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
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
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.”
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. §
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.
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.