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< Back to current issue of Immigration Daily

[Federal Register: January 19, 2010 (Volume 75, Number 11)]
[Rules and Regulations]               
[Page 2785-2787]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja10-1]                         


========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================



[[Page 2785]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 328 and 329

[CIS No. 2479-09; DHS Docket No. DHS-2009-0025]
RIN 1615-AB85

 
Naturalization for Certain Persons in the U.S. Armed Forces

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Department of Homeland Security (DHS) 
regulations by implementing a statutory amendment reducing from three 
years to one year the length of time a member of the United States 
Armed Forces has to serve to qualify for naturalization through service 
in the Armed Forces. In addition, this rule amends DHS regulations by 
implementing a statutory amendment to include as eligible for 
naturalization individuals who served or are serving as members of the 
Selected Reserve of the Ready Reserve of the U.S. Armed Forces during 
specified periods of hostility. This rule also amends the regulations 
to remove the requirement to submit Form G-325B, Biographic 
Information, with Form N-400, Application for Naturalization, for 
applicants applying for naturalization through service in the U.S. 
Armed Forces. By eliminating the Form G-325B requirement, the rule will 
reduce the response burden and amount of time it takes U.S. Armed 
Forces members to complete the paperwork required with a naturalization 
application.

DATES: This rule is effective February 18, 2010.

FOR FURTHER INFORMATION CONTACT: Kristie Krebs, Office of Field 
Operations, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, 
Washington, DC 20529-2030; telephone number 202-272-1001. This is not a 
toll-free number. Persons with hearing or speech impairments may access 
this number via TTY by calling the Federal Information Relay Service at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    Prior to November 24, 2003, aliens who served in the U.S. Armed 
Forces during peacetime were eligible for naturalization after serving 
honorably for an aggregate period of three years. See Immigration & 
Nationality Act (INA) sec. 328(a), 8 U.S.C. 1439(a) (2002) (amended 
(2003)); 8 CFR 328.2(a). Additionally, aliens who served in the U.S. 
Armed Forces during specific periods of hostilities were eligible for 
naturalization without having served for any particular length of time 
so long as the service was in active-duty status. See INA sec. 329(a), 
8 U.S.C. 1440(a) (2002) (amended (2003)); 8 CFR 329.2(a).
    On November 24, 2003, Congress amended these requirements in title 
XVII of the National Defense Authorization Act for Fiscal Year 2004 
(NDAA), (Pub. L. 108-136, 117 Stat. 1392 (2003)), and made them 
effective as if enacted on September 11, 2001. The NDAA reduced from 
three years to one year the period of military service required to 
qualify for naturalization through service in the U.S. Armed Forces 
during peacetime. See INA sec. 328(a); 8 U.S.C. 1439(a) (2003); see 
also NDAA sec. 1701(c)(2). In addition, the NDAA extended the benefit 
of naturalization not only to individuals who served honorably in an 
active duty status during specified periods of hostilities, but also to 
individuals who have served honorably as members of the Selected 
Reserve of the Ready Reserve of the U.S. Armed Forces during such 
periods of hostilities. See INA sec. 329(a); 8 U.S.C. 1440(a) (2003); 
see also NDAA sec. 1702.
    U.S. Citizenship and Immigration Services (USCIS) has been applying 
these statutory amendments since the law was enacted on November 24, 
2003. This final rule updates the regulations to reflect these 
amendments. In addition, this rule removes an unnecessary paperwork 
requirement in the naturalization application process for applicants 
with qualifying service in the U.S. Armed Forces.

II. Discussion

A. One Year or More of Military Service

    Current regulations at 8 CFR 328.2(b) continue to list three or 
more years of service in the U.S. Armed Forces as an eligibility 
requirement for naturalization based on service in the U.S. Armed 
Forces. This final rule reduces the required number of years of service 
to one or more years in order to conform the regulations to the 
applicable statutory provision at section 328(a) of the INA, 8 U.S.C. 
1439(a), as amended by the NDAA. See revised 8 CFR 328.2(b).

B. Service in the Selected Reserve of the Ready Reserve During Periods 
of Hostilities

    USCIS regulations, 8 CFR 329.2(a), currently limit eligibility for 
naturalization based on service during specified periods of hostilities 
to those who served honorably in an active duty status in the U.S. 
Armed Forces. In conformance with the expansion of eligibility made by 
the NDAA (see section 329(a) of the INA, 8 U.S.C. 1440(a)), this final 
rule extends eligibility for naturalization to include those 
individuals who have served honorably in the U.S. Armed Forces either 
in an active duty status or as a member of the Selected Reserve of the 
Ready Reserve. See revised 8 CFR 329.2(a). In addition, this rule 
amends the title of 8 CFR part 329 to include service in the Selected 
Reserve of the Ready Reserve. Currently, the title only lists active 
duty service as a basis for naturalization where service occurred 
during specified periods of hostilities.

C. Elimination of Requirement to Submit Form G-325B

    Applicants applying for naturalization based on service in the U.S. 
Armed Forces have been required to submit Form G-325B, Biographic 
Information, along with Form N-400, Application for Naturalization. See 
8 CFR 328.4, 329.4(a). Prior to 2001, USCIS sent applicants' completed 
Forms G-325B to the Department of Defense (DoD) for background checks. 
As part of improvements to this process, DoD authorized the USCIS in 
2001 to conduct these background checks.

[[Page 2786]]

Subsequently, USCIS determined that the information collected on Form 
N-400 (e.g., name, date of birth, Social Security number) was 
sufficient to perform the background checks. Therefore, USCIS 
discontinued sending Forms G-325B to DoD. Moreover, USCIS notes that it 
does not use the G-325B in its adjudication of Forms N-400, or for any 
other purpose.
    Notwithstanding the discontinued use of Form G-325B, USCIS 
regulations continue to require applicants to submit the form with 
their naturalization applications. See 8 CFR 328.4 and 329.4(a). 
However, continuing to require Form G-325B would needlessly increase 
applicant response and USCIS processing times, as USCIS must issue a 
Request for Evidence and place the case on hold if the Form G-325B is 
not submitted with the Form N-400. Because the submission of a Form G-
325B no longer serves a purpose in the adjudication process, this rule 
removes the Form G-325B submission requirement for applicants applying 
for naturalization under section 328 or 329 of the INA. See revised 8 
CFR 328.4 and 329.4(a).

III. Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) provides that an agency may 
dispense with notice and comment rulemaking procedures when an agency 
is promulgating an interpretative rule, a general statement of policy, 
or a rule of agency organization, procedure, or practice. See 5 U.S.C. 
553(b)(A). The elimination of the requirement to submit Form G-325B is 
procedural in nature and does not alter the substantive rights of 
affected naturalization applicants. Accordingly, DHS finds that this 
part of the rule is exempt from the notice and comment requirements 
under the APA at 5 U.S.C. 553(b)(A).
    The APA provides that an agency may dispense with notice and 
comment rulemaking procedures when an agency, for ``good cause,'' finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' See 5 U.S.C. 553(b)(B). This rule amends DHS 
regulations to conform with the changes made by the NDAA, reducing from 
three years to one year the amount of time a member of the U.S. Armed 
Forces has to serve to qualify for naturalization and extending the 
benefit of expedited naturalization to members of the Selected Reserve 
of the Ready Reserve. INA sec. 328(a), 329(a); 8 U.S.C. 1439(a), 
1440(a). These requirements were mandated by statute and DHS has 
applied these requirements since the law was enacted in 2003 
(effective, with some exceptions, as if enacted on September 11, 2001). 
DHS views the act of promulgating this part of the rule as both 
ministerial and non-controversial. Accordingly, DHS finds that notice 
and comment is unnecessary and that this part of the rule is except 
from the notice and comment requirements under the APA at 5 U.S.C. 
553(b)(B).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121), requires Federal agencies to consider the 
potential impact of regulations on small businesses, small governmental 
jurisdictions, and small organizations during the development of their 
rules. When an agency invokes the good cause exception under the 
Administrative Procedure Act to make changes effective through an 
interim final or final rule, the RFA does not require an agency to 
prepare a regulatory flexibility analysis. DHS has determined in this 
final rule that good cause exists under 5 U.S.C. 553(b) to exempt this 
rule from the notice and comment. Therefore, a regulatory flexibility 
analysis is not required for this rule. However, DHS does expect that 
this rule will not have a significant economic impact on a substantial 
number of small entities because it affects only individuals.

C. Executive Order 12866

    This rule is not a significant regulatory action as defined under 
Executive Order 12866, section 3(f), Regulatory Planning and Review. 
Thus it has not been reviewed by the Office of Management and Budget 
(OMB).

D. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

F. Executive Order 13132: Federalism

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act of 1995 (PRA)

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995), all Departments are required to submit to OMB, for 
review and approval, any reporting or recordkeeping requirements 
inherent in a rule. This rulemaking does not propose to impose any new 
reporting or recordkeeping requirements under the PRA.
    OMB previously approved the use of forms G-325, G-325A, G-325B, and 
G-325C under the same OMB Control No. 1615-0008. Removing the 
requirement to submit Form G-325B will reduce the number of respondents 
and annual burden hours associated with OMB Control No. 1615-0008. 
Accordingly, USCIS will submit the Form OMB 83-C, Correction Worksheet, 
to OMB to reduce the annual number of respondents and annual burden 
hours.

List of Subjects

8 CFR Part 328

    Citizenship and naturalization, Military personnel, Armed Forces 
personnel, Application requirements, Residency requirements.

8 CFR Part 329

    Citizenship and naturalization, Military personnel, Armed Forces 
personnel, Application requirements.

0
Accordingly, chapter I of Title 8 of the Code of Federal Regulations is 
amended as follows:

[[Page 2787]]

PART 328--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: 
PERSONS WITH 1 YEAR OF SERVICE IN THE UNITED STATES ARMED FORCES

0
1. The heading for part 328 is revised as set forth above.
0
2. The authority citation for part 328 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1439, 1443.

0
3. Section 328.2 is amended by revising paragraph (b) to read as 
follows:


Sec.  328.2  Eligibility.

* * * * *
    (b) Has served under paragraph (a) of this section for a period of 
1 or more years, whether that service is continuous or discontinuous;
* * * * *

0
4. Section 328.4 is amended by revising the last sentence to read as 
follows:


Sec.  328.4  Application.

    * * * The application must be accompanied by Form N-426, Request 
for Certification of Military or Naval Service.

PART 329--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: 
PERSONS WITH ACTIVE DUTY OR CERTAIN READY RESERVE SERVICE IN THE 
UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES

0
5. The heading for part 329 is revised as set forth above.

0
6. The authority citation for part 329 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1440, 1443; 8 CFR part 2.


0
7. Section 329.2 is amended by revising paragraph (a) introductory text 
to read as follows:


Sec.  329.2.  Eligibility.

* * * * *
    (a) Has served honorably in the Armed Forces of the United States 
as a member of the Selected Reserve of the Ready Reserve or in an 
active duty status in the Armed Forces of the United States during:
* * * * *

0
8. Section 329.4 is amended by revising the last sentence of paragraph 
(a) to read as follows:


Sec.  329.4.  Application and evidence.

    (a) Application. * * * The application must be accompanied by Form 
N-426, Request for Certification of Military or Naval Service.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2010-578 Filed 1-15-10; 8:45 am]
BILLING CODE 9111-97-P




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