8 U.S.C. § 1429 — Prerequisite to naturalization; burden of

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 Page 495 TITLE 8—ALIENS AND NATIONALITY § 1430 reference to exception provided in sections 1438 and 1439 of this title. Statutory Notes and Related Subsidiaries 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. 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. § 1430. Married persons and employees of certain nonprofit organizations (a) Any person whose spouse is a citizen of the United States, or any person who obtained sta- tus as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or sub- jected him or her to extreme cruelty, may be naturalized upon compliance with all the re- quirements of this subchapter except the provi- sions of paragraph (1) of section 1427(a) of this title if such person 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 three years, and dur- ing the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months. (b) Any person, (1) whose spouse is (A) a cit- izen of the United States, (B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an Amer- ican firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organiza- tion in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a reli- gious denomination having a bona fide organiza- tion within the United States, or is engaged solely as a missionary by a religious denomina- tion or by an interdenominational mission orga- nization having a bona fide organization within the United States, and (C) regularly stationed abroad in such employment, and (2) who is in the United States at the time of naturalization, and (3) who declares before the Attorney Gen- eral in good faith an intention to take up resi- dence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical pres- ence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required. (c) Any person who (1) is employed by a bona fide United States incorporated nonprofit orga- nization which is principally engaged in con- ducting abroad through communications media the dissemination of information which signifi- cantly promotes United States interests abroad and which is recognized as such by the Attorney General, and (2) has been so employed continu- ously for a period of not less than five years after a lawful admission for permanent resi- dence, and (3) who files his application for natu- ralization while so employed or within six months following the termination thereof, and (4) who is in the United States at the time of naturalization, and (5) who declares before the Attorney General in good faith an intention to take up residence within the United States im- mediately upon termination of such employ- ment, may be naturalized upon compliance with all the requirements of this subchapter except that no prior residence or specified period of physical presence within the United States or any State or district of the Service in the United States, or proof thereof, shall be re- quired. (d) Any person who is the surviving spouse, child, or parent of a United States citizen, whose citizen spouse, parent, or child dies dur- ing a period of honorable service in an active duty status in the Armed Forces of the United States and who, in the case of a surviving spouse, was living in marital union with the cit- izen spouse at the time of his death, may be nat- uralized upon compliance with all the require- ments of this subchapter except that no prior residence or specified physical presence within the United States, or within a State or a district of the Service in the United States shall be re- quired. 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. (e)(1) In the case of a person lawfully admitted for permanent residence in the United States who is the spouse of a member of the Armed Forces of the United States, is authorized to ac- company such member and reside abroad with the member pursuant to the member’s official orders, and is so accompanying and residing with the member in marital union, such resi- dence and physical presence abroad shall be treated, for purposes of subsection (a) and sec- tion 1427(a) of this title, as residence and phys- ical presence in— (A) the United States; and (B) any State or district of the Department of Homeland Security in the United States. (2) Notwithstanding any other provision of law, a spouse described in paragraph (1) shall be eligible for naturalization proceedings overseas pursuant to section 1443a of this title. (June 27, 1952, ch. 477, title III, ch. 2, § 319, 66 Stat. 244; Pub. L. 85–697, § 2, Aug. 20, 1958, 72