ticipated in the conduct of United States intelligence activities.’’ § 1428. Temporary absence of persons performing religious duties Any person who is authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States, or any person who is engaged solely by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States as a missionary, brother, nun, or sister, who (1) has been lawfully admitted to the United States for permanent residence, (2) has at any time thereafter and before filing an appli- cation for naturalization been physically present and residing within the United States for an uninterrupted period of at least one year, and (3) has heretofore been or may hereafter be absent temporarily from the United States in connection with or for the purpose of performing the ministerial or priestly functions of such reli- gious denomination, or serving as a missionary, brother, nun, or sister, shall be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 1427(a) of this title, notwithstanding any such absence from the United States, if he shall in all other re- spects comply with the requirements of the nat- uralization law. Such person shall prove to the satisfaction of the Attorney General that his ab- sence from the United States has been solely for the purpose of performing the ministerial or priestly functions of such religious denomina- tion, or of serving as a missionary, brother, nun, or sister. (June 27, 1952, ch. 477, title III, ch. 2, § 317, 66 Stat. 243; Pub. L. 101–649, title IV, § 407(c)(3), (d)(2), Nov. 29, 1990, 104 Stat. 5041.) Editorial Notes AMENDMENTS 1990—Pub. L. 101–649, § 407(d)(2), struck out ‘‘and the naturalization court’’ after ‘‘Attorney General’’. Pub. L. 101–649, § 407(c)(3), substituted ‘‘application’’ for ‘‘petition’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 180 days after June 27, 1952, see sec- tion 407 of act June 27, 1952, set out as a note under sec- tion 1101 of this title. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. § 1429. Prerequisite to naturalization; burden of proof Except as otherwise provided in this sub- chapter, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immi- grant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry, in the custody of the Service. Notwithstanding the provisions of section 405(b),1 and except as pro- vided in sections 1439 and 1440 of this title no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no application for naturalization shall be con- sidered by the Attorney General if there is pend- ing against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act: Pro- vided, That the findings of the Attorney General in terminating removal proceedings or in can- celing the removal of an alien pursuant to the provisions of this chapter, shall not be deemed binding in any way upon the Attorney General with respect to the question of whether such person has established his eligibility for natu- ralization as required by this subchapter. (June 27, 1952, ch. 477, title III, ch. 2, § 318, 66 Stat. 244; Pub. L. 90–633, § 4, Oct. 24, 1968, 82 Stat. 1344; Pub. L. 101–649, title IV, § 407(c)(4), (d)(3), Nov. 29, 1990, 104 Stat. 5041; Pub. L. 104–208, div. C, title III, § 308(e)(1)(O), (15), Sept. 30, 1996, 110 Stat. 3009–620, 3009–621.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original, ‘‘this Act’’, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For com- plete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables. Section 405(b), referred to in text, is section 405(b) of act June 27, 1952, ch. 477, title IV, 66 Stat. 280, which is set out as a Savings Clause note under section 1101 of this title. AMENDMENTS 1996—Pub. L. 104–208 substituted ‘‘removal’’ for ‘‘de- portation’’ wherever appearing and ‘‘canceling’’ for ‘‘suspending’’. 1990—Pub. L. 101–649, § 407(d)(3), in last sentence sub- stituted ‘‘considered by the Attorney General’’ for ‘‘fi- nally heard by a naturalization court’’ and ‘‘upon the Attorney General’’ for ‘‘upon the naturalization court’’. Pub. L. 101–649, § 407(c)(4), substituted ‘‘application’’ for ‘‘petition’’ and ‘‘applicant’’ for ‘‘petitioner’’. 1968—Pub. L. 90–633 substituted reference to excep- tion provided in sections 1439 and 1440 of this title for