(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.

(3) Removal and return. Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part.

(4) Readmission after a deferred inspection or exclusion proceeding. An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under §316.2 (a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.

(d) Application for benefits with respect to absences; appeal-(1) Preservation of residence under section 316(b) of the Act. (i) An application for the residence benefits under section 316(b) of the Act to cover an absence from the United States for a continuous period of one year or more shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's employment commences, but must be filed before the applicant has been absent from the United States for a continuous period of one year.

(ii) An approval of Form N-470 under section 316(b) of the Act shall cover the spouse and dependent unmarried sons and daughters of the applicant who are residing abroad as members of the applicant's household during the period covered by the application. The notice of approval, Form N-472, shall identify the family members so covered.

(iii) An applicant whose Form N-470 application under section 316(b) of the Act has been approved, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, raises a rebuttable presumption that the applicant has relinquished a claim of having retained lawful permanent resident status while abroad. The applicant's family members who were covered under section 316(b) of the Act and who were listed on the applicant's Form N-472 will also be subject to the rebuttable presumption that they have relinquished their claims to lawful permanent resident status.

(2) Preservation of residence under section 317 of the Act. An application for the residence and physical presence benefits of section 317 of the Act to cover any absences from the United States, whether before or after December 24, 1952, shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's absence from the United States or the performance of the functions or services described in section 317 of the Act.

(3) Approval, denial, and appeal. The applicant under paragraphs (d)(1) or (d)(2) of this section shall be notified of the Service's disposition of the application on Form N-472. If the application is denied, the Service shall specify the reasons for the denial, and shall inform the applicant of the right to appeal in accordance with the provisions of part 103 of this chapter.

[56 FR 50484, Oct. 7, 1991, as amended at 56 FR 50487, Oct. 7, 1991; 58 FR 49913, Sept. 24, 1993: 60 FR 6651, Feb. 3, 1995; 62 FR 10394, Mar. 6. 1997]

$$ 316.6-316.9 [Reserved]

§316.10 Good moral character.

(a) Requirement of good moral character during the statutory period. (1) An applicant for naturalization bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character. This includes the period between the examination

and the administration of the oath of allegiance.

(2) In accordance with section 101(f) of the Act, the Service shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen in the community of residence. The Service is not limited to reviewing the applicant's conduct during the five years immediately preceding the filing of the application, but may take into consideration, as a basis for its determination, the applicant's conduct and acts at any time prior to that period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character.

(b) Finding of a lack of good moral character. (1) An applicant shall be found to lack good moral character, if the applicant has been:

(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;

(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;

(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether com

mitted in the United States or any other country;

(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);

(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;

(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act;

(viii) Is or was involved in the smuggling of a person or persons into the United States as described in section 212(a)(6)(E) of the Act;

(ix) Has practiced or is practicing polygamy;

(x) Committed two or more gambling offenses for which the applicant was convicted;

(xi) Earns his or her income principally from illegal gambling activities; or

(xii) Is or was a habitual drunkard.

(3) Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

(i) Willfully failed or refused to support dependents;

(ii) Had an extramarital affair which tended to destroy an existing marriage;

or

(iii) Committed unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

(c) Proof of good moral character in certain cases (1) Effect of probation or parole. An applicant who has been on probation, parole, or suspended sentence

during all or part of the statutory period is not thereby precluded from establishing good moral character, but such probation, parole, or suspended sentence may be considered by the Service in determining good moral character. An application will not be approved until after the probation, parole, or suspended sentence has been completed.

(2) Full and unconditional executive pardon-(i) Before the statutory period. An applicant who has received a full and unconditional executive pardon prior to the beginning of the statutory period is not precluded by §316.10(b)(1) from establishing good moral character provided the applicant demonstrates that reformation and rehabilitation occurred prior to the beginning of the statutory period.

(ii) During the statutory period. An applicant who receives a full and unconditional executive pardon during the statutory period is not precluded by §316.10(b)(2) (i) and (ii) from establishing good moral character, provided the applicant can demonstrate that extenuating and/or exonerating circumstances exist that would establish his or her good moral character.

(3) Record expungement-(i) Drug offenses. Where an applicant has had his or her record expunged relating to one of the narcotics offenses under section 212(a)(2)(A)(i)(II) and section 241(a)(2)(B) of the Act, that applicant shall be considered as having been "convicted" within the meaning of §316.10(b)(2)(ii), or, if confined, as having been confined as a result of "conviction" for purposes of §316.10(b)(2)(iv).

(ii) Moral turpitude. An applicant who has committed or admits the commission of two or more crimes involving moral turpitude during the statutory period is precluded from establishing good moral character, even though the conviction record of one such offense has been expunged.

[56 FR 50484. Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993]

§ 316.11 Attachment to the Constitution; favorable disposition towards the good order and happiness. (a) General. An applicant for naturalization must establish that during

the statutorily prescribed period, he or she has been and continues to be attached to the principles of the Constitution of the United States and favorably disposed toward the good order and happiness of the United States. Attachment implies a depth of conviction which would lead to active support of the Constitution. Attachment and favorable disposition relate to mental attitude, and contemplate the exclusion from citizenship of applicants who are hostile to the basic form of government of the United States, or who disbelieve in the principles of the Constitution.

(b) Advocacy of peaceful change. At a minimum, the applicant shall satisfy the general standard of paragraph (a) of this section by demonstrating an acceptance of the democratic, representational process established by the Constitution, a willingness to obey the laws which may result from that process, and an understanding of the means for change which are prescribed by the Constitution. The right to work for political change shall be consistent with the standards in paragraph (a) of this section only if the changes advocated would not abrogate the current Government and establish an entirely different form of government.

(c) Membership in the Communist Party or any other totalitarian organization. An applicant who is or has been a member of or affiliated with the Communist Party or any other totalitarian organization shall be ineligible for naturalization, unless the applicant's membership meets the exceptions in sections 313 and 335 of the Act and § 313.4 of this chapter.

§ 316.12 Applicant's legal incompetency during statutory period.

(a) General. An applicant who is legally competent at the time of the examination on the naturalization application and of the administration of the oath of allegiance may be admitted to citizenship, provided that the applicant fully understands the purpose and responsibilities of the naturalization procedures.

(b) Legal incompetence. Naturalization is not precluded if, during part of the statutory period, the applicant was legally incompetent or confined to a mental institution.

(1) There is a presumption that the applicant's good moral character, attachment, and favorable disposition which existed prior to the period of legal incompetency continued through that period. The Service may, however, consider an applicant's actions during a period of legal incompetence, as evidence tending to rebut this presumption.

(2) If the applicant has been declared legally incompetent, the applicant has the burden of establishing that legal competency has been restored. The applicant shall submit legal and medical evidence to determine and establish the claim of legal competency.

(3) The applicant shall bear the burden of establishing that any crimes committed, regardless of whether the applicant was convicted, occurred while the applicant was declared legally incompetent.

§316.13 [Reserved]

§ 316.14 Adjudication-examination, grant, denial.

(a) Examination. The examination on an application for naturalization shall be conducted in accordance with Section 335 of the Act.

(b) Determination—(1) Grant or denial. Subject to supervisory review, the employee of the Service who conducts the examination under paragraph (a) of this section shall determine whether to grant or deny the application, and shall provide reasons for the determination, as required under section 335(d) of the Act.

(2) Appeal. An applicant whose application for naturalization has been denied may request a hearing, which shall be carried out in accordance with section 336 of the Act.

§§ 316.15-316.19 [Reserved]

§ 316.20 American institutions of research, public international organizations, and designations under the International Immunities Act.

(a) American institutions of research. The following-listed organizations have been determined to be American Institutions of research recognized by the Attorney General:

African Medical and Research Foundation (AMREF-USA).

Albert Einstein College of Medicine of Yeshiva University (only in relationship to its research programs).

American Friends of the Middle East, Inc. American Institutes of Research in the Behavioral Sciences (only in relationship to research projects abroad).

American Universities Field Staff, Inc. American University, The, Cairo, Egypt. American University of Beirut (Near East College Associations).

Arctic Institute of North America, Inc. Armour Research Foundation of Illinois Institute of Technology.

Asia Foundation, The (formerly Committee for a Free Asia, Inc.).

Association of Universities for Research in
Astronomy (AURA, Inc.), Tucson, AZ.
Atomic Bomb Casualty Commission.
Beirut University College.

Bermuda Biological Station for Research,
Inc.

Bernice P. Biship Museum of Polynesian Antiquities, Ethnology and Natural History at Honolulu, HI.

Brookhaven National Laboratory, Associated Universities, Inc.

Brown University (Department of Engineering), Providence, RI.

Buffalo Eye Bank and Research Society, Inc. Burma Office of Robert N. Nathan Associates, Inc.

California State University at Long Beach, Department of Geological Sciences. Carleton College (Department of Sociology and Anthropology), Northfield, MN. Center of Alcohol Studies, Laboratory of Applied Biodynamics of Yale University. Central Registry of Jewish Losses in Egypt. College of Engineering, University of Wisconsin.

College of Medicine, State University of New York.

Colorado State University (Research Foundation), Fort Collins, CO.

Free Europe, Inc. (formerly Free Europe Committee, Inc.; National Committee for a Free Europe (including Radio Free Europe)).

Georgetown University.

George Williams Hooper Foundation, San Francisco Medical Center, University of California, San Francisco, CA. Gorgas Memorial Institute of Tropical and Preventive Medicine, Inc., and its operating unit, the Gorgas Memorial Laboratory.

Graduate Faculty of Political and Social Science Division of the New School for So

cial Research, New York, NY. Harvard Institute for International Development.

Harvard-Yenching Institute.

Humboldt State University, School of Natural Resources, Wildlife Management Department.

Institute for Development Anthropology, Inc.

Institute of International Education, Inc. Institute of International Studies, University of California, Berkeley, CA. International Center for Social Research, New York, NY.

International Development Foundation. Inc. International Development Services, Inc. International Research Associates. Inc. Inter-University Program for Chinese Language Studies (formerly Stanford Center for Chinese Studies) in Taipei, Taiwan. Iowa State University.

Iran Foundation, Inc., The.

Kossuth Foundation, Inc., The, New York, NY.

Louisiana State University.

Massachusetts Institute of Technology. Michigan State University, East Lansing, MI.

Missouri Botanical Garden (research and educational programs only)

Natural Science Foundation, Philadelphia,
PA.

New York Zoological Society.
Paderewski Foundation, Inc.

Peabody Museum of Natural History of Yale
University.

People to People Health Foundation, Inc., The (only in relationship to the scientific research activities that will be carried on abroad by the medical staff of the SS "Hope").

Pierce College (in relationship to research by an instructor, Department of Psychology), Athens, Greece.

Population Council, The, New York, NY. Radio Liberty Committee, Inc. (formerly American Committee for Liberation, Inc.; American Committee for Liberation of the Peoples of Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).

Rockefeller Foundation.

School of International Relations of the University of Southern California. SIRIMAR (Societa Internazionale Recerche Marine) Division, Office of the Vice President for Research, Pennsylvania State University.

Social Science Research Council.

Solar Energy Research Institute (SERI). Stanford Electronic Laboratories, Department of Electrical Engineering, School of Engineering, Stanford University, Stanford, CA.

Stanford Research Institute, Menlo Park.
CA.

Stanford University (the George Vanderbilt
Foundation), Stanford, CA.
Syracuse University.

Tulane University Graduate School.
Tulane University Medical School.
University of Alabama.

University of Alabama Medical Center. University of Chicago (as a participant in the International Cooperation Administration Program No. W-74 only).

University of Colorado (Department of History), Boulder, CO.

University of Connecticut, College of Liberal Arts and Science (Department of Germanic and Slavic Languages).

University of Hawaii, Honolulu, HI. University of Ilinois at Urbana-Champaign, Austria-Illinois Exchange Program. University of Kansas, Office of International Programs.

University of La Verne (La Verne College of Athens)

University of Michigan (School of Natural Resources), Ann Arbor, MI.

University of Minnesota, Department of Plant Pathology (in relationship to research project abroad).

University of Nebraska Mission in Columbia. South America.

University of North Carolina at Chapel Hill. University of Notre Dame, Notre Dame, IN. University of Puerto Rico.

University of Washington (Department of Marketing, Transportation, and International Business) and (The School of Public Health and Community Medicine), Seattle, WA.

Wayne State University, Detroit, MI.
Wenner-Gren

Foundation

for Anthropo

logical Research, Inc. Williams College, Economic Department. Williamstown, MA.

(b) Public international organizations of which the United States is a member by treaty or statute. The following-listed organizations have been determined to be public international organizations of which the United States is a member by treaty or statute:

The North Atlantic Treaty Organization.