Are you the spouse of a U.S. citizen employed abroad by a U.S. company, the U.S. government, an international organization, a research institution, or a religious organization? You may be eligible for expeditious naturalization. Chodorow Law Offices can help:
- Use the Eligibility Screening Tool to see if you may be eligible.
- Read the below Guide to learn about the special requirements for expeditious naturalization under section 319(b) of the Immigration and Nationality Act.
- Don’t forget to learn about the basic requirements and procedures for naturalization.
- Let us help you: Schedule a consultation with an immigration lawyer from our firm in person, by phone, or by video conference.
Contents
- 1. Introduction
- 2. General Requirements for Naturalization
- 3. Overview of the Requirements for Expeditious Naturalization
- 4. Types of Employment
- 4.1 Employment by an American Firm or Corporation, or Its Subsidiary
- 4.2 Engaged in the Development of U.S. Foreign Trade or Commerce
- 4.3 Public International Organizations
- 4.4 American Institutions of Research
- 4.5 Religious Denomination or Interdenominational Mission Organization Having a Bona Fide Organization within the U.S.
- 5. Other Requirements
- 6. Conclusion
1. Introduction
This Guide covers the requirements and procedures for spouses of U.S. citizens employed abroad 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]
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. If biometrics are required, they can be taken at any willing USCIS office, Embassy, or Consulate abroad. Some offices allow the applicant to choose the date of their interview. Some offices will schedule the oath ceremony the same day or the day after the naturalization interview. 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. The public policy behind the normal residence requirement for naturalization is to is to encourage the applicant 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 is a countervailing public policy that favors allowing individuals to reside abroad with their U.S. citizen spouses who work in specific capacities (employment for the U.S. government, for American firms and corporation and their subsidiaries that develop U.S. trade and commerce, for American institutions of research and public international organizations, and as a minister, priest, or missionary).[7] In certain cases, such individuals are eligible for expeditious naturalization.
Addressing a related statute, section 316(b) of the Immigration and Nationality Act, which preserves residence for purposes of naturalization for spouses of U.S. citizens working abroad in capacities similar to those specified in 319(b), a presidential commission explained the public policy behind the statute this way:
Representatives of Coca-Cola Export Corp. and International General Electric have pointed out to the Commission that … [i]n their overseas operations American institutions of research and business concerns frequently employ aliens who reside in the United States. It is to the advantage of such organizations, to the aliens, and to the Government of the United States to permit such aliens to become citizens [even if] the nature of their employment often requires such aliens to remain away from the United States for long periods of times.[8]
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 (including in expeditious naturalization cases, see our firm’s Guide to Naturalization in the 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.
- 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.[9] The applicant’s spouse and dependent unmarried children residing abroad with the applicant may be eligible for the same benefits,[10] except in the case of the family members of persons covered by the religious duties provision.[11] 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.[12] Second, an approved N-470 does not 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.[13]
- Expeditious naturalization provisions for persons employed by Voice of America, Radio Free Asia, or another “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.”[14]
- Expeditious naturalization for members of the military and their families.[15]
2. General Requirements for Naturalization
Generally speaking, to be eligible for naturalization, an applicant must:
- be at least 18 years old[16];
- be an LPR[17];
- be of good moral character, attached to the constitution, and be favorably disposed toward the good order and happiness of the U.S.[18] (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.)[19]
- pass a test of English language, history, and U.S. government;[20] and
- 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[21]) immediately preceding the date of filing application for naturalization[22] as well as between the date of applying for naturalization and the date that citizenship is granted[23];
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, https://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:
- The applicant is a lawful permanent resident at the time the naturalization application is filed[26] and at the time of the naturalization interview.[27] This includes conditional residents.
- The applicant is married to a U.S. citizen at the time of filing for naturalization.[28]
- The citizen is 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”;[29]
- the U.S. Government;[30]
- an American institution of research “recognized as such by the Attorney General”;[31]
- a public international organization “in which the U.S. participates by treaty or statute”;[32] or
- a religious denomination or an interdenominational mission organization having a bona fide organization within the U.S.[33]
- The U.S. citizen spouse is “regularly stationed abroad”[34] in such employment.[35]
- The applicant is in the United States at the time of the naturalization interview and oath ceremony.[36] (You need not be in the United States at the time of filing the naturalization application.)
- The applicant will depart the U.S. to live abroad with the citizen spouse not later than 45 days after the date of naturalization.[37] And
- 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.[38]
Some of these requirements deserve further discussion in the next part of this article.
4. Types of Employment
Further explanation is needed of some of the types of employment covered by section 319(b).
4.1 Employment by an American Firm or Corporation, or Its Subsidiary
American Firm or Corporation
The term “American firm or corporation,” as used in INA § 319(b), means a company established in the United States and owned more than 50% by U.S. citizens. More specifically:
- 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 firm or 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 (as opposed to a legal entity, such as a corporation, legally separate from the owner) counts as an “American firm.” There is at least one INS memorandum implying that the answer is yes.[42] On the other hand, there is at least one federal district court case holding that a the answer is no.[43] (Also, see the discussion of owner-workers below).
- 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.[44]
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.[45]
When there is a chain of subsidiaries, the nationality of each subsidiary depends on the nationality of the next higher subsidiary in the chain.[46]
For example:
In this example:
- Acme Inc. is a U.S. corporation because it is established in Delaware and 62.5% of the shares are ultimately held by U.S. citizens (50% by Alan and 12.5% by Doug).
- Acme BVI Inc. is the “subsidiary” of an “American” corporation because 60% of its shares are held by Acme Inc., an American corporation.
- Acme China Co. Ltd. is not the “subsidiary” of an American corporation because only 42% (i.e., 70% of 60%) of its shares can trace their ultimate ownership to the American corporation, Acme Inc.
“Employment”
Note that INA § 319(b)(1)(C) requires that any citizen applying for expeditious naturalization must be “regularly stationed abroad in such employment,” where “such” refers back to the various types of work specified in the statute.
Part-time employment will not qualify unless the individual “devotes a substantial portion” of his time to the employment.[47]
Independent contractors may not qualify. Matter of M-J-, 8 I. & N. Dec. 520 (Ass’t Comm’r 1960), is a precedent case binding on USCIS. It holds that study abroad qualified as employment for purposes of a related statute, INA § 316(b), where a student received a stipend from the Public Health Service to get cardiovascular research training at Cambridge University. The decision relies on Webster’s New International unabridged dictionary, which the time defined “employment” as “that which engages or occupies; that which consumes time or attention; also, an occupation, profession, or trade; service; as agricultural employments.” The decision also cities to Black’s Law Dictionary, which defined “employment” in the following terms: “The act of hiring, implying a request and a contract for compensation….”[48] These broad definitions do not necessarily imply the existence of an employer-employee or master-servant relationship.[49] So, an independent contractor should count as employed under § 319(b).
However, in one instance, the USICS Washington Field Office has ignored Matter of M-J-, instead asserting that “employment” should be defined consistently with the term “employee” under the common law, which excludes independent contractors. A conservative approach in applying for expeditious naturalization would be to fashion the employer-employee relationship consistent with the common law. The common law defined an “employee” as one whom the entity has a right to control as to when, where, and how work is done, considering the following factors (with no single factor being decisive) [50]:
- Does the entity supervise the beneficiary and is such supervision off-site or on-site?
- If the supervision is off-site, how does the entity maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the entity?
- Does the entity have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
- Does the entity provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
- Does the entity hire, pay, and have the ability to fire the beneficiary?
- Does the entity evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
- Does the entity claim the beneficiary as an employee for tax purposes?
- Does the entity provide the beneficiary any type of employee benefits?
- Does the beneficiary use proprietary information of the entity in order to perform the duties of employment?
- Does the beneficiary produce an end-product that is directly linked to the entity’s line of business?
- Does the entity have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
Owner-Workers May Not Qualify. Under the Matter of M-J- definition of employment, an owner-work may well qualify for expeditious naturalization under § 319(b).[51] However, as mentioned above, in one instance, the USICS Washington Field Office ignored that definition of “employment,” instead asserting that “employment” should be defined consistently with the term “employee” under the common law. Under the common law, an owner who operates independently without being subject to the entity’s control is not an employee.[52] In addition to the above-listed factors for determining whether the individual is an employee versus independent contractor, the following factors should be analyzed for owner-workers[53]:
- Whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work.
- Whether and, if so, to what extent the organization supervises the individual’s work.
- Whether the individual reports to someone higher in the organization.
- Whether and, if so, to what extent the individual is able to influence the organization.
- Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts.
- Whether the individual shares in the profits, losses, and liabilities of the organization.
Therefore, a conservative approach in an expeditious naturalization case would be to fashion the employer-employee relationship consistent with the common law.
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.[54] 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.[55]
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.[56]
The term “trade” should be “construed broadly” and “liberally.”[57] 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.[58]
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.”[59]
INS has considered certain refugee relief agencies and non-profit organizations to be engaged in development of foreign trade and commerce.[60]
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.[61]
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.[62] This includes NATO, the United Nations, and all agencies and organizations which are a part of the UN.[63] This list also includes organizations entitled to enjoy the privileges, exemptions, and immunities provided for in the International Organizations Immunities Act.[64]
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.[65] In some circumstances, USCIS may also regard research conducted abroad under a grant from a recognized institution of research as qualifying employment.[66]
4.5 Religious Denomination or Interdenominational Mission Organization Having a Bona Fide Organization within the U.S.
As mentioned above, the citizen spouse may be either (a) “authorized to perform the ministerial or priestly functions of a religious denomination” or (b) “engaged solely as a missionary by a religious denomination or by an interdenominational mission organization.”[67]
The Denomination or Organization
The denomination or interdenominational mission organization must have a “bona fide organization within the United States,”[68] meaning be tax-exempt under section 501(c)(3) of the Internal Revenue Code and possessing a currently valid determination letter from IRS confirming the exemption.[69]
The term “religious denomination” refers to a “religious group or community of believers” with an internal governing or organizational structure[70] and other indicia of a religious denomination such as a common creed or statement of faith, form of worship, code of doctrine and discipline, religious services and ceremonies, or common established places of religious worship or religious congregation.[71]
Job Responsibilities
The term “minister” means an individual who is fully trained and authorized to conduct religious worship and other usual clerical duties but does not include a lay preacher.[72] Normally, this requires evidence of ordination following completion of a course of prescribed theological education at an accredited theological institution.[73]
The term “missionary” means a member of a religious group sent into an area to do religious teaching or evangelism.[74]
Compensation
INA § 319(b)(1)(C) requires “employment.” As discussed above, Matter of M-J- holds that “employment” for purposes of the related statute means an “occupation” or “profession” and some kind of “contract for compensation….” This definition is broad enough to include not just common-law “employees” but also independent contractors.[75] The breadth of this definition is also consistent with the use of the term “employment” under the regulations for R nonimmigrant visas for religious workers[76] and special immigrant religious workers.[77] They must receive compensation, but it may be either a “salary” (i.e., a paycheck) or “non-salaried compensation” (e.g., room, board, medical care, transportation),[78] except that certain nonimmigrant missionaries may be self-supporting instead of receiving compensation.[79]
Notably, the statute does not place any limitation on what type of entity must employ a minister or priest. Thus, an ordained rabbi qualified for benefits while teaching at a rabbinical seminary even though he was sent abroad by, and received compensation from, a private charitable corporation which was not a religious organization.[80]
5. Other Requirements
5.1 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. Through these words, Congress intended to distinguish “regular” employment abroad from employment that is of a “short, temporary, or casual nature.”[81]
In 1991 regulations, the legacy Immigration and Naturalization Service put in place a more clear-line rule:
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.[82]
The USCIS Policy Manual further explains the regulatory requirement that the citizen spouse must “proceed abroad, for a period of not less than one year”; namely, the qualifying employment abroad must be “scheduled to last for at least one year at the time of filing” the naturalization application … provided that the spouse remains employed abroad at the time of naturalization.”[83]
A key question about the regulation that is not explicitly addressed by the USCIS Policy Manual is whether the employment contract must specify a term of employment of “not less than one year.” It appears that the answer is “no.” The Manual’s explanation that the employment must be “scheduled to last for at least one year”[84] does not specify that the schedule must be set forth in the employment contract. And the Manual states that “evidence” of “the anticipated period of employment abroad” must be submitted, without specifying that the evidence must be found in the employment contract.[85] As a result, at-will employment is acceptable for 319(b) purposes. Other evidence, such as an employer letter, could prove how long the employment is “scheduled to last.”[86]
There is no requirement that the citizen have been employed by the company in the U.S. or be transferred abroad by the company. The citizen may be a “local hire” abroad rather an “expat” hire. Also, it is irrelevant whether undertaking the employment was the reason for moving or staying abroad.[87]
The regulations require a person whose application is pending to notify USCIS of “any delay or cancellation of the citizen spouse’s assignment abroad.”[88] Termination of the employment before naturalization is granted would require denial of the naturalization application.[89]
5.2 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.[90]
The couple is not required to have previously lived in marital union.[91]
Still, as discussed below, the applicant must still show an intent to reside abroad with the U.S. citizen and to reside in the U.S. upon termination of the qualifying employment abroad.[92] Evidence may include the following documents referring to both spouses:[93]
- Tax returns, bank accounts, leases, mortgages, or birth certificates of children; or
- Internal Revenue Service (IRS)-certified copies of the income tax forms that you both filed for the past 3 years; or
IRS tax return transcripts for the last 3 years.
5.3 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.[94]
The applicant may move abroad for that purpose before filing the application.[95] But it’s not necessary that the applicant and the U.S. citizen lived together before 45 days after naturalization.[96]
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.[97] 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.[98] 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.[99] 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.[100]
5.4 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[101]
6. Conclusion
Our law firm is available to represent clients with respect to expeditious naturalization. Feel free to contact us for further information.
See generally INA § 319(b), 8 U.S.C. § 1330(b). ↑
INA § 319(b)(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. ↑
8 C.F.R. § 213a.2(c)(1)(ii). ↑
8 C.F.R. § 213a.2(c)(1)(ii); AFM ch. 20.5; 9 FAM 40.41 NN7, 7.2. ↑
U.S. v. Mulvey, 232 Fed. 513 (2d Cir. 1916). ↑
Legal Opinion of General Counsel, HQ 319-C (Feb. 23, 1993). ↑
Whom We Shall Welcome, Report of the President’s Commission on Immigration and Naturalization 247 (Jan. 1, 1943). ↑
INA § 316(b). ↑
8 C.F.R. 316.5(d)(1)(ii); Robert C. Divine, Immigration Practice 2009-2010, §12-19. ↑
See INA § 317. ↑
INA § 316(b)(2); 8 C.F.R. 316.5(d)(2). ↑
INA § 317(3). ↑
INA § 319(c). ↑
INA §319(d) and (e). ↑
8 C.F.R. 316.2(a)(1). ↑
INA 316(a); 8 C.F.R. 316.2(a)(2). ↑
8 C.F.R. § 316.2(a)(7). ↑
8 C.F.R. § 319.2(a)(5); 12 USCIS-PM G.4(A). ↑
8 C.F.R. Part 312. ↑
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). ↑
INA § 316(a); 8 C.F.R. 316.2(a)(3). ↑
INA 316(a); 8 C.F.R. 316.2(a)(6). ↑
INA 316(a); 8 C.F.R. 316.2(a)(5). ↑
INA 316(a); 8 C.F.R. 316.2(a)(4). ↑
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). ↑
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). ↑
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). ↑
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). ↑
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). ↑
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). ↑
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). ↑
- 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. ↑
The term “abroad,” presumably refers to any location outside the “United States,” which is defined by the Immigration and Nationality Act as “the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.” INA § 101(a)(38). See Tien Top Lee v. United States, 549 F.2d 154 (9th Cir. 1977) (assuming but not deciding that employment in American Samoa, an unincorporated territory of the U.S., counts as employment abroad). See also INA§ 101(a)(29) (defining “outlying possessions of the United States” as American Samoa and Swains Island). ↑
Matter of Warrach, 17 I. & N. Dec. 285 (Reg. Comm’r 1979). See Matter of Chawathe, 25 I. & N. Dec. 369 (AAO 2010). See also Memo from David A. Martin, General Counsel, INS, to Thomas Cook, Chief, Naturalization and Special Projects Branch, INS, Interpretation of American Firm or Corporation for Section 319(b) INA (Sept. 14, 1995), 1995 WL 1796328. ↑
INA § 319(b)(2). ↑
8 C.F.R. § 319.2(b)(1). ↑
INA § 319(b)(3); 8 C.F.R. § 319(a)(4)(i)-(ii). ↑
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). ↑
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. ↑
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.). ↑
INS Interpretations § 316.1(c)(4), citing 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.) ↑
In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953). ↑
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). ↑
Memo from David A. Martin, General Counsel, INS, to Thomas Cook, Chief, Naturalization and Special Projects Branch, INS, Interpretation of American Firm or Corporation for Section 319(b) INA (Sept. 14, 1995), 1995 WL 1796328. ↑
Id. ↑
Interpretations 316.1(4)(ii), citing Matter of P-, 5 I. & N. Dec. 332 (1953) (Part-time employment sufficient for N-470 where applicant was abroad “primarily” to study but also also taught Italian for a school, handling “all the language requirements of the school.” The decision does not mention how many hours a week he worked. He received more than a “token payment of salary.”) ↑
See also Matter of R-, 4 I. & N. Dec. 196 (Central Office 1950) (For purposes of INA § 307(b), which is an earlier version of INA § 316(b), the term “employment” means “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.” As such, payment of a commission rather than a salary is not disqualifying.) ↑
Id. at 542. ↑
Donald Neufeld, Assoc. Dir., Service Ctr. Ops., USCIS, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, including Third-Party Placements (HQ 70/6.2.2.8) (Jan. 8, 2010), citing Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) and Clackamas Gastroenterology Assoc. v. Wells, 538 U.S. 40 (2003). See also INS Interpretations § 316.1(c)(4), citing Gen. Coun., No. 7-54, Feb. 5, 1954 (Benefits under § 316(b) are not available if the employee is also the sole owner of the firm which he represents abroad.). ↑
See also In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953) (dicta). This case involved an individual self-employed in the export business. The court noted that if he were to “form a corporation of which he was the sole stock-holder and enter into a contract by which the corporation employed him, there would seem to be no escape from the conclusion that he had qualified himself to receive the benefits of” INA § 707(b), which is an earlier version of § 316(b). The court made no mention of the common law issue of control. ↑
Clackamas, supra, at 448. ↑
Clackamas, supra, at 449-450. ↑
INA § 319(b). The regulations at 8 C.F.R. § 319.2 do not elaborate, nor does the USCIS Policy Manual ch. 4. ↑
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). ↑
In Re [name withheld] (AAO Apr. 26, 2007), published at 2007 WL 5317983. ↑
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). ↑
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.”). ↑
In re Fang Lan Dankowski, 478 F. Supp. 1203, 1207 (D. Guam 1979). ↑
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. ↑
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. ↑
8 C.F.R. §s 316.20(b) and (c), 319.5; Daniel Levy, U.S. Citizenship and Naturalization Handbook, §11:6. ↑
8 C.F.R. § 316.20(b). ↑
8 C.F.R. § 316.20(c). The list is also available at 9 FAM 41.24 Exhibit 1. ↑
8 C.F.R. 316.20(a). ↑
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. ↑
INA § 319(b)(1) ↑
Id. ↑
8 C.F.R. § 214.2(r)(3). ↑
73 Fed. Reg. 72280 – 81 (explaining the requirement of an “ecclesiastical government”). ↑
Id. ↑
Id. ↑
8 C.F.R. § 214.2(r)(10). ↑
12 USCIS-PM D.5. ↑
See Matter of R-, 4 I. & N. Dec. 196 (Central Office 1950) (For purposes of INA § 307(b), which is an earlier version of INA § 316(b), the term “employment” means “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.” As such, payment of a commission rather than a salary is not disqualifying.) ↑
8 C.F.R. § 214.2(r). ↑
8 C.F.R. § 204.5(m). ↑
8 C.F.R. § 214.2(r)(11) (nonimmigrants); 8 C.F.R. § 204.5(m)(10) (special immigrants); 6 USCIS-PM H.2(B)(5). ↑
8 C.F.R. § 214.2®(11)(ii)(A). ↑
Matter of F-, 8 I. & N. Dec. 533 (Ass’s Comm’r 1960) (interpreting INA § 317). See also INS Interpretations § 317.1(b)(1). ↑
INS Interpretations § 319.2(c)(2), citing In Re Sugarek, 77 F. Supp. 98 (N.D. Cal. 1947). ↑
8 C.F.R. § 319.2(a)(1), published originally at 56 Fed. Reg. 50,475 (Oct. 7, 1991). Note that the regulatory requirement that the citizen spouse must have “assume[d]” the employment reverses the prior INS Interp. 319.2(c)(2)(i)-(ii), stating that that the term “regularly stationed abroad” includes situations where, at the time the naturalization application is “filed and granted” the citizen spouse is “pending travel abroad to enter upon newly assigned foreign employment.” Consistent with the regulations, the current Form N-400 checkbox for 319(b) expeditious naturalization requires that the U.S. citizen spouse “is regularly engaged in specified employment abroad.” Form N-400 at 1. Oddly, the USCIS Policy Manual misquotes the form, saying that the checkbox should be used where the citizen “is or will be regularly scheduled stationed abroad.” 12 USCIS-PM G.4(G). ↑
12 USCIS-PM G(4)(D). See also USICS Washington District Office, N-400 319(b) Process Information Letter (received by the author from USCIS in June 2021) (The government orders or commercial contract “should show … at least one year remaining on [the] assignment from the date you filed your application. Extended orders … do not qualify unless … issued before your application filing date.”). The contradictory INS Interpretations 319.2(c)(2) are no longer relevant on this point because they pre-date the current regulations. ↑
12 USCIS-PM 4(D). ↑
12 USCIS-PM 4(G). See also 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”). ↑
The concept that at-will employment can be “scheduled” to continue for at least one year is analogous to the rule that at will-employment can be “permanent” within the definition of 8 C.F.R. § 204.5(i)(2) for purposes of immigration as an outstanding professor or researcher where the parties have an “expectation” the employment will continue indefinitely. See Memorandum from Michael Aytes, USCIS Acting Dir. for Domestic Operations, Guidance on the Requirement of a “Permanent Offer of Employment” for Outstanding Professors or Researchers (June 6, 2006), https://www.uscis.gov/sites/default/files/document/memos/eb1visa060606.pdf. ↑
Matter of P, 5 I. & N. Dec. 332 (Central Office 1953). ↑
8 C.F.R. § 319.2(b)(2). ↑
INA § 319(b)(3) (requiring that the spouse “is” regularly stationed abroad “in such employment”). See Hong Yin v. Frazier, 804 F.Supp.2d (D.S.D. 2011) (denying naturalization on the basis that the spouse’s qualifying employment ended prior to adjudication of the application); Richard D. Steel, Steel on Immigration Law § 15:11 (2017). ↑
INA § 319(b); 8 C.F.R. § 319.2(c); Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6. ↑
12 USCIS-PM G.4(C). ↑
Id. ↑
USCIS Form M-477, Document Checklist (Nov. 21, 2016). ↑
8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6. ↑
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). ↑
See 8 C.F.R. 319.2; USCIS Policy Manual ch. 4B; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6. ↑
8 C.F.R. § 319.2(b). ↑
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). ↑
8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6. ↑
8 C.F.R. § 319.2; Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6; Interpretations 319.2(c)(3)(iii). ↑
INA § 319; 8 C.F.R. § 319.2(a)(2); Daniel Levy, U.S. Citizenship and Naturalization Handbook §11:6. ↑
Leave a Reply