(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 § 103.2(e) of this chapter.

in

(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

(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 must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resume permanent residence.

16.6-316.9

) Claim of nonresident alien status for ›me tax purposes after lawful admis

as a permanent resident. An applit who is a lawfully admitted permat resident of the United States, but > voluntarily claims nonresident n status to qualify for special exptions from income tax liability, or s to file either federal or state inhe tax returns because he or she siders himself or herself to be a resident alien, raises a rebuttable sumption that the applicant has requished the privileges of permanent ident status in the United States. 1) Removal and return. Any departure m the United States while under an er of removal (including previously ed orders of exclusion or deportan) terminates the applicant's status a lawful permanent resident and, refore, disrupts the continuity of idence for purposes of this part. 1) Readmission after a deferred inspeca or exclusion proceeding. An appliit who has been readmitted as a lawpermanent resident after a deferred pection or by the immigration judge ing exclusion proceedings shall satthe residence and physical prese requirements under §316.2 (a)(3), 4), (a)(5), and (a)(6) in the same nner as any other applicant for natlization.

8 CFR Ch. I (1-1-00 Edition)

(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.

1) Application for benefits with respect absences; appeal-(1) Preservation of dence under section 316(b) of the Act. An application for the residence efits under section 316(b) of the Act cover an absence from the United tes for a continuous period of one r or more shall be submitted to the vice on Form N-470 with the rered fee, in accordance with the m's instructions. The application y be filed either before or after the licant's employment commences, - must be filed before the applicant been absent from the United States a continuous period of one year. i) An approval of Form N-470 under tion 316(b) of the Act shall cover the use and dependent unmarried sons 1 daughters of the applicant who are iding abroad as members of the ap

hannahald Auning the nariod

(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]

88316.6-316.9 [Reserved]

§316.10 Good moral character.

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(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

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:

or

(i) Convicted of murder at any time;

(ii) Convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990.

(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;

(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 §316.10(b)(2)(iv).

of

(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 Constitu

tion; 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.