Are you considering applying for expeditious naturalization as 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? 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: Contact us in Beijing, Shenyang, Shanghai, or Los Angeles. Schedule a consultation with an immigration lawyer in person, by phone, or by conference call. Our goal is to become your trusted legal adviser.
- 1. Introduction
- 2. Requirements for Naturalization
- 3. Overview of the Requirements for Expeditious Naturalization
- 4. Detailed Discussion of Selected Requirements for Expeditious Naturalization
- 4.1 Employed by an American Firm or Corporation, or a Subsidiary Thereof
- 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 The U.S. Citizen Spouse Is Regularly Stationed Abroad
- 4.6 Marital Status
- 4.7 Departing the U.S. to Live with the Citizen Spouse Abroad
- 4.8 Good faith intention to take up residence within the U.S.
- 5. Conclusion
This Guide 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.
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; and (b) be physically present in the U.S. for one half of that time.
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. 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.” 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.
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.
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. In certain cases, such individuals are eligible for expeditious naturalization.
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 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. The applicant’s spouse and dependent unmarried children residing abroad with the applicant may be eligible for the same benefits, except in the case of the family members of persons covered by the religious duties provision. 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. 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.
- 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.”
- Expeditious naturalization for members of the military and their families.
Generally speaking, to be eligible for naturalization, an applicant must:
- be at least 18 years old;
- be an LPR;
- be of good moral character, attached to the constitution, and be favorably disposed toward the good order and happiness of the U.S. (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.)
- pass a test of English language, history, and U.S. government; 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) immediately preceding the date of filing application for naturalization as well as between the date of applying for naturalization and the date that citizenship is granted;
- residing in a State or Service District having jurisdiction over the naturalization application for at least three months; and
- being physically present in the U.S. for half of the required continuous residence period.
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/.
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 and at the time of the naturalization interview. This includes conditional residents.
- The applicant is married to a U.S. citizen at the time of filing for naturalization.
- The citizen is employed by one of the following: (a) “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”; (b) the U.S. Government; (c) an American institution of research “recognized as such by the Attorney General”; (d) a public international organization “in which the U.S. participates by treaty or statute”; or (e) a religious denomination or an interdenominational mission organization having a bona fide organization within the U.S.
- The U.S. citizen spouse is or will be “regularly stationed abroad” in such employment.
- The applicant is in the United States at the time of the naturalization interview and oath ceremony. (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. 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.
Some of these requirements deserve further discussion in the next part of this article.
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.
The term “American firm or corporation” means a company owned more than 50% by U.S. nationals.
- 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. 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.
- Partnership: For a partnership to qualify as an “American firm,” 51% of the partners must be of U.S. nationality.
- 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. 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.
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. 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.
The U.S. citizen spouse must be “employed by” the American firm or corporation or its subsidiary. It is not enough to be an independent contractor.
Unfortunately, as in many areas of employment law and immigration law, the line between an employee and an independent contractor is not very clear. USCIS finds an employer-employee relationship where the company has the right to control when, where, and how the individual performs the job. USCIS looks weighs the following factors to make a decision based on the totality of the facts:
- Whether and how the company supervises the individual, and is such supervision off-site or on-site?
- Does the company have the right to control the work of the individual on a day-to-day basis if such control is required?
- Does the company provide the tools or instrumentalities needed for the individual to perform the duties of employment?
- Does the company hire, pay, and have the ability to fire the individual?
- Does the company evaluate the work-product of the individual, i.e.
- progress/performance reviews?
- Does the company claim the individual for tax purposes?
- Does the company provide the individual any type of employee benefits?
- Does the individual use proprietary information of the company in order to perform the duties of employment?
- Does the individual produce an end-product that is directly linked to the company’s line of business?
- Does the company have the ability to control the manner and means in which the work product of the individual is accomplished?
Part-time employment will not qualify unless the individual “devotes a substantial portion” of his time to the employment.
The owner of a sole proprietorship—i.e., a self-employed individual—doesn’t meet this definition of “employed by” the firm. In contrast, the sole owner of a corporation who is also employed by that corporation may count as “employed by an American firm.”
The American firm or corporation must be engaged in whole or in part in the development of U.S. foreign trade or commerce. 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.
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.
The term “trade” should be “construed broadly” and “liberally.” 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.
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.”
INS has considered certain refugee relief agencies and non-profit organizations to be engaged in development of foreign trade and commerce.
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.
The regulations list the eligible public international organizations of which the U.S. is a member by treaty or statute. This includes NATO, the United Nations, and all agencies and organizations which are a part of the UN. This list also includes organizations entitled to enjoy the privileges, exemptions, and immunities provided for in the International Organizations Immunities Act.
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. In some circumstances, USCIS may also regard research conducted abroad under a grant from a recognized institution of research as qualifying employment.
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.
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 a “local hire” abroad rather than be an “expat” hire. It is irrelevant whether undertaking the employment was the reason for moving or staying abroad.
Further, arguably there is no requirement that the U.S. citizen spouse already be abroad before the naturalization application is filed. The application can be filed and approved before the overseas assignment begins. The statute and regulations also clearly allow the application to be filed after the citizen spouse has already taken up the overseas employment.
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.”
The regulations require a person whose application is pending to notify USCIS of “any delay or cancellation of the citizen spouse’s assignment abroad.” Termination of the employment before naturalization is granted would require denial of the naturalization application.
While the employment must be pursuant to an employment contract or orders, there is no authority requiring that they specify the term of employment. At-will employment is acceptable. Still, the applicant has the burden of proving through documentation how long the employment is “scheduled to last.” This could be in the form of an employer letter.
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.
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.
The applicant may move abroad for that purpose before filing the application. But it’s not necessary that the applicant and the U.S. citizen lived together before 45 days after naturalization.
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. 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. 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. 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.
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
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). ↑
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(b); 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 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)(29). See Tien Top Lee v. United States, 549 F.2d 154 (9th Cir. 1977) (assuming but not deciding that employment in American Samoa counts as employment abroad). See also INA§ 101(a)(29) (defining “outlying possessions of the United States” as American Samoa and Swains Island). ↑
INA § 319(b)(1)(C). ↑
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). ↑
INA § 319(b)(1)(B). ↑
INA § 316(b). ↑
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 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.) ↑
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). ↑
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). ↑
INS Interpretations 316.1(c)(4)(ii). In INA § 316(b), the provision related to N-470 benefits, Congress specified that being “employed by or under contract with” the U.S. Government qualifies. In contrast, the “under contract with” language is missing from the provision for those “employed by” an American firm or corporation. As such, merely being “under contract with” (i.e., being an independent contractor with) an American firm or corporation does not qualify for N-470 benefits.
Interpretations 316.1(c)(4)(ii). Similarly, since § 319(b) covers only persons “employed by” an American firm or corporation, not those “under contract,” working as an independent contractor does not qualify. ↑
AFM ch. 31.3(g)(15). In the naturalization context, the best guidance comes from Matter of R, 4 I. & N. Dec. 196 (INS Central Office 1950), which involved the analogous issue of whether an applicant working abroad was eligible to preserve residence under section 307 of the Nationality Act of 1940. Here, a physician worked in Casablanca as a sales representative soliciting orders for a U.S. medical supply company. He was paid on a commission basis. INS held that being “a commission rather than a fixed wage does not by itself preclude the relationship of employer and employee.” The holding is not surprising because under the above right-to-control test being paid on a commission basis is one factor tending to show an independent contractor relationship, but that factor may be outweighed by other countervailing factors. INS distinguished the facts in Matter of R from other cases where compensation comes directly from the customer or where the individual is a mere reseller of the American firm’s products. INS also reasoned that “employ” 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.” Still, the basis for selecting that definition of “employ” is not clear. See also Interpretations 316.1(4)(i) and (ii) (summarizing the holding in Matter of R-, supra); Matter of M-J-, 8 I. & N. Dec. 520, Acting Reg. Comm’r (1960). ↑
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.) ↑
In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953). ↑
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). ↑
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. ↑
8 C.F.R. § 319.2(a)(1). ↑
Matter of P, 5 I. & N. Dec. 332 (Central Office 1953) ↑
INS Interp. 319.2(c)(2)(i)-(ii). Daniel Levy, U.S. Citizenship and Naturalization Handbook, § 11:6. ↑
Interpretations 319.2(c)(2)(i)-(iii); Daniel Levy, U.S. Citizenship and Naturalization Handbook at § 11:6. ↑
“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). ↑
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. ↑
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). ↑
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). ↑
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”). ↑
INA § 319(b); 8 C.F.R. § 319.2(c); 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. ↑
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. ↑