Expeditious Naturalization under Section 319(b) for Spouses of U.S. Citizens Employed Abroad

This article covers the requirements and procedures for spouses of U.S. citizens employed abroad by U.S. employers to apply for expeditious naturalization under section 319(b) of the Immigration and Nationality Act.[1]

The main benefit of expeditious naturalization is that the applicant is exempt from the normal requirements that he or she (a) continuously reside in the U.S. as a lawful permanent resident (LPR) for 3 or 5 years immediately prior to filing the naturalization application[2]; and (b) be physically present in the U.S. for one half of that time.[3]

1. Introduction

An application for expeditious naturalization can be filed either before or after the U.S. citizen’s overseas employment begins.

For couples living abroad, it is possible to apply for LPR status and then expeditious naturalization all without living in the United States. As part of the LPR application process, the petitioning U.S. citizen spouse must normally file a Form I-864, Affidavit of Support. It is true that one requirement for the Form I-864 is that the petitioner must be “domiciled” in the United States.[4] However, under federal regulations, a U.S. citizen living abroad temporarily counts as “domiciled” in the United States if his or her employment “meets the requirements of section 319(b)(1) of the Act.”[5] Those are the same employment-related requirements needed for purposes of expeditious naturalization.

For couples seeking to continue to live abroad, another benefit of expeditious naturalization is that once an LPR is naturalized there is no longer a risk that LPR status will be considered abandoned due to living abroad on a non-temporary basis.

Expeditious naturalization applicants can file the naturalization application while abroad, can choose whether to be fingerprinted either in the United States or abroad, and can choose to be interviewed in any domestic USCIS Field Office. Some offices allow the applicant to choose the date of their interview. The naturalization interview and oath ceremony can be held on the same day. So for couples residing abroad the application may only require a single trip to the United States.

1.1 The Underlying Public Policy

Normally, spending too much time abroad can put a lawful permanent resident (LPR) at risk of losing eligibility for naturalization. As a matter of public policy, prior to naturalization an LPR generally must live in the U.S. to learn English, to become familiar with U.S. customs and institutions, to shed foreign attachments, to acquire attachment to the principles of the U.S. Constitution and government, to demonstrate law-abiding conduct, and to prove fitness to be accepted as a citizen of the U.S.[6]

However, there are countervailing public policies that favor allowing individuals to reside abroad with their U.S. citizen spouses who work for designated U.S. employers, such as where such work promotes the foreign trade and commerce of the United States.[7] In certain cases, such individuals are eligible for expeditious naturalization.

1.2 Scope of this Article

Related topics not covered in this article include:

  • Naturalization in General: This article focuses just on eligibility for expeditious naturalization benefits. For an overview of naturalization in general and a discussion of naturalization procedures, see our Guide to Naturalization in the United States, http://lawandborder.com/guide-naturalization-united-states/.
  • Abandonment of LPR Status: What steps should LPRs staying abroad for extended periods take to protect themselves against losing their green cards due to “abandonment”? In short, LPR status confers the right to “reside” in the U.S., but that can be taken away by the government if an LPR makes a trip or series of trips abroad which are not “temporary.” For more on this topic see our article, Green Card Holders Who Stay Abroad Over 6 Months Risk Abandonment, http://lawandborder.com/?p=2355.
  • Form N-470, Application to Preserve Permanent Residence for Naturalization Purposes: For an LPR employed abroad by certain U.S. employers or public international organizations, or performing certain ministerial or priestly functions, absence will not break the required continuity of residence for naturalization if the applicant has an approved Form N-470.[8] The applicant’s spouse and dependent unmarried children residing abroad with the applicant may be eligible for the same benefits,[9] except in the case of the family members of persons covered by the religious duties provision.[10] There are limitations, however. First, most applicants are required to have completed one year continuous physical presence in the U.S. as an LPR before filing the N-470.[11] Second, an approved N-470 doesn’t relieve a naturalization applicant of the requirement of U.S. physical presence during half the continuous residence period, except in the case of (a) a naturalization applicant employed by, or contracted to work for, the U.S. government abroad is relieved of the requirement; or (b) an applicant who falls within the religious duties provision is relieved of the physical presence requirement.[12]
  • Expeditious naturalization provisions covering “[a]ny person who is employed by a bona fide U.S. incorporated nonprofit organization which is principally engaged in conducting dissemination of information abroad through communications media which significantly promotes U.S. interests abroad and which is recognized as such by the Attorney General.”[13]
  • Expeditious naturalization for members of the military and their families.[14]

2. Requirements for Naturalization

Generally speaking, to be eligible for naturalization, an applicant must:

  1. be at least 18 years old[15];
  2. be an LPR[16];
  3. be of good moral character, attached to the constitution, and be favorably disposed toward the good order and happiness of the U.S.[17] (As a practical matter, for purposes of expeditious naturalization, USCIS requires good moral character for at least 3 years prior to filing the naturalization application and until the time of naturalization.)[18]
  4. pass a test of English language, history, and U.S. government;[19] and
  5. meet the residence and physical presence-related requirements, from which expeditious naturalization applicants are exempt, and which include but are not limited to:
  • continuously residing in the U.S., after being admitted for LPR status, for the five years (or three years in the case of an applicant who has been married to and living in marital union with a U.S. citizen[20]) immediately preceding the date of filing application for naturalization[21] as well as between the date of applying for naturalization and the date that citizenship is granted[22];
  • residing in a State or Service District having jurisdiction over the naturalization application for at least three months[23]; and
  • being physically present in the U.S. for half of the required continuous residence period.[24]

A more detailed analysis of the residence and physical presence-related requirements is included in our firm’s our Guide to Naturalization in the United States, http://lawandborder.com/guide-naturalization-united-states/.

3. Overview of the Requirements for Expeditious Naturalization

Expeditious naturalization benefits are available to a person who meets the general requirements for naturalization, described in Part 2, if in addition:

  1. The applicant is a lawful permanent resident at the time the naturalization application is filed[25] and at the time of the naturalization interview.[26] This includes conditional residents.
  2. The applicant is married to a U.S. citizen at the time of filing for naturalization.[27]
  3. The citizen is employed by (or under contract or orders to become employed by) one of the following:
    • “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”;[28]
    • the U.S. Government;[29]
    • an American institution of research “recognized as such by the Attorney General”;[30]
    • a public international organization “in which the U.S. participates by treaty or statute”;[31] or
    • a religious denomination or an interdenominational mission organization having a bona fide organization within the U.S.[32]
  4. The U.S. citizen spouse is or will be “regularly stationed abroad” in such employment.[33]
  5. The applicant is in the United States at the time of the naturalization interview and oath ceremony.[34] (You need not be in the United States at the time of filing the naturalization application.)
  6. The applicant will depart the U.S. to live abroad with the citizen spouse not later than 45 days after the date of naturalization.[35] And
  7. The applicant declares in good faith an intention to take up residence within the United States immediately following the termination of such employment abroad of the citizen spouse.[36]

Some of these requirements deserve further discussion in the next part of this article.

4. Detailed Discussion of Selected Requirements for Expeditious Naturalization

4.1 Employed by an American Firm or Corporation, or a Subsidiary Thereof

More explanation is required of the key statutory requirements that the citizen spouse is or will be employed by an American firm or corporation, or a subsidiary thereof.[37]

American Firm or Corporation

The term “American firm or corporation” means a company owned more than 50% by U.S. nationals.[38]

  • Publicly traded corporation: A publicly traded corporation is considered to be an “American firm or corporation” if the applicant can demonstrate that the corporation is incorporated in the U.S. and trades its stock exclusively on the U.S. stock exchange.[39] The corporation’s most recent annual report is usually enough to prove this.
  • Privately held corporation: Evidence that the employer is a qualifying American firm or corporation may include: copies of the business’ articles of incorporation, evidence of ownership including copies of stock certificates and ledgers, and proof of the shareholders’ nationality.[40]
  • Partnership: For a partnership to qualify as an “American firm,” 51% of the partners must be of U.S. nationality.[41]
  • Sole proprietorship: It is unclear whether a sole proprietorship counts as an “American firm.” There is at least one INS memorandum implicitly supporting this position.[42] Still, as discussed below, the sole owner may have problems proving he “employs” himself.
  • Nonprofit corporation: The statute doesn’t limit the term “American firm or corporation” to for-profit entities. The legacy INS has recognized that nonprofits incorporated in the U.S. qualify.[43]

Subsidiary of an American Firm or Corporation

To qualify as the “subsidiary” of an American firm or corporation, over fifty percent of the subsidiary’s stock must be owned by the American firm or corporation.[44] For example, in the below example Acme (China) Co. Ltd. would qualify as the subsidiary of an American firm, namely Acme Inc.:

Here’s the explanation: Acme Inc. is an American firm because it is incorporated in the U.S. and because U.S. citizens own more than 51%. (In this example, U.S. citizens own 75%.) Acme (China) Co. Ltd. counts as the “subsidiary” of an American corporation because over 50% of its stock is owned (indirectly) by Acme Inc. Note that to prove this relationship, the following types of evidence may be required:

  • Copies of Alan and Bob’s U.S. passport ID pages (or certificates of naturalization or other evidence of citizenship).
  • Acme Inc.’s certificate of incorporation and stock ledger showing that Alan and Bob own 75% of the corporation.
  • Acme (BVI) Inc.’s certificate of incorporation and stock ledger showing that it is a wholly owned subsidiary of Acme Inc.
  • Acme (China) Co. Ltd.’s business license showing that it is a wholly owned subsidiary of Acme (BVI) Inc.

Employed By

The U.S. citizen spouse must be “employed by” the American firm or corporation. For this provision, it’s not enough to be “under contract with” the American firm or corporation.[45]

The term “employed by” within the analogous Form N-470 context has been defined as “to use, to have in service, to cause to be engaged in doing something, it does not mean to hire, but to use, whether under hire or not.”[46] Employment for N-470 purposes can be either on a commission basis or according to a fixed-wage arrangement.[47]

Part-time employment will not qualify unless the individual “devotes a substantial portion” of his time to the employment.[48]

The owner of a sole proprietorship—i.e., a self-employed individual—doesn’t meet this definition of “employed by” the firm.[49] In contrast, the sole owner of a corporation who is also employed by that corporation may count as “employed by an American firm.”[50]

4.2 Engaged in the Development of U.S. Foreign Trade or Commerce

The American firm or corporation must be engaged in whole or in part in the development of U.S. foreign trade or commerce.[51] Unlike the requirements for an N-470, the employee need not personally be engaged in foreign trade or commerce or protection of the firm or corporation’s property rights.[52]

There is some authority—an unpublished decision of the USCIS Administrative Appeals Office—that a company that has overseas operations only but not U.S. operations (only a “paper business” in the U.S.) is not engaged in the development of U.S. trade and commerce.[53]

The term “trade” should be “construed broadly” and “liberally.”[54] Trade means

the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include, but are not limited to, banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.[55]

The term “commerce” has been defined as “the exchange of goods, productions, or property of any kind; especially, exchange on a large scale, as between states or nations.”[56]

INS has considered certain refugee relief agencies and non-profit organizations to be engaged in development of foreign trade and commerce.[57]

Evidence of being “engaged in the development of foreign trade and commerce” could include, for example: a list of foreign clients with their contact information, a specific description of all projects, contracts, and properties which the company is pursuing, a description of the funding of the work to be performed abroad, evidence that the employing firm or corporation is permitted to conduct business abroad, copies of all contracts, proposals, requests for proposals, or requests for bids for work to be performed abroad, and copies of financial statements and the applicants tax returns and transcripts.[58]

4.3 Public International Organizations

The regulations list the eligible public international organizations of which the U.S. is a member by treaty or statute.[59] This includes NATO, the United Nations, and all agencies and organizations which are a part of the UN.[60] This list also includes organizations entitled to enjoy the privileges, exemptions, and immunities provided for in the International Organizations Immunities Act.[61]

4.4 American Institutions of Research

The eligible American institutions of research in which an applicant may be employed by or under contract to work for are listed in the regulations.[62] In some circumstances, USCIS may also regard research conducted abroad under a grant from a recognized institution of research as qualifying employment.[63]

4.5 The U.S. Citizen Spouse Is Regularly Stationed Abroad

As mentioned above, the statute requires that the U.S. citizen spouse is “regularly stationed abroad” in the requisite employment. The regulations provide a definition:

For purposes of this section, a citizen spouse is regularly stationed abroad if he or she proceeds abroad, for a period of not less than one year, pursuant to an employment contract or orders, and assumes the duties of employment.[64]

There is no requirement that the U.S. citizen spouse already be abroad before the naturalization application is filed.[65] The application can be filed and approved before the overseas assignment begins.[66] The regulations also clearly allow the application to be filed after the citizen spouse has already taken up the overseas employment.[67]

Both the statute and the corresponding regulations are silent on how to measure the one-year period. The USCIS Policy Manual interprets this requirement to mean that the employment abroad must be “scheduled to last for at least one year at the time of filing, even if less than one year of such employment remains at the time of the naturalization interview or Oath of Allegiance provided that the spouse remains employed abroad at the time of naturalization.”[68]

While the employment must be pursuant to an employment contract or orders, there is no authority requiring that they specify the term of employment.[69] At-will employment is acceptable. Still, the applicant has the burden of proving through documentation how long the employment is “scheduled to last.”[70] This could be in the form of an employer letter.

4.6 Marital Status

The applicant for expeditious naturalization must be married to a U.S. citizen at the time of applying for naturalization and at the time of the oath ceremony. If the U.S. citizen spouse has passed away, if the marriage has ended, or if the applicant’s spouse is no longer a U.S. citizen, the application for expeditious naturalization will be denied.[71]

4.7 Departing the U.S. to Live with the Citizen Spouse Abroad

The applicant must establish that he or she intends to leave the U.S. in order to “reside with” the citizen spouse within 30 to 45 days after the date of naturalization.[72]

The applicant may move abroad for that purpose before filing the application.[73] But it’s not necessary that the applicant and the U.S. citizen lived together before 45 days after naturalization.[74]

If there is any delay in departure from the U.S. or any cancellation of the U.S. citizen spouse’s employment abroad, or if the applicant is unable to reside with the U.S. citizen spouse because the U.S. citizen spouse is employed in an area of hostility where dependents may not reside, the applicant-spouse must notify USCIS immediately.[75] If the foreign spouse is restricted from joining the U.S. citizen where he or she is employed, USCIS will not deny the expeditious naturalization application.[76] Spouses of U.S. citizens employed in areas where the applicant spouse is restricted from joining them may still be granted expeditious naturalization regardless of how far the applicant lives from his or her U.S. citizen spouse as long as the applicant had the intention of going abroad to reside with his or her spouse.[77] However, USCIS will not grant expeditious naturalization to the applicant spouse of a U.S. citizen working abroad if the applicant does not initially at least intend to take up residence in the foreign country where their U.S. citizen spouse is employed.[78]

4.8 Good faith intention to take up residence within the U.S.

The applicant for expeditious naturalization must declare before the Attorney General in good faith an intention to take up residence within the United States immediately once the U.S. citizen spouse concludes their employment abroad[79]

5. Conclusion

Our law firm is available to represent clients with respect to expeditious naturalization. Feel free to contact us for further information.

  1. See generally INA § 319(b), 8 U.S.C. § 1330(b).
  2. INA § 319(b)(3).
  3. INA § 319(b)(3). There are also exemptions from the requirements to (c) continuously reside in the U.S. between the time of filing and the naturalization examination (8 C.F.R. 319.2(a)(2)-(3)) and (d) reside in a state for 3 months prior to filing the application (INA § 319(b)(3); AFM § 73.4(h)(1)). Further, the good moral character requirement is modified for expeditious naturalization. In a standard naturalization case, the applicant must prove good moral character during the required five years of continuous residence and up to the time of the naturalization ceremony. INA § 316(a). To be eligible for expeditious naturalization, the applicant must show merely that he or she is a person of good moral character, 8 C.F.R. § 319.2(a)(5), with no test of prior character except as it may relate to present character.
  4. 8 C.F.R. § 213a.2(c)(1)(ii).
  5. 8 C.F.R. § 213a.2(c)(1)(ii); AFM ch. 20.5; 9 FAM 40.41 NN7, 7.2.
  6. U.S. v. Mulvey, 232 Fed. 513 (2d Cir. 1916).
  7. Legal Opinion of General Counsel, HQ 319-C (Feb. 23, 1993).
  8. INA § 316(b).
  9. 8 C.F.R. 316.5(d)(1)(ii); Robert C. Divine, Immigration Practice 2009-2010, §12-19.
  10. See INA § 317.
  11. INA § 316(b)(2); 8 C.F.R. 316.5(d)(2).
  12. INA § 317(3).
  13. INA § 319(c).
  14. INA §319(d) and (e).
  15. 8 C.F.R. 316.2(a)(1).
  16. INA 316(a); 8 C.F.R. 316.2(a)(2).
  17. 8 C.F.R. § 316.2(a)(7).
  18. 8 C.F.R. § 319.2(b); USCIS Policy Manual ch. 4A.
  19. 8 C.F.R. Part 312.
  20. INA § 319(a); 8 C.F.R. § 319.1(a)(3). Certain battered spouses and children also are eligible for naturalization upon completion of three years of residence. INA § 319(a).
  21. INA § 316(a); 8 C.F.R. 316.2(a)(3).
  22. INA 316(a); 8 C.F.R. 316.2(a)(6).
  23. INA 316(a); 8 C.F.R. 316.2(a)(5).
  24. INA 316(a); 8 C.F.R. 316.2(a)(4).
  25. The requirement of lawful permanent residence is not specifically waived and so must be complied with. Immigration L. & Proc. §97.03(2)(b), citing 40 Op. Att’y Gen. 64 (1941). See USCIS Policy Manual, vol. 2, Part G, § A (Applicant under § 319(b) (must be an “LPR at the time of filing the naturalization application.”). But see Robert C. Divine, Immigration Practice 2009-2010, §12-28, footnote 115 (suggesting that it may be possible to file the N-400 at the same time that a Form I-130, Petition for Alien Relative, and immigrant visa application are pursued).
  26. The applicant must “at the time of examination on the application for naturalization, be present in the United States pursuant to a lawful admission for permanent residence.” 8 C.F.R. § 319.2(a)(2).
  27. INA § 319(b)(1)(A); 8 C.F.R. 319.2(b)(3)(c). See 8 C.F.R. 319(b)(3)(c) (which states that if the marital union between the applicant and the U.S. citizen ends as a result of death of the U.S. citizen, divorce, or expatriation of the U.S. citizen at any time prior to naturalization, the applicant under this provision will become ineligible for expeditious naturalization, even if the applicant marries another U.S. citizen).
  28. INA § 319(b)(1)(B). This statutory requirement is the same as the N-470 requirement, with the following exceptions. (A) The statute here, unlike the N-470 statute, doesn’t specify that the subsidiary must be “more than 50 per centum … owned by an American firm or corporation.” Cf. INA § 316(b). Nevertheless, the INS General Counsel has opined that the 50 per centum criterion should apply to expeditious naturalization too. INS General Counsel Opinion No. 95-21, 1995 WL 1796328. (B) There is no statutory requirement here that the employee personally be “engaged in the development of such foreign trade and commerce” or in protecting the employer’s property rights. Cf. INA § 316(b).
  29. INA § 319(b)(1)(B). This requirement is the same as for an N-470 applicant, except that here it is not enough to be “under contract with” the U.S. Government. Cf. INA § 316(b).
  30. INA § 319(b)(1)(B); 8 C.F.R. § 316.20(a). This is the same requirement that applies to N-470 applicants, except that for expeditious naturalization it is not enough to be “under contract with” the institution and the applicant need not personally be “carrying on scientific research” on behalf of the institution. Cf. INA § 316(b).
  31. INA § 319(b)(1)(B); 8 C.F.R. § 316.20(b), (c). This requirement is similar to N-470 requirement, except that for expeditious naturalization there is no requirement analogous to the N-470 requirement that the employment must not have been “employed until after being lawfully admitted for permanent residence.” Cf. INA § 316(b).
  32. The citizen must be (a) authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the U.S.; or (b) engaged solely as a missionary with a religious denomination or an interdenominational mission organization having a bona fide organization within the U.S. INA § 319(b)(1)(B). This requirement differs from the requirement for the N-470 application. For N-470 purposes, brothers, nuns, or sisters are eligible. Cf. INA § 317.
  33. INA § 319(b)(1)(C).
  34. INA § 319(b)(2).
  35. 8 C.F.R. § 319.2(b)(1).
  36. INA § 319(b)(3); 8 C.F.R. § 319(a)(4)(i)-(ii).
  37. INA § 319(b)(1)(B).
  38. INA § 316(b).
  39. USCIS Adjudicator’s Field Manual, Appendix 74-14 (June 18, 2007). See Matter of Chawathe, In Preservation of Residence for Naturalization Proceedings On Behalf of Self-Represented., INS Administrative Appeals Unit A74 254 994+ (2006) (where court held that a corporation was an “American firm or corporation” under INA §316(b) since it had been established that the corporation was incorporated in the U.S. and that it was a publicly held corporation whose stock is exclusively sold on U.S. stock exchange).
  40. In Re [name withheld] (AAO May 16, 2008), published at 2008 WL 4052012; In Re [name withheld] (AAO Mar. 28, 2008), published at 2008 WL 3990712.
  41. In re: X (AAO Dec. 1, 2008), 2008 WL 5745277 (For KPMG, a Delaware limited liability partnership to be an “American firm or corporation” for purposes of INA § 316(b), “at least 51% of the partners” must be U.S. citizens.).
  42. INS Ass’t Comm., file CO 316a.1-P, Mar. 8, 1961 (a person other than the sole owner who is employed abroad representing the sole proprietorship doing business under a trade name is eligible for extended absence benefits.)
  43. INS Interpretations 316.5(c)(6) (recognizing that certain nonprofit relief agencies meet the requirement of being an “American firm or corporation” engaged in the development of trade or commerce for purposes of filing an N-470).
  44. Robert C. Divine, Immigration Practice 2009-2010, §12-19; Matter of Warrach, 17 I&N Dec. 285; United States Department of Justice Immigration & Naturalization Service Interpretation Letter: Interpretation 316.1(c)(4)(iii).
  45. Cf. INA § 316(b) (N-470 benefits available to persons “employed by” and “under contract with” U.S. Government); Interpretations 316.1(c)(4)(ii) (independent contractors with American firms not covered).
  46. Matter of R-, 4 I. & N. Dec. 196, 203 (1950), citing Matter of O-, 2270-D-460267 (1944) (USO entertainer considered “employed by or under contract with the Government of the United States”).
  47. Interpretations 316.1(4)(i); Matter of R-, 4 I. & N. Dec. 196, 203 (1950).
  48. Interpretations 316.1(4)(ii), citing Matter of P-, 5 I. & N. Dec. 332 (1953) (Part-time employment sufficient for N-470 where applicant “handled all the language [teaching] in a school.” The work required a “substantial portion of his time,” even though his “full time during the usual working day was not required.” He received more than a “token payment of salary.” Irrelevant that applicant’s primary purpose in going abroad was for study.)
  49. In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953).
  50. In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953). Contra INS Interpretations § 316.1(c)(4) (citing Gen. Coun., No. 7-54, Feb. 5, 1954).
  51. INA § 319(b). The regulations at 8 C.F.R. § 319.2 do not elaborate, nor does the USCIS Policy Manual ch. 4.
  52. Cf. INA § 316(b)(1); Matter of P, 5 I. & N. Dec. 332 (B.I.A. 1953) (requiring for N-470s that a “substantial” portion of the applicant’s time be devoted to such purposes).
  53. In Re [name withheld] (AAO Apr. 26, 2007), published at 2007 WL 5317983.
  54. Memo, Grover J. Rees III, INS General Counsel, Interpretation of “Foreign Trade and Commerce” for Purposes of Section 319(b) of the Act, HQ 319-C (Feb. 23, 1993).
  55. Id. Prior to this definition being adopted by the INS in 1993, a court held that teaching does not fall within the definition of trade. See In re Fang Lan Dankowski, 478 F. Supp. 1203, 1208 (D. Guam 1979) (where court cited Jeu Jo Wan v. Nagle, 9 F.2d 309 (9th Cir. 1925) which asserted that responsibilities of a “teacher” did not fall within the term “trade” as defined by the Immigration Act of 1924. The court held in Fang Lan Dankowski that although the Immigration Act of 1924 was repealed, the rationale was still applicable in the context of defining “foreign trade or commerce” for expeditious naturalization purposes. In that case, the U.S. citizen teacher gave classes to dependents of U.S. citizens engaged in foreign commerce and trade, but the court held that the teacher was not directly involved in “foreign trade or commerce.”).
  56. In re Fang Lan Dankowski, 478 F. Supp. 1203, 1207 (D. Guam 1979).
  57. INS Interpretation 316.1(c)(6). Qualifying businesses have included CARE, United HIAS Service, Inc., American Jewish Joint Distribution Committee, Inc. and Catholic Relief Services. Id. INS reasoned that relief supplies, such as food and clothing, were purchased in the United States and then distributed to those in need throughout the world, and U.S. ship holding companies were contracted to transport the donated supplies abroad and bring the refugees to the United States. Id.
  58. In re [name withheld] (AAO May 16, 2008), published at 2008 WL 4052012; In re [name withheld] (AAO Mar. 28, 2008), published at 2008 WL 3990712.
  59. 8 C.F.R. §s 316.20(b) and (c), 319.5; Daniel Levy, U.S. Citizenship and Naturalization Handbook, §11:6.
  60. 8 C.F.R. § 316.20(b).
  61. 8 C.F.R. § 316.20(c). The list is also available at 9 FAM 41.24 Exhibit 1.
  62. 8 C.F.R. 316.20(a).
  63. See Matter of M-J-, 8 I. & N. Dec. 520 (B.I.A. 1960); Interpretations 319.2(e)(5)(ii) (where the court found that a U.S. citizen conducting his doctoral dissertation abroad, through a fellowship grant by the Foreign Area Fellowship Program, a unit of a recognized American institution of research, the Social Science Research Council, was considered to be regularly stationed abroad in the “employment.” According to the terms of the fellowship grant, the citizen spouse would need to devote most of his time to receiving training and engaging in research for which he would be compensated. The court agreed that the citizen’s engagement abroad under these conditions amounted to “employment” in the broad sense of employment.); Daniel Levy, U.S. Citizenship and Naturalization Handbook, §11:6.
  64. 8 C.F.R. § 319.2(a)(1).
  65. Daniel Levy, U.S. Citizenship and Naturalization Handbook, §11:6; INS Interp. 319.2(c)(2)(i)-(ii).
  66. 8 C.F.R. 319.2(b); Daniel Levy, U.S. Citizenship and Naturalization Handbook, §11:6; Interpretations 319.2(c)(2)(i)-(ii).
  67. “An applicant … shall submit … an application [stating] the nature of the activity in which the citizen spouse is engaged.” 8 C.F.R. § 319.11(a), (a)(4) (emphasis added). See INA § 319(b)(1) – (3).
  68. 12 USCIS Policy Manual Part G(4)(D). The contradictory INS Interpretations 319.2(c)(2) are no longer relevant on this point because they pre-date the current regulations.
  69. The term “regular” employment does not imply a contract for a specific term, merely that the employment must not be “casual”. In Re Sugarek, 77 F. Supp. 98 (N.D. Cal. 1947) (drawing an analogy to worker’s compensation statutes that only cover employers that “regularly employ” a certain number of workers), cited in INS Interpretations 319.2(c)(2).
  70. Form N-400 Instructions at 12 (Mar. 23, 2016) (requesting “[d]ocumentation to establish your spouse’s employment abroad is scheduled to last for at least 1 year from the date you filed Form N-400”).
  71. INA § 319(b); 8 C.F.R. § 319.2(c); Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6.
  72. 8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6.
  73. AFM § 74.2(b)(2) (applicant who files while abroad is still required to return to the U.S. for their interview, naturalization, and any other related naturalization procedure, such as the biometrics appointment).
  74. See 8 C.F.R. 319.2; USCIS Policy Manual ch. 4B; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6.
  75. 8 C.F.R. § 319.2(b).
  76. 8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6; INS Interp. 319.2(c)(3)(iii) citing to In re Petition of Sun Cha Tom, 294 F.Supp. 791; In re Simpson, 315 F.Supp. 584 (W.D.La. 1970).
  77. 8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6.
  78. 8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6; Interpretations 319.2(c)(3)(iii).
  79. INA § 319; 8 C.F.R. § 319.2(a)(2); Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6.

86 Replies to “Expeditious Naturalization under Section 319(b) for Spouses of U.S. Citizens Employed Abroad”

  1. Hi,

    I’m excited to have found this article on “expeditious naturalization.” I’m a green card holder and married to a U.S. citizen who is now working in China and thus, I think I am eligible for expeditious naturalization. I just found out about this possibility. (My immigration lawyer didn’t tell me earlier?!@#)

    1. My husband’s company has headquarters in Paris, but its parent company is headquartered in New York City. Would this company qualify as an American company for purposes of expedited naturalization?

    2. I have been in and out of the country for approximately 4 years since, often staying abroad for more than 6 months at a time. Will this impact my eligibility for expeditious naturalization?

    3. Which address should I put on the application form, since we are already living in China?

    4. Where should I file the application?

    Thank you very much and I really appreciate your help.

  2. Wanda,

    Thanks for your questions. Let me try to answer them in order.

    1. My husband’s company has headquarters in Paris, but its parent company is headquartered in New York City. Would this company qualify as an American company for purposes of expedited naturalization?

    The law requires that the U.S. citizen spouse be employed by “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof.”

    The government interprets the term “American” firm to mean one of two things. In the case of a privately held corporation, this means a company owned more than 50% by U.S. nationals. This generally requires copies of the business’ articles of incorporation, evidence of ownership including copies of stock certificates and ledgers, and proof of the shareholders’ nationality (e.g., passports).

    In the case of a publicly-held corporation, it would be impractical to gather that evidence from the multitude of shareholders. So the government says that a publicly-held corporation is considered to “American” if the applicant can demonstrate that the corporation is incorporated in the U.S. and trades its stock exclusively on a U.S. stock exchange.

    Note that the foreign subsidiary of an “American” corporation will qualify.

    You don’t mention, Wanda, whether your husband’ s company is publicly or privately held. If it’s privately held, you’ll need to look at the companies’ stock ledgers and the passports of the owners. If it’s publicly held, it’s not determinative that the parent company is headquartered in New York City. Instead, look at where the parent company is incorporated and which stock exchange(s) it’s stock is traded on. The company’s annual report should say.

    2. I have been in and out of the country for approximately 4 years since, often staying abroad for more than 6 months at a time. Will this impact my eligibility for expeditious naturalization?

    One issue which may arise is the question of whether you’ve “abandoned” your permanent resident status–lost it–by making a trip or series of trips outside the U.S. which aren’t “temporary.” See this article for further details: http://lawandborder.com/?p=2355.

    3. Which address should I put on the application form, since we are already living in China?

    Actually, on the Form N-400, Application for Naturalization, there’s space for two addresses–your “home” address and your “mailing” address. Your home address should be “where you now live,” according to the instructions. So for you that’s China. The mailing address should preferably be a reliable address (e.g., a relative’s house) where you can receive mail in the U.S., since it may be difficult for you to timely receive USCIS mail overseas.

    4. Where should I file the application?

    According to the current USCIS instructions, applicants for expeditious naturalization should mail their applications to the USCIS Phoenix Lockbox.

  3. Is it true that if I get employed by a company abroad that is American, this would count toward my citizenship? And does it matter if I had lived in the U.S. for a whole year before this or not?

    My background is that I received my green card in March 2011 (through my father, who naturalized after I was born abroad). I obtained a re-entry permit and traveled abroad to continue my studying for a Master’s degree. I graduated this year, re-entered the U.S. with the permit, and then left again. I gave birth to a baby boy in June. I never been in the U.S. for 1 year straight.

    Also, can I petition for my husband, even though I’m not working? What about the affidavit of support?

  4. Manelle,

    You’re right, unfortunately, that employment for a U.S. company abroad won’t help you become a U.S. citizen because you wouldn’t meet the requirements for the Form N-470, Application to Preserve Residence for Naturalization Purposes.

    A key requirement is that before filing the N-470, the applicant must have been physically present and residing in the U.S. for an uninterrupted period of at least one year after becoming a lawful permanent resident (LPR). That requirement is poor public policy–it makes no sense in this age of global travel and interconnectedness. But it’s the law.

    The benefit of an approved Form N-470 is that an absence from the U.S. of a year or more (whether preceding or subsequent to filing the naturalization application) will not break the required continuity of residence for naturalization. Thus, a naturalization applicant with an
    approved Form N-470 petition may continue to satisfy the continuous residency general naturalization requirement while living outside of the U.S.

    So to become a citizen, the most obvious options are for you to meet the 1-year continuous physical presence requirement (to file an N-470) or live in the U.S. more than half a year for the next five years.

    As to your husband, yes, you can file a Form I-130, Petition for Alien Relative, for him now, but you’ll need to meet the U.S. “domicile” requirement at the time he immigrates.

    And, in case you weren’t aware, the child of an LPR born abroad can obtain a green card without filing a petition if entering the U.S. with the LPR parent during the parent’s first trip back to the U.S. after the birth, so long as that trip is within 2 years of the birth.

    Your family may well benefit from a consultation with an attorney to map out your options for the future. (Yes, our law firm can do that).

  5. Thank you Mr. Chodorow. You are the only lawyer who gives straight-to-the-point answers!!

    I’m considering a plan to go to the US and fulfill the one-year continuous presence requirement for filing an N-470, then going abroad to work for an American company. Questions:

    1. I noticed on the Visa Bulletin Board that the current F2A category is current. Can I file a petition now? What if I’m outside the U.S.? How long would it take for my husband to immigrate?

    2. And what about the Form I864, Affidavit of Support? If I’m working abroad for an American company and have an approved N-470, will my salary count toward the “income” requirement? Or can a family member file the affidavit? Will I count as “domiciled” in the U.S. for purposes of the N-470?

    3. My last question is regarding the physical presence and continuous residence requirements for naturalization since I recently spent one year abroad (with a reentry permit). Will I still need to be physically present in the US for 2.5 whole years even if i have an approved N-470?

    Thank you.

    1. Manelle,

      1. Any LPR can file an I-130 for a spouse, regardless of whether the LPR is in the U.S. or abroad. Although the September 2013 Visa Bulletin shows there is no wait for this category, it also predicts that it will be backlogged again as of October. The State Department has made no prediction how long a person who files in October will need to wait. But you can see that recently the F2A wait has been about 3-5 years. You’ll need to make a strategic decision to make about whether to file the I-130 now. If yes, it may reduce the odds that your spouse may qualify for a nonimmigrant visa like a B visitor or F student visa which requires proving nonimmigrant intent. If no, you may be delaying your husband’s wait for a green card.

      2.Yes, if you’re working abroad per an approved N-470, you’ll count as “domiciled” in the U.S for purposes of filing a Form I-864, Affidavit of Support. See Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative. But for most expats, their salary isn’t sufficient to meet the income requirement for the I-864. The foreign earned income exclusion for 2013 is $97,600. If the income isn’t taxed, it doesn’t count for the I-864. If your income is insufficient, you can in certain situations count the income and assets belonging to you, the sponsored immigrant, your household members and/or a joint sponsor.

      3. If I understand your question, you’re asking about how your previous absence from the U.S. in excess of one year without an approved N-470 impacts your continuous residence and physical presence requirements for naturalization. There’s a rule that a person who must satisfy a 5-year residence period and who is absent from the U.S. in excess of one year without an approved N-470 “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.” 8 C.F.R. § 316.5(c)(1)(ii). Once you do return to the U.S. to resume permanent residence, if you go abroad again with an approved N-470, your time abroad will count towards the four years and one day continuous residence requirement. Generally, the required period of physical presence is 1/2 of the required period of continuous residence (i.e., 1/2 of 4 years and one day). As explained in the attached article, Naturalization for Permanent Residents and Spouses of U.S. Citizens Employed Abroad, your time abroad with an approved N-470 won’t count towards meeting your physical presence requirement unless you are employed by, or under contract with, the U.S. government.

  6. I want to fill out paperwork for naturalization for my parents. They have been permanent residents since 1989. They have recently left the US to go overseas with a valid re-entry permit and came back two years later (as stated on the permit). Will this hinder them from applying for naturalization?

  7. Hi Gary,

    First I’d like to say you are amazing. You’re extremely helpful and nice to people in such confusing situations.

    I am a US Citizen, and my wife is a LPR (since January 2012). Her green card expires in January (4 months from now), and I have a job offer to work for a US-owned company in Australia. She has been in the US uninterrupted for over 1 year.

    1) Are we eligible for the expedited naturalization process?
    2} If so, is she required to stay in the US until that is complete, or can she travel with me and complete it all in Australia?
    3) Would she need to travel to Bangkok (closest USCIS office) or Honolulu for the interview?
    4) If the process will extend past the expiration date of her green card ( very likely ) should she renew the card normally?
    5) Does she need to file the N-470 as well?

    Thanks!

    1. 1) Please refer to the complete list of requirements in the above article.
      2) She can travel at will but needs to be in the U.S. for the interview and oath ceremony (which may be held on the same day).
      3) The interview must be in the U.S., so Bangkok is not an option. But the interview can be at your chosen office within the U.S.
      4) That’s wise.
      5) That would be a “belt and suspenders” approach. If she qualifies for expeditious naturalization as the spouse of a U.S. citizen, she doesn’t need any period of U.S. residence. But if it’s not clear she qualifies for that, she could file an N-470 to preserve her her residence for naturalization purposes.

  8. Here is a twist on this thread — I am a U.S. citizen and my spouse is an alien. I am retired and currently living abroad but intend to get LPR status for my spouse. Is she eligible for expedited naturalization based on her employment abroad for the U.S. Government?

    Thanks so much.

  9. I am a US citizen, and my wife is an LPR. She was granted conditional residency in 2011, and the conditions were removed this year. I have been offered a position located in Mexico as a transportation manager, but still employed by and paid by my current US company, beginning Jan. 20 2014 lasting 3-4 years, following which I would return back to the US to continue working for same company. June 27, 2014 will be the third anniversary of the date my wife was granted conditional residency. I’m confused on what’s the best course of action–an N-470 filing and then in June file N-400 ? Or would we qualify for “expeditious naturalization?” My wife has lived continuously with me in the US since 2010.

    1. Cullen,

      You can rule out the N-470 because that’s just for an LPR who is personally working for a U.S. company abroad.

      But your wife may well qualify for expeditious naturalization. As described in Part 4 of the attached Guide, the key requirements are:

      1. The applicant is married to a U.S. citizen at the time of filing for naturalization.

      2. The citizen is in the employment of “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof” (or another of the designated employers).

      3. The U.S. citizen spouse is “regularly stationed abroad” in such employment.

      4. The applicant is in the United States at the time of naturalization.

      5. The applicant is an LPR at the time of the naturalization interview.

      6. The applicant will depart the U.S. to live abroad with the citizen spouse within 30 to 45 days after the date of naturalization. And

      7. The applicant declares in good faith an intention to take up residence within the United States immediately following the termination of such employment abroad of the citizen
      spouse.

      Check out the details in the Guide. Or, if you decide not to have your wife apply for expeditious naturalization, make a plan to preserve your wife’s green card so she won’t lose it by abandonment during her 3-4 years abroad.

      If you would like legal representation, consider scheduling a consultation with our firm. We represent clients worldwide in these cases.

  10. Hi there,
    I received my green card in July 2012. I will have 18 months physical presence by January 2014. I work for the United Nations, NY and my wife is a U.S. citizen. I am thinking of applying for a temporary assignment for a year or two in Africa in our field office. If I do not leave the U.S., I can apply for my citizenship in April 2015. However, if I decide to leave the country, what is the best way for me to preserve my green card and still be able to apply for citizenship ( I can come back for vacations in between). I know I don’t qualify for N-470 because I traveled abroad once in January 2013 and once to Mexico in August 2013, which means I do not have a continuous stay for 1 year since I received my green card. Any comments, suggestions would be greatly appreciated. Thank you much in advance.

    1. Bikash,

      If you don’t qualify to file an N-470, see if you can get your U.S. citizen wife a job abroad for a qualified employer so that you then meet the requirements for expeditious naturalization. If neither works, consider whether naturalization is such a priority that you may put off a foreign assignment in order to meet the continuous residence and physical presence requirements.

      1. Hi Gary,
        Thank you for your kind reply. My wife is currently studying so she cannot leave at all. The assignment is a great experience and doesn’t happen often or I may never get the opportunity again. I was just wondering if I could go for a year assignment and then come back in between before 6 months for a month or so and then once the year is up, I would be back here again. I would already have the physical presence requirement of 18 months by this January. My question is, would it be ok for me to come in between the year and then go back again.

        Thanks again.

        1. Hi Bikash,

          If I understand your follow-up question, it’s this: If you take a year assignment abroad (with brief visits back to the U.S.), will it impact your eligibility for naturalization based on having met the 3-year continuous residence requirement for the spouse of a U.S. citizen.

          The continuous residence requirement is 3 years for an applicant who immediately preceding the filing of the application has been married to and living in a “marital union” with a U.S. citizen. The term “marital union” means “actually resid[ing] with his or her current spouse.” Marital union can be lost through divorce, death, expatriation, or legal or informal separation (but not involuntary separation). http://lawandborder.com/can-a-green-card-holder-whos-been-overseas-for-6-months-apply-for-citizenship/.

          I haven’t done detailed research, but it’s possible that USCIS would interpret separation for a 1-year assignment abroad (with brief trips back to the U.S. to see your wife) to break “marital union.”

          Also, the same article explains that per official USCIS guidance taking a foreign assignment could interrupt your required “continuous residence” even if no trip abroad exceeds 6 months. To me, the “guidance” is misguided and muddled. But unfortunately it creates some risk that your foreign assignment would be considered to interrupt your required continuous residence. A key distinction between your case and the example in the USCIS guidance is that your work would be for the UN. This may save your continuous residence, but the USCIS guidance doesn’t say.

          1. Hi Gary,

            Thank you for your detailed and informative response. The information in the USCIS is definitely ambiguous. I will be keeping my apartment here along with all my insurance as my wife would be living there. My employment would also be here in NY, I will just be moving temporarily. However, thank you again for your kind assistance and I really appreciate your answers.

  11. Dear Mr. Chodorow,
    First, thank you for this helpful and detailed website. I didn’t find answers to all of my questions, but now I can at least focus my remaining questions in the right direction.

    My situation is this: I am a US citizen. My domestic partner is an Italian citizen who has had LPR status for many years (at least 8). He has been living in the USA for more than 11 years. He works for a large American-owned (publicly traded on US stock exchange) corporation. There is the possibility that this corporation will have work for him in Germany or Switzerland for an extended period of time (more than a few years). I would be going with him to live abroad if this were the case–though we aren’t married, we share a residence for the last six years, bank accounts, and I’m on his health insurance plan at work, etc. In both of those countries, they will grant me a visa as a domestic partner, to reside there with him, without being legally married.

    BUT, would a stay abroad of 3 or 4 years endanger his LPR status, even though he’s employed by an American owned company? He has not applied for naturalized citizenship because of concerns ‘down the road’, regarding aging parents who are still in Italy and may require him to be there to help them for extended periods of time–giving up his Italian citizenship could make this very challenging, should the need arise.

    I hope this isn’t too convoluted, and appreciate any guidance you can offer or suggestions for where to find info about this kind of circumstance.

    Thank you,
    Blanche

  12. Hello Gary,

    I am a U.S. citizen, and I would like to petition for my husband. Both him and I work for the U.S. Embassy in Brazil. I work for the Department of Homeland Security, and he works for the Department of State. We got married in the U.S. in 2007. Then in 2011 I became a U.S. citizen, and in Aug. 2011 we moved to Brazil. Can he apply for citizenship since we both work for the U.S. Government? Does he need to move back to the U.S. and wait there, or can the whole process be done here at the U.S. Embassy? Will he get his green card first or will he get his citizenship right away?

    Thank you.
    Juliana Velasquez.

    1. Juliana,

      Your husband may be eligible for expeditious naturalization based on his marriage to you, a U.S. citizen, if among other things, (a) you are regularly stationed abroad for employment by the U.S. Government, he is an LPR (green card holder) at the time of the naturalization interview, (c) he intends to live abroad with you within 30-45 days after naturalizing; and (d) he intends to move to the U.S. upon termination of your employment abroad for the U.S. Government. The key authorities are INA section 319(b)(1) and 8 CFR Part 319.

      So one strategy to consider may be for you to file a Form I-130, Petition for Alien Relative for him, upon approval of which he can apply for an immigrant visa. See generally Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative.

      That process of filing the I-130, obtaining an immigrant visa, and being admitted to the U.S. as an LPR at a port of entry only needs to be completed prior to the naturalization interivew. So, no, your husband doesn’t need to move back to the U.S. and wait there. But he’ll need to go to the U.S. at least once: to be admitted as an LPR, attend the naturalization interview, and attend the citizenship oath ceremony. This can often be accomplished in one short trip.

      Hope that’s helpful,
      Gary

  13. Hello Mr. Chodorow,
    My case is this: I’m a US citizen living abroad and working as a contractor for a US company (almost 4 years now), I got married here a year ago and wish to petition my husband to get his green card.
    If he does get the green card, can we apply for the expeditious naturalization?

    Thanks for being so patient and helpful.

    1. V,

      For purposes of expeditious naturalization, the U.S. citizen spouse must be “employed by” the American firm or corporation (or its subsidiary). For this provision, it’s not enough to be “under contract with” that entity. In other words, independent contractors are not covered.

  14. A friend of mine, a U.S citizen, runs a very small newly established company in Maryland. He is planning to conduct import and export business with China. Now, he may need my wife, a U.S. citizen, to go to China helping him to network with potential business partners for a while soon.

    In this case, am I qualified for expedited naturalization ? As my wife’s employer just starts a small new company for trades in China, i don’t whether that counts as “American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States” according to 319 b. Again, am I qualified for expedited naturalization ?

    1. Johnny,

      The size of the U.S. company doesn’t impact eligibility (although there’s authority that a sole proprietor is ineligible to apply). A couple of the issues that our firm or another immigration lawyer would analyze in evaluating your eligibility for expeditious naturalization include, (a) whether the U.S. company is actually engaged in U.S. foreign trade and commerce–planning to do so is not enough, and (b) whether your wife is actually “employed” by the U.S. company or its foreign subsidiary–being an independent contractor is not enough.

  15. Hi Gary,

    You provide what is probably the only resource on the web for information about this topic!

    Does my wife qualify for expeditious naturalization given these facts?

    1. My wife has been an LPR for 3 years but we have been out of the country a lot. Will this impact her eligibility for naturalization?

    2. I have had a sole proprietorship for the past 5 years, but I also own a newly-registered LLC, through which I import leather garments, do software development (mostly for U.S firms), and import fashion brands from China. I haven’t yet filed a federal income tax return for the LLC, and the total revenues are not very high.

    3. I need to move overseas to manage my staff and manufacturing and increase sales.

    Thanks.

    1. Guru F,

      Good questions.

      Given that your wife has been outside the U.S. frequently, your immigration lawyer should analyze whether there’s a risk the government will determine she’s abandoned LPR status.

      If you’re the sole owner of the LLC, there’s some debate about whether you qualify as “employed” by that LLC as required by INA section 319(b). In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953). Contra INS Interpretations § 316.1(c)(4) (citing Gen. Coun., No. 7-54, Feb. 5, 1954). The best interpretation, in my opinion, is that the LLC is a separate legal entity from you, so you can count as “employed” by your own company.

      Finally, you mentioned that the LLC hasn’t yet filed a federal income tax return. That goes to what evidence you have that the business is engaged in U.S. foreign trade or commerce. Your lawyer can help you look at all available evidence to see if it meets the burden of proof.

  16. This is incredibly useful information. Thank you so much for posting! What follows is the curious case of myself, I hope you can help.

    I am a South African citizen with a conditional permanent residency in the US whose two year period will end in June of next year. My wife and I intend going to SA to visit for the first time in nearly a year in October. In the new year, my wife and I will relocate there to work for between a year and two years: my wife for a US not-for-profit in religious education; myself in finance, likely for a South African company.

    The reason we’re going is because it’s difficult for me to get a job in finance in the US with my South African degree and we hope that entry into finance there will enable us to return and to get a job. My wife will work in South Africa for the same not-for-profit she works for here. She will use our contacts with South African religious schools to develop the not-for-profit’s programs there.

    So I suppose my questions are:
    1) Will it matter that we will be living in my home country or that my wife works for a not-for-profit?

    2) Are we more likely to get expedited naturalization before we go or once we’re there?

    3) Will it be advisable to get a re-entry permit before we go, and are we likely to attain one?

    4) Would it help if I were employed by the South African office of a US financial firm?

    5) Should we postpone our impending visit so that I finish my continuous year? I suppose this will only be necessary if we don’t get the expedited naturalization?

    Help with these questions will be extremely appreciated!

    1. Levi,

      1a) Will it matter that we will be living in my home country? For expeditious naturalization, it doesn’t matter which country the LPR is in.

      1b) Will it matter that my wife works for a not-for-profit? The government’s internal guidance (INS Interpretations) specifically recognize that a U.S. not-for-profit can be a qualifying employer.

      2) Are we more likely to get expedited naturalization before we go or once we’re there? It’a always good to contact a lawyer earlier rather than later.

      3) Will it be advisable to get a re-entry permit before we go, and are we likely to attain one? This is a fact-specific question to discuss wiht your lawyer.

      4) Would it help if I were employed by the South African office of a US financial firm? The LPR’s overseas employment is typically irrelevant to eligibility for expeditious naturalization but may be relevant to avoiding abandonment of LPR status.

      5) Should we postpone our impending visit so that I finish my continuous year required for an N-470? I suppose this will only be necessary if we don’t get the expedited naturalization? Whether or not to apply for an N-470 is another issue to discuss with your lawyer, as the answer will depend on a multitude of facts, your goals, and a cost-benefit analysis.

  17. Dear Gary,

    I am a US citizen. My husband got a green card 6 months ago on the basis of our marriage. After getting the green card, we went back to Vietnam for a 3-month vacation. Now, he has a job working for a local hospital in the US. During the time in Vietnam, I found a job (a Vietnamese owned company) and wanted to go back to study and live there for at least 6 months. I talked to him about it, and he understands completely, but we’re worried about his Green Card status. Will it affect him if I reside in vietnam for 6 months at least? He has less than 2 years to apply for his 10 year green card and 3 years for a U.S. citizenship. What are the risks we’re facing if I decide to go to Vietnam and he’s staying in the US? Will it be hard for him to get a permanent green card?

    Thank you so much.

    1. Vespa,

      Your husband will need to file a Form I-751, Petition to Remove Conditions on Residence, within the 3 months before his two-year conditional residence expires. One consideration is whether the evidence of your valid relationship is sufficiently strong to get the I-751 approved, in light of the fact that you two will be separated for a significant period. Meet with our firm or another competent immigration lawyer to evaluate the evidence. For background info about the I-751, see our I-751 Guide

      Another issue is that to qualify for naturalization the period of required residence in the U.S. as a lawful permanent resident is usually 5 years but is reduced to 3 years if spent living in the U.S. in marital union with a U.S. citizen spouse. So your residence in Vietnam may mean that your husband must complete the longer residence period.

  18. Dear Gary ,

    My Spouse is a US citizen and she works for U.S owned firm abroad , I have just been admitted as LPR . my question is am I eligible for expeditious naturalization if my US spouse didn’t complete 3 years after her naturalization date ?

    Regards ,
    Amin

  19. I am an LPR. I’ve already filed the Form N-400, Application for Naturalization, and my biometrics appointment is scheduled in 2 days. My U.S. citizen husband is about to start a civilian job at the U.S. Army base in Belgium. Do you think I still need to apply for “expeditious” naturalization since my biometrics appointment is already scheduled?

    1. Ann,

      “Expeditious” naturalization is not just about a quick process. More importantly, it’s about exempting the applicant from key requirements, such as the normal periods of physical presence and continuous residence in the U.S. So if you meet the requirements of section 319(b) for expeditious naturalization and you need those exemptions, then you should be prepared to submit the corresponding evidence at your naturalization interview.

  20. Hi Gary,

    My U.S. citizen wife has signed a contract with an American-owned firm overseas. The job begins in 7 months. I’ve already applied for a U.S. immigrant visa. Can I apply for expeditious naturalization before my wife has begun the job and before I have the immigrant visa?

    Regards,
    Amin

    1. Hi Amin,

      You’ll need to actually become a permanent resident before filing the Form N-400, Application for Naturalization, under section 319(b). That requirement is not specifically waived and so must be complied with. Immigration L. & Proc. §97.03(2)(b), citing 40 Op. Att’y Gen. 64 (1941). See USCIS Policy Manual, vol. 2, Part G, § A (Applicant under § 319(b) (must be an “LPR at the time of filing the naturalization application.”).

      But you can apply file the N-400 before your wife starts work abroad. She counts as “regularly stationed abroad” if she has proceeded or will proceed abroad “for a period of not less than one year” pursuant to an employment contract or orders and in fact assumes the duties of employment. The contract or orders must have already been issued and must specify the term of employment. See 8 C.F.R. 319.2.

  21. Hi Gary,

    I work for the United Nations overseas but live in America with my spouse who is a U.S. citizen. I applied for and was denied naturalization. The officer reviewed my and my wife’s taxes, leases, banks transactions, property, and utilities bills, as well as my kids’ school records. My job requires me to work for two months abroad, after which I have a week off, which I use to go back to the USA to see my family. Since becoming a permanent resident, I have never stayed outside of the USA for more than 3 months straight. What are my options for an appeal?

    1. Hi Tony,

      The most important tip I can give you is to consult with our firm or another competent immigration lawyer as soon as possible. Appeals of decisions on an N-400, Application for Naturalization, are made on Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings. The deadline for filing is nornmally within 30 days of the date that you were notified of the denial.

      As to whether you have a valid ground for appeal, you haven’t mentioned a key fact: according to the USCIS denying your application for naturalization, what was the specific ground for the denial? Show the denial to your attorney.

      As background, an applicant for naturalization must typically prove 3 years of “continuous residence” in the U.S. immediately preceding the filing of the application if the applicant has been married to and living in a “marital union” with a U.S. citizen who has been a U.S. citizen for all 3 years. The term “marital union” means “actually resid[ing] with his or her current spouse.” Marital union can be lost through divorce, death, expatriation, or legal or informal separation (but not involuntary separation). Further, the applicant must generally have been physically present in the U.S. for half of the 3 years. See generally Can a Green Card Holder Who’s Been Overseas for 6 Months Apply for Citizenship? It’s possible you have not met the continuous residence or physical presence requirement, or both.

      Note that it’s possible for a permanent resident who’s a UN employee to get an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, but the requirements are strict (including 1 year of continuous physical presence in the U.S. after becoming a permanent resident) and the benefits of an approvede N-470 are narrow (for UN employees, you may count as “continuously residing” in the U.S., but you must still meet the separate physical presence requirement).

      Best of luck.

  22. I (American born citizen) have been employed in Hong Kong for the past 25 years now. Initially for an American company doing American trade, and then for a foreign owned (HK) company doing American trade. I now own an American company (in the USA) which handles the products from that foreign company (of which I am still CEO). I have permanent residency in Hong Kong, and want to marry a Philippine national working in Hong Kong. Since I am employed now by the foreign (HK) owned company, doing 75% of its development and sales to USA trade, is it possible to qualify for Expeditious Naturalization after we get married?

    1. Charles:

      For purposes of section 319(b), it’s not enough that you own a U.S. company. As mentioned above, you must be “employed” by that company or its subsidiary, meaning devote a substantial period of time to working for the company. And you must be “regularly stationed abroad” for such employment, meaning that you must have contract or orders to do such employment for at least one year.

      It may be an option to re-arrange your life to fit that definition of 319(b). An immigration lawyer may also be able to help you formulate an alternative strategy to achieve the U.S. immigration law goals you have for your fiancee.

  23. This page has been much more useful than hours of searching through the USCIS website. I can’t thank you enough.

    In my situation as the US citizen spouse, I am a sole proprietor of a small US-based web and software development company that both outsources to and works with clients from the Philippines. I regularly work from the Philippines (slightly more than 6 months each calendar year). I would be able to incorporate and employ myself if needed.

    I am also a minister in my church with a congregation in the Philippines, and the religion has a legal and substantial US presence, but in our faith ministers are unpaid volunteers, not “employees.”

    My wife will soon be an LPR. Would it be better to pursue an application for expeditious naturalization through my company or is it sufficient that I am a minister?

    1. Mr. Flamm,

      Great questions. The answers are likely to depend on the specific facts of your situation. This is exactly the kind of issue our law firm or another qualified immigration lawyer could help you analyze.

  24. Dear Mr. Chodorow,

    I am a U.S. citizen employed by the State Dept and assigned abroad. My husband received expeditious citizenship in July 2015. But there are few work opportunities for my husband where I am currently assigned. Our question is, would he lose his citizenship status if he returns to the U.S. to seek employment even if my tour of duty is not complete yet?

    Thank you in advance for your help.

    1. Mary,

      The legal issue for expeditious naturalization is whether the applicant–at the time of the interview and oath ceremony–intended to reside with the citizen spouse abroad not later than 45 days after naturalization. 8 C.F.R. 319.2. This requirement, found in the regulations, is not spelled out in the statute, but courts have reasoned that it is implied by the statute. In contrast, if a newly naturalized citizen moves abroad to be with his wife but later changes his mind, that is not relevant to naturalization eligibility.

      Loss of citizenship through denaturalization is rare. Generally, people facing denaturalization by USCIS have lied about their eligibility or good moral character. Denaturalization procedures are handled by the U.S. district court with jurisdiction over the present residence of the individual in question. The burden of proof is on the government to show by evidence that is “clear, unequivocal and convincing, and does not leave the issue in doubt” that the individual in question should be denaturalized. Schneiderman v. U.S., 320 U.S. 118, 135 (1943).

      So, in your husband’s case, to determine the risk of denaturalization, look at the evidence to see if there’s any clear evidence that your husband did not intend, at the time of the interview and oath ceremony, to reside abroad with you. For example, for what period did your husband reside abroad with you? When he left the U.S., what arrangements were made for his home, job, personal belongings there? What evidence is there that he sought employment abroad? How long after going abroad did he begin looking for employment in the U.S.?

      Unless there is some clear evidence that your husband, at the time of his interview and oath, didn’t intend to reside abroad with you, USCIS is unlikely to start a denaturalization investigation, prosecute, and try to meet its burden in court.

  25. I am am a US citizen and i work for a 100% US firm abroad .. i got married to my wife in the US who is Thai and she is currently a GC holder for 18 months … My job require me to stationed in Asia can i expedite my wife citizenship to the US so she can travel and live with me..

    1. Quite possibly. If you want to review each eligibility requirement and understand the procedures, you may want to consult with our firm or another immigration lawyer competent in this type of case.

  26. I am a US citizen employed by the US government. My wife (an LPR) and I have been married 25 years, and living in the US continuously for the past 18 years. I’ve applied for a US government job in Germany (we could move in 2-6 months).
    1) Can my wife apply for citizenship now and finish the process overseas?
    2) If we decide to wait, can she apply once we’re in Germany?

    Thank you.

    1. Glenn: Yes, it’s possible to apply for expeditious naturalization before or after moving abroad. A prerequisite is that the U.S. citizen spouse must have already been contracted or assigned to the overseas employment. Still, given current naturalization application processing times often exceeding 6 months, it’s unlikely that the applicant will complete the naturalization process before the U.S. citizen moves abroad. The applicant can remain behind in the U.S. to complete the process (being interviewed and taking the oath of citizenship), or can return to the U.S. to do so.

      1. Maybe Glenn’s wife could apply for naturalization without relying on the expeditious naturalization provisions. In other words, she can just prove that she has resided in the U.S. for the required period (3 years).

        1. Glenn/Tony: Interesting point. The issue is that a naturalization applicant must reside continuously in the U.S. while the application is pending and up until it is granted. In this case, it looks like Glenn’s wife may move abroad before naturalization is granted, would could break the required period of continuous residence.

  27. Hi Gary,
    I am a US-born citizen. I work for IOM (the Migration Agency for the United Nations) in the Resettlement Support Center for USCIS under a contract which was signed with my second citizenship, Ecuador. I am not sure if I would qualify as “regularly stationed abroad” for purposes of my (future) husband’s naturalization because I am also an Ecuadorian citizen. If you could offer some insight. Thanks!

    1. Pamela: Sorry for the delayed response. The “regularly stationed abroad” requirement turns on the scheduled length of your work abroad. Under existing authority, your dual citizenship doesn’t impact ability to meet this requirement.

  28. Dear Gary: is a US-based international law firm’s China or Hong Kong offices “American firm or corporation engaged in whole or in part in the development of U.S. foreign trade or commerce.”
    Thanks,

    1. Michael: It depends how the law firm is organized. See Part 3.2 above. For example, if the firm is organized as a partnership then for it to qualify as an “American firm,” 51% of the partners must be of U.S. nationality.

      1. Thanks, Gary. I understand that “trade” should be interpreted “broadly” and “liberally”. The US firm’s China offices engages in works like bringing PRC companies to go to US for IPOs, cross-border MAs, etc. I believe such works should qualify for “engaged in foreign trade”, right? Thanks a lot. Michael

  29. I am an American teaching English (ESL) at a foreign university. (I also studied Anthropology, so living abroad is part of my career path as an Anthropologist.)

    I’m concerned about the Fang Lan Dankowski case mentioned above, which held that teaching does not count as the development of foreign trade or commerce.

    1. Joseph: The Fang Lan Dankowski case, from 1973, predates the broader definition of trade or commerce under current law. We have successfully argued in a number of more recent cases that American-owned schools abroad do develop U.S. trade or commerce in that they export educational services.

  30. I work as a professor for a small University in Canada which is owned by a Christian denomination in the US. Both the denomination and the university are non-profit corporations. Would the employer count engaged in U.S. foreign “trade and commerce” in the revised (1993) definition?

    1. Matt: As mentioned below, expeditious naturalization is not limited to spouses of employees of FOR-PROFIT entities. The government has recognized that NONPROFIT entities too can engage in trade and commerce. Our firm has successfully obtained expeditious naturalization for the spouses of teachers at nonprofit universities.

  31. Thanks for all the amazing content, Gary. My husband and I live outside the US with no intention of moving to the US anytime soon (probably in a few years), but we want to get him a US passport using expedited naturalization as you’ve described. He has his green card interview next week. Is there any problem in explicitly saying during that interview that his intention in applying for the green card is naturalization and not to actually live in the US? Is hiding this intention illegal?

    1. Dear Donald: I am going to assume that you are a U.S. citizen and have filed with USCIS a Form I-130, Petition for Alien Relative, on behalf of your husband and that he is applying for an immigrant visa based on approval of the I-130. I’m going to also assume that you’ve determined you need to file a Form I-864, Affidavit of Support, in support of the immigrant visa application. Let me know if my assumptions are incorrect. A requirement for most sponsors filing the I-864 is that the sponsor be domiciled in the U.S. or prove he intends to re-establish domicile in the U.S. not later than when the sponsored immigrant enters for the first time with the immigrant visa. An “exception” to that domicile requirement is that a U.S. citizen sponsoring a spouse may be able to prove that his job would be a qualifying one for purposes of expeditious naturalization under section 319(b) of the Act, such as employment abroad for a U.S. company engaged in foreign trade or commerce, or its subsidiary. In short, the same job that may help your husband qualify for expeditious naturalization may also exempt you from the need to prove you are moving back to the U.S. For more on this, see http://lawandborder.com/i-864-affidavit-of-support-help-center/.

      But to directly answer your question: There is no requirement that a family-sponsored immigrant visa applicant prove he intends to reside in the U.S.

      1. Thanks! Your assumptions were all correct and I’ve read in great detail your article about domicile.

        By the way, carefully reading the domicile issue, I wonder if working for a US company is sufficient to establish domicile if I’ve technically lost it. My situation is that I left the US to work for a non-US company and then moved elsewhere to work for a US company without returning to the US. Does working for the US company reestablish my US domicile?

        1. Donald: Interesting question. The regulations say: “a citizen who is living abroad temporarily is considered to be domiciled in the United States if the citizen’s employment abroad meets the requirements of section 319(b)(1) of the Act.” 8 C.F.R. § 213a.2(c)(1)(ii)(A). That could be read to require not just proof of the nature of the employment but also separate proof that the citizen is living abroad temporarily. However, the I-864 instructions at p.5 (rev. 2015-07-02) say, “Some individuals employed overseas are automatically considered as domiciled in the United States because of the nature of their employment.” So these instructions do away with the separate inquiry as to temporariness. The instructions have the authority of regulations. The USCIS Adjudicator’s Field Manual at ch. 20.5(d)(2) also do away with the separate “temporariness” inquiry. The State Department’s Foreign Affairs Manual at 9 FAM 302.8-2(B)(5)(a) and (b)(1) sends mixed messages about this.

          Here’s my take: the term “temporary” has different meanings in immigration law depending on the context. For example, a B1/B2 visitor for business or pleasure must be coming to the U.S. for a “temporary” visit. It would be very hard for a B1/B2 visa applicant to convince a consular officer that a 5 year visit is “temporary” for this purpose. In contrast, for a stay abroad to be considered “temporary” for purposes of avoiding abandonment of permanent resident status, even an indefinite stay abroad may be OK if it is to work for a U.S. corporation or firm involved in the development of foreign trade or commerce, as discussed in Matter of Kane. (See here http://lawandborder.com/risk-abandoning-green-card-abroad-6-months/). That context is very similar to the I-864, so the term “temporary” should probably be interpreted the same in both places.

          In sum, a person who works for a U.S. company abroad for 20 years probably counts as being abroad “temporarily” for I-864 purposes, at least so long as he intends to return to the U.S. upon completion of that work. In the case of a person who goes abroad on a non-temporary basis even before taking employment abroad for a U.S. company, he may still count as “domiciled” in the U.S. for I-864 purposes because the I-864 instructions seem to read the temporariness requirement out of the law.

  32. Gary: Another thank you here for all the helpful information and insights you are providing. I have some questions that build off Donald (Feb 13, 2017), above.

    I am a US citizen living currently overseas planning to get married to a foreign national with a question about whether taking employment by a US-based firm would allow us to proceed with the permanent residency process, as a factor in making decisions about whether to take the job.

    I moved for a full-time job overseas 18 months ago. I was employed by a US-based firm involved in international development for just over a year, but we parted ways. I left that job six months ago and now am working as an independent consultant based overseas working in other locations overseas in part to stay with my fiancé, who lives in the same country and whose father has stage IV cancer, so my understanding is that I wouldn’t meet the domicile requirement for form I-864 to sponsor my wife. I own a house in Virginia, which currently is rented out. I pay taxes in the US, bank in the US, vote, and all the rest of my family (though not hers) live in the US. Income and assets should be no issue. My soon-to-be wife would like to begin the process of becoming a permanent resident and, ultimately, citizenship. I do plan to move back some day to the US, but not in a specifically-defined period, so I cannot apply as being currently domiciled in the US.

    I have been offered a job in another country with a US-based firm working in international development on a contract that runs another three years. She likely would go with me but not herself be employed by a US corporation. Somewhere I read that “the development of foreign trade and commerce of the United States” is interpreted broadly, so monitoring of international development (the foreign assistance type of development) projects should qualify. You wrote to another commenter that he would have to argue that he retains U.S. domicile by proving he is “regularly stationed abroad” and living abroad “temporarily,” and that the latter may be difficult to prove. However, for Donald under expeditious naturalization above, you wrote that “I-864 instructions at p.5 (rev. 2015-07-02) say, ‘Some individuals employed overseas are automatically considered as domiciled in the United States because of the nature of their employment.’”

    Now for my questions: 1) Am I correct that currently I do not meet the domicile requirement for the petition for alien relative? 2) Can I confirm that based on your reading above, if I take the job with a new US employer, would it be easily argued without much pushback from USCIS, that I am therefore domiciled in the US? If USCIS did not read the form’s instructions the way you did, 3a) would I be able to argue I am “regularly stationed abroad,” or might that not fly after being employed by a new firm? 3b) Would I have to/be able to prove I was abroad “temporarily” due to the project ending in three years despite living abroad for another employer and without an employer for a while? 4) Assuming I proceeded through questions 2 and 3 successfully during the application process, would her timeline for naturalization proceed via a form N-470 while living overseas under expeditious naturalization even without an initial one-year continuous residency, at least toward meeting the requirement of 1.5 years of the 3-year continuous residence period? 5) Do I read you correctly that we would have to move to the US after the period abroad?

    Thanks,

    -Marc

    1. Marc,

      You are correct that if you are abroad on an indefinite basis that could be a challenge to meet the “domicile” requirement to qualify as a sponsor filing a Form I-864, Affidavit of Support. The general rule and special related provisions are discussed here.

      You ask some questions about one of the special related provisions, U.S. citizens whose employment abroad for a U.S. company meets the requirements of section 319(b). You are correct that I explained to Donald my interpretation of relevant caselaw on how employment that meets the requirements of section 319(b) could count as “temporary” even though it is indefinite.

      I would be interested in helping to answer your related questions. To do so, I would need to ask follow up questions, review related documents, and learn other facts which may be determinative. Before taking a new job in a new country specifically in order to try to obtain U.S. immigration benefits for your wife, it may be a good investment to schedule a consultation with our law firm or another qualified immigration attorney experienced in these matters.

  33. Gary,
    I’m a LPR. My U.S. citizen spouse has now returned to the U.S. after teaching English in Turkey (my home country) for a year at a college, 52% of which was owned by a US firm. I’ve been outside the U.S. for over a year. Will I have any difficulty returning to the U.S. or qualifying for naturalization?

    1. Irem: You don’t qualify for expeditious naturalization because your husband is no longer “regularly stationed abroad.” For information about potential difficulties returning to the U.S. after a prolonged stay abroad, see here. For information about naturalization eligibility after a prolonged stay abroad, see here.

  34. Dear Mr. Chodorow,

    My husband and I are currently living in South Africa. He was granted permanent residence, as a result of which we are planning an imminent return to the US. However, I (a US citizen) recently interviewed for a position with the UN in South Africa. If I am offered the job, we are hoping to apply for expedited naturalization.

    I have two questions: 1) Does my husband need to be physically present in the US until the naturalization comes through; and 2) based on your experience, what is your estimate regarding how long the process takes from application?

    Many thanks,

    Catherine

    1. Catherine: (1) An applicant for expeditious naturalization generally needs to be physically present in the U.S. only at two moments: for the interview and for the oath ceremony. (2) average processing time for naturalization cases is about 5-8 months. For more on application procedures, see our Guide to Naturalization in the United States, here.

  35. Hi Gary,

    Thank you so much for such a detailed post! All of your information is extremely helpful.

    I am a LPR and my husband is a US citizen. I got my conditional green card in 2016. We will be moving to Europe shortly.

    If my husband gets a job at a large American corporation abroad, let’s say Microsoft, Facebook, Google, and so on – would that satisfy this rule: “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”? Let’s say he will get a job at Microsoft in their Berlin office in Germany, would this be enough to qualify me for expeditious naturalization?

    Thank you so much for your help!

    1. Tereza: Microsoft’s annual report (SEC Form 10-K) shows that this is a U.S. public company in that it is incorporated in the state of Washington and traded exclusively on the NASDAQ. Microsoft also meets the requirement of being engaged in foreign trade and commerce in that it develops and markets software, services, and hardware devices worldwide.

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