(2) Without awareness of the nature or the aims of the organization, and was discontinued if the applicant became aware of the nature or aims of the organization;

(3) Terminated prior to the attainment of age sixteen by the applicant, or more than ten years prior to the filing of the application for naturalization;

(4) By operation of law; or

(5) Necessary for purposes of obtaining employment, food rations, or other essentials of living.

(c) Awareness and participation—(1) Exemption applicable. The exemption under paragraph (b)(2) of this section may be found to apply only to an applicant whose participation in the activities of an organization covered under § 313.2 was minimal in nature, and who establishes that he or she was unaware of the nature of the organization while a member of the organization.

(2) Exemptions inapplicable. The exemptions under paragraphs (b)(4) and (b)(5) of this section will not apply to any applicant who served as a functionary of an organization covered under §313.2, or who was aware of and believed in the organization's doctrines.

(d) Essentials of living-(1) Exemption applicable. The exemption under paragraph (b)(5) of this section may be found to apply only to an applicant who can demonstrate:

(i) That membership in the covered organization was necessary to obtain the essentials of living like food, shelter, clothing, employment, and an education, which were routinely available to the rest of the population-for pur

poses of this exemption, higher education will qualify as an essential of living only if the applicant can establish the existence of special circumstances which convert the need for higher education into a need as basic as the need for food or employment: and,

(ii) That he or she participated only to the minimal extent necessary to receive the essential of living.

(2) Exemption inapplicable. The exemption under paragraph (b)(5) of this section will not be applicable to an applicant who became a member of an organization covered under 313.2 to receive certain benefits:

(i) Without compulsion from the governing body of the relevant country; or (ii) Which did not qualify as essentials of living.

$313.4 Procedure.

In all cases in which the applicant claims membership or affiliation in any of the organizations covered by § 313.2, the applicant shall attach to the application a detailed written statement describing such membership or affiliation, including the periods of membership or affiliation, whether the applicant held any office in the organization, and whether membership or affiliation was voluntary or involuntary. If the applicant alleges that membership or affiliation was involuntary, or that one of the other exemptions in §313.3 applies, the applicant's statement shall set forth the basis of that allegation.

(1) A permanent exemption from induction into the Armed Forces or the National Security Training Corps of the United States for military training or military service; or

(2) The release or discharge from military training or military service in the Armed Forces or in the National Security Training Corps of the United States.

Induction means compulsory entrance into military service of the United States whether by conscription or, after being notified of a pending conscription, by enlistment.

Treaty national means an alien who is a national of a country with which the United States has a treaty relating to the reciprocal exemption of aliens from military training or military service. $315.2 Ineligibility and exceptions.

(a) Ineligibility. Except as provided in paragraph (b) of this section, any alien who has requested, applied for, and obtained an exemption from military service on the ground that he or she is an alien shall be ineligible for approval of his or her application for naturalization as a citizen of the United States.

(b) Exceptions. The prohibition in paragraph (a) of this section does not apply to an alien who establishes by clear and convincing evidence that:

(1) At the time that he or she requested an exemption from military service, the applicant had no liability for such service even in the absence of an exemption;

(2) The applicant did not request or apply for the exemption from military service, but such exemption was automatically granted by the United States government;

(3) The exemption from military service was based upon a ground other than the applicant's alienage;

(4) In claiming an exemption from military service, the applicant did not knowingly and intentionally waive his or her eligibility for naturalization because he or she was misled by advice from a competent United States government authority, or from a competent authority of the government of his or her country of nationality, of the consequences of applying for an exemption from military service and was, therefore, unable to make an intel

ligent choice between exemption and citizenship;

(5) The applicant applied for and received an exemption from military service on the basis of alienage, but was subsequently inducted into the Armed Forces, or the National Security Training Corps, of the United States; however, an applicant who voluntarily enlists in and serves in the Armed Forces of the United States, after applying for and receiving an exemption from military service on the basis of alienage, does not satisfy this exception to paragraph (a) of this section;

(6) Prior to requesting the exemption from military service:

(i) The applicant was a treaty national who had served in the armed forces of the country of which he or she was a national; however, a treaty national who did not serve in the armed forces of the country of nationality prior to requesting the exemption from military service does not satisfy this exception to paragraph (a) of this section;

(ii) The applicant served a minimum of eighteen months in the armed forces of a nation that was a member of the North Atlantic Treaty Organization at the time of the applicant's service; or

(iii) The applicant served a minimum of twelve months in the armed forces of a nation that was a member of the North Atlantic Treaty Organization at the time of the applicant's service, provided that the applicant applied for registration with the Selective Service Administration after September 28, 1971; or

(7) The applicant is applying for naturalization pursuant to section 329 of the Act.

$315.3 Evidence.

(a) The records of the Selective Service System and the military department under which the alien served shall be conclusive evidence of whether the alien was relieved or discharged from liability for military service because he or she was an alien.

(b) The regulations of the Selective Service Administration and its predecessors will be controlling with respect to the requirement to register for, and

liability for, service in the Armed Forces of the United States.

$315.4 Exemption treaties.

(a) The following countries currently have effective treaties providing reciprocal exemption of aliens from military service:

Argentina (Art. X, 10 Stat. 1005, 1009, effective 1853)

Austria (Art. VI, 47 Stat. 1876, 1880, effective 1928)

China (Art. XIV, 63 Stat. 1299, 1311, effective 1946)

Costa Rica (Art. IX, 10 Stat. 916, 921, effective 1851)

Estonia (Art. VI, 44 Stat. 2379, 2381, effective 1925)

Honduras (Art. VI, 45 Stat. 2618, 2622, effective 1927)

Ireland (Art. III, 1 US 785, 789, effective 1950) Italy (Art. XIII, 63 Stat. 2255, 2272, effective 1948)

Latvia (Art. VI, 45 Stat. 2641, 2643, effective 1928)

Liberia (Art. VI, 54 Stat. 1739, 1742, effective 1938)

Norway (Art. VI, 47 Stat. 2135, 2139, effective 1928)

Paraguay (Art. XI, 12 Stat. 1091, 1096, effective 1859)

Spain (Art. V, 33 Stat. 2105, 2108, effective 1902)

Switzerland (Art. II, 11 Stat. 587, 589, effective 1850)

Yugoslavia (Serbia) (Art. IV, 22 Stat. 963, 964, effective 1881)

(b) The following countries previously had treaties providing for reciprocal exemption of aliens from military service:

El Salvador (Art. VI, 46 Stat. 2817, 2821, effective 1926 to February 8, 1958) Germany (Art. VI, 44 Stat. 2132, 2136, effective 1923 to June 2, 1954)

Hungary (Art. VI, 44 Stat, 2441, 2445, effective 1925 to July 5, 1952)

Thailand (Siam) (Art. 1, 53 Stat. 1731, 1732, effective 1937 to June 8, 1968)

(a) General. Except as otherwise provided in this chapter, to be eligible for naturalization, an alien must establish that he or she:

(1) Is at least 18 years of age;

(2) Has been lawfully admitted as a permanent resident of the United States:

(3) Has resided continuously within the United States, as defined under §316.5, for a period of at least five years after having been lawfully admitted for permanent residence;

(4) Has been physically present in the United States for at least 30 months of the five years preceding the date of filing the application;

(5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or 319(a) of the Act, has resided, as defined under §316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence,

and in which the alien seeks to file the application;

(6) Has resided continuously within the United States from the date of application for naturalization up to the time of admission to citizenship;

(7) For all relevant time periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and

(8) Is not a person described in Section 314 of the Act relating to deserters of the United States Armed Forces or those persons who departed from the United States to evade military service in the United States Armed Forces.

(b) Burden of proof. The applicant shall bear the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant's initial entry or any subsequent reentry.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993; 60 FR 6651, Feb. 3, 1995]

§316.3 Jurisdiction.

Except as provided in §316.5, the applicant shall file an application for naturalization with the Service office having jurisdiction, as described in § 100.4 of this chapter, over the applicant's residence at the time of filing the application. The applicant may be required to submit evidence of residence for at least three months immediately preceding the filing of the application in the State or Service district in which the applicant files the application. For purposes of this section, the applicant's residence in a State where there are two or more districts will be sufficient to comply with the jurisdictional requirement of residence in any one of those districts.

§ 316.4 Application; documents.

(a) The applicant shall apply for naturalization by filing:

(1) Form N-400 (Application for Naturalization);

(2) Evidence of lawful permanent residence in the United States in the form of photocopies (front and back) of Forms I-551 (Permanent Resident Card), or any other entry document; and

(3) Three (3) photographs as described in § 333.1 of this chapter.

(b) Each applicant who files Form N400, Application for Naturalization. shall be fingerprinted on Form FD-258, Applicant Card, as prescribed in §103.2(e) of this chapter.

(c) At the time of the examination on the application for naturalization, the applicant may be required to establish the status of lawful permanent resident by submitting the original evidence, issued by the Service, of lawful permanent residence in the United States. The applicant may be also required to submit any passports, or any other documents that have been used to enter the United States at any time after the original admission for permanent residence.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 48780, Sept. 20, 1993; 63 FR 12987, Mar. 17, 1998: 63 FR 70316, Dec. 21, 1998]

§316.5

Residence in the United States.

(a) General. Unless otherwise specified, for purposes of this chapter, including §316.2 (a)(3), (a)(5), and (a)(6), an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.

(b) Residences in specific cases—(1) Military personnel. For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under part 328 of this chapter, the applicant's residence shall be:

(i) The State or Service District where the applicant is physically present for at least three months, immediately preceding the filing of an application for naturalization, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period

falls within the required period of residence under section 316(a) or 319(a) of the Act;

(ii) The location of the residence of the applicant's spouse and/or minor child(ren); or

(iii) The applicant's home of record as declared to the Armed Forces at the time of enlistment and as currently reflected in the applicant's military personnel file.

(2) Students. An applicant who is attending an educational institution in a State or Service District other than the applicant's home residence may apply for naturalization:

or

(i) Where that institution is located;

(ii) In the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process.

(3) Commuter aliens. An applicant who is a commuter alien, as described in §211.5 of this chapter, must establish a principal dwelling place in the United States with the intention of permanently residing there, and must thereafter acquire the requisite period of residence before eligibility for naturalization may be established. Accordingly, a commuter resident alien may not apply for naturalization until he or she has actually taken up permanent residence in the United States and until such residence has continued for the required statutory period. Such an applicant bears the burden of providing evidence to that effect.

(4) Residence in multiple states. If an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed.

(5) Residence during absences of less than one year. (i) An applicant's residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant's departure abroad.

(ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant

last resided, the applicant will have complied with the continuous residence requirement specified in §316.2(a)(5) when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization.

(c) Disruption of continuity of residence (1) Absence from the United States (i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under §316.2 (a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

(C) The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with §316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under §316.2 (a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who

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