U.S. Citizenship and Immigration Services
June 15, 2009
Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Director
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.
II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.
III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand¬alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing
procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.
I. Effect of Grant of Deferred Action
The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors
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Tuesday, November 24, 2009
Wednesday, June 24, 2009
INS on Effect of Failure to Register for Selective Service on Naturalization Eligibility
INS on Effect of Failure to Register for Selective Service on Naturalization Eligibility
June 18, 1999
Memorandum For Regional Directors
District Directors
Service Center Directors
From: William R. Yates
Deputy Executive Associate Commissioner
Office of Field Operations
Immigration Services Division
Subject: Effect of Failure to Register for Selective Service on Eligibility for Naturalization
This memorandum provides guidance to Immigration and Naturalization Service (INS) field offices regarding the effect of a naturalization applicant's failure to register for Selective Service on the applicant's eligibility for naturalization. This guidance is based on the attached legal opinion issued by the Office of General Counsel on April 27, 1998.
Selective Service Registration Requirements
Section 3(a) of the Military Selective Service Act [50 U.S.C. App. § 453(a)] provides that:
it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President, and by rules and regulations prescribed hereunder.
This requirement does not apply to aliens present in the United States in a lawful nonimmigrant status.
In 1980, the President directed that, except for aliens in lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. Proc. No. 4771 of July 2, 1980 § 1-101, 94 Stat. 3775 (1980). As provided by statute, this obligation continues in force until the man either registers or attains his twenty-sixth birthday. 50 U.S.C. App. § 456(a).
Although the Military Selective Service Act provides for civil penalties for failure to register, Section 12 of the Military Selective Service Act [50 U.S.C. § 462] also provides some relief from the adverse civil effects of failure to register:
(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 if --
(1) the requirement for the person to so register has terminated or become inapplicable to the person; and
(2) the person shows by a preponderance of the evidence that the failure of the person to register was not a knowing and willful failure to register.
Men Required to Register
Except for aliens maintaining lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service. Men living in the United States are required to register at 18. Men who enter the United States as immigrants are also required to register if they are between 18 and 26.
The requirement to register with Selective Service also applied to men born before March 29, 1957 who resided in the United States, other than as lawful nonimmigrants, between their 18th and 26th birthdays. Cf. Proc. No. 4360 of March 29, 1975, 40 Fed. Reg. 14,567 (1975).
Men Not Required to Register
The requirement to register with Selective Service ceases when a man reaches 26 years of age. Men who did not live in the United States between 18 and 26 years of age, and men who lived in the United States between 18 and 26 years of age, but maintained lawful nonimmigrant status for the entire period were not required to register.
Men born after March 29, 1957, and before December 31, 1959, were never under an obligation to register with Selective Service. Proc. No. 4771 and Proc. No. 4360, supra.
Eligibility for Naturalization
Section 316(a) of the Immigration and Nationality Act (INA) requires a naturalization applicant to prove that he or she is, and has been for the requisite period, a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed toward the good order and happiness of the United States. Section 337(a)(5)(A) of the INA also requires applicants to declare under oath his or her willingness to bear arms on behalf of the United States when required by law. Therefore, it is INS policy that refusal to or knowing and willful failure to register for Selective Service during the period for which an applicant is required to prove his compliance with § 316(a)(3) supports a finding that the applicant is not eligible for naturalization, because he has failed to establish his willingness to bear arms when required and his disposition to the good order and happiness of the United States.
Effect of Failure to Register for Selective Service
Failure to register for Selective Service is not a permanent bar to naturalization. In general, INS will find an applicant ineligible for naturalization on account of failure to register for Selective Service if a male applicant refuses to or knowingly and willfully failed to register during the period for which the applicant is required to establish his disposition to the good order and happiness of the United States. This period coincides with the more familiar good moral character period. Whether it is proper for the INS to determine that an applicant refused to or knowingly and willfully failed to register for Selective Service will depend on the applicant's age at the time of filing the naturalization application and up until the time of administration of the oath of allegiance.
Applicants Under 26 Years of Age
A man under 26 years of age who refuses to register for Selective Service cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant under 26 years of age must provide evidence of registration for Selective Service. The examination of a naturalization application filed by a man under 26 years of age who has not registered for Selective Service by the time of the naturalization examination must be continued to afford the applicant an opportunity to register. If the applicant refuses to register for Selective Service after being afforded a reasonable opportunity to register, the naturalization application must be denied. The decision denying the application must state specifically that the applicant has refused, after given an opportunity to do so, to register with Selective Service, and that the person, therefore, is not eligible for naturalization because he is not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Between 26 and 31 Years of Age
A man between 26 and 31 years of age[1] who was required to register for Selective Service and who knowingly and willfully failed to register cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant between 26 and 31 years of age who failed to register for Selective Service must provide evidence that his failure to register was not knowing and willful or that he was not required to register. If a male naturalization applicant between 26 and 31 years of age failed to register with Selective Service, the naturalization examination must be continued to give the applicant an opportunity to obtain evidence that his failure to register was not knowing and willful or that he was not required to register. If the applicant is unable to demonstrate that his failure to register was not knowing and willful or that he was not required to register, his naturalization application must be denied. Again, the decision must state explicitly that the INS has found that his willful failure to register with Selective Service means he cannot show that, during the requisite period before filing his application, he was not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Over 31 Years of Age
Failure to register for Selective Service will generally not prevent a man who was over 31 years of age on the day he filed his naturalization application from demonstrating that he is eligible for naturalization. Even if the applicant was required to register and the applicant's failure to register was knowing and willful, the failure occurred outside of the statutory period during which the applicant is required to establish his attachment to the good order and happiness of the United States. The INS may, of course, consider a person's conduct before the beginning of this period. INA § 101(f) (last sentence) and § 316(e). If the INS denies naturalization to a man who is at least 31, based on his failure to register with Selective Service, the decision must state explicitly the basis for finding that the failure to register warrants denial of naturalization. As a practical matter, a male applicant over 31 years of age who failed to register with Selective Service should, ordinarily, be found eligible for naturalization unless INS has other evidence, in addition to the past failure to register, that demonstrates that the applicant is not well disposed to the good order and happiness of the United States.
Evidence of Selective Service Registration
Men may obtain cards to register for Selective Service at their local post office. Men may also register on-line at the Selective Service System website at www.sss.gov. The Selective Service System website may also be accessed from the INS website at uscis.gov . After registration, men should receive a Selective Service registration card in the mail.
Men may obtain status information letters by calling the Selective Service System at 847/688-6888 or 847/688-2576, and requesting a questionnaire. Status information letters inform men whether, based on their age and immigration status in the United States, they had a Selective Service registration requirement with which they failed to comply.
INS officers may confirm a naturalization applicant's registration status by calling the Selective Service System at 847/688-6888 or 847/688-2576. Officers will need to enter the applicant's Social Security Number and date of birth to obtain status information.
Evidence of Registration
Naturalization applicants may present Selective Service registration acknowledgment cards or status information letters as proof of registration. INS officers may also accept other persuasive evidence presented by an applicant as proof of registration.
Evidence Relating to Failure to Register
INS officers must request that naturalization applicants submit status information letters before concluding that men failed to register with Selective Service when required. Status information letters do not forgive men for failing to register, nor do they provide them with an exemption from the requirement. The letters merely inform men if they had a registration requirement with which they failed to comply. Once it is established by a status information letter that a naturalization applicant failed to register when required, the INS officer must determine, based on other evidence, whether or not an applicant's failure to register was knowing and willful. INS officers must consider all persuasive evidence presented by an applicant relating to his failure to register. At a minimum, the INS officers must take a statement under oath from an applicant in order to determine whether or not failure to register was knowing and willful.
Evidence that Registration Was Not Required
Naturalization applicants need only demonstrate that they were 26 years of age or older when they first entered the United States as immigrants to prove that they were not required to register with Selective Service. Proof of an applicant's age and immigration status should be contained in the applicant's file. This evidence is all that is necessary to prove that the applicant was not required to register.
Further Information
Further questions regarding the effect of failure to register for Selective Service on eligibility for naturalization may be directed to Cheryl Becker, Adjudications Officer, Office of Field Operations, Immigration Services Division, at 202/514-2982.
Attachments
Footnote:
[1] The 26 to 31 age range used in this memorandum must be adjusted for applicants filing under sections of the INA requiring different periods of good moral character. For example, the age range for an applicant filing under section 319(a) of the INA is between 26 to 29 years of age.
ATTACHMENTS
April 27, 1998
Memorandum For Jack Penca
Eastern Regional Counsel
From: Paul W. Virtue
General Counsel
Subject: Your February 13, 1998, Request for Legal Opinion: Failure to register for Selective Service as a bar to naturalization
I. QUESTION
In the subject memorandum, you request a legal opinion addressing the following question:
Is failure to register for Selective Service a bar to naturalization?
II. SUMMARY CONCLUSION
Failure to register for Selective Service bars naturalization only if the applicant knowingly and willfully failed to register during the period for which the applicant must establish good moral character. If the applicant knowingly and willfully failed to register, but this failure to register occurred outside the good moral character period, the failure to register is not an absolute bar to naturalization. The Service may, however, consider the failure to register in determining the applicant's naturalization eligibility.
III. ANALYSIS
An applicant for naturalization must be "a person of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States." INA § 316(a)(3), 8 U. S.C. § 1427(a)(3). The period during which the applicant must meet this requirement begins five years before the applicant files the naturalization application, and continues through the date that the applicant is admitted to citizenship. Id (The applicant must show that the applicant "has been and still is" of good moral character). Moreover, an applicant must be willing "to bear arms on behalf of the United States when required by the law." Id § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A).
Except aliens maintaining lawful nonimmigrant status, any many born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. 50 U.S.C. App. § 453(a); Proc. No. 4771 of July 2, 1980, § 1-101, 94 Stat. 3775, 3775 (1980). This obligation continues until the man's twenty-sixth birthday. Id. The INA does not make compliance with this requirement a condition for naturalization. The Service would be fully justified, nevertheless, in finding that a man who refuses to comply with this requirement is not willing to bear arms when the law requires. INA § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A). This finding would support the further inference that the applicant is not disposed to the good order and happiness of the United States. Id.
§ 316(a)(3), 8 U.S.C. § 1427(a)(3). Any naturalization application should be denied on this basis, if the applicant is a man who has not yet turned twenty-six, and who refuses to register for Selective Service.
The posture of the case changes once the applicant has turned twenty-six. In that case, there was, but no longer is, a duty to register. 50 U.S.C. § App. 453(a). The Service can still find that the applicant is ineligible to naturalization, based on the failure to have registered, unless the applicant establishes that his failure to file was not knowing and willful. 50 U.S.C. App. § 462(g). Note that this statute clearly places the burden of proof on the applicant. Id. Therefore, the Service may presume the failure to register to have been knowing and willful, unless the applicant proves the contrary "by a preponderance of the evidence." Id.
The posture of the case changes, again, the day after the applicant's thirty-first birthday. If the applicant files on that date, or later, then more than five years will have elapsed since the failure to register. That is, the event that reflects adversely on the applicant's eligibility will have occurred outside the period during which the applicant must show that he is of good moral character and disposed to the good order and happiness of the United States. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service should first consider whether the failure to register was knowing and willful. 50 U.S.C. § 462(g). If not then the Service should find the applicant to have satisfied § 316(a)(3), unless other adverse factors are present. Even if the applicant did knowingly and willfully fail to register, that fact would not be an absolute bar to eligibility. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service could grant naturalization, so long as the Service were satisfied that the applicant satisfies § 316(a)(3) now, even if he may not have been able to do so in the past.
But the Service need not automatically disregard the failure to register, once the applicant is at least thirty-one years old. The Service is entitled to consider improper conduct that occurred outside the statutory period, in determining whether the applicant can satisfy § 316(a)(3). Id. §§ 101 (f) (last sentence) and 316(e), 8 U.S.C. §§ 1101(f) and 1427(e); 8 C.F.R. § 316.10(a)(2). For this reason, the Service could properly consider a willful failure to register for Selective Service, together with other evidence concerning the applicant s compliance with § 316(a)(3), even if the willful failure to register is outside the good moral character period. For the sake of further review, it would be necessary for the Service to explain in its decision why an event outside the statutory period is taken to prove the applicant to be ineligible under § 316(a)(3). It would not be correct simply to say that a knowing and willful failure to register is a permanent bar to naturalization. There is also an important factor to keep in mind, when the failure to register is outside the good moral character period. An applicant may seek judicial review of a final decision denying naturalization. Id. § 310(c), 8 U.S.C. § 1421(c). In reviewing the case, the district court would have legal authority to decide the issue de novo, making its own judgment on the effect of the failure to register on the applicant's eligibility. Id.
We are aware of the argument that, drawing an analogy from INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426, an alien who knowingly and willfully fails to register should be permanently barred from naturalization. Letter from Russell A. Ezolt to Toni B. Florence (December 16, 1997). We agree with Mr. Ezolt that this analogy cannot be sustained. Congress has specifically enacted that convicted deserters, those convicted of departing to avoid the draft, and those who obtain an alienage exemption from induction or further service, are permanently barred from naturalization. INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426. But Congress has not enacted a similar provision for those who fail to register for the draft. We do not consider it proper to extend these bars to naturalization to persons Congress did no, chose to include within the scope of the bars. It is only under § 316(a)(3), if at all, that failure to register for Selective Service can warrant denial of naturalization in any given case.
June 18, 1999
Memorandum For Regional Directors
District Directors
Service Center Directors
From: William R. Yates
Deputy Executive Associate Commissioner
Office of Field Operations
Immigration Services Division
Subject: Effect of Failure to Register for Selective Service on Eligibility for Naturalization
This memorandum provides guidance to Immigration and Naturalization Service (INS) field offices regarding the effect of a naturalization applicant's failure to register for Selective Service on the applicant's eligibility for naturalization. This guidance is based on the attached legal opinion issued by the Office of General Counsel on April 27, 1998.
Selective Service Registration Requirements
Section 3(a) of the Military Selective Service Act [50 U.S.C. App. § 453(a)] provides that:
it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President, and by rules and regulations prescribed hereunder.
This requirement does not apply to aliens present in the United States in a lawful nonimmigrant status.
In 1980, the President directed that, except for aliens in lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. Proc. No. 4771 of July 2, 1980 § 1-101, 94 Stat. 3775 (1980). As provided by statute, this obligation continues in force until the man either registers or attains his twenty-sixth birthday. 50 U.S.C. App. § 456(a).
Although the Military Selective Service Act provides for civil penalties for failure to register, Section 12 of the Military Selective Service Act [50 U.S.C. § 462] also provides some relief from the adverse civil effects of failure to register:
(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 if --
(1) the requirement for the person to so register has terminated or become inapplicable to the person; and
(2) the person shows by a preponderance of the evidence that the failure of the person to register was not a knowing and willful failure to register.
Men Required to Register
Except for aliens maintaining lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service. Men living in the United States are required to register at 18. Men who enter the United States as immigrants are also required to register if they are between 18 and 26.
The requirement to register with Selective Service also applied to men born before March 29, 1957 who resided in the United States, other than as lawful nonimmigrants, between their 18th and 26th birthdays. Cf. Proc. No. 4360 of March 29, 1975, 40 Fed. Reg. 14,567 (1975).
Men Not Required to Register
The requirement to register with Selective Service ceases when a man reaches 26 years of age. Men who did not live in the United States between 18 and 26 years of age, and men who lived in the United States between 18 and 26 years of age, but maintained lawful nonimmigrant status for the entire period were not required to register.
Men born after March 29, 1957, and before December 31, 1959, were never under an obligation to register with Selective Service. Proc. No. 4771 and Proc. No. 4360, supra.
Eligibility for Naturalization
Section 316(a) of the Immigration and Nationality Act (INA) requires a naturalization applicant to prove that he or she is, and has been for the requisite period, a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed toward the good order and happiness of the United States. Section 337(a)(5)(A) of the INA also requires applicants to declare under oath his or her willingness to bear arms on behalf of the United States when required by law. Therefore, it is INS policy that refusal to or knowing and willful failure to register for Selective Service during the period for which an applicant is required to prove his compliance with § 316(a)(3) supports a finding that the applicant is not eligible for naturalization, because he has failed to establish his willingness to bear arms when required and his disposition to the good order and happiness of the United States.
Effect of Failure to Register for Selective Service
Failure to register for Selective Service is not a permanent bar to naturalization. In general, INS will find an applicant ineligible for naturalization on account of failure to register for Selective Service if a male applicant refuses to or knowingly and willfully failed to register during the period for which the applicant is required to establish his disposition to the good order and happiness of the United States. This period coincides with the more familiar good moral character period. Whether it is proper for the INS to determine that an applicant refused to or knowingly and willfully failed to register for Selective Service will depend on the applicant's age at the time of filing the naturalization application and up until the time of administration of the oath of allegiance.
Applicants Under 26 Years of Age
A man under 26 years of age who refuses to register for Selective Service cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant under 26 years of age must provide evidence of registration for Selective Service. The examination of a naturalization application filed by a man under 26 years of age who has not registered for Selective Service by the time of the naturalization examination must be continued to afford the applicant an opportunity to register. If the applicant refuses to register for Selective Service after being afforded a reasonable opportunity to register, the naturalization application must be denied. The decision denying the application must state specifically that the applicant has refused, after given an opportunity to do so, to register with Selective Service, and that the person, therefore, is not eligible for naturalization because he is not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Between 26 and 31 Years of Age
A man between 26 and 31 years of age[1] who was required to register for Selective Service and who knowingly and willfully failed to register cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant between 26 and 31 years of age who failed to register for Selective Service must provide evidence that his failure to register was not knowing and willful or that he was not required to register. If a male naturalization applicant between 26 and 31 years of age failed to register with Selective Service, the naturalization examination must be continued to give the applicant an opportunity to obtain evidence that his failure to register was not knowing and willful or that he was not required to register. If the applicant is unable to demonstrate that his failure to register was not knowing and willful or that he was not required to register, his naturalization application must be denied. Again, the decision must state explicitly that the INS has found that his willful failure to register with Selective Service means he cannot show that, during the requisite period before filing his application, he was not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Over 31 Years of Age
Failure to register for Selective Service will generally not prevent a man who was over 31 years of age on the day he filed his naturalization application from demonstrating that he is eligible for naturalization. Even if the applicant was required to register and the applicant's failure to register was knowing and willful, the failure occurred outside of the statutory period during which the applicant is required to establish his attachment to the good order and happiness of the United States. The INS may, of course, consider a person's conduct before the beginning of this period. INA § 101(f) (last sentence) and § 316(e). If the INS denies naturalization to a man who is at least 31, based on his failure to register with Selective Service, the decision must state explicitly the basis for finding that the failure to register warrants denial of naturalization. As a practical matter, a male applicant over 31 years of age who failed to register with Selective Service should, ordinarily, be found eligible for naturalization unless INS has other evidence, in addition to the past failure to register, that demonstrates that the applicant is not well disposed to the good order and happiness of the United States.
Evidence of Selective Service Registration
Men may obtain cards to register for Selective Service at their local post office. Men may also register on-line at the Selective Service System website at www.sss.gov. The Selective Service System website may also be accessed from the INS website at uscis.gov . After registration, men should receive a Selective Service registration card in the mail.
Men may obtain status information letters by calling the Selective Service System at 847/688-6888 or 847/688-2576, and requesting a questionnaire. Status information letters inform men whether, based on their age and immigration status in the United States, they had a Selective Service registration requirement with which they failed to comply.
INS officers may confirm a naturalization applicant's registration status by calling the Selective Service System at 847/688-6888 or 847/688-2576. Officers will need to enter the applicant's Social Security Number and date of birth to obtain status information.
Evidence of Registration
Naturalization applicants may present Selective Service registration acknowledgment cards or status information letters as proof of registration. INS officers may also accept other persuasive evidence presented by an applicant as proof of registration.
Evidence Relating to Failure to Register
INS officers must request that naturalization applicants submit status information letters before concluding that men failed to register with Selective Service when required. Status information letters do not forgive men for failing to register, nor do they provide them with an exemption from the requirement. The letters merely inform men if they had a registration requirement with which they failed to comply. Once it is established by a status information letter that a naturalization applicant failed to register when required, the INS officer must determine, based on other evidence, whether or not an applicant's failure to register was knowing and willful. INS officers must consider all persuasive evidence presented by an applicant relating to his failure to register. At a minimum, the INS officers must take a statement under oath from an applicant in order to determine whether or not failure to register was knowing and willful.
Evidence that Registration Was Not Required
Naturalization applicants need only demonstrate that they were 26 years of age or older when they first entered the United States as immigrants to prove that they were not required to register with Selective Service. Proof of an applicant's age and immigration status should be contained in the applicant's file. This evidence is all that is necessary to prove that the applicant was not required to register.
Further Information
Further questions regarding the effect of failure to register for Selective Service on eligibility for naturalization may be directed to Cheryl Becker, Adjudications Officer, Office of Field Operations, Immigration Services Division, at 202/514-2982.
Attachments
Footnote:
[1] The 26 to 31 age range used in this memorandum must be adjusted for applicants filing under sections of the INA requiring different periods of good moral character. For example, the age range for an applicant filing under section 319(a) of the INA is between 26 to 29 years of age.
ATTACHMENTS
April 27, 1998
Memorandum For Jack Penca
Eastern Regional Counsel
From: Paul W. Virtue
General Counsel
Subject: Your February 13, 1998, Request for Legal Opinion: Failure to register for Selective Service as a bar to naturalization
I. QUESTION
In the subject memorandum, you request a legal opinion addressing the following question:
Is failure to register for Selective Service a bar to naturalization?
II. SUMMARY CONCLUSION
Failure to register for Selective Service bars naturalization only if the applicant knowingly and willfully failed to register during the period for which the applicant must establish good moral character. If the applicant knowingly and willfully failed to register, but this failure to register occurred outside the good moral character period, the failure to register is not an absolute bar to naturalization. The Service may, however, consider the failure to register in determining the applicant's naturalization eligibility.
III. ANALYSIS
An applicant for naturalization must be "a person of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States." INA § 316(a)(3), 8 U. S.C. § 1427(a)(3). The period during which the applicant must meet this requirement begins five years before the applicant files the naturalization application, and continues through the date that the applicant is admitted to citizenship. Id (The applicant must show that the applicant "has been and still is" of good moral character). Moreover, an applicant must be willing "to bear arms on behalf of the United States when required by the law." Id § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A).
Except aliens maintaining lawful nonimmigrant status, any many born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. 50 U.S.C. App. § 453(a); Proc. No. 4771 of July 2, 1980, § 1-101, 94 Stat. 3775, 3775 (1980). This obligation continues until the man's twenty-sixth birthday. Id. The INA does not make compliance with this requirement a condition for naturalization. The Service would be fully justified, nevertheless, in finding that a man who refuses to comply with this requirement is not willing to bear arms when the law requires. INA § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A). This finding would support the further inference that the applicant is not disposed to the good order and happiness of the United States. Id.
§ 316(a)(3), 8 U.S.C. § 1427(a)(3). Any naturalization application should be denied on this basis, if the applicant is a man who has not yet turned twenty-six, and who refuses to register for Selective Service.
The posture of the case changes once the applicant has turned twenty-six. In that case, there was, but no longer is, a duty to register. 50 U.S.C. § App. 453(a). The Service can still find that the applicant is ineligible to naturalization, based on the failure to have registered, unless the applicant establishes that his failure to file was not knowing and willful. 50 U.S.C. App. § 462(g). Note that this statute clearly places the burden of proof on the applicant. Id. Therefore, the Service may presume the failure to register to have been knowing and willful, unless the applicant proves the contrary "by a preponderance of the evidence." Id.
The posture of the case changes, again, the day after the applicant's thirty-first birthday. If the applicant files on that date, or later, then more than five years will have elapsed since the failure to register. That is, the event that reflects adversely on the applicant's eligibility will have occurred outside the period during which the applicant must show that he is of good moral character and disposed to the good order and happiness of the United States. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service should first consider whether the failure to register was knowing and willful. 50 U.S.C. § 462(g). If not then the Service should find the applicant to have satisfied § 316(a)(3), unless other adverse factors are present. Even if the applicant did knowingly and willfully fail to register, that fact would not be an absolute bar to eligibility. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service could grant naturalization, so long as the Service were satisfied that the applicant satisfies § 316(a)(3) now, even if he may not have been able to do so in the past.
But the Service need not automatically disregard the failure to register, once the applicant is at least thirty-one years old. The Service is entitled to consider improper conduct that occurred outside the statutory period, in determining whether the applicant can satisfy § 316(a)(3). Id. §§ 101 (f) (last sentence) and 316(e), 8 U.S.C. §§ 1101(f) and 1427(e); 8 C.F.R. § 316.10(a)(2). For this reason, the Service could properly consider a willful failure to register for Selective Service, together with other evidence concerning the applicant s compliance with § 316(a)(3), even if the willful failure to register is outside the good moral character period. For the sake of further review, it would be necessary for the Service to explain in its decision why an event outside the statutory period is taken to prove the applicant to be ineligible under § 316(a)(3). It would not be correct simply to say that a knowing and willful failure to register is a permanent bar to naturalization. There is also an important factor to keep in mind, when the failure to register is outside the good moral character period. An applicant may seek judicial review of a final decision denying naturalization. Id. § 310(c), 8 U.S.C. § 1421(c). In reviewing the case, the district court would have legal authority to decide the issue de novo, making its own judgment on the effect of the failure to register on the applicant's eligibility. Id.
We are aware of the argument that, drawing an analogy from INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426, an alien who knowingly and willfully fails to register should be permanently barred from naturalization. Letter from Russell A. Ezolt to Toni B. Florence (December 16, 1997). We agree with Mr. Ezolt that this analogy cannot be sustained. Congress has specifically enacted that convicted deserters, those convicted of departing to avoid the draft, and those who obtain an alienage exemption from induction or further service, are permanently barred from naturalization. INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426. But Congress has not enacted a similar provision for those who fail to register for the draft. We do not consider it proper to extend these bars to naturalization to persons Congress did no, chose to include within the scope of the bars. It is only under § 316(a)(3), if at all, that failure to register for Selective Service can warrant denial of naturalization in any given case.
Tuesday, November 18, 2008
CA5 Remands Case Involving False Claim to U.S. Citizenship to Gain Admission to University
CA5 Remands Case Involving False Claim to U.S. Citizenship to Gain Admission to University (5/22/2008)
The court remanded the case to the BIA for reconsideration, in light of Theodros v. Gonzales, whether falsely claiming U.S. citizenship in order to gain admission to a private university’s part-time program is a bar to admissibility under INA §212(a)(6)(C)(ii). (Ismail v. Gonzales, 8/16/07). AILA Doc. No. 08052262.
The court remanded the case to the BIA for reconsideration, in light of Theodros v. Gonzales, whether falsely claiming U.S. citizenship in order to gain admission to a private university’s part-time program is a bar to admissibility under INA §212(a)(6)(C)(ii). (Ismail v. Gonzales, 8/16/07). AILA Doc. No. 08052262.
Tuesday, November 11, 2008
A legal permanent resident (LPR) or “green card” recipient is defined by immigration law as a person who has been granted lawful permanent residence in the United States. Permanent resident status confers certain rights and responsibilities. For example, LPRs may live and work permanently anywhere in the United States, own property, and attend public schools, colleges, and universities. They may also join certain branches of the Armed Forces, and apply to become U.S. citizens if they meet certain eligibility requirements. This Office of Immigration Statistics Annual Flow Report presents information obtained from applications for LPR status on the number and characteristics of persons who became LPRs in the United States during 2007.
To find number for 2007 please click here
To find number for 2007 please click here
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