NATURALIZATION & US CITIZENSHIP: THE ESSENTIAL LEGAL GUIDE 15 TH EDITION TABLE OF CONTENTS

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1 Naturalization & US Citizenship NATURALIZATION & US CITIZENSHIP: THE ESSENTIAL LEGAL GUIDE 15 TH EDITION TABLE OF CONTENTS Chapter 1 Introduction and Overview 1.1 Introduction to Citizenship Overview of the Basic Requirements for Naturalization How to Use This Manual Contents of the Manual Key Definitions... 6 Chapter 2 Initial Discussions with Clients 2.1 Overview of Working with Clients to Complete the Naturalization Process Explaining Naturalization Discussing the Advantages and Disadvantages of Naturalization Reasons Why People Want to Naturalize Reasons Why People Do Not Want to Naturalize Appendix 2-A Naturalization Flyers (English, Spanish, and Chinese) Chapter 3 Overview of Naturalization, the Legal Requirements, and the Application Process 3.1 What Is Naturalization? Considerations in Naturalizing The Nine Basic Naturalization Requirements Lawful Permanent Resident Status Age Good Moral Character, Bars to Naturalization, Permanent Ineligibility for Citizenship, and Discretion Attachment to the Principles of the Constitution English Language U.S. History and Government Residence in the United States Physical Presence in the United States Disruption of Continuous Residence (Breaking the Continuous Residence for Naturalization Purposes) Oath of Allegiance Overview of the Application Process Chapter 4 Lawfully Admitted for Permanent Residence 4.1 Introduction Ineligible for Admission as a Lawful Permanent Resident Inadmissible at Time of Entry or Adjustment of Status and Now Removable iii

2 Immigrant Legal Resource Center 4.4 The Continuing Validity of Entry, Re-Entry and the Fleuti Exception Waivers Under 212(k) Fraud Waivers in Removal Proceedings Abandonment of Residence: Losing Permanent Resident Status Reentry Permits People Who Have Served in the U.S. Armed Forces Adjudicating Naturalization Applications of Military Personnel Filipino War Veterans Posthumous Citizenship and Surviving Family Benefits Appendix 4-A Appendix 4-B Checklist to Determine if a Naturalization Applicant Might Be Deportable Handout for Applicants on Grounds of Deportation (English & Spanish) Handouts for Applicants on Abandonment of Residence (English & Spanish) Chapter 5 Residence and Presence Requirements and Exceptions 5.1 Introduction First Residence Requirement: Five Years of Continuous Residence Exceptions to the Five-Year Continuous Residence Requirement for Special Groups Disrupting Continuous Residence Exceptions to Disruptions of One Year or More Second Residence Requirement: Three Months of Local Residence Third Residence Requirement: Continuous Residence After Submitting the Application Fourth Residence Requirement: Physical Presence in the United States The Effect of Deportation/Removal Orders and Deferred Inspections Chapter 6 Good Moral Character and Statutory Bars to Eligibility 6.1 Introduction The Good Moral Character Requirement: An Overview Permanent and Temporary Statutory Bars to Establishing Good Moral Character Under INA 101(f) False Testimony Polygamy Alien Smuggling Denial of Naturalization Based on a Discretionary Finding of a Lack of Good Moral Character Willful Failure to Support One s Dependents (Willful Failure to Pay Child Support) Fraudulent Receipt of Public Benefits Extra-Marital Affairs Failure to Register for the Selective Service iv

3 Naturalization & US Citizenship 6.12 Failure to File Taxes Temporary Ineligibility to Naturalize Permanent Ineligibility to Naturalize Deportability Issues Non-Citizen Voting False Claims to U.S. Citizenship Appendix 6-A Appendix 6-B Appendix 6-C Example of Positive Equities for Determining Good Moral Character Effects of Welfare Benefits to Applicants for Naturalization INS Memorandum from General Counsel Paul Virtue on Failure to Register for Selective Service as a Bar to Naturalization, April 27, 1998; and Executive Office of Naturalization Operations, Policy Memorandum No. 11, Reiteration of Service Policy regarding 334 of the INA, June 18, 1999 Chapter 7 Criminal Issues and Good Moral Character 7.1 Introduction Dealing with Clients Who May Have a Criminal Record: Obtaining Records The Good Moral Character Requirement: An Overview Statutory Bars to Establishing Good Moral Character Conviction or Admission of a Crime Involving Moral Turpitude Conviction or Admission of a Controlled Substance Offense Reason to Believe Drug Trafficker Habitual Drunkard and DUIs Days or More in a Penal Institution Aggregate Sentence of 5 Years or More Prostitution Gambling Denial of Naturalization Based on a Discretionary Finding of a Lack of Good Moral Character Commission of, or Conviction or Imprisonment for, Unlawful Acts Effect of Probation, Parole, or Suspended Sentence Deportability Issues Effect of Post-Conviction Relief and Diversion Schemes Effect of Immigration Relief Possible Defenses for Deportable Naturalization Applicants Appendix 7-A Appendix 7-B Appendix 7-C Obtaining Criminal Record Checks for Naturalization Applicants and Other Immigrants Good Moral Character Handouts in English & Spanish USCIS Memorandum from Director William R. Yates on Amendment to AFM 73.6(d)(3)(B) regarding Application of the Unlawful Acts Regulation in Naturalization Determinations; September 19, 2005 v

4 Immigrant Legal Resource Center Chapter 8 The English and U.S. History and Government Tests 8.1 Introduction English Requirements Exceptions to the English Language Requirement U.S. History and Government: The Civics Test Special Rules on the Civics Requirement Re-Examination Appendix 8-A Preparing for the English and U.S. History and Government Tests: Classes, Sample 100 Questions, Reading and Writing Vocabulary, Civics Questions for the 65/20 Exemption, and Other USCIS Resources Chapter 9 Working with Applicants Who Have Disabilities 9.1 Introduction to Accommodations for Individuals with Disabilities and the Disability Exceptions to the English and Civics Requirements USCIS Must Make Reasonable Accommodations to the Naturalization Process for Applicants with Disabilities Understanding the Disability Exceptions Applying for the Disability Exceptions: Preparing the N-648 Form How Advocates, Doctors and Social Workers Can Work Together Applying for the Disability Exceptions: Procedural Issues Appeals of Denials of Disability Exceptions Signature on Naturalization Form and N-648 Form The Naturalization Examination and Oath of Allegiance for People with Severe Disabilities USCIS Recognized Indicators that a Naturalization Applicant with a Disability Understands the Oath Expedited Ceremonies for Persons with Serious Illness or Disabilities Appendix 9-A Appendix 9-B Appendix 9-C Appendix 9-D Appendix 9-E Appendix 9-F Disability Exceptions, Final Rule Amending 8 CFR 312, Regarding Exceptions to the Educational Requirements for Naturalization for Certain Applicants, 62 FR (Mar. 19, 1997) Sample Letter Requesting Accommodation at Naturalization Interview Section 504 Discrimination Complaint: Sample Complaint, and Flowchart Sample Letter and Tips for Medical Professionals and N-648 Disability Waiver Form (Blank Form and Instructions) Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, Immigration and Naturalization Service, Section 312 Disability Naturalization Adjudications, April 7, 1999 Memorandum from William R. Yates, Acting Associate Director, Bureau of Citizenship and Immigration Services, Procedures for Implementing vi

5 Appendix 9-G Appendix 9-H Appendix 9-I Appendix 9-J Naturalization & US Citizenship the Waiving of the Oath of Renunciation and Allegiance for the Naturalization of Aliens having Certain Disabilities, June 30, 2003 USCIS Memorandum from Michael Aytes, Acting Associate Director, Domestic Operations, Adjudication of Form N-648, Medical Certification for Disability Exceptions to the Immigration and Nationality Act (INA) Section 312 Naturalization Requirements, May 10, 2006 USCIS Memorandum from Donald Neufeld, Acting Deputy Associate Director Domestic Operations Directorate, Guidance Clarifying the Adjudication of Form N-648, Medical Certification for Disability, September 18, 2007 USCIS Interim Policy Memorandum, Revised Guidance for Determining the Sufficiency of Form N-648, Medical Certification for Disability Exceptions; Revision to Adjudicator s Field Manual Chapter 72 and 74 (AFM Update AD10-14), Dec. 14, 2010 Memorandum from William R. Yates, Deputy Executive Associate Commissioner, Office of Field Operations, Immigration Services Division, Guidance on Making the Naturalization Process Accessible to Applicants with Disabilities, January 21, 2003 Chapter 10 The Application Process and Interview 10.1 Introduction to the Naturalization Process The Application Documentation Applications of People with Disabilities Expedited Naturalization Application Processing Amending the Application Transferring Between USCIS Districts Withdrawing the Application Preparing for the USCIS Interview The Interview What Happens After the Interview Problems in the Process Appendix 10-A Sample N-400 Completed Naturalization Application Appendix 10-B Annotated N-400 Appendix 10-C Continuation Pages for N-400 Appendix 10-D Legal Worker Checklist for Naturalization Cases Appendix 10-E Sample Attorney-Client Letter Discussing Next Steps in Naturalization Application Process Appendix 10-F Sample Naturalization Application Cover Letter to USCIS Appendix 10-G N-400 Review Guide Appendix 10-H USCIS Memorandum on Biometrics Requirements for Naturalization vii

6 Immigrant Legal Resource Center Appendix 10-I Appendix 10-J Appendix 10-K USCIS Memorandum on The Role and Use of Interpreters in Domestic Field Office Interviews Sample Fee Waiver Sample Letters Contesting INS Decision to Recommend Denial of Naturalization Application Chapter 11 Loyalty Oath and Naturalization Ceremony 11.1 Introduction Oath of Allegiance The Text of the Oath The Meaning of the Oath Waivers to the Oath Requirement, Expedited Oath Ceremonies, and Accommodations for Individuals with Certain Disabilities Modifications to the Oath Requirement Changes in the Naturalization Process Jurisdiction: USCIS or the Courts Judicial Ceremonies Name Changes USCIS Ceremonies Failure to Attend a Naturalization Ceremony Procedures During a USCIS or Judicial Ceremony Applying for a U.S. Passport Gaining Knowledge from Clients Appendix 12-A Group Processing Packets; Form N-400 in Spanish Appendix 12-B Sample Green Cards Appendix 12-C Outreach Flyers on What Must Be Sent with an N-400 Appendix 12-D Naturalization Group Processing List of Participants Chapter 12 Group Processing 12.1 Introduction Overview of Naturalization Group Processing The Introductory Workshop Applicants Preparation for the Application Workshop The Application Workshop Follow-Up on Applications The Interview Preparation Workshop: Introduction Request for Volunteers and Evaluations Chapter 13 Denials, Appeals, and USCIS Inaction 13.1 Introduction Denials The Appeal Process Other Options USCIS Inaction Writ of Mandamus viii

7 Appendix 13-A Appendix 13-B Appendix 13-C Naturalization & US Citizenship Rule on Private Immigration Bills to Congress for Naturalization Sample Completed N-336, Naturalization Appeal Sample Briefs in Support of Administrative Naturalization Appeal Chapter 14 Citizenship and Children 14.1 Introduction to Citizenship for Children of U.S. Citizens Part One: Acquisition of Citizenship 14.2 Introduction to Acquisition of Citizenship Who Can Acquire Citizenship at Birth Outside of the United States Using the Charts to Determine Acquisition of Citizenship Documenting a Claim of Acquisition of Citizenship Part Two: Derivation of Citizenship 14.6 Introduction to Derivation of Citizenship Who Can Derive Citizenship Using the Chart to Determine Derivative Status Child Citizenship Act of Definition of Legal Custody under the Child Citizenship Act of 2000 for Children Who Are Legitimate Definition of Legal Custody under the Child Citizenship Act of 2000 for Children Who Were Born out of Wedlock ( Illegitimate Children ) Definition of Legal Custody for Purposes of Derivative Citizenship Before the Child Citizenship Act of Documenting and Applying for Derivative Citizenship Appealing a Denial of a 320 Citizenship Application Part Three: Citizenship Under INA Introduction to 322 Citizenship Definition of Legal Custody for 322 Citizenship for Children Who Are Legitimate Definition of Legal Custody for 322 Citizenship for Children Born Out of Wedlock ( Illegitimate Children ) Documenting a Claim Under 322 Citizenship Applying for 322 Citizenship Appealing a Denial of a 322 Citizenship Application Part Four: Naturalization for Children Who Served During Hostilities and Special Naturalization Provisions for Certain Children Introduction to Naturalization for Children Who Served During Hostilities Special Naturalization Provisions for Certain Children Appendix 14-A Appendix 14-B Appendix 14-C Acquisition of Citizenship Charts Derivation of Citizenship Chart Obtaining Evidence of U.S. Citizenship for a Child Living Abroad (Sample Form DS 3053 and DS-2029) ix

8 Immigrant Legal Resource Center Appendix 14-D Sample N-600 Application Appendix 14-E INS Memo on Eligibility of Children Born out of Wedlock for Derivative Citizenship (Sept. 2003) Appendix 14-F Sample Letter from Passport Applicant under INA 320 Appendix 14-G INS Memo on Effect of Grandparent s Death of Naturalization under INA Section 322 (Apr. 2003) Appendix 14-H Sample 600-K Appendix 14-I INS Memo, Instructions for Processing Applications Filed by US Citizen Parents Who Cannot Fulfill the Transmission Requirements Appendix 14-J INS Memo, Instructions for Processing Application Filed by US Citizen Parents for their Adopted Children Born Abroad Appendix 14-K Passport Bulletin re Derivative Citizenship Chapter 15 Loss of United States Citizenship 15.1 Introduction Part One: Denaturalization or Revocation of Naturalization 15.2 Denaturalization Illegal Procurement, or Concealment or Willful Misrepresentation Denaturalization Process Denaturalization for Convictions for Naturalization Fraud (Criminal Revocation) Wartime Military Service The 340(a) Proviso Administrative Denaturalization Enjoined Relation Back Impact on Derivative Citizens Part Two: Expatriation or Voluntary Abandonment of Citizenship Expatriation Naturalization in a Foreign State Oath of Allegiance to Foreign State Service in Foreign Armed Forces Foreign Governmental Employment Renunciation of U.S. Citizenship Renunciation in the United States During Wartime Treason and Subversive Activities Expatriation Procedures Expatriation Administrative Review or Reconsideration Chapter 16 Immigration Remedies: Gaining Legal Status for Family Members, Outreach and Community Organizing 16.1 Introduction Part One: Petitioning for Family Members 16.2 Introduction: Becoming a Lawful Permanent Resident Through Family x

9 Naturalization & US Citizenship 16.3 Family Visa Petitions: Immediate Relatives of U.S. Citizens and the Preference System Family Visa Petitions: The Preference System for Relatives of U.S. Citizens and Permanent Residents Becoming a Permanent Resident: Adjustment of Status and Consular Processing Part Two: Other Remedies 16.6 Self-Petitioning Visas for Battered or Abused Spouses or Children of U.S. Citizens or Lawful Permanent Residents The U Visa Asylum and Restriction on Removal Cancellation of Removal for Non-Permanent Residents NACARA Cancellation of Removal for Certain Permanent Residents Diversity Visas Temporary Protected Status (TPS) Prosecutorial Discretion and Deferred Action Including DACA Legalization Extension Cases and Late Amnesty Provision of LIFE SIJS and Other Immigration Remedies Part Three: Outreach and Community Organizing Community Information Sessions: Publicizing Naturalization and Other Immigration Remedies Know Your Rights Sessions Lay Advocates Community Organizing: Organizing Immigrants to Educate Policy Makers and Improving USCIS, ICE, and CBP Procedures Organizing Suggestions Dreamers and DACA Deferred Action for Childhood Arrivals: An Organizing Campaign Example A Network of Immigrant-Based Committees Working with the Media Appendix 16-A Appendix 16-B The Visa Bulletin Outreach Flyers Describing Ways to Immigrate (English & Spanish) xi

10 Immigrant Legal Resource Center xii

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