Immigration Information Article: Jurisdiction For Naturalization Purposes

Jurisdiction For Naturalization Purposes

The text below is taken from section 73.4 of the CIS Adjudicator's Field Manual, which deals with jurisdiction to adjudicate naturalization applications. This is not "law" in the sense that it carries any particular authority. Rather, it is an explanaton of the law, as the law is understood and interpreted by the CIS. This information is provided so that readers may understand the CIS view on this subject. Readers must understand that only the courts have the final say as to what "the law" is or is not.

73.4 Jurisdiction.

(a) Introduction. To establish eligibility for naturalization, most applicants must file their application for naturalization with the State or Service District that has jurisdiction over his or her place of residence. In addition, most applicants must have continuously resided in the State or Service District for three months prior to filing the application. However, there are a few special classes of aliens who are exempt from this requirement. This chapter will discuss the basic eligibility requirement for naturalization that most applicants must have resided for three months in the State or Service District prior to filing the application. In addition, it will discuss how to determine residence in special cases. Finally, it will discuss the exceptions to this requirement.

This chapter will discuss:
Understanding the terms “State or Service District” and “Residence”
Knowing the geographical areas of the USCIS Service Districts
Burden of proof of establishing residence
Applications filed under section 334(a) of the Act
How to determine residence
Determining residence in special cases
Special classes of aliens who do not have to meet the 3-months time in
State or Service District requirement
Conclusion

(b) Understanding the Terms “State or Service District” and “Residence”. The term “State” is defined in section 101(a)(36) of the Act. Service District is defined in 8 CFR 316.1 as the geographical area over which an office of the USCIS has jurisdiction. The applicant’s residence is the same as the applicant’s domicile, or principal actual dwelling place, without regard to the applicant’s intent, and the duration of an applicant’s residence in a particular location is measured from the moment the applicant first establishes residence in that location. See section 101(a)(33) of the Act. You must understand the terms State or Service District and residence to be able to determine whether an applicant meets the requirement of having continually resided in the State or Service District for the required time period. You may encounter cases where determining the applicant’s place of residence may not be a straightforward matter. These special cases as cited in 8 CFR 316.5 will be discussed in detail later in this chapter.

(c) Knowing the Geographical Areas of the USCIS Service Districts. You should know the geographical area over which your Service District has jurisdiction. This information will help you to determine whether the applicant filed his or her application in the correct jurisdiction and whether the applicant meets this eligibility requirement.

Additionally, you should have at your access information on all other Service Districts geographical areas. If an applicant has changed residence or plans to change residence within three months, the file containing his or her application must be transferred to the appropriate office having jurisdiction over the applicant’s new residence. In most cases, this transfer will be handled before an application reaches your desk for adjudication.

The Service District that has jurisdiction over an applicant’s application may not be located within the state where the applicant resides. In addition, some Service Districts may have jurisdiction over more than one state and some states contain more than one District Office. Therefore, it is important that you commit to memory the geographical areas over which your Service District has jurisdiction and have access to information on all other Service Districts. For a complete discussion on how to determine residence, see Chapter 74.2(d) of this manual.

(d) Burden of Proof of Establishing Residence. The applicant has 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 resided in the State or Service District having jurisdiction over the applicant’s place of residence for at least three months prior to 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. Your thorough review of the application and contents in the A-file, documentary evidence provided in support of the application, applicant’s testimony, and understanding of this requirement will help you to adjudicate the application properly.

(e) Applications Filed under Section 334(a) of the Act. Section 334(a) of the Act allows an applicant to file his or her application 3 months before he or she has completed the continuous residence time period. The applicant must still establish that he or she has resided for 3 months immediately preceding the filing of the application in the State or Service District having jurisdiction over the applicant’s actual place of residence. However, in a case where the applicant files the application early pursuant to section 334(a), and the 3 month period to establish jurisdiction falls within the required period of continuous residence, the determination as to jurisdiction will be based on the applicant’s actual place of residence 3 months immediately before the examination on the application.

(f) How to Determine Residence. To make a residence determination, you will need to ask the right questions and possibly request additional documentary evidence from the applicant. In some cases, determining an applicant’s place of residence may not be a straightforward matter.

You may encounter cases where the address provided by the applicant on his or her application may not be the applicant’s actual place of residence as defined in section 101(a)(33) of the Act. In most of these cases, it may merely be an innocent mistake on the applicant’s part.

There are various instances in which the nature and type of employment that the applicant is engaged in may dictate his or her living arrangements. For example, an applicant may work and reside in one state during the weekdays, and go home to be with his or her family in another state on the weekends. Keeping in mind the definition of residence will help you to make the determination of residence in this type of case. In addition, it may be useful to compare the applicant’s employment address, the address of the claimed place of residence, and his or her family’s address for discrepancies that should be addressed during the examination. Finally, you may need to request documentary evidence to make a final determination. You may encounter cases where the applicant may have provided a bogus address with the intent to mislead. In these types of cases, you must both establish that the applicant does not reside at the claimed place of residence and that he or she intentionally provided false or misleading information to qualify for naturalization. See Part 7 of the N-400 and Chapter 73.6 of this manual for a discussion of good moral character.

The applicant’s present residence and not the present temporary abode will fix jurisdiction. An applicant who claims to reside in a hotel, a boarding house, or a rooming house should be further questioned to determine the circumstances involved in his or her living arrangements. In addition, you may need to question the applicant as to whether he or she rents or owns the premises that he or she claims to occupy. In most cases, the applicant may have innocently believed at the time of completing the application that his or her temporary residence would be considered as his or her actual residence to meet the jurisdiction requirement.

(g) Determining Residence in Special Cases. The regulations provide standards that you may use to determine residence in special cases. The following will assist you in determining residence in specific cases that you may encounter:

	(1) Military Personnel. For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under section 328 of the Act, 8 CFR 316.5 provides that his or her residence can be:
		(A) 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 section 319(a) of the Act; (B) The location of the residence of the applicant's spouse and/or minor child(ren); or (C) 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. 8 CFR 316.5 provides that 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:
		(A) Where that institution is located; or (B) 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. 8 CFR 316.5 provides that an applicant who is a commuter alien, as described in 8 CFR 211.5, 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. 8 CFR 316.5 provides that 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. 8 CFR 316.5 provides that
		(A) During Absence. 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. (B) Upon 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 section 316.2(a)(5) of the Act 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.
	(6) Nationals. 8 CFR 325 provides that a non-citizen national of the United States who owes permanent allegiance to the United States and files for naturalization under section 325 of the Act may be naturalized, if he or she becomes a resident of any State and complies with all other naturalization requirements. In these case, residence in an outlying possession of the United States will count as residence and physical presence in the United States. However, these applicants must comply with the three months residence in State or Service District requirement. An applicant who intends to resume residence in an outlying possession after naturalization will be regarded as having established that he or she intends to reside permanently in the United States. A national of the United States is a person born in American Samoa or Swains Island. The Term “outlying possessions of the United States” means American Samoa and Swains Island. See section 101(a)(29), section 308 and section 325 of the Act, and 8 CFR 325.2.

(h) Special Classes Exempt from the 3-Months Residence in State or Service District Requirement. There are a few distinct classes of aliens who are exempted from establishing the 3-months residence in State or Service District requirement. Please note that applicants for naturalization under section 316(b), section 317, and section 330 of the Act are not exempt from the 3-month residence in State or Service District requirement.

	(1) An applicant who can establish that his or her United States citizen spouse is engaged in a certain type of employment as provided in section 319 (b)(1)(B) of the Act, including that his or her spouse is regularly stationed abroad may qualify for naturalization under section 319(b) of the Act. 8 CFR 319.2(a) (6) provides the exception to the 3-month time in State or State District requirement for this class of persons.
	(2) Applicants may qualify for naturalization under section 319(d) of the Act as the surviving spouse of a United States citizen who died during a period of honorable service in an active duty status in the Armed Forces of the United States, provided all other eligibility requirements are met. Applicants who qualify under section 319(d) are specifically exempt from the 3-month residence in State or Service District requirement. See 8 CFR 319.3(a)(5).
	(3) Applicants who can establish continuous employment for 5 years by a recognized United States nonprofit organization engaged in disseminating information which significantly promotes United States interests abroad, may qualify for naturalization under section 319(c)(1) of the Act. It is specifically stated at section 319(c)(5) of the Act that these applicants do not have to comply with the 3-month residence is State or Service District requirement.
	(4) Section 324 of the Act provides for the naturalization of former citizens of the United States who lost citizenship by marriage and former citizens whose naturalization is authorized by private law. While it is highly unlikely that you may encounter these types of cases, you should know that an applicant who qualifies under this Section of the law is not required to establish the 3-month residence in a State or Service District to be eligible for naturalization. The specific cite that states that these applicants are exempt from this requirement may be found at section 324(a)(1) of the Act.
	(5) Applicants who lost United States citizenship through service in the Armed Forces of a foreign country during World War II may be naturalized provided all eligibility requirements are met. It specifically states at 8 CFR 327.1(f) that these applicants are exempt from the residence in State or Service District requirement. See section 327(a).
	(6) An applicant who files an application for naturalization under section 328 of the Act while still in honorable service, or within six months after termination of service, is generally not required to comply with the 3-month residence in State or Service District requirement. However, if the applicant’s military service is discontinuous, the applicant must establish, for periods between honorable service during the five years immediately preceding the date of filing the application, or the examination on the application if he or she filed early under section 334(a) of the Act, that he or she resided in the United States and in the State or Service District in the United States in which the application was filed. Applicants who file an application more than six months after honorable discharge from the military must satisfy the 3-month residence in State or Service District requirement. See section 328 of the Act and 8 CFR 328.2 (e)(1).
	(7) Applicants who qualify for naturalization under section 329 of the Act, based on active duty Service in the United States Armed Forces during specified periods of hostilities are not required to satisfy the 3-month residence in State or Service District requirement. You may find the specific cite that provides for this exception at section 329(b)(2) of the Act, 8 CFR 329.2(e)(2) and 8 CFR 329.3.

(i) Conclusion. In conclusion, most applicants for naturalization must establish the 3- months residence in State or Service District requirement. However, there are a few special classes of applicants who do not have to comply with this requirement because of specific exemptions provided by law. You as the adjudicator must be familiar with those sections of law that provide for an exemption to the 3-month residence in State or Service District requirement.