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N-470 Treatise as of Oct 27, 2012

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  • 1. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700 Matter of CHAWATHE Decided October 20, 20101 U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office(1) For purposes of establishing the requisite continuous residence in naturalization proceedings pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b) (2006), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated in the United States and trades its stock exclusively on U.S. stock exchange markets.(2) When an applicant’s employer is a publicly held corporation that is incorporated in the United States and trades its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those persons who own more than 51% of the stock of that firm. Matter of Warrach, 17 I&N Dec. 285, 286-87 (Reg. Comm’r 1979), clarified.(3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.(4) Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989), followed.(5) If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.ON BEHALF OF APPLICANT: Pro seBEFORE: Perry Rhew, Chief, Administrative Appeals Office The application to preserve residence for naturalization purposes wasdenied by the Acting District Director, San Francisco, California, and is now1 This matter was initially decided on January 11, 2006, and designated as an “adopteddecision” of U.S. Citizenship and Immigration Services (“USCIS”), guiding USCIS officersin their administration of the immigration laws. It was not designated as precedent under8 C.F.R. § 1003.1(i) (2010) until October 20, 2010. On our own motion, we reopen andamend the decision for the limited purpose of making editorial revisions consistent withdesignation of the decision as precedent. 369
  • 2. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700before the Administrative Appeals Office (“AAO”) on appeal. The appeal willbe sustained. The primary question presented in this matter is whether a publicly tradedcorporation may be considered an “American firm or corporation,” pursuantto section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b)(2006), when its stock ownership is widely dispersed and there is no readilyavailable means to determine the nationality of its owners.2 Upon review, theAAO concludes that a publicly held corporation may be deemed an “Americanfirm or corporation” for purposes of section 316(b) of the Act if the applicantestablishes that the corporation is both incorporated in the United States andtrades its stock exclusively on U.S. stock markets. I. FACTUAL AND PROCEDURAL HISTORY The applicant is an employee of ChevronTexaco Corporation whowas granted permanent resident status on June 26, 2000, as a memberof a profession holding an advanced degree or having exceptional ability.Expecting to file an application for naturalization as a United States citizenin the future, the applicant filed an Application to Preserve Residence forNaturalization Purposes (Form N-470) with his local immigration officein San Francisco, California, on January 30, 2003. The applicant seeksto preserve his residence for naturalization purposes under section 316(b)of the Act as a lawful permanent resident who will be temporarily absent fromthe United States for the purpose of employment with an “American firmor corporation.” In order to be naturalized as a United States citizen, the Act requires in partthat a person reside continuously in the United States as a lawful permanentresident for at least 5 years prior to filing an application for naturalization, andthat the person be physically present in the United States for at least one halfof the required residency period. See generally section 316 of the Act.Section 316(b) of the Act provides that an absence from the United States fora continuous period of 1 year or more shall break the continuity of the required5-year period of continuous residence. However, section 316(b) of the Act also provides that no period of absencefrom the United States shall break the continuity of residence if the applicantproves to the satisfaction of the Secretary of Homeland Security that he or she2 A “stock” is a proportional part of a corporation’s capital represented by the total numberof equal units (or shares) owned, and granting the stockholder the right to participate in themanagement of the corporation and share in its profits. See generally Black’s LawDictionary 1428 (7th ed. 2002). 370
  • 3. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700 has been physically present and residing in the United States after being lawfully admitted for permanent residence for an uninterrupted period of at least one year and . . . is 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 more than 50 per centum of whose stock is owned by an American firm or corporation . . . . In the present matter, the director determined that the applicant had failedto establish that his employer, ChevronTexaco Corporation, was an “Americanfirm or corporation” as required by the Act. The director determined furtherthat the applicant had failed to establish that his temporary overseas employer,Saudi Arabian Texaco, qualified as a ChevronTexaco Corporation“subsidiary” under section 316(b) of the Act. The director denied theapplication for preservation of residence for naturalization purposes on thisbasis. On appeal, the applicant asserts that his employer, ChevronTexacoCorporation (hereafter referred to as ChevronTexaco), was incorporated in theState of Delaware and qualifies as an “American firm or corporation” undersection 316(b) of the Act. The applicant also asserts that Saudi ArabianTexaco is owned and controlled by ChevronTexaco and therefore qualifiesas a “subsidiary of an American corporation.” II. “AMERICAN FIRM OR CORPORATION” For purposes of section 316(b) of the Act, the nationality of a firmor corporation has traditionally been determined through tracing the percentageof individual ownership interest in a firm or corporation, and by tracing thenationality of the persons having principal ownership interests (more than50%) in the firm or corporation. The Immigration and Naturalization ServiceRegional Commissioner stated in Matter of Warrach, 17 I&N Dec. 285,286-87 (Reg. Comm’r 1979), that when it is shown that 51 percent or more of the stock of the employer corporation is owned by a foreign firm, such firm is a “foreign corporation” within the meaning of section 316(b). The fact that a firm is incorporated under the laws of a state of the United States does not necessarily determine that it is an American firm or corporation. The nationality of such firm would be determined by the nationality of those persons who own more than 51 percent of the stock of that firm. Thus, under the principles set forth in Matter of Warrach,ChevronTexaco’s incorporation in the State of Delaware does not establishthat ChevronTexaco is an “American firm or corporation.” Rather, theapplicant must also demonstrate that more than 50% of ChevronTexacois owned by persons who are United States citizens. The applicant in thepresent matter provided no evidence to establish who the individual 371
  • 4. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700ChevronTexaco stockholders are, or to establish the percentage of ownershipinterests held by each stockholder. Nor did the applicant provide evidenceor information to establish the nationality of each stockholder or owner of thecorporation. The applicant therefore failed to establish that ChevronTexacois an “American corporation” as defined in Matter of Warrach. The AAO notes that the principles set forth in Matter of Warrach applywell to traditional situations involving closely held companies or corporations.However, the Warrach principles fail to address or to take into account thedifficulties of tracing the ownership interests and nationalities of modern,publicly held corporations that have thousands of stockholders and capitalstock that is traded on a daily basis on the stock markets.3 The present record contains a copy of ChevronTexaco Corporation’s 2002Securities and Exchange Commission (“SEC”) Annual Report Pursuantto Section 13 or 15(d) of the Securities Exchange Act of 1934, (SECForm 10-K). An SEC Form 10-K is the report that publicly held corporationsfile with the SEC on an annual basis; the report provides a comprehensiveoverview of a corporation’s business and financial condition and includesaudited financial statements. See generally U.S. SEC, Quick Answers,Form 10-K, http://www.sec.gov/answers/form10k.htm (last modified June 26,2009). In the present matter, the submitted SEC Form 10-K reflectsthat ChevronTexaco is incorporated in the State of Delaware and thatChevronTexaco stock is traded on the New York Stock Exchange, locatedin New York, New York, and on the Pacific Stock Exchange, locatedin San Francisco, California. The AAO notes that the Restated Certificateof Incorporation of ChevronTexaco Corporation, dated October 9, 2001,reflects that ChevronTexaco stock is traded publicly, and that “[t]he totalof shares of all classes of stock which the Corporation shall have authorityto issue is four billion one hundred million (4,100,000,000), of which onehundred million (100,000,000) shares shall be Preferred Stock . . . and fourbillion (4,000,000,000) shares shall be Common Stock.” The AAO recognizes that the widely dispersed ownership of publicly heldcorporations makes it extremely difficult, if not impossible, for an applicant3 In general, the capital stock of a corporation may be “closely held” or “publicly held.”A closely held corporation issues stock to a few stockholders, and that stock is not tradedon the public stock markets or securities exchanges. By contrast, the stock of a publicly heldcorporation is listed on the public stock markets and is traded to and among the generalpublic. See Black’s Law Dictionary, supra, at 341-44. The U.S. public stock marketsor securities exchanges include the New York Stock Exchange (NYSE), the Nasdaq StockMarket (NASDAQ), the American Stock Exchange (AMEX) [now known as NYSE AmexEquities], the Philadelphia Stock Exchange (PHLX), the Chicago Stock Exchange (CHX),Boston Stock Exchange (BSE), and the National Stock Exchange (NSX). 372
  • 5. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700under section 316(b) of the Act to trace the interests and nationalities of itsstockholders. As in this case, a publicly traded corporation may issue billionsof shares of stock which are traded daily by the general public. Examining a question relating to the nationality of a corporation andsection 319(b) of the Act, 8 U.S.C. § 1430 (2006), a 1995 Legal Opinionby the Immigration and Naturalization Service, Office of the General Counsel(now Citizenship and Immigration Services, Office of Chief Counsel)discussed the United States Department of State regulations and precedentlegal decisions interpreting the definition of a corporation’s nationality forpurposes of the treaty trader and investor nonimmigrant visa classification.4The Legal Opinion observed that a corporation is normally found to have thenationality of whoever owns more than 50% of the corporation’s capital stock.The Legal Opinion indicated that it would be anomalous to have twoconflicting principles to decide the same issue, with the variance dependingupon which section of the Act applied to the case. See Office of INSGen. Counsel, U.S. Dep’t of Justice, Interpretation of American Firmor Corporation for section 319(b) of the Act, Genco Op. No. 95-21 (Sept. 14,1995), available at 1995 WL 1796328. The Legal Opinion concluded thatthe definition of “American firm or corporation” established for purposesof nonimmigrant treaty traders and investors should also apply to relevantcases under sections 316(b) and 319(b) of the Act, as well.5 The AAO notes that the Department of State expanded the nationalitydefinition of a corporation for nonimmigrant treaty trader and investorpurposes in Volume 9 of the Foreign Affairs Manual, 9 FAM 41.51 note 3.2,which states, in pertinent part: In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, however, one can presume that the nationality of the corporation is that of the location of the exchange. The applicant should still, and may be requested to provide the best evidence available to support such4 Section 319(b) of the Act relates, in part, to the naturalization requirements of spousesof United States citizens who are employed overseas by an “American firm or corporation”and who are engaged in whole or in part in the development of foreign trade and commerceof the United States, or a subsidiary thereof.5 The current case, however, is readily distinguished from the case addressed by the 1995Legal Opinion. The alien in that case was employed by a closely held corporation that wasthe wholly owned subsidiary of a multi-tiered business entity. The ultimate parentcorporation was incorporated abroad, and the majority of its stock was owned by personswho were not U.S. citizens or nationals. Thus, the employing corporation was a foreigncorporation because the ultimate parent corporation was a foreign corporation. In thiscurrent appeal, the AAO is examining the nationality of the publicly traded parentcorporation, rather than a closely held subsidiary. 373
  • 6. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700 a presumption. In the case of a multinational corporation whose stock is exchanged in more than one country, then the applicant must satisfy the consular officer by the best evidence available that the business meets the nationality requirement. As noted by Matter of Warrach, 17 I&N Dec. at 287, the fact that a firmis incorporated under the laws of a State of the United States does notnecessarily determine that it is an American firm or corporation. However,given the difficulty of tracing the nationalities and ownership interestsof modern public corporations, the AAO finds that it is reasonable to presumethat a publicly held corporation meets the definition of “American firmor corporation” for section 316(b) purposes if the applicant demonstrates thatthe employer is both incorporated in the United States and trades its stockexclusively on U.S. stock markets.6 In the present matter, the AAO finds that the evidence contained in therecord establishes that ChevronTexaco is incorporated in the United Statesand that it is a publicly held corporation whose stock is exclusivelysold on United States stock exchange markets. The applicant hastherefore established that ChevronTexaco qualifies as an “American firmor corporation” under section 316(b) of the Act. III. SUBSIDIARY AND “PREPONDERANCE OF EVIDENCE” In addition, the AAO finds that the applicant has established that SaudiArabia Texaco (“SAT”) qualifies as a “subsidiary” of ChevronTexaco undersection 316(b) of the Act. Under section 316(b) of the Act, an applicant mustestablish that she or he is “[e]mployed by an American firm or corporationengaged in whole or in part in the development of foreign trade and commerceof the United States, or a subsidiary thereof more than 50 per centum of whosestock is owned by an American firm or corporation.” The AAO notes that the ChevronTexaco SEC Form 10-K submitted by theapplicant states that ChevronTexaco Corporation, a Delaware corporation, manages its investments in subsidiaries and affiliates, and provides administrative, financial and management support to U.S. and foreign subsidiaries that engage in fully integrated petroleum operations, chemicals operations, coal mining, power and energy services. The company operates in the United States and approximately 180 other countries.6 Note that both facts must be present in order for a publicly traded firm to be considered“American.” If a firm or corporation does not satisfy both criteria, the applicant must meetthe requirements of Matter of Warrach, 17 I&N Dec. at 285, to establish that the employeris an “American firm or corporation.” 374
  • 7. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700See SEC Form 10-K at 3. In discussing its international operations, the SECForm 10-K states further that “Saudi Arabia Texaco, a ChevronTexacosubsidiary, holds a concession to produce onshore crude oil from thePartitioned Neutral Zone (PNZ), located between the Kingdom of SaudiArabia and the State of Kuwait.” Id. at 15-16 (emphasis added). In addition, the record contains a letter written by Mr. Tim Miller,Assistant to the President, Saudi Arabian Texaco, stating that “ChevronTexacois engaged in the development of foreign trade and commerce of theUnited States through its wholly-owned subsidiary—Saudi Arabian Texaco(SAT), which is located in Kuwait.” (Emphasis added.) The letter alsostates that the applicant will be assigned temporarily to SAT in Kuwait for2 to 3 years in the same capacity that he fills at ChevronTexaco in California,and that while abroad, the applicant will continue to be paid his annual salaryby ChevronTexaco. Although the applicant could have submitted more probative evidenceto establish that SAT is a subsidiary of ChevronTexaco, such as directevidence of the ownership of SAT stock, the AAO finds that the SECForm 10-K and the letter written by his employer are sufficient to establishby a preponderance of evidence that SAT is a wholly owned subsidiaryof ChevronTexaco.7 Except where a different standard is specified by law,a petitioner or applicant in administrative immigration proceedings must proveby a preponderance of evidence that he or she is eligible for the benefit sought.See, e.g., Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting thatthe petitioner must prove eligibility by a preponderance of evidence in visapetition proceedings); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965)(finding that the petitioner had not established eligibility by a preponderanceof the evidence because the submitted evidence was not credible); cf. Matterof Patel, 19 I&N Dec. 774, 782-3 (BIA 1988) (noting that section 204(a)(2)(A)of the Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), requires a higherstandard of clear and convincing evidence to rebut the presumptionof a fraudulent prior marriage).7 The standard of proof should not be confused with the burden of proof. The burdenof proving eligibility for the benefit sought remains entirely with the applicant. Section316(b)(2) of the Act; see also section 291 of the Act, 8 U.S.C. § 1361 (2006). Additionally,the “preponderance of the evidence” standard does not relieve the petitioner or applicantfrom satisfying the basic evidentiary requirements set by regulation. There areno regulations relating to a corporation’s eligibility as an “American firm or corporation”under section 316(b) of the Act. Had the regulations required specific evidence, theapplicant would have been required to submit that evidence. Cf. 8 C.F.R. § 204.5(h)(3)(2006) (requiring that specific objective evidence be submitted to demonstrate eligibilityas an alien of extraordinary ability). 375
  • 8. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700 The “preponderance of the evidence” standard requires that the evidencedemonstrate that the applicant’s claim is “probably true,” where thedetermination of “truth” is made based on the factual circumstances of eachindividual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989).In evaluating the evidence, Matter of E-M- also stated that “[t]ruthis to be determined not by the quantity of evidence alone but by its quality.”Id. at 80. Thus, in adjudicating the application pursuant to the preponderanceof the evidence standard, the director must examine each piece of evidence forrelevance, probative value, and credibility, both individually and within thecontext of the totality of the evidence, to determine whether the factto be proven is probably true. Even if the director has some doubt as to the truth, if the petitioner submitsrelevant, probative, and credible evidence that leads the director to believe thatthe claim is “more likely than not” or “probably” true, the applicantor petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca,480 U.S. 421, 431 (1987) (discussing “more likely than not” as a greater than50% chance of an occurrence taking place). If the director can articulatea material doubt, it is appropriate for the director to either request additionalevidence or, if that doubt leads the director to believe that the claim is probablynot true, deny the application or petition. Here, the submitted evidence is relevant, probative, and credible.As a document that is based on audited financial statements and reviewedby a Federal agency, the information in the SEC Form 10-K is highly credibleand warrants substantial weight in immigration proceedings. And although thespecific claim that SAT is a “wholly-owned subsidiary” is not supportedby independent evidence, the letter from the applicant’s employer is relevant,uncontroverted by any other evidence, and generally supported by the SECForm 10-K. Furthermore, as the assistant to the president of SAT, the authoris in a position to have first-hand knowledge of the corporation’s relationshipwith ChevronTexaco. As required under the applicable standard of proof,the evidence establishes that it is “probably” true that SAT is a subsidiaryof an “American firm or corporation,” with at least 50% of its stock ownedby ChevronTexaco, as required by section 316(b) of the Act. The AAO finds that the evidence sufficiently establishes that theapplicant’s overseas employer, Saudi Arabian Texaco, qualifies as a subsidiaryof ChevronTexaco under section 316(b) of the Act. The evidence furtherestablishes that the applicant’s assignment to work with SAT is temporary andfor the purpose of assisting ChevronTexaco to engage in the developmentof foreign trade and commerce. 376
  • 9. Cite as 25 I&N Dec. 369 (AAO 2010) Interim Decision #3700 IV. CONCLUSION From the evidence in the record, the AAO finds that ChevronTexaco meetsthe definition of an “American corporation,” since it is incorporated in theUnited States and is publicly traded solely on U.S. stock exchanges. The AAOalso finds that Saudi Arabian Texaco is a “subsidiary” of ChevronTexaco, andthat ChevronTexaco owns more than 50% of the stock in Saudi ArabianTexaco. On the basis of these findings, the AAO concludes that the applicantmeets the requirements for preservation of his residence for naturalizationpurposes pursuant to section 316(b) of the Act. The appeal will thereforebe sustained. ORDER: The appeal is sustained. 377
  • 10. Matter of Warrach, 17 I&N Dec. 285 (R.C. 1979) Interim Decision #2769 MATTER OF WARRACH In Section 316(b) Proceedings to Preserve Residence for Naturalization Purposes A-20614277 Decided by Regional Commissioner March 16, 1979 An Application to Preserve Residence for Naturalization Purposes under section 316(b) of the Immigration and Nationality Act, 8 U.S.C. 1427{b). does not lie, and will be denied, where the employing corporation (which is incorporated in the United States) is the subsidiary of a foreign parent corporation which holds over 51 percent of its stock. Under these circumstances, the employing corporation is not an American corporation, but a foreign corporation, having the nationality of the majority stockholders. ON BEHALF OF APPLICANT. D. G. Reese, Manager Foreign Transfer Programs Mobay Chemical Corporation Parkway West Pittsburgh, Pennsylvania 15205 This ease is ·before us on appeal from the deeision of the District Director, Philadelphia, Pennsylvania, dated October 13, 1978, denying the appellants Application to Preserve Residence for Naturalization Purposes under 316(b) of the Immigration and Nationality Act, 8 U.S.C. 1427(b). The application was denied upon the ground that the appellant was not employed by an American firm or corporation, within the meaning of section 316(b) of the Act. Upon appeal, the appellant doe& not take issue with the bo.aia of the Philadelphia District Directors denial order but urges, instead, that the appellants absence from the United States is necessary to the protection of certain corporate property rights located abroad of the American subsidiary of the foreign parent corporation which employs the appellant. The appellant became a lawful permanent resident alien of the United States on November 12, 1974. He has resided in the United States for an uninterrupted period of at least 1 year from that date. He has been employed by the Mobay Chemical Corporation of Pittsburgh, 285
  • 11. Interim Decision #2769Pennsylvania, since November 1973. Mobay Chemical Corporation wasincorporated under the laws of the State of New Jersey on October 1,1971. The corporation is a wholly-owned subsidiary of Bayer A.G. ofWest Germany. The appellant was sent to the parent company inGermany on October 1, 1978, to develop European markets for aproduct developed by his American-based employer. His overseas em-ployment will necessitate his presence in Germany from October 1,197~, to September 30., 1980. Pursuant thereto, the appellant submittedan Application to Preserve Residence for Naturalization Purposes,Form N-470, on May 23,1978, under the provisions of section 816(b) ofthe Act. The application was denied by the Philadelphia DistrictDirector on October 13, 1978, and this appeal results. Section 316(b) of th·e Act1 requires an alien, if he wishes to preserveresidence for naturalization purposes, to have been physically presentand residing in the United States, after being lawfully admitted forpermanent residence., for an uninterrupted period of at least 1 yearprior to his employment abroad. His employment in this connectionmust be by an American firm or corporation engaged in whole or inpart in the development of foreign trade and commerce of the UnitedStates, or a subsidiary thereof more than 50 percent of whose stock isowned by an American firm or corporation. The appellant must estab-lish, therefore, that he has complied with this statutory requirement ifhe is to obtain extended absence benefits covering his employmentabroad by the Mobay Chemical Corporation at the Bayer A.G. inGermany from October 1, 1978, to September 30, 1980. The Immigration and Naturalization Service has previously heldthat when it is shown that 51 percent or more of the stock of theemployer corporation is owned by a foreign firm, such firm is a "foreign I Sec. 916(b), Absence from the United Sto.tca for a continuous period of onG year or.- mon during the period for which continuous residence is required for admission to citizen- ship ... shall break the continuity of such residence except that in the case of a person who has been physically present and residing in the United States after being lawfully admitted for permanent rceidence £or an unintclTUpted period of at leaat one year and who thereafter, is employed •.• by an American firm or corporation engaged in wltole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an American firm or corporation ... no period of absence from the United States shall break the continuity of residence if- (1) prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence fl:om the United State.s, the person has established to the satisfaction of the Attorney General that his absence from the United States for such period is •.• to be engaged in the development of such Coreign trade and commerce •••• 286
  • 12. Interim Decision #2769corporation" within the meaning of section 316(b).2 The fact that a firmis incorporated under the laws of a state of the United States does notnecessarily determine that it is an American firm or corporation. Thenationality of such firm would be determined by the nationality ofthose persons who own more than 51 percent of the stock of that firm.Since that principal stockholder of Mobay Chemical Corporation isBayer A.G., a German corporation, the American-based subsidiarymust be considered a foreign corporation fur purposes or preservationof residence under section 316(b) of the Act. Accordingly, it must beconcluded that the appellants application does not come within thepurview of section 316(b). Based upon the foregoing, the appellant has not complied with thespecific statutory requirement that an alien who seeks to preserveresidence for naturalization purposes under section 316(b) must estab-lish that he is employed by an American firm or corporation. There isno provision of law or regulations which permits a waiver of thisrequirement. It is, therefore, concluded that the action of the Philadel-phia District Director in denying the application to preserve residencewas proper, and his decision will be affirmed. ORDERs The decision of the District Director, Philadelphia, Penn-sylvania. dated October 13. 1978. denying the application of the abovenamed to preserve residence for naturalization purposes be and thesame is, hereby-, affirmed. 1 Matter of N-S-, 7 I&N Dec. 426 (D.D. 1957; C.O. 1957). 287
  • 13. RE: Matter of N-S-, 7 I&N Dec. 426 (D.D. 1957; C.O. 1957)FEDERAL REGISTER FINAL REGULATIONS - 1997 Visas: Documentation ofNonimmigrants Under the Immigration and Nationality Act, as Amended;Business and Media Visas; Treaty Trader and Treaty Investors [62 FR 48149] [FR51-97] Employee of Treaty Trader or Treaty InvestorNationality One commenter expressed the hope that an easier method could be foundto "register" large enterprises to qualify for "E" visa status. This issue issimilar to that raised by two other commenters who expressed strenuousdissatisfaction with the proposed rules for determining the nationality of anincorporated entity. The problem arises in cases involving corporations thatsell stocks on exchanges in more than one country. The standard of practicability was adopted in recognition of this problem.This standard contemplates the applicant submitting the best evidenceavailable and the consular officer reaching a reasonable decisionconsidering the particular circumstances in each case. This is not intendedto be an onerous paper production exercise. The statute speaks of granting special treatment for "nationals" of treatypartners. Nationality of enterprises based on ownership captures theessence of the statue and the bilateral relationship. Although registration ofbusinesses in a jurisdiction to engage in business activities in thatjurisdiction has been accorded recognition for national treatment in othercontexts by other laws and some courts, mere registration has not been andis not accepted as the proper standard for determining nationality underINA 101(a)(15)(E). This issue was addressed in Matter of N---S--- , 7 I&N Dec. 426(1957). Recognizing the Congress review of this longstanding rule duringthe formulation of the Immigration and Nationality Act during the early1950s, the decision states at Dec. 428 that, "there being no substantialchange in language between the present statute and regulationsas compared with the preceding statute and regulations on thesame subject, the rulings and principles previously enunciatedand which are presumed to have been known to the Congressmust be deemed to be presently applicable." For similar reasons, webelieve that the regulations as proposed are consistent with Congressionalintent.
  • 14. Interim Decision #3333Interim Decision #3333 In re Jesus COLLADO-Munoz, Respondent File A31 021 716 - York Decided as amended February 26, 19981 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals(1) A lawful permanent resident of the United States described in sections 101(a)(13)(C)(i)-(vi) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(i)-(vi)) is to be regarded as “seeking an admission into the United States for purposes of the immigration laws,” without further inquiry into the nature and circum- stances of a departure from and return to this country.(2) The Immigration Judge erred in finding that the Fleuti doctrine, first enunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), requires the admission into the United States of a returning lawful permanent resident alien who falls within the definition of section 101(a)(13)(C)(v) of the Act, if that alien’s departure from the United States was “brief, casual, and innocent.”FOR RESPONDENT: Stephen D. Converse, Esquire, York, PennsylvaniaFOR THE IMMIGRATION AND NATURALIZATION SERVICE: Jeffrey T. Bubier, Assis-tant District CounselBEFORE: Board En Banc: SCHMIDT, Chairman, DUNNE, Vice Chairman, VACCA,HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, GUENDELSBERGER, andJONES, Board Members. Dissenting Opinion: ROSENBERG, Board Member.HOLMES, Board Member: The Immigration and Naturalization Service appeals from a May 21,1997, decision of an Immigration Judge that ordered terminated, withoutprejudice, the present removal proceedings against the respondent.2 Thedispositive issue in the Immigration Judge’s opinion was whether the doc-trine of “brief, casual, and innocent” departure from the United States firstenunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 1 On our own motion, we amend the December 18, 1997, order in this case to include thedissenting opinion. 2 As the alien is named in a Notice to Appear (Form I-862), the proper term for such a personis “respondent.” 62 Fed. Reg. 10,312, 10,330 (1997) (to be codified at 8 C.F.R. § 1.1(r))(interim, effective Apr. 1, 1997). 1061
  • 15. Interim Decision #3333U.S. 449 (1963), has survived the enactment of section 301(a) of the IllegalImmigration Reform and Immigrant Responsibility Act of 1996, Division Cof Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 (“IIRIRA”).3 TheImmigration Judge concluded that the Fleuti doctrine was applicable to thiscase and ordered the proceedings terminated. The Immigration Judge’s deci-sion will be vacated, and the record remanded for further proceedings. I. FACTS The respondent, a native and citizen of the Dominican Republic, is a law-ful permanent resident of the United States and has been for over 25 years.On April 7, 1997, upon his return to the United States after a 2-week visit tohis native country, he was charged by the Service with inadmissibility undersection 212(a)(2) of the Immigration and Nationality Act (to be codified at8 U.S.C. § 1182(a)(2)), based on a 1974 conviction for sexual abuse of aminor. At the hearing before the Immigration Judge, and in the ImmigrationJudge’s decision, the focus was on the continuing applicability of the Fleutidoctrine and on the character of the respondent’s departure. Although therespondent acknowledged that he had been convicted on July 24, 1974, ofsexual abuse of a minor in the second degree and received “three years proba-tion,” the issue of whether or not he had committed an offense identified insection 212(a)(2) of the Act was not specifically addressed and resolved.Rather, the Immigration Judge, relying on Rosenberg v. Fleuti, supra, termi-nated removal proceedings, determining that the respondent had made only a“brief, casual, and innocent” departure from the United States. The Serviceappealed, arguing that the respondent was properly charged as an arrivingalien who was inadmissible despite his lawful permanent resident status,because, applying section 101(a)(13)(C)(v) of the Act (to be codified at8 U.S.C. § 1101(a)(13)(C)(v)), the respondent must be regarded as “seekingan admission” into the United States. II. ISSUE The issue before us in this case is whether the Immigration Judge correctlydecided that the Fleuti doctrine permits or requires the admission into theUnited States of a returning lawful permanent resident who falls within thedefinition of section 101(a)(13)(C)(v) of the Act, if the lawful permanent res-ident’s departure from the United States was “brief, casual, and innocent.”Or, stated otherwise, whether a lawful permanent resident described in sec-tions 101(a)(13)(C)(i)-(vi) of the Act is to be regarded as “seeking an admis-sion into the United States for purposes of the immigration laws,” without 3 While the dissent urges that this “is not the real issue before us,” this in fact was the basis ofthe Immigration Judge’s decision in this case, which is now before us on appeal. Matter ofCollado, 21 I&N Dec. 1061, 1069 (BIA 1998)(Rosenberg, dissenting). 1062
  • 16. Interim Decision #3333further inquiry into the nature and circumstances of a departure from andreturn to this country. III. STATUTES Shortly before the respondent’s return to the United States, the laws of thiscountry concerning entry were changed with the enactment of the IIRIRA.Previous to this enactment, “entry” was defined at section 101(a)(13) of theAct, 8 U.S.C. § 1101(a)(13)(1994), as follows: The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary . . . . This definition was the one considered by the Supreme Court inRosenberg v. Fleuti, supra. However, by the time of the respondent’s returnto the United States on April 7, 1997, this definition of entry was no longer ineffect. Instead, section 101(a)(13) of the Act was effectively amended as ofApril 1, 1997, to define the terms “admission” and “admitted.” Section101(a)(13), as amended by the IIRIRA, now provides, in relevant part: (A) The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. .... (C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien — (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration offi- cers or has not been admitted to the United States after inspection and authorization by an immigration officer. IV. ANALYSIS AND CONCLUSION Section 101(a)(13) of the Act is a definitional provision that has beencompletely revised by Congress through the IIRIRA. Section 301(a) of the 1063
  • 17. Interim Decision #3333IIRIRA amended section 101(a)(13) of the Act by entirely supplanting thedefinition of “entry” with definitions for the terms “admission” and “admit-ted.” Section 101(a)(13)(C) specifically addresses the treatment of lawfulpermanent residents in the restructured statutory scheme. We read that sec-tion, in keeping with its definitional character, to create a dichotomy. It spec-ifies a general rule that an alien lawfully admitted for permanent residence isnot regarded as seeking admission. It then specifies the exceptions to the gen-eral rule, specifically, the circumstances under which a lawful permanent res-ident will be regarded as seeking an admission. In our judgment, it would beinconsistent with the definitional nature of this provision to read it, as doesthe dissent, to create either a third category or an undefined second categoryof lawful permanent residents who may or may not be regarded as seeking anadmission, depending on a wholly unspecified set of criteria that, presum-ably, would be developed by case-by-case adjudication.4 Rather, we find thatthe plain language of this definitional provision compels the finding that,under section 101(a)(13)(C)(v) of the Act, a lawful permanent resident whohas committed an offense identified in section 212(a)(2), who has not sincesuch time been granted relief under sections 212(h) or 240A(a) (to be codi-fied at 8 U.S.C. § 1250a(a)), who departs the United States and returns, shallbe regarded as seeking an admission into the United States despite his lawfulpermanent resident status.5 Moreover, we do not find that a contrary result is mandated by theSupreme Court’s decision in Rosenberg v. Fleuti, supra. Aside from the factthat neither an Immigration Judge nor this Board has the authority to rule 4 We note that Congress is clearly aware of the concept of “brief, casual, and innocent”absences, as it previously incorporated this concept in other provisions of the Act. See, e.g.,sections 244(b)(2), 245A(a)(3)(B), 8 U.S.C. §§ 1254(b)(2), 1255a(a)(3)(B)(1994). However,no general exception for “brief, casual, and innocent” absences was included in section101(a)(13), as amended by the IIRIRA. In fact, the previous use of the “brief, casual, andinnocent” concept in section 244(b)(2) of the Act, pertaining to eligibility for suspension ofdeportation, was not carried forward by Congress in the IIRIRA’s new cancellation of removalprovisions. Rather, section 240A(d) of the Act (to be codified at 1250a(d)) sets forth specific“special rules” relating to continuous residence or physical presence. 5 The dissent argues that the “plain meaning” of section 101(a)(13)(C) is clear andunambiguous, and that it simply specifies those returning lawful permanent residents who maynot be regarded as seeking admission, rather than providing by definition a statutory “brightline” for determining which returning lawful permanent residents shall be considered to beseeking admission. As discussed above, we obviously do not agree that this is the “plainmeaning” of this definitional provision or the meaning that is compelled by its grammaticalconstruction. Given the plain language of this provision and its placement in a definitionalsection, not in a discretionary relief provision, for example, such a reading of the statute strikesus as exceedingly strained. In our view the dissent cannot acknowledge any ambiguity in thisstatutory language because this is an instance, perhaps rare, in which the legislative historymakes clear that this language was intended to reach precisely the opposite result of thatadvanced by the dissent. The amended definition was intended to preserve only “a portion” ofthe Fleuti doctrine. See legislative history cited infra note 6. It was not enacted, in effect, to 1064
  • 18. Interim Decision #3333upon the constitutionality of the laws we administer, the amended section101(a)(13)(C) of the Act no longer defines the term “entry” and no longercontains the term “intended,” which formed the central basis for the SupremeCourt’s reasoning in Rosenberg v. Fleuti. Instead, the amended section spe-cifically defines the circumstances under which a returning lawful permanentresident will be deemed to be seeking admission into the United States. Thus,we find that the Fleuti doctrine, with its origins in the no longer existent defi-nition of “entry” in the Act, does not survive the enactment of the IIRIRA as ajudicial doctrine. Rather, Congress has now amended the law to expresslypreserve some, but not all, of the Fleuti doctrine, as that doctrine developedfollowing the Supreme Court’s 1963 decision.6 For example, under section 101(a)(13)(C)(ii) of the Act any absence of alawful permanent resident for a continuous period in excess of 180 days isnow determinative of whether the alien is to be deemed to be seeking admis-sion, but absences of shorter duration will not be of any consequence in thisregard. Section 101(a)(13)(C)(v) categorizes certain lawful permanent resi-dents as seeking admission to the United States who may otherwise havefallen within the parameters of the “brief, casual, and innocent” departurecategory, as the parameters of that category have been developed in case lawsubsequent to Rosenberg v. Fleuti, supra. See, e.g., Zimmerman v. Lehmann,339 F.2d 943 (7th Cir.)(holding that Fleuti protected from exclusion pro-ceedings an alien who had a previous criminal conviction and attempted toenter the United States without proper documentation), cert. denied, 381 U.S.925 (1965); Matter of Quintanilla-Quintanilla, 11 I&N Dec. 432 (BIAexpand that doctrine and to provide a more generous starting point from which it would bedetermined whether a returning lawful permanent resident should be treated as an alien seekingadmission. Moreover, the understanding of the drafters of this provision was that this language“stat[ed] that a returning lawful permanent resident alien is seeking admission if the alien . . .has entered the United States . . . without inspection.” Id. (emphasis added). Thus, it is clear thatthis language was intended to define which returning lawful permanent residents would andwould not be treated as seeking admission into the United States. The Joint ExplanatoryStatement of the Committee of Conference, accompanying the Conference Report on H.R.2202, states that “[w]ith certain specified exceptions (including in the case of an individual who. . . has committed an offense identified in section 212(a)(2)), a returning lawful permanentresident alien . . . shall not be considered to be seeking admission.” H.R. Rep. No. 104-2202,§ 301(a), available in 1996 WL 563320 and 142 Cong. Rec. H10,841-02. 6 The ultimately enacted definition in section 101(a)(13)(C) of the present law has its originsin earlier House bills. See H.R. 2202, 104th Cong. § 301 (1996). The Report of the Committeeof the Judiciary of the House of Representatives issued in conjunction with H.R. 2202 reflectsthat the amendment to section 101(a)(13) was intended “to preserve a portion of the Fleutidoctrine . . . . However, this section intends to overturn certain interpretations of Fleuti bystating that a returning lawful permanent resident alien is seeking admission if the alien isattempting to enter or has entered the United States without inspection . . . .” H.R. Rep. No.104-469, pt. 1, at 225-26 (1996) (emphasis added)(footnotes omitted). The ultimate languageenacted by the IIRIRA was largely identical to, but somewhat more restrictive than, thelanguage in section 301(a) of H.R. 2202. 1065
  • 19. Interim Decision #33331965). And section 101(a)(13)(C)(vi) of the Act makes clear that any depar-ture of a lawful permanent resident followed by an entry into the UnitedStates without inspection will be a meaningful departure. The Supreme Court, in Rosenberg v. Fleuti, stated that “Congress unques-tionably has the power to exclude all classes of aliens from this country, andthe courts are charged with enforcing such exclusion when Congress hasdirected it.” Rosenberg v. Fleuti, supra, at 461. Here, in the revised versionof section 101(a)(13)(C) of the Act, we consider a congressional directive notcontained in the previous version of that section and not before the SupremeCourt when it decided Fleuti. The plain reading of this amended law is thatCongress has directed that a returning lawful permanent resident who isdescribed in sections 101(a)(13)(C)(i)-(vi) of the Act shall be regarded as“seeking an admission” into the United States, without regard to whether thealien’s departure from the United States might previously have beenregarded as “brief, casual, and innocent” under the Fleuti doctrine. Further,we find that as an “applicant for admission” to the United States, such analien is subject to a charge of inadmissibility under section 212(a) of the Act.See section 240(c)(2)(A) of the Act; 62 Fed. Reg. 10,312, 10,368 (1997) (tobe codified at 8 C.F.R. § 240.8(b)) (interim, effective Apr. 1, 1997).7 We notethat in an analogous situation under prior law, the Supreme Court held thatCongress could provide in the case of a returning lawful permanent residentthat the determinations of both “entry” and the existence of exclusiongrounds could be made at an exclusion hearing. Landon v. Plasencia, 459U.S. 21, 32 (1982). Accordingly, the decision of the Immigration Judge will be vacated andthe record will be remanded for further proceedings, at which time it shouldbe determined whether the respondent has committed an offense as identifiedin section 212(a)(2) of the Act and is inadmissible under that section of law.8If so, it should be determined whether the respondent is eligible for and war-rants any relief from removal. Finally, because we find that the Immigration Judge’s basis for terminat-ing the removal proceedings in this case was in error, his order directing therelease of the respondent from custody on that basis is vacated. See 62 Fed. 7 Because the Immigration Judge terminated proceedings on Fleuti grounds, he did notreach—and the parties did not otherwise address—the proper allocation of the burden of proofonce an alien seeking admission to the United States establishes that he or she is a lawfulpermanent resident. Accordingly, that issue is not at present before us in this case. 8 On appeal the respondent argues that his crime does not constitute an aggravated felony asdefined at section 101(a)(43) of the Act. This determination does not affect the outcome of ourdecision, as he is charged with excludability as an alien who has committed a crime involvingmoral turpitude. We note that the respondent states that he has included his convictiondocuments with his appeal, but no such documents are in the record of proceedings or includedwith the respondent’s appellate submission. 1066
  • 20. Interim Decision #3333Reg. 10,312, 10,360 (1997) (to be codified at 8 C.F.R. § 236.1(c)(5))(interim, effective Apr. 1, 1997); see also 8 C.F.R. § 3.19(d) (1997). ORDER: The May 21, 1997, decision of the Immigration Judgeis vacated. FURTHER ORDER: The record is remanded to the ImmigrationJudge for further proceedings consistent with the foregoing opinion and forthe entry of a new decision. Board Member Gustavo D. Villageliu did not participate in the decision inthis case.DISSENTING OPINION: Lory D. Rosenberg, Board Member I respectfully dissent. The matter before us presents an extremely important case involving thefundamental rights and liberty interests of the respondent, who is a lawfulpermanent resident (“LPR”) of more than 25 years, in which the stakes areundeniably high. It raises the critical issue of what individual protections andprocedures under the immigration laws must be afforded a lawful permanentresident who presents himself to immigration inspectors upon his return tothis country from a brief, casual, and innocent trip abroad and is alleged to besubject to removal. I find that there are two parallel questions presented. The first question is,what is the meaning of section 101(a)(13)(C) of the Immigration and Nation-ality Act, as amended by the enactment of the Illegal Immigration Reformand Immigrant Responsibility Act of 1996, Division C of Pub. L. No.104-208, 110 Stat. 3009-546 (“IIRIRA”)(to be codified at 8 U.S.C.§ 1101(a)(13)(C)), and how is it best interpreted consistent with relevant con-stitutional considerations? In other words, what does it mean to make a blanket statement in the stat-ute that all persons already lawfully admitted for permanent residence are notto be treated as though they are seeking to be admitted, and then to list six cat-egories in which the mandatory rule that lawful permanent residents are notto be so treated does not apply? Does it mean that those falling into the sixcategories may be treated as seeking to be admitted despite their lawful resi-dent status, or does it mean that they must be treated as seeking to beadmitted? In particular, the statute specifically mandates that certain permanent resi-dents “shall not be regarded as seeking admission, unless” one of six enumer-ated circumstances apply. See section 101(a)(13)(C). Apart from thisthreshold enunciation, however, the statute is silent and does not mandateany particular treatment in the event that one or more of such circumstancesdo apply to a lawful permanent resident. The second question is, may the Immigration and Naturalization Serviceenforcement arm charge a returning lawful permanent resident as an “ 1067
  • 21. Interim Decision #3333arriving” alien—that is, as an individual seeking to be admitted to the UnitedStates—with impunity? In other words, despite the fact that the designationas an arriving alien ultimately affects fundamental rights that warrant a dueprocess hearing and review at the agency level, does the statutory languagerequire a reading that leads to the conclusion that it is the Service’s call as towho is and who is not an “arriving” alien, completely insulated from reviewby an Immigration Judge or the Board of Immigration Appeals? The majority insists on taking the position that it is deciding this case onthe most narrow of grounds, determining only whether or not the “Fleuti doc-trine” continues to exist following enactment of the IIRIRA. It is true that thestatute, as amended by the IIRIRA, codifies, in part, certain, specific aspectsof the doctrine that grew out of the decision in Rosenberg v. Fleuti, 374 U.S.449 (1963) (“Fleuti doctrine”). However, the Fleuti doctrine means, at thevery least, that so long as the law differentiates between those who arealready permanently and lawfully here, and those who are seeking to be here,an individual who is a lawful permanent resident who returns to this countryafter a departure that is brief, casual, and innocent should not be treated asthough he or she were seeking admission to this country, solely because he orshe ventured abroad. See also Landon v. Plascencia, 459 U.S. 21 (1982);Jubilado v. INS, 819 F.2d 210 (9th Cir. 1987); Yanez-Jacquez v. INS, 440F.2d 701 (5th Cir. 1971). The majority’s conclusion that, apart from codification of some of itsaspects by implication in section 101(a)(13)(C) of the Act, the Fleuti doctrinehas ceased to exist, is without any basis in the statute as amended, and, in fact,is contrary to the language of the statute. I cannot agree, as the majority con-cludes, that the statutory language or its necessary interpretation, creates anabsolute dichotomy in which a returning lawful permanent resident eithermay not be treated as an arriving alien, or must be so treated. Cf. Matter ofCollado, 21 I&N Dec. 1061, 1064 (BIA 1998). Instead, I read the statute asleaving open to an impartial adjudicator the determination of how to treat alawful permanent resident to whom one or more of six circumstances doapply. That determination, which I believe remains subject to the consider-ation of factors developed following the Supreme Court’s decision inRosenberg v. Fleuti, supra, and a variety of other discretionary consider-ations, is not for the Service, the prosecuting party, to make. It is for thequasi-judicial decision-maker—either the Immigration Judge or theBoard—to assess and adjudicate. I therefore conclude that the majority has erred in interpreting the statutorylanguage, and, as a result, improperly abdicated our adjudicatory authority,contrary to law and regulation. Consequently, I dissent. 1068
  • 22. Interim Decision #3333 I. FRAMING THE ISSUE The statute presently provides for a single proceeding, called a removalhearing, in which the Service may prosecute its allegations and chargesagainst a noncitizen, and it is in this proceeding that such allegations andcharges shall be determined. See sections 240(a)(3), (e)(2) of the Act (to becodified at 8 U.S.C. §§ 1229a(a)(3), (e)(2)). The respondent, who is a lawfulpermanent resident of the United States, is charged only with being inadmis-sible under section 212(a)(2)(A)(I) of the Act (to be codified at 8 U.S.C.§ 1182(a)(2)(A)(I)) for having been convicted of a crime of moral turpitude.Therefore, if it is determined that it is inappropriate to treat the respondent asan arriving alien, he would not be subject to charges of inadmissibility and itwould be proper for an Immigration Judge to terminate the proceedings as theImmigration Judge did here.1 Although the majority begins its opinion by stating that the “dispositiveissue” is whether Rosenberg v. Fleuti, supra, “has survived” the enactment ofthe IIRIRA, that is not the real issue before us. Matter of Collado, supra, at1062.2 The real issue is whether the statute requires that a lawful permanentresident who departed and returned to the United States in a manner that canbe characterized as brief, casual, and innocent, or otherwise not meaningfullydisruptive of his lawful permanent resident status, must be treated as an“arriving alien” as that term is used in the IIRIRA, merely because the Ser-vice has elected to charge him under one of the categories that constituteexceptions to the statutory mandate that a returning lawful permanent resi-dent may not be treated as an arriving alien seeking admission. The critical corollary to this principal issue is, as implicitly stated by themajority, whether the statute mandates that we (i.e., the Immigration Judgesand the Board of Immigration Appeals, who make up the quasi-judicial bod-ies determining issues involving removal arising under the Immigration and 1 It might be argued that if a person is found not to be “seeking admission,” the court shouldenter its finding and proceed on the basis of that finding, rather than terminate the case, sincethere is now only one proceeding, removal, rather than the two that existed previously(exclusion and deportation). Section 240(a)(3) of the Act; see also section 240(e)(2) of the Act.The Service has the option of charging an individual under any provision of the Act it believesto have been violated, and it is beyond the scope of this opinion to address whether theprinciples of res judicata would bar the Service from recharging an individual with a ground ofdeportability should charges of inadmissibility be terminated, as I believe they should be here. 2 Indeed, the majority equivocates about the real issue, acknowledging later in its opinionthat the issue is whether the Fleuti doctrine itself either “permits or requires” the admission tothe United States of a returning lawful permanent resident as defined in the new section101(a)(13)(C)(v) of the Act if the respondent’s departure is “brief, casual and innocent.”Matter of Collado, supra, at 1062. (emphasis added). Moreover, the majority finally settles forframing the issue as whether the return of a lawful permanent resident described in sections101(a)(13)(C)(I)-(vi) of the Act “is to be regarded as ‘seeking an admission . . .’ without furtherinquiry into the nature and circumstances of a departure from and return to this country.” Id.(emphasis added). 1069
  • 23. Interim Decision #3333Nationality Act) are required to accept the Service’s characterization of thereturning resident’s status “without further inquiry into the nature and cir-cumstances of the departure from and return to” made by the lawful residentalien. Matter of Collado, supra, 1062-63. In other words, may the Serviceunilaterally determine, without a hearing of any sort and without regard to thenature of the lawful resident’s departure and return, that he is to be treated asan arriving alien for purposes of determining which charges are broughtagainst him, how the burden of proving those charges shall be allocated, whatrelief may be available to him, and what the statute allows or requires interms of detention pending resolution of those charges? This question hasboth practical and constitutional implications. Although I note the potential for conflict with the United States constitu-tion, both in terms of an absolute standard differentiating the treatment oflawful permanent resident aliens who briefly depart and return to the UnitedStates and those who do not, and a reading of the statute that essentiallydeprives a lawful permanent resident alien of the procedural due processprotections, I recognize that we are not authorized to address the constitution-ality of the laws we interpret and administer. We are, however, authorizedand encouraged to construe these laws so as not to violate constitutional prin-ciples. My reading of the statute, unlike that of the majority, allows me toresolve the issue presented without raising constitutional concerns. II. CONSTRUCTION OF LANGUAGE IN THE STATUTE It is my position that the plain statutory language, “shall not [be regardedas seeking admission] . . . unless [the individual is within one of six subcate-gories],” discussed below, mandates only that lawful returning residents whodo not come within the six articulated subcategories may not be treated asseeking admission, and expressly leaves open for an individual determina-tion made by an impartial adjudicator how others who do fall within thosecategories are to be treated. Nothing in the majority opinion directlyaddresses or refutes that straightforward reading of the statute. Matter ofCollado, supra, at 1064-65 n.5. In fact, they state only that “[g]iven the plainmeaning of this provision and its placement in a definitional section, not in adiscretionary relief provision,” reading the language literally strikes them asstrained, and they ultimately acknowledge that the language is plain. Id. Allthat the majority’s judgment—that it would be “inconsistent with the defini-tional nature of the provision”—means is that the majority is more comfort-able reading the statute “plainly” as a “bright line” provision absolutelyrequiring treatment of an individual charged by the Service as an “arrivingalien,” i.e., as an individual who is regarded as seeking admission to theUnited States, rather than assessing a variety of relevant factors themselvesbefore making that determination. Id. at 1064. 1070
  • 24. Interim Decision #3333 The ultimate resolution of the issues before us is not properly based onwhat the majority may prefer, or whether a straightforward reading of thestatute (permitting, but not requiring, treatment of certain returning perma-nent residents charged by the Service as “arriving aliens”) necessitates ourengaging in an evaluation of various factors before determining whether it isappropriate to treat an individual so charged by the Service as seeking admis-sion to the United States. The ultimate resolution depends on what the statuteactually says. A. Specific Language in the Statute Our focus must be on the language of the statute. If this language is plain,that ends the inquiry as to what Congress meant or intended. Chevron,U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843(1984) (holding that when the plain meaning is clear, the inquiry ends: thecourt “must give effect to the unambiguously expressed intent of Congress”).We must assess the matter before us according to the plain language of thestatutory section considered in the context of the statute as a whole. INS v.Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S.183, 189 (1984); see also Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA1997). In this case the language is clear and understandable according to commonusage. It unambiguously mandates that an LPR shall not be regarded as“seeking admission” when none of the six conditions ((i) through (vi))obtain. It unambiguously permits, but does not mandate, that an LPR may beregarded as “seeking admission” if one or more of the listed conditionobtains. If Congress had intended to mandate that an arriving LPR shall beregarded as “seeking admission” when one of the six conditions obtain, itwould certainly have enacted different language than it did. The statute states in pertinent part: An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien— .... (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a).Section 101(a)(13)(C)(v). It is important to note that Congress did not state: An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws; but if the alien . . . (v) has committed an offense identified in section 212(a)(2), such alien shall be regarded as seeking admission.There is no basis on which to conclude that Congress’ silence in not mandat-ing that individuals falling within the six exceptions must be treated as 1071
  • 25. Interim Decision #3333arriving aliens is due to an “accident of draftsmanship.” INS v. Phinpathya,supra, at 191. The obvious meaning of the section, as worded, is that it is mandatory thata respondent shall not be deemed an “arriving alien” if he is a lawful perma-nent resident. Then, following this general proscription are six exceptions,introduced by the term “unless.” The dictionary defines “unless” as “exceptunder condition that.” When attached to a proposition or rule, the term“unless” introduces a clause that states conditions under which that proposi-tion or rule is no longer valid. The Service’s position in this case, which the majority has adopted,assumes that if one of the conditions following the term “unless” obtains,then the negative proscription—“shall not be regarded as an arrivingalien”—becomes a positive one: “shall be regarded as an arriving alien.”This assumption is clearly incorrect. “Unless” in the English construction“shall not . . . unless . . .” means that if the conditions stated are met, what fol-lows the “shall not” becomes permissible but not mandatory. The succeedingparagraphs demonstrate that the conditions following the term “unless” arenecessary in order to consider an LPR an arriving alien, but they are not suffi-cient to do so. Something more, which I believe in this case is a determina-tion based on consideration of various individual factors relevant to theparticular departure and the specific violation of the immigration lawcharged, is required before it is appropriate to treat an LPR as an arrivingalien who is to be regarded as seeking admission. Furthermore, the construction “shall not . . . unless” has this obviousmeaning in legal parlance as well as in plain English usage. For example, in acondemnation proceeding instituted to acquire particular property, the courtshall not order the party in possession to surrender possession in advance offinal judgment unless certain conditions are met, such as the filing of a decla-ration of taking, and the submission of a deposit. 42 U.S.C.§ 1594a(c)(2)(1994). If the conditions are met, the court is not mandated toorder the property surrendered, but only authorized to do so. The court is pro-hibited from doing so if the conditions following “unless” are not met. Thelanguage of our constitution, as well as that of other statutes and judicial deci-sions, provides additional examples, including: (1) A writ of habeas corpus “shall not be granted unless . . . the applicanthas exhausted the remedies available in the courts of the State.” 28 U.S.C.§ 2254(b)(1994)(emphasis added). Exhausting state remedies is a necessarycondition precedent to granting the writ in federal court, but is obviously notsufficient to obligate the federal court to issue the writ. (2) Article I, section 9, clause 2 of the Constitution provides: “The Privi-lege of the Writ of Habeas Corpus shall not be suspended, unless when inCases of Rebellion or Invasion the public Safety may require it.” (Emphasisadded.) Even if there is a rebellion, and even if public safety may require sus-pending the right, those situations in themselves do not mandate a suspension 1072
  • 26. Interim Decision #3333but only permit it. (This construction does not depend on the use of the term“may” but on the meaning of “shall not . . . unless.” If, for instance, the lastclause were changed to simply say, “except in cases of rebellion or publicsafety,” the whole English sentence would still only permit and not mandatesuspension of the right when the condition is met). (3) “[E]vidence of the defendant’s ability to pay shall not be admittedunless and until the party entitled to recover establishes a prima facie right torecover [punitive damages].” Or. Rev. Stat. § 30.925(2) (1993)(emphasisadded). Once the right to recover punitive damages is established, the partymay, but is not required to, submit evidence about the opponent’s ability topay. (4) Under the Federal Tort Claims Act an “action shall not be instituted . . .unless the claimant shall have first presented the claim to the appropriate . . .agency.” 28 U.S.C. § 2675(a)(1994)(emphasis added). A claimant who hasfirst presented the claim to the appropriate agency is permitted but notrequired to bring a federal suit. (5) “‘[A] physician shall not perform an abortion upon [a woman less than18] unless . . . he first obtains the informed consent both of the pregnantwoman and of one of her parents . . . .’” Planned Parenthood v. Casey, 505U.S. 833, 904 (1992)(quoting 18 Pa. Cons. Stat. § 3206 (1990))(emphasisadded). A physician receiving such consent is not obligated by this languageto perform an abortion once the conditions are met, but is only permitted todo so, while being prohibited from doing so if the condition is not met. B. Placement Within the Statute The fact that the statutory section we are charged with considering isfound within a definitional subsection of the statute does not insulate it frombeing construed as possessing something other than an absolute or unequivo-cal meaning as applied. The majority provides no authority for so conclud-ing. To the contrary, there are countless definitional subsections of theImmigration and Nationality Act that have been found to require extensiveinterpretation. In fact, the Supreme Court’s decision in Rosenberg v. Fleuti,supra, involved the responsibility of the judiciary to interpret and apply on acase-by-case basis, the meaning of a definitional section of the statute. Seesection 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13)(1994). Since that time, two of the most prominent of these definitions include thedefinition of what constitutes an aggravated felony warranting removal fromthe United States and the definition of who is to be considered a refugee enti-tled to protection in the United States. Each of these definitions, and certainlythe latter, have been extensively interpreted by the Supreme Court, the lowerfederal courts, and this Board. In the course of these interpretations or theirapplications to individual cases, no such protestations were raised by anyadjudicatory body that, as the majority posits here, because the language was 1073
  • 27. Interim Decision #3333found in definitional sections of the statute, these definitions were appropri-ately construed as creating an “either/or” dichotomy, or meaning one andonly one thing. Cf. INS v. Cardoza-Fonseca, supra (acknowledging and evenmandating that the further development of the definition would necessarilybe at the agency level); Matter of Mogharrabi, 19 I&N Dec. 437 (BIA 1987)(acquiescing in the ruling in INS v. Cardoza-Fonseca.) Therefore, even were the language, or its grammatical construction, lessthan plain, I cannot agree with the majority that “it would be inconsistentwith the definitional nature of this provision” to read the as amended statuteas providing, as an exception to the rule that a returning lawful permanentresident shall not be regarded as seeking admission, a category of lawful per-manent residents who may or may not be regarded as seeking admission.Matter of Collado, supra, at 1064. The fact that inclusion in this categorywould depend on the quasi-judicial bodies of the agency, such as the Immi-gration Judges or this Board, making determinations in individual cases thatwould be subject to “a wholly unspecified set of criteria that, presumably,would be developed by case-by-case adjudication,” is not a rational reason toread the statute contrary to its specific terms. Id. Adjudicating individualcases and developing criteria that go on to serve as guidelines to fair and con-sistent adjudications in future cases is what we do. III. INTERPRETATION AND APPLICATION OF THE PROVISION At least three additional points support the plain reading of the statuarylanguage as I posit it above. First, Congress is presumed to be aware of exist-ing law when it amends a statute, and Congress did not expressly overrule thedecision in Rosenberg v. Fleuti, supra, or any of its progeny. McNary v. Hai-tian Refugee Center, Inc., 498 U.S. 479, 481 (1991); cf. former section244(b)(2) of the Act, 8 U.S.C. §1254(b)(2) (1988), added by ImmigrationReform and Control Act of 1986, Pub. L. No. 99-603, § 315(b), 100 Stat.3359, in which Congress expressly indicated its intent to overrule theSupreme Court’s 1984 decision in INS v. Phinpathya, supra. In fact, the spirit of the Fleuti doctrine has been preserved in the IIRIRAby the express inclusion in the statute itself of conditions pertaining to areturning resident’s maintenance of his lawful status, the length of hisabsence, and the lack of his having engaged in illegal activity after departing,under which it is mandatory that he not be treated as an arriving alien. Thiscodification in section 101(a)(13)(C) of certain of the criteria in the Fleutidoctrine creates a clear, objective bottom line not requiring case-by-case con-sideration of the character of the returning resident’s absence. For example,any LPR who leaves the United States for 179 days can rest assured that it ismandatory that he or she shall not be considered an “arriving alien” upon 1074
  • 28. Interim Decision #3333returning to the United States (provided that none of the other conditionsobtain). The fact that this codification establishes a mandatory bottom line orthreshold consistent with the spirit of the Fleuti doctrine, however, does notsupport a conclusion that the doctrine is inapplicable to persons not comingunder the mandatory protection of the statute. As noted, the statute is utterlysilent as to the continued vitality of the Fleuti doctrine. Therefore, if the LPRremains outside the United States for 181 days, he or she runs the same risk asbefore the law was amended, when establishing entitlement to being treatedas though no departure and entry had occurred required a case-by-case deter-mination that the departure was brief, casual, and innocent. In addition, the fact that the Fleuti doctrine originated in the course ofinterpreting a statute in which the terminology was “seeking to enter,” or“making an entry,” rather than “seeking to be admitted” does not preclude theapplicability of the criteria contained in that doctrine under the present stat-ute. The doctrine has taken on a life of its own. Under either version of the statute, it is generally advantageous to thereturning resident not to be treated as making an entry or seeking to be admit-ted. Avoiding such a classification acknowledges the greater ties with thiscountry possessed by a permanent resident and it affords that individual thebenefit of more preferred treatment and greater opportunities available tononcitizens already within this country. Under the present statute, the adjudicator is not limited to considering onlythose criteria associated with the Fleuti doctrine in determining whether areturning resident who may be treated as an arriving alien, will be treated assuch. A returning resident, like the respondent, who may have committed orbeen convicted of a crime listed in section 212(a)(2) of the Act, is notincluded in the mandatory prohibition against being regarded as “seekingadmission.” We may, therefore, find a particular LPR who has been con-victed of such a crime to be “seeking admission.” This determination willdepend on the presence or absence of various factors attendant to both thenature of the departure and the violation in question. The length and purposeof the departure, the time the conviction occurred in relation to the departure,the action or inaction of the Service with regard to the conviction prior to thedeparture, the nature of the crime, the fact of or lack of rehabilitation, andother factors that might touch on the safety and well-being of people in theUnited States, including family members, are each relevant to this determina-tion. See Marincas v. INS, 92 F.3d 195 (3d Cir. 1996)(recognizing that mini-mum due process procedures due under a statutory right depend on thecircumstances). Second, the Board has observed that the Supreme Court requires us to con-sider the plain meaning of the words used in the statute “taken as a whole.”Matter of Fuentes-Campos, supra (citing INS v. Cardoza-Fonseca, supra, at431). This raises a final consideration that convincingly demonstrates that it 1075
  • 29. Interim Decision #3333is permissible but not mandatory to consider the returning LPR as seekingadmission if one of the conditions (i) through (vi) obtains. If we were to read the Act as if its language meant “shall be considered anarriving alien if . . .” rather than “shall not . . . unless,” an obvious anomalywould be presented: an LPR returning from a brief stay abroad, who hadcommitted or had been convicted of a crime and then been admitted as anLPR or had deportation waived would not be eligible for consideration as aperson who had been admitted, but would necessarily be regarded as a person“seeking admission.” The only waivers explicitly recognized in section101(a)(13)(C)(v) of the Act as superseding the application of the clause fol-lowing “shall not” are waivers under sections 240A(a) and 212(h) of the Act(to be codified at 8 U.S.C. §§ 1229b(a) and 1182(h)). Under the majority’s absolutist reading of the statute, waivers grantedunder section 212(c), and adjustment of status under section 245 of the Act(to be codified at 8 U.S.C. § 1255) would not be recognized. This wouldmean that an individual who had been admitted for lawful permanent resi-dence following a conviction must be treated as an “arriving alien” althoughhis past commission of an offense already had been examined and eitherwaived or determined not to render him inadmissible. We have stated clearly and without equivocation that an individual whomay be deportable for a given offense, but whose status is adjusted is no lon-ger deportable for that offense. Matter of Rainford, 20 I&N Dec. 598 (BIA1992); Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978); cf. Matter of V-, 1I&N Dec. 273 (BIA 1942). We also have recognized previously that an alienwho has been granted a waiver of a ground of deportability is neitherdeportable or excludable, meaning that he would not be removable today.Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993). Assuming that revisit-ing a status determination by charging an individual with a violation of theAct for the same conduct underlying a violation of the Act we have waivedever would be appropriate, it would be the rare occasion on which therewould be any reasonable basis to treat such an individual as an “arrivingalien” as opposed to simply charging him with being deportable. Third, in a closely related context, the Service recently has acknowledgedthat the statute does not mandate a reading that an LPR must be treated as anarriving alien. See U.S. Release Immigrant Jailed for a 1974 Misdemeanor,N.Y. Times, Oct. 25, 1997. In revising its interpretation of the TransitionalPeriod Custody Rules (“TCPR”) and finding that it has authority to parolesuch persons as the respondent, the Service has stated in a memorandum tothe field: “[E]ffective immediately for purposes of detention under the TCPRonly, the Service will regard as ‘lawfully admitted’ any applicant for admis-sion who remains in status as a lawful permanent resident . . . .” See “ParoleAuthority for Certain Returning Residents Who Have Committed CriminalOffenses,” Oct. 22, 1997. 1076
  • 30. Interim Decision #3333 Manifestly, if the Service has elected, in the face of the statutory languageof section 101(a)(13)(C) of the Act, to assert its authority to treat a returningresident who has committed a criminal offense as “lawfully admitted” forpurposes of satisfying eligibility requirements for release from detention,then the statute cannot require that every lawful returning resident whocomes within one of the six exceptions must be treated as an arriving alien.3Putting aside the qualifications imposed by the Service in this memoran-dum—that this interpretation is only for purposes of determining eligibilityfor release from detention and that only the Service can make such a determi-nation—it seems to me necessary, unless the Service is acting unlawfully, toconclude that the statute allows a returning resident to be treated other than asan arriving alien. Finally, as I indicated in my dissent in Matter of N-J-B-, 21 I&N Dec. 860(BIA 1997), if at all ambiguous, deportation statutes must be read to favor thenoncitizen. In addition, if there is any ambiguity concerning the reach of thestatutory language, we should be cognizant of the rule that courts must give arestrictive interpretation “if a broader meaning would generate constitutionaldoubts.” United States v. Witkovich, 353 U.S. 194, 199 (1957). Here, under the majority’s interpretation, treatment of LPRs who havetraveled legally outside the United States would be significantly worse thantreatment of those who have not departed. Not only may the latter group befree from Service custody (with access to review by an Immigration Judge)pending a final determination of their right to remain in the United States, butthey are not vulnerable to charges of having committed certain offenses, andmust actually have been convicted of such offenses before being chargedwith being removable. I can find no rational basis in the law for such a dis-tinction, and consequently, I believe that a serious equal protection issue israised by the course taken by the majority. See generally Francis v. INS, 532F.2d 268 (2d Cir. 1976). The statute as amended does not require anything more than that we, asadjudicators, engage in a process of assessing whether the individual circum-stances of a lawful permanent resident alien who is alleged to fall within oneof the six conditions that constitute an exception to the mandatory prohibitionagainst regarding him as an arriving alien who is seeking admission should 3 The issue of eligibility to seek release from Service custody on a bond is linked to theultimate finding of whether a person is an “arriving alien” under the regulation at 62 Fed. Reg.10,312, 10,330 (1997)(to be codified at 8 C.F.R. § 1.1(q)) (interim, effective Apr. 1, 1997)(defined as any alien who “seeks admission” to the United States), because the AttorneyGeneral’s regulations provide that review by an Immigration Judge “shall not apply withrespect to: (I) arriving aliens, as described in § 1.1(q) of this chapter . . . in removalproceedings.” Id. at 10,361 (to be codified at 8 C.F.R. § 236.1(c)(5)). Respondents other thanarriving aliens may apply to an Immigration Judge for “amelioration of terms of release” at anytime before a final order is entered under 8 C.F.R. § 240. Id. (to be codified at 8 C.F.R.§ 236.1(d)(1)). 1077
  • 31. Interim Decision #3333be treated as though he is seeking admission. As adjudicators, we are to exer-cise our judgment as to whether the character of the departure made by a law-ful permanent resident alien and other relevant factors warrant allowing theService to treat that individual as seeking admission to the United States andto establish admissibility, or whether the Service must pursue any allegedviolation of the immigration law by charging the individual with beingdeportable and bearing the burden of proving the alien deportable and subjectto removal on that basis. See Landon v. Plasencia, supra. IV. CONCLUSION We need not distort the plain reading of the statute, which by mandate pre-cludes treating some lawful permanent residents as “arriving aliens” and fol-low the Service’s overzealous approach, when the statute allows us theopportunity to exercise our quasi-judicial judgment in the case of a returninglawful resident who is not within the statutory mandate. We should, instead,exercise our judgment, beginning with a supportable reading of the statuteaccording to its language. That reading requires an individual determinationof whether a longtime resident such as this respondent, who is alleged tocome within the terms of section 212(a)(2) of the Act, should be treated as“arriving” or “admitted.” I believe that the Immigration Judge was correct in determining that,although we are not prohibited from treating this respondent as an “arrivingalien,” it is not appropriate to do so. Because the Immigration and Natural-ization Service charged the respondent as an inadmissible alien when, in fact,he should be treated as being within the United States, the charges they havebrought must fail and the Immigration Judge’s decision should be upheld. 1078
  • 32. Page 1 of 6 An Assessment of a Questionable AAO DecisionFound at: Apr082011_01E1316.pdfDATE: April 8, 2011 OFFICE: Seattle, WA FILE: A59 991 865IN RE: Applicant: [NAME REDACTED]APPLICATION: Application to Preserve Residence for Naturalization Purposesunder section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427.ON BEHALF OF APPLICANT:SELF-REPRESENTEDINSTRUCTIONS:Enclosed please find the decision of the Administrative Appeals in your case. Allof the documents related to this matter have been returned to the office thatoriginally decided your case. Please be advised that any further inquiry that youmight have concerning your case must be made to that office.If you believe the law was inappropriately applied by us in reaching our decision,or you have additional information that you wish to have considered, you may filea motion to reconsider or a motion to reopen. The specific requirements for filingsuch a request can be found at 8 C.F.R. l03.5 All motions must be submitted to thethat originally decided your case by filing a Form I-290B, Notice of Appeal orMotion, with a fee of $630. Please be aware that 8 C.F.R. 103.5(a)(l )(i) requiresthat any motion must be filed within 30 days of the decision that the motion seeksto reconsider or reopen.Thank you,/s/John F. GrissomFor Perry RhewChief, Administrative Appeals Office
  • 33. Page 2 of 6DISCUSSION: The application was denied by the Field Office Director, Seattle, Washington, and isnow before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.The applicant seeks to preserve his residence for naturalization purposes under section 316(b) of theImmigration and Nationality Act (the Act), 8 U.S.C. § 1427(b). The applicant was admitted to theUnited States as a lawful permanent resident on August 6, 2009. He filed a Form N-470, Applicationto Preserve Residence for Naturalization Purposes, on May 7, 2010, stating that his absence from theUnited States was for the purpose of engaging in foreign trade or commerce of the United States onbehalf of an American firm or corporation.The field office director determined that the applicant was not eligible for benefits under section316(b) of the Act because he had not been present in the United States for a continuous period of oneyear after being lawfully admitted for permanent residence. Specifically, the director noted that theapplicant travelled abroad on December 25, 2009 and returned on January 13, 2010. The applicationwas denied accordingly.On appeal, the applicant states that he departed the United States from December 25, 2009 untilJanuary 13, 2010 for an employment interview with [REDACTED ------------ REDACTED] SeeStatement of the Applicant on Form I-290B, Notice of Appeal to the AAO and StatementAccompanying Appeal. The appeal is accompanied by a letter from the HR [REDACTED ] NAMEJob Application History, and an Offer of Employment with Baker Eastern S.A. Libya.Section 316(a)(1) of the Act, 8 U.S.C. § I427(a)(1), provides in pertinent part that: No person . . . shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time[.]Section 316(b) of the Act provides, in pertinent part that: [A]bsence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence except that in the case of a person who has been physically present and residing in the United States after being lawfully admitted for permanent residence for an uninterrupted period of at least one year and who thereafter, is . . . 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 more than 50 per centum of whose stock is owned by an American firm or corporation ... no period of absence from the United States shall break the continuity of residence if
  • 34. Page 3 of 6 (1) prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence from the United States, the person has established to the satisfaction of the Attorney General [now Secretary, Homeland Security, “Secretary”] that his absence from the United States for such period is . . . to be engaged in the development of such foreign trade and commerce or whose residence is necessary to the protection of the property rights in such countries in such firm or corporation, . . . and (2) such person proves to the satisfaction of the Attorney General [Secretary] that his absence from the United States for such period has been for such purpose.(Emphasis added). “[I]t is not possible to construe the uninterrupted physical presencerequirement of section 316(b) to allow departures.” Matter of Graves, 19 I&N Dec. 337, 339(Comm. 1985). [A]ny departure from the United States for any reason or period of time bars a determination that an alien has been continuously physically present in the United States or present in the United States for an uninterrupted period during the period including the departure. An applicant’s failure to establish he or she has been present in the United States for l year after lawful admission for permanent residence bars eligibility for preservation under section 316(b).Matter of Copeland, 19 I&N Dec. 788, 789 (BIA 1988).The primary issue in the present matter is whether the applicant has established that he wasphysically present in the United States for an uninterrupted period of twelve months followingadmission as a permanent resident.In the present matter, the applicant was lawfully admitted for permanent residence in the UnitedStates on August 6, 2009. He states in his Form N-470, Application to Preserve Residence forNaturalization Purposes, that he had not been physically present and residing in the United Statesfor an uninterrupted period of one year and lists an absence from the United States fromDecember 25, 2009 to January 13, 2010. See Form N-470, Part 3, Questions 2 and 3. Theapplicant indicates that his absence was for the purpose of a “property sale.” Id. On appeal, theapplicant states that his December 2009 absence was for the purpose of an employmentinterview. On appeal, the applicant stated that he could not find a job in the U.S. and he has afamily of four children and a wife to support and “when this opportunity with Baker Hughescame up, it was clear that turning it down would be a perilous decision as our savings weredwindling due to enormous financial demands for the family.”
  • 35. Page 4 of 6As the applicant acknowledges, and the record indicates, that the applicant has not beencontinuously physically present in the United States for the requisite one-year period after beinglawfully admitted for permanent residence. Accordingly, the applicant is not eligible for thebenefit sought. As noted above, “any departure from the United States for any reason or periodof time bars a determination that an alien has been continuously physically present in the UnitedStates." Id. at 789.The applicant has failed to establish that he was physically present and residing in the UnitedStates after being lawfully admitted for permanent residence for an uninterrupted period of atleast one year as is required by section 3l6(b) of the Act. The applicant was admitted to theUnited States as a lawful permanent resident in August 2009. He was absent from the UnitedStates from December 25, 2009 until January 13, 2010. Section 316(b) of the Act does notprovide any exception to the requirement that the applicant establish an uninterrupted one-yearperiod of physical presence and residence in the United States. The stated purpose of hisabsence, whether a property sale or employment interview, is not a relevant consideration.Accordingly, the applicant does not qualify for benefits under section 316(b) of the Act, and theappeal will be dismissed.ORDER: The appeal is dismissed.I have to ask: Had the applicant been inside the U.S. since returning on January 13, 2010? Ifyes, then the alleged reason for denial had lapsed with the passage of time and became moot. SeeMatter of Pazandeh, 19 I&N Dec. 884 (BIA 1989) which held in pertinent part: (2) Where the visa petition was initially approvable subject to the petitioners meeting a burden which has lapsed with the passage of time, the majority finds the rationale expressed in Matter of Bardouille , 18 I&N Dec. 114 (BIA 1981), not applicable. Matter of Atembe , 19 I&N Dec. 427 (BIA 1986); and Matter of Drigo , 18 I&N Dec. 223 (BIA 1982), distinguished.The crux of the matter is summed up by the BIA in this paragraph. “We note that in previous visa petition cases involving section 203(a)(2) of the Act we have held that a petition would not be approved unless the beneficiary was qualified for preference status at the time the petition was filed, to prevent the beneficiary from obtaining a priority date to which he or she was not entitled. Matter of Atembe, 19 I&N Dec. (BIA 1986); Matter of Drigo, 18 I&N Dec. 223 (BIA 1982); Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981). In each of the foregoing cases, however, the beneficiaries were indisputably ineligible for preference status when the petitions were filed on their behalf. Matter of Atembe , supra (beneficiary had not been "legitimated" and did not qualify as a "child" within the meaning of section 101(b)(1)(C) of the Act, 8 U.S.C. §
  • 36. Page 5 of 6 1101(b)(1)(C) (1982)); Matter of Drigo, supra (beneficiary did not qualify as an adopted "child" under section 101(b)(1)(E) of the Act); Matter of Bardouille, supra ("legitimation" of the beneficiaries occurred after the visa petitions were filed). By contrast, there was no bar to the approval of the instant visa petition when it was filed by the petitioner; the Service had the authority pursuant to section 204(a) (2)(A) to approve the second-preference petition if the petitioner disproved fraud with respect to her prior marriage or if she had been a lawful permanent resident for 5 years. Under these circumstances, where the petition was initially approvable subject to the petitioners meeting a burden which has lapsed with the passage of time, we do not find the rationale expressed in the Bardouille line of cases to be applicable.”Pazandeh is an example of something that potentially could have been a reason to deny a spousalpetition but that potential ineligibility lapsed with the passage of time. In the instant N-470 underdiscussion, the single potential disqualification to prospectively being able to even attempt toexercise the right to submit evidence in conjunction with future N-400 had lapsed with thepassage of time. The N-470 was likely approvable even under an improper interpretation thatthe “one-year inside the U.S. as an LPR” was actually a prerequisite to the approval. It is unclearfrom the discussion if the applicant had remained inside the U.S. since returning in January 2010,until the AAO decision in April 2011, or if there was any evidence to the contrary or if theapplicant indicated a future departure date. The actual reason for which the Director denied theN-470 was misconstrued to begin with, but had the AAO properly interpreted the actual statute itwould have realized that at the time of its decision on the the appeal, the application was at leastconditionally approvable.That “one-year inside the U.S. as an LPR” requirement is NOT a prerequisite to N-470 approvalunder a correct interpretation of the statute. The “one-year inside the U.S. as an LPR”requirement is a prerequisite to the exercise of the statutory right to the extended absencebenefit. The applicant is obligated to file an N-470 before the window of opportunity to applyslams shut at one-year absent from the U.S. after qualifying to depart in the first place. In sodoing, the applicant will have sought acknowledgement from USCIS, in a timely manner, of hisor her intention to potentially exercise that right in the future. This applicant did try to putUSCIS on notice as required under the statute. If an N-470 decision is made prior to the LPRhaving accumulated the one-year prerequisite to departure, then the LPR is obligated to waituntil (s)he is qualified to depart abroad. USCIS can simply advise the applicant via the N-472(Approval Notice) of the future date after which it will be safe to depart.This applicant did seek to put USCIS “on notice” of an intent to make use of the extendedabsence benefits of INA § 316(b) in a future N-400. It is unclear as to whether the applicantunderstood that he must accumulate one solid year inside the U.S. prior to departure on theforeign assignment.
  • 37. Page 6 of 6The granting of an N-470 is a far cry from pre-adjudicating an N-400. The N-470 can be quiteeasily invalidated after approval in conjunction with an N-400 denial. The N-400 may bereviewed administratively via the filing of an N-336 and is subject to further tiers of judicialreview under INA § 310(c) and all the way to the U.S. Supreme Court. The errant approval of anN-470 is NOT sufficient in and of itself to demand naturalization of someone who is not fullyeligible for naturalization in every respect. On the other hand, an erroneously denied N-470 or anextremely delayed N-470 adjudication may eventually result in a nunc pro tunc approval.In closing, this N-470 might have been approvable but it is unclear due a lack of complete facts:  If the applicant had accumulated the required uninterrupted one-year period by the time of the AAO rendered its decision, then the dismissal was incorrect.  If the applicant had indicated an understanding of the requirement to delay departure until a full year had passed, then the N-470 could have been conditionally approved or certified.  If the applicant had departed or indicated an intended future departure date prior to January 13, 2011, then denial was correct and anything that happened after that (the AAO dismissal) was also correct in its result.This critique was written on October 17, 2011, upon finding a newly posted AAO AdministrativeDecision of interest among a new batch of newly posted Decisions across a variety of categoriesincluding among N-600 Decisions from April 2011.
  • 38. Comment on OMB Control Number 1615-0056 (N-470) Submitted By Joseph P. Whalen on October 14, 2011The Information Collection regarding the USCIS form N-470 published in theFederal Register on October 12, 2011, includes: “This information collection was previously published as an extension of a currently approved information collection in the Federal Register on August 12, 2011, at 76 FR 50237, for a 60-day public comment period. Subsequently, USCIS decided to conduct a comprehensive revision of Form N-470 instead of extending the current edition. USCIS invites members of the public who commented on the 60-day extension to submit their comments on the revised form.” (Emphasis added.)I am happy to take this opportunity to offer comments on the revised form and itsaccompanying instructions. First, regarding the Supporting Statement dated 10-04-2011, A. 15 contains some obviously unintentional errors regarding the“burden” calculation background info: “as a result of an increase of increase inthe number of respondents from 621 to 525”; and A.6 states: “This form is used by persons wanting to leave the country for extended periods of time without jeopardizing their continuous presence requirement for naturalization. If this form were not available, certain individuals would not be able to leave the country without repercussions to their naturalization eligibility.” (Emphases added.)The last sentence above hits the nail squarely on the head. However, there is nosuch thing as a continuous presence requirement for naturalization purposes.There is a continuous residence requirement for most naturalization applicantswhich may be jeopardized due to a long absence. That requirement is both aprerequisite to the filing of an N-400 but also must be maintained, and may bedisrupted, after filing up to the time of taking the oath. There is a separate physicalpresence requirement for most applicants for naturalization which is cumulative(sum total in the aggregate) and is an N-400 filing prerequisite only.The continuous presence requirement1 relates to the legal right and ability to relyon the extended absence benefits of INA § 316(b) and in this case (under thissection of law), it is a prerequisite to departure from the U.S. after entry as, oradjustment of status to, an alien lawfully admitted for permanent residence (LPR).1 This is shorthand for an uninterrupted one-year period of physical presence and residence in theU.S as an LPR before departing abroad. Page 1 of 9
  • 39. Alternatively, under INA § 317, the one year continuous presence requirementmay be fulfilled before or after the extended absence but in either § 317 scenario, itmust be completed prior to filing an N-400.  Under INA § 317, the extended absence benefit may be “invoked” in an N- 400 without any requirement of putting USCIS on notice of one’s intent to do so.  Under INA § 316(b), the alien is required to put USCIS on notice of an intent to potentially invoke the extended absence benefits in a future N-400 application.  Under INA § 316(b) there is a window of opportunity to put USCIS on notice through the filing of a form N-470.  Under INA § 317, there is no similar requirement but the form N-470 may be filed and may have advantages (i.e., include dependents) and ease the naturalization process later on.Specifically pertaining to the revised form:Part 1, item #1 states: “ ...including the U.S. Armed Forces.)” I must ask if it wasintended to specify civilian employees but exclude military service members(soldiers, sailors...)?Part 1, item #5 includes a welcome parenthetical proviso.Part 2, item #13 asks about “all trips of 24 hours or more”, I would assure that thisis acceptable by running it by AAO and I hope that USCIS has done so. I disagreewith it and here is the reason for that disagreement, esp. prong (4) in Graves.See Matter of Collado, 21 I&N Dec. 1061 (BIA 1998) which reinforced Graves(below) in further proclaiming Flueti no longer even a judicial doctrine: “.... Thus, we find that the Fleuti doctrine, with its origins in the no longer existent definition of “entry” in the Act, does not survive the enactment of the IIRIRA as a judicial doctrine. Rather, Congress has now amended the law to expressly preserve some, but not all, of the Fleuti doctrine, as that doctrine developed following the Supreme Court’s 1963 decision.” At p. 1065Matter of Graves, 19 I&N Dec. 337 (Comm’r 1985) held: (1) It is not possible to construe the uninterrupted physical presence requirement of section 316(b) of the Act, 8 U.S.C. § 1427(b) (1982), to allow departures from the United States. INS v. Phinpathya, 464 U.S. 183 (1984), followed; INTERP. 316.1(c)(3) overruled. Page 2 of 9
  • 40. (2) The effect of Rosenberg v. Fleuti, 374 U.S. 449 (1963), cannot be extended to statutory schemes which include a requirement of uninterrupted or continuous physical presence. (3) An applicants failure to establish that he or she has been present in the United States for an uninterrupted period of 1 year after lawful admission for permanent resident bars eligibility for preservation under section 316(b). (4) Any departure from the United States for any reason or period of time bars a determination that an alien has been continuously physically present in the United States or present in the United States for an uninterrupted period during the period including the departure.Specifically pertaining to the revised form instructions:Under “Who Should File This Form”, regarding item #1:The inclusion of the phrase “without any absences whatsoever” seems to be inconflict with the information asked in Part 2, item#13 that excludes trips under 24hours. I believe that the phrase is correct and the exclusion is in error. See supra.Beyond the conflicting language noted above, this item is ultra vires as writtenbecause this is not a legally mandated filing prerequisite, nor is it even aprerequisite to approval. It is actually a prerequisite to departure in order to qualifyto exercise the statutory right afforded by INA § 316(b) in connection with a futureN-400, Application for Naturalization. The instructions could be improved byspecifying that one may also plan to accumulate the one uninterrupted year asan LPR prior to departure abroad and the N-470 will be invalidated (becomenull and void) if they don’t fulfill that requirement. As contemplated by thestatute itself, there already is a “back-end burden of proof” in connection with thecontemplated and expected future naturalization proceedings.The NOTE regarding the importance of obtaining a re-entry permit is a vastimprovement and a welcome change. It was previously easily overlooked.The NOTE to the “Qualifying spouse” is intended for the spouse of a USC whowill be applying under INA § 319(a) but these individuals ONLY fall under theprovisions of INA § 316(b) IF they are the LPR employed abroad. I find the noteto be a point of additional confusion that will not serve the intended purpose.Rather than have a separate note for the spouse of a USC, the first paragraph underthe heading: Continuous residency requirements for Form N-400, could beslightly altered to reference the minimum required 5 (or 3) years continuousresidence in the U.S. in lawful permanent resident status (as an LPR) of which 30 Page 3 of 9
  • 41. (or 18) months of actual physical presence inside the U.S. in the aggregate isrequired, as applicable. Of course, the whole section could be dropped assuperfluous. Anyone contemplating filing this form in the first place has done theirhomework already.The Exception for members of the U.S. Armed Forces is flat-out wrong, totallyunnecessary, and in fact could be detrimental if the U.S. ever ceases to be in astate of war. A peacetime soldier has a six-month window of opportunity to file fornaturalization based on honorable service and wasting time on the form N-470(which is NOT REQUIRED and has NO FUNCTION for a U.S. Military Member)could cause an unwanted and disqualifying delay. Time spent in military serviceis already officially considered to be continuous residence and physicalpresence in the U.S. and any state or USCIS Office jurisdiction by statute.INA § 328 [8 U.S.C. 1439] NATURALIZATION THROUGH SERVICE INTHE ARMED FORCES OF THE UNITED STATES (d) The applicant shall comply with the requirements of section 316(a) of this title, if the termination of such service has been more than six months preceding the date of filing the application for naturalization, except that such service within five years immediately preceding the date of filing such application shall be considered as residence and physical presence within the United States.The final Exception relating to immediate naturalization eligibility under INA §319(b) is a welcome addition but does not go far enough. Not only is a the form N-470 not required, the form N-470 is inapplicable, prohibited and must be denied asTHERE IS NO STATUTE UNDER WHICH IT MAY BE APPROVED. Aslong as the issue is being addressed, perhaps USCIS should also mention theinapplicability of form N-470 to those eligible for naturalization under INA § 319(c), (d), and (e), as well as §§ 328, 329, and 330. All of these situations would beincompetent filings and if such N-470s are not rejected outright, there should be aregulation to allow for summary dismissal as incompetent, with no right to appeal(or motion) and any court case on the issue can arise as a part of thenaturalization proceeding because that is the real INA benefit under consideration.It’s just a thought.Under “Specific Form Instructions”, instructions for part 2, item #12: there is theability to indicate that one has not met the uninterrupted one -year period insidethe U.S. as an LPR yet. This is understated and needs expansion. Simply ask for theintended departure date after accumulating the mandatory one-year continuouspresence as an LPR required prior to departure if applying under INA § 316(b). Page 4 of 9
  • 42. Under “When To File” item #1 goes too far in stating that the uninterrupted yearmust be completed before you can file. This is more than is specified in theactual statute. It is wrong and will not stand up to judicial review, dump it nowbefore it is too late to avoid embarrassment.Under INA § 316(b)(1), the N-470 is preferably filed sufficiently in advance ofgoing abroad to work for an extended period (generally to allow the LPR to havesome sense of confidence that they actually qualify and also to reassure theemployer that they are not harming their employee or that the employee will bailout of the assignment). The N-470 must be filed by a certain deadline (beforebeing absent for one full year). The N-470 mechanism was set up pursuant to theCongressionally devised statutory scheme in order to accomplish two things: (1) Put USCIS on notice of the LPR’s intention to potentially, prospectively, and/or eventually utilize INA § 316(b) extended absence benefits, and (2) Preserve eligibility to file for naturalization as expeditiously and easily as allowed in a prospective N-400, Application for Naturalization, with confidence.Under INA § 316(b)(2), the statute requires that “such person proves to thesatisfaction of the Attorney General [now USCIS] that his absence from theUnited States for such period has been for such purpose” in conjunction with afuture application for naturalization. Paragraph (b)(2) creates a “back-end burdenof proof” to substantiate that the absence was actually for the purpose that theapplicant previously put USCIS “on notice of” when (s)he filed the N-470.The “one year prerequisite” is NOT a filing prerequisite. The “one-year inside theU.S. as an LPR” requirement is a prerequisite to the exercise of the statutory rightto the extended absence benefit under INA § 316(b). The applicant is obligated tofile an N-470 before the window of opportunity to apply slams shut at one-yearabsent from the U.S. after qualifying to depart in the first place. In so doing, theapplicant will have timely sought acknowledgement from USCIS of his or herintention to potentially exercise that right in the future. Proving that (s)he wasactually qualified to file the N-470 is something that will be subject to verificationduring the N-400 naturalization proceedings, therefore, overemphasizing the non-existent filing prerequisite is an exercise in futility. Page 5 of 9
  • 43. I will emphasize again that the “required one-year inside the U.S. as an LPR” is noteven a prerequisite to the approval of the N-470. This is due to the same “back-endburden of proof” to substantiate the sustained qualifications for the absence which isrequired in connection with a future N-400 naturalization proceeding.As an example, someone might have obtained their LPR status via an Immigrant Visaobtained through a sibling. During the long wait for the visa, life went on. When thevisa became available, this sibling of a USC and spouse and let’s say two of their kidsgot their visas and travelled to the U.S. to secure LPR status. They were not quite asready to start a new life in a new nation as they thought. The mom in this family unitwas able to transfer to an American affiliate-sister company of the large company sheworked for for around 20 years. They appreciate her and don’t want to lose theexpertise she has. After a time, she convinces them to send her back for a while sothat her kids can finish high school and college, respectively. The particulars of theemployer and job qualify and the N-470 is approved and the family goes back. After16 months, the company offers mom a golden-parachute retirement and she takes it.Her kids need another year to finish their school programs. They stay abroad for anextra year AFTER the qualifying employment ended.Regardless of whether mom qualified at the time of filing the N-470, or at the time ofapproval of the N-470, or if she had to wait post-approval of the N-470 BEFOREdeparting abroad, she grievously erred by ceasing the qualifying employment andthen staying abroad too long after the covered period ended. They could have taken upto six months to pack up, wind up affairs, and return without significantly hamperingN-400 eligibility.On the other end of the spectrum, suppose that the the golden-parachute retirementdeal was not a factor and we throw a different factor into the mix.Suppose she filed the N-470 after having LPR status for only 7 months andindicated that she would wait until she had been inside the U.S. for a full year beforerelocating abroad? On what legal basis could the N-470 be denied that would standup in court? She has sought to put USCIS on notice of her intent. She has sought tomake sure that her employment qualifies. She affirmatively acknowledged that sheunderstood that she would be required to wait before departing abroad. Lastly, it is anexisting legal requirement to prove it all later during naturalization proceedings. Page 6 of 9
  • 44. Back to the form instructions: Still under “When To File” - in the first column atthe top of page 4, the separated, short, and very specific treatment of ReligiousWorkers is a welcome improvement to the form instructions.On the Evidentiary Burden and Burden of Proof:The granting of an N-470 is a far-cry from pre-adjudicating an N-400. Thefollowing well-worn blurbs plucked from AAO Decisions citing earlieradministrative and judicial precedents, reiterate that the burden of proof is squarelyon the LPR to show full eligibility for naturalization. "There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko v. United States, 449 U.S. 490, 506 (1981). 8 C.F.R. § 341.2(c) provides that the burden of proof shall be on the claimant to establish the claimed citizenship by a preponderance of the evidence. In order to meet this burden, the applicant must submit relevant, probative and credible evidence to establish that the claim is "probably true" or "more likely than not." Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 884 (1988). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect" and that any doubts concerning citizenship are to be resolved in favor of the United States. Berenyi v. District Director, INS, 385 U. S. 630, 637 (1967).The N-470 can be quite easily invalidated after approval in conjunction with an N-400 denial. The N-400 may be reviewed administratively via the filing of an N-336and is subject to further tiers of judicial review under INA § 310(c) and all the wayto the U.S. Supreme Court. The errant approval of an N-470 is NOT sufficient inand of itself to demand naturalization of someone who is not fully eligible fornaturalization in every respect. On the other hand, an erroneously denied N-470 oran extremely delayed N-470 adjudication may eventually result in a nunc pro tuncapproval. While a requirement for a solid one-year as an LPR inside the U.S.would be an easy prerequisite for adjudicators to deal with, it does not actuallyexist in the statute. Page 7 of 9
  • 45. Under “Processing Information” there is a possibility of a fee waiver and I knowthat this is allowed under the regulations but in the future, USCIS should notallow for fee waivers because this is really an employment-based benefit. Iwould not even make an allowance for a “non-profit” or “religious” employerbecause, if they can afford to send someone abroad for a year or more (andpotentially their entire family, i.e. household) then they can afford the $330 filingfee (or whatever it is set at in the future).Something Is Missing:The form instructions and the N-472 Decision Notice (Approval) should containthe same plain-language warning statement(s)2. The substance should at leastinclude the fact that circumstances which arise post-approval may invalidate thatApproval and have negative consequences to naturalization, or possibly even LPRstatus. The Approval does not vitiate the need for a re-entry permit. A change in orend to approved employment will necessitate a swift return to the U.S. Filing taxesinappropriately and/or incorrectly may invalidate LPR status. Also the LPR and/orany member of the household may be deemed as “seeking admission” under INA§101 (a)(13)(C)(i)-(vi), as applicable: (13) (A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. (B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted. (C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien- (i) has abandoned or relinquished that status,2 In a country that allowed an award of a million dollars to be paid by a fast-food establishmentwith deep pockets because it failed to tell someone that spilling hot coffee in her lap would hurt,I don’t think USCIS would be out of line to tell people that they can endanger their naturalizationeligibility by doing some disqualifying things. Page 8 of 9
  • 46. (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.It must be remembered that even with a re-entry permit and an approved N-470 (N-472 Approval Notice in hand), after 180 days, the LPR must still be admissible andhave done nothing to jeopardize that admissibility or their underlying LPR status. There-entry permit keeps the green card valid as a travel and entry document for anabsence of up to two years when they are presented together (not to suggest that thegreen card must be presented with the re-entry permit).Oddball Scenarios:  A person with an N-472, who did NOT obtain a re-entry permit would be in a good position to easily obtain an SB-1 returning resident visa.  For an individual LPR who is serving in a capacity that would be qualified under INA § 317, they could file an N-470 from abroad and later seek an SB-1 visa, enter the U.S. and apply for a re-entry permit, get fingerprinted, depart, and have the re-entry permit delivered abroad.  An LPR who went abroad and worked without putting USCIS on notice by seeking an advance determination on the issue of eligibility under INA § 316(b) by filing an N-470, may be forced to cease the employment and return to the U.S. or endanger not only naturalization eligibility but also LPR status.An LPR who has to rely on INA § 316(b) is definitely NOT similarly situated to theLPR covered under INA § 317. Page 9 of 9

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