Naturalization for Permanent Residents and Spouses of U.S. Citizens Employed Abroad

Transcription

1 Naturalization for Permanent Residents and Spouses of U.S. Citizens Employed Abroad by: Gary Chodorow revised: July 14, 2013

2 Frederick W. Hong Law Offices Frederick W. Hong Law Offices has a proven track record advising companies and individuals on China and U.S. business law, intellectual property, and immigration law. The firm was founded in 1977 in Los Angeles. We became in 1993 the first U.S. law firm licensed by China s Ministry of Justice to open an office in Guangzhou. In 2002, the firm was authorized to open another office in Beijing. We make an effort to understand each client s business and goals. Our attorneys are savvy, innovative, and focused on getting results that meet our clients goals. That's how we establish lasting client relationships. Gary Chodorow The author, Gary Chodorow, is chief representative for the Beijing office of Frederick W. Hong Law Offices. His practice focuses on representing businesses, investors, and families in U.S. and China visa, immigration, and nationality law matters. He is a frequent author and speaker on related issues, and a member of the American Immigration Lawyers Association. Beijing Office Tel.: or.1180 gary@fwhonglaw.com ii

3 Table of Contents 1. Introduction What Are the Residence-Related Requirements for Naturalization? Continuous Residence in the U.S Residence within a State or USCIS District Physical Presence During the Period of Required Continuous Residence The Form N-470, Application to Preserve Residence for Naturalization Purposes In General Benefits and Limitations of the N Procedures for the N Place of Filing... 7 Documents to File... 7 Processing Time One Year of Uninterrupted Physical Presence in the U.S Qualifying Categories of Employment... 8 Employed By or Under Contract with the U.S. Government... 8 U.S. Businesses Engaged in the Development of Foreign Trade and Commerce... 9 Public International Organizations American Institutions of Research Expeditious Naturalization for a Spouse of a U.S. Citizen Employed Abroad Benefits of Expeditious Naturalization Procedures Place of Filing Fingerprints Documents to Be Filed Processing Times, Interview, Oath Ceremony, Passport Application The U.S. Citizen Spouse Is Regularly Stationed Abroad Marital Status Departing the U.S. to Live with the Citizen Spouse Abroad Good faith intention to take up residence within the U.S Conclusion Copyright Frederick W. Hong Law Offices. All rights reserved. Disclaimer: This Guide is general information, not legal advice. Make decisions only after consulting with your attorney about how the law applies to the specific facts of your case. iii

4 1. Introduction Is the spouse of a lawful permanent resident working for a U.S. employer abroad eligible to file Form N-470, Application to Preserve Residence for Naturalization Purposes? 1 Is the spouse of a U.S. citizen working for a U.S. employer abroad eligible to apply for expeditious naturalization? 2 These two questions are the topic of this article. 3 Spending too much time abroad can put a lawful permanent resident (LPR) at risk of losing eligibility for naturalization. As a matter of public policy, prior to naturalization an LPR generally must live in the U.S. to learn English, to become familiar with U.S. customs and institutions, to shed foreign attachments, to acquire attachment to the principles of the U.S. Constitution and government, to demonstrate law-abiding conduct, and to prove fitness to be accepted as a citizen of the U.S. 4 However, there are countervailing public policies that favor allowing LPRs and their spouses to work abroad for a U.S. employer. Such work promotes the foreign trade and commerce of the United States. 5 This article discusses the requirements and procedures for the Form N-470 and expeditious naturalization. A separate topic, not discussed here, is what steps LPRs staying abroad for extended periods should take to protect themselves against losing their green cards due to abandonment. In short, LPR status confers the right to reside in the U.S., but that can be taken away by the government if an LPR makes a trip or series of trips abroad which are not temporary. For more on this topic see our article, Your Green Card Is at Risk if You Stay Outside U.S. Over 6 Months U.S.C. 1427, 1428, INA 316(b), U.S.C. 1330, INA 319(b). 3 Thanks to Yehudah Handler for assistance with an earlier version of this article. 4 U.S. v. Mulvey, 232 Fed. 513 (2d Cir. 1916). 5 Legal Opinion of General Counsel, HQ 319-C (Feb. 23, 1993). 6 Also not discussed here are the expeditious naturalization provisions covering [a]ny person who is employed by a bona fide U.S. incorporated nonprofit organization which is principally engaged in conducting dissemination of information abroad through communications media which significantly promotes U.S. interests abroad and which is recognized as such by the Attorney General (INA 319(c)) and members of the military and their families (INA 319(d) and (e)). 1

5 2. What Are the Residence-Related Requirements for Naturalization? In general, the residence-related requirements for naturalization 7 are that the applicant must 1. continuously reside in the U.S., after being admitted for LPR status, for the five years (or three years in the case of an applicant who has been married to and living in marital union with a U.S. citizen 8 ) immediately preceding the date of filing application for naturalization 9 as well as between the date of applying for naturalization and the date that citizenship is granted 10 ; 2. reside in a State or Service District having jurisdiction over the naturalization application for at least three months 11 ; and 3. be physically present in the U.S. for half of the required continuous residence period. 12 Here s a more detailed analysis of the requirements: 2.1 Continuous Residence in the U.S. Generally a naturalization applicant must continuously reside in the U.S., after being admitted for LPR status, for the five years (or three years in the case of an applicant who has been married to and living in marital union with a U.S. citizen 13) immediately preceding the date of filing application for naturalization. 14 In addition, an applicant must generally continuously reside within the U.S. between the date of applying for naturalization and the date that citizenship is granted. 15 Naturalization rules do allow an applicant to file their naturalization application as early as 3 months before the date the applicant meets the continuous residence requirement Other requirements for naturalization, generally, are that the applicant must 1. be at least 18 years old. 8 C.F.R (a)(1); 2. be an LPR. INA 316(a); 8 C.F.R (a)(2); 3. be of good moral character, attached to the constitution, and be favorably disposed toward the good order and happiness of the U.S. 8 C.F.R (a)(7); and 4. pass a test of English language, history, and U.S. government. 8 C.F.R. Part INA 319(a); 8 C.F.R (a)(3). Certain battered spouses and children also are eligible for naturalization upon completion of three years of residence. INA 319(a). 9 INA 316(a); 8 C.F.R (a)(3). 10 INA 316(a); 8 C.F.R (a)(6). 11 INA 316(a); 8 C.F.R (a)(5). 12 INA 316(a); 8 C.F.R (a)(4). 13 INA 319(a); 8 C.F.R (a)(3). Certain battered spouses and children also are eligible for naturalization upon completion of three years of residence. INA 319(a). 14 INA 316(a); 8 C.F.R (a)(3). 15 INA 316(a); 8 C.F.R (a)(6). 16 INA 334(a). 2

6 Residency is defined as the applicant s principal, actual dwelling place in fact, without regard to intent. 17 The prevailing view is that any absences from the U.S. by a naturalization applicant which last less than six months will not disrupt the naturalization application process. In contrast, absences from the U.S. that last in excess of six months and less than one year prior to the filing date of the naturalization application shall break the continuous residence requirement, unless the applicant can establish through evidence that he or she did not abandon his residence in the U.S. during that period to the satisfaction of the U.S. Attorney General. 18 Such evidence includes proof of continued employment within the U.S., 19 continued residence within the U.S. by the applicant's immediate family, 20 retention of housing accommodations within the U.S., and evidence that the applicant did not obtain employment while outside of the U.S. 21 Absences from the U.S. for a continuous period of one year or more will disrupt the continuous residence naturalization requirement, 22 unless the applicant has an approved N-470 or the applicant qualifies for expeditious naturalization, in which case the residence requirement is waived. 2.2 Residence within a State or USCIS District According to Congress, a naturalization applicant must show that immediately preceding the filing of the application they have resided within the State or within the [USCIS District] in which the applicant filed the application for at least three months. 23 There are special provisions for military personnel, applicants who are currently students, 24 commuter aliens, and persons who reside in multiple states. 25 Regulations also discuss the effect on state residence of absences abroad. If the absence is less than 1 year, state residence continues to be where the applicant last resided. If the applicant returns to that state or district, the applicant can count from the date when he or she first established residence (including periods abroad) for purposes of meeting the state residence 17 INA 101(a)(33); see 8 CFR 316.5(a) (similar regulatory definition). 18 INA 316(b); 8 C.F.R (c)(1)(i) C.F.R (c)(1)(i)(A) C.F.R (c)(1)(i)(B) C.F.R (c)(1)(i)(D). 22 INA 316(b); 8 C.F.R (c)(1)(ii). 23 INA 316(a); 8 C.F.R Students attending an educational institution in a state or district other than their home residence may apply either (a) where the institution is located, or (b) where their home residence is located, if financially dependent upon their parents at the time the application is filed and during the naturalization process. 8 C.F.R (b)(2); USCIS M-476, p. 24. The Internal Revenue Service guidelines for determining whether a child qualifies as dependent for tax purposes may be relevant to determining whether a child is financially dependent for naturalization purposes C.F.R (b)(4) ( If an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed. ). 3

7 requirement. If the applicant establishes a residence in a new state or district, the applicant must reside there for three months before filing. 26 As explained below, N-470 applicants must satisfy the state residence requirement, but the requirement is waived for expeditious naturalization applicants. 2.3 Physical Presence During the Period of Required Continuous Residence The physical presence requirement for naturalization is that during the five years [or 3 years for applicants who need to prove only 3 years of continuous residence] immediately preceding the date of filing [the naturalization] application, a person must have been physically present in the U.S. for periods totaling at least half of that time. 27 As explained below, the physical presence requirement is waived for expeditious naturalization applicants but still applies to most N-470 applicants. 3. The Form N-470, Application to Preserve Residence for Naturalization Purposes 3.1 In General The requirements for filing a Form N-470 are: Before filing the N-470, the applicant must have been physically present and residing in the U.S. for an uninterrupted period of at least one year after becoming an LPR 28 ; During the absence from the U.S. the applicant is or will be: [a] employed by or under contract with the U.S. Government 29 ; 26 8 C.F.R (b)(5) provides: (5) Residence during absences of less than one year. (i) An applicant's residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant's departure abroad. (ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in 316.2(a)(5) [state residence requirement] when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization. 27 INA 316(a). 28 INA 316(b) (the applicant must first complete the year-in-the-u.s. and thereafter be employed abroad), 317(2); N-470 Instructions at 1. An exception is made for CIA employees and contractors. 29 INA 316(b), (b)(1). 4

8 [b] employed by or under contract with an American institution of research recognized as such by the Attorney General, and carrying on scientific research on behalf of such institution 30 ; [c] 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 31, and is or will be personally engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation 32 ; [d] employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence 33 ; or [e] religious duties provision: a person authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the U.S., or any person who is engaged solely by a religious denomination or by an interdenominational mission organization having a bona fide organization within the U.S. 34 ; and The application must be filed before the applicant has been absent from the U.S. for an uninterrupted period of at least one year Benefits and Limitations of the N-470 The benefit of an approved Form N-470 is that an absence from the U.S. of a year or more (whether preceding or subsequent to filing the naturalization application) will not break the required continuity of residence for naturalization. 36 Thus, a naturalization applicant with an approved Form N-470 petition may continue to satisfy the continuous residency general naturalization requirement while living outside of the U.S. The applicant s spouse and dependent 30 Id. 31 INA 316(b). 32 INA 316(b)(1). 33 INA 316(b), (b)(1). 34 INA INA 316(b)(1); INA 317(2); 8 C.F.R (d)(1)(i). The statute, INA 316(b)(1) is rather confusing, stating that the LPR must file the N-470 application 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 regulation, 8 C.F.R (d)(1)(i) clarifies that the [N-470] application may be filed either before or after the applicant's employment commences; however, it must be filed before the LPR has been absent from the United States for a continuous period of one year. Also note that eligible religious workers and those working for the CIA abroad may file Form N-470 before or after the uninterrupted period of one year. See INA 317(2); INA 316(c). 36 INA 316(b). 5

9 unmarried children residing abroad with the applicant receive the same benefits, 37 except in the case of the family members of persons covered by the religious duties provision. 38 However, the N-470 has several limitations. First, most applicants are required to have completed one year continuous physical presence in the U.S. as an LPR before filing the N-470, as discussed below. 39 Second, the N-470 does not preserve state residence. 40 So, as for others, if the absence is less than 1 year, state residence continues to be where the applicant last resided. If the applicant returns to that state or district, the applicant can count from the date when he or she first established residence (including periods abroad) for purposes of meeting the state residence requirement. If the applicant establishes a residence in a new state or district, the applicant must reside there for three months before filing. 41 If the absence is one year or more, the applicant must establish a state residence and reside there for three months before filing. Third, an approved N-470 doesn t relieve a naturalization applicant of the requirement of U.S. physical presence during half the continuous residence period. There are two exceptions: First, a naturalization applicant employed by, or contracted to work for, the U.S. government abroad is relieved of the requirement. 42 Second, any person who falls within the religious duties provision is relieved of the physical presence requirement Procedures for the N-470 As mentioned above, the application must be filed before the applicant has been absent from the U.S. for an uninterrupted period of at least one year C.F.R (d)(1)(ii); Robert C. Divine, Immigration Practice , See INA INA 316(b)(2); 8 C.F.R (d)(2). 40 AFM 73.4(h). INA 316 and 8 C.F.R are silent on the matter C.F.R (b)(5) provides: (5) Residence during absences of less than one year. (i) An applicant's residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant's departure abroad. (ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in 316.2(a)(5) [state residence requirement] when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization. 42 Apparently, their accompanying family members are not relieved of the requirement. Compare INA 316(b), stating that family members receive relief from the continuous residence requirement, with INA 316(c), which doesn t mention family members receiving relief from the physical presence requirement. 43 INA 317(3). 44 The statute, INA 316(b)(1) is rather confusing, stating that the LPR must file the N-470 application 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 6

10 Place of Filing The application should be filed with the local USCIS office that has jurisdiction over the applicant s place of residence in the U.S. 45 Documents to File The N-470 application should include, among other things, a letter or affidavit from the employer that covers the following points: that the letter or affidavit s author of the letter has access to the records related to the applicant s employment; the nature of the company s business and how the employer counts as one of the entities designated by the statute; the applicant s dates of employment, places of employment, job titles, job responsibilities, both in the past and those anticipated while abroad; and whether the LPR will be involved in the development of foreign trade and commerce of the U.S. 46 Processing Time Current USCIS processing time for N-470s is about six to eight months. 47 USCIS will issue a written decision approving or denying the application or requesting further documentary evidence or an interview. 48 A notice of approval should identify which family members are covered. 49 Later, at the naturalization interview, the applicant should show the N-470 notice of approval and proof that he or she actually performed the work abroad described in the N-470 application. 50 Since the N-470 approval is employment specific, any changes in employment would have to be approved by a new N One Year of Uninterrupted Physical Presence in the U.S. United States. The regulation, 8 C.F.R (d)(1)(i), clarifies that the [N-470] application may be filed either before or after the applicant's employment commences; however, it must be filed before the LPR has been absent from the United States for a continuous period of one year. Also note that eligible religious workers and those employed by or contracted to work for the CIA abroad may file Form N-470 before or after the uninterrupted period of one year. See INA 317(2); INA 316(c). 45 USCIS N-470 Filing Instructions, page See generally USCIS N-470 Filing Instructions, page 4. In addition, the application shall include a filing fee of $305, the completed Form N-470, a copy of the Permanent Resident Card, copies of all passports used since becoming an LPR, and any evidence that you have ever changed your name or reported date of birth. 47 USCIS Processing Times, C.F.R (d)(3). The decision is on Form N-472. There is a right to appeal a denial to the Administrative Appeals Office within 30 days C.F.R (d)(1)(ii). 50 INA 316(b)(2). 7

11 The applicant must have been physically present and residing in the U.S. for an uninterrupted period of at least one year after becoming an LPR and before filing a naturalization application. 51 The one year of uninterrupted physical presence in the U.S. is to be interpreted literally. Therefore, any absence from the U.S. for however long will disrupt the one year of uninterrupted physical presence in the U.S. 52 A special exception applies to persons employed by or under contract with the CIA, who may comply with the one year of uninterrupted physical presence at any time 53 before filing the naturalization application, i.e. even before becoming an LPR. 3.5 Qualifying Categories of Employment As mentioned above, the LPR s employment or contract work must be with one of the specified entities, namely, the U.S. government, 54 a religious denomination, 55 a U.S. business engaged in the development of foreign trade and commerce, 56 a public international organization, 57 or a U.S. institution of research. 58 Some of these categories of employment warrant additional clarifications. Employed By or Under Contract with the U.S. Government Courts have interpreted this category relatively broadly when deciding whether or not someone qualifies as being employed by or under contract with the U.S. government. For instance, an 51 INA 316(b), 317(2). 52 See Matter of Graves, 19 I. & N. Dec. 337, Interim Decision 3003, 337 (B.I.A. 1985). Graves effectively overruled INS Interpretation 316.1(c)(3), under which brief absences from the U.S. which were not meaningful did not interrupt one s period of physical presence. See N-470 instructions at 1 ( uninterrupted period must be without any absences whatsoever ). The Graves court looked to INS v. Phinpathya, 464 U.S. 183 (1984), where the Supreme Court had held that the continuous physical presence requirement for suspension of deportation should be interpreted literally so as to not allow any absences from the U.S. Graves invalidated INS Interpretations 316.1(c)(3), which previously deemed that absences which were not meaningfully interruptive or, as held in Rosenberg v. Fleuti, significant did not influence the one-year uninterrupted physical presence requirement for filing a Form N-470. (See INS Interpretation 316.1(c)(3); Rosenberg v. Fleuti, 374 U.S. 499 (1963)). 53 INA 316(c). 54 INA 316(b)(1). 55 INA 317(3). The LPR must be performing ministerial or priestly functions as a minister, priest, missionary, brother, nun or sister for a religious denomination or an interdenominational organization with a valid presence in the United States. See Robert C. Divine, Immigration Practice , INA 316(b)(1). 57 INA 316(b)(1). Public international organizations are organizations which are designated by the President pursuant to the International Organizations Immunities Act with which the U.S. participates by treaty or statute. Eligible public international organizations and U.S. institutions of research are enlisted in 8 CFR One limitation for applicants working for public international organizations who wish to file Form N-470 is that the foreign national must not have been previously employed with the public international organization prior to becoming an LPR. 58 INA 316(b)(1). 8

12 applicant who was studying abroad pursuant to a Department of Health, Education, and Welfare grant, an applicant who was employed abroad by the Near East Foundation (an American corporation that was completely financed by the International Cooperation Administration), and an applicant who was employed by the University of Maryland to teach classes abroad to U.S. military and government personnel were all held to have been under contract to work for the U.S. government. 59 U.S. Businesses Engaged in the Development of Foreign Trade and Commerce More explanation is required of the key statutory requirements that the N-470 applicant is or will be employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an American firm or corporation, 60 and is or will be personally engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation. 61 a. American Firm or Corporation, or a Subsidiary Thereof The term American firm or corporation means a company owned more than 50% by U.S. nationals. 62 A publicly-held corporation is considered to be an American firm or corporation if the applicant can demonstrate that the corporation is incorporated in the U.S. and trades its stock exclusively on the U.S. stock exchange. 63 The corporation s annual report is usually enough to prove this. For a privately held corporation, evidence that the employer is a qualifying American firm or corporation may include: copies of the business articles of incorporation, evidence of ownership including copies of stock certificates and ledgers, and proof of the shareholders nationality. 64 For a partnership to qualify as an American firm, 51% of the partners must be of U.S. nationality INS Interpretation 316.1(c)(5). 60 INA 316(b). 61 INA 316(b)(1). 62 INA 316(b). 63 USCIS Adjudicator s Field Manual, Appendix (June 18, 2007). See Matter of Chawathe, In Preservation of Residence for Naturalization Proceedings On Behalf of Self-Represented., INS Administrative Appeals Unit A (2006) (where court held that a corporation was an American firm or corporation under INA 316(b) since it had been established that the corporation was incorporated in the U.S. and that it was a publicly held corporation whose stock is exclusively sold on U.S. stock exchange). 64 In Re [name withheld] (AAO May 16, 2008), published at 2008 WL ; In Re [name withheld] (AAO Mar. 28, 2008), published at 2008 WL See the Department of Justice INS Memorandum dated December 1, 2008 (2008 WL (INS)) (where INS stated that a limited liability partnership formed under state law does not establish that it is an "American firm or corporation"; but instead, the nationality of 51% of the partners determines whether the entity is, or is not, an "American firm or corporation."). 9

13 It is unclear whether a sole proprietorship counts as an American firm. There is at least one INS memorandum implicitly supporting this position. 66 Still, as discussed below, the sole owner may have problems proving he employs himself. To qualify as the subsidiary of an American firm or corporation, over fifty percent of the subsidiary s stock must be owned by the American firm or corporation. 67 For example, in the below example Acme (China) Co. Ltd. would qualify as the subsidiary of an American firm, namely Acme Inc.: Here s the explanation: Acme Inc. is an American firm because it is incorporated in the U.S. and because U.S. citizens own more than 51%. (In this example, U.S. citizens own 75%.) Acme (China) Co. Ltd. counts as the subsidiary of an American corporation because over 50% of its stock is owned (indirectly) by Acme Inc. Note that to prove this relationship, the following types of evidence may be required: Copies of Alan and Bob s U.S. passport ID pages (or certificates of naturalization or other evidence of citizenship). Acme Inc. s certificate of incorporation and stock ledger showing that Alan and Bob own 75% of the corporation. 66 INS Ass t Comm., file CO 316a.1-P, Mar. 8, 1961 (a person other than the sole owner who is employed abroad representing the sole proprietorship doing business under a trade name is eligible for extended absence benefits.) 67 Robert C. Divine, Immigration Practice , 12-19; Matter of Warrach, 17 I&N Dec. 285; United States Department of Justice Immigration & Naturalization Service Interpretation Letter: Interpretation 316.1(c)(4)(iii). 10

14 Acme (BVI) Inc. s certificate of incorporation and stock ledger showing that it is a wholly owned subsidiary of Acme Inc. Acme (China) Co. Ltd. s business license showing that it is a wholly owned subsidiary of Acme (BVI) Inc. b. Engaged in the Development of U.S. Foreign Trade or Commerce The firm or corporation must be engaged in development of U.S. foreign trade or commerce. Also, the applicant must demonstrate that at least a substantial portion of his time abroad would be spent in the development of foreign trade and commerce of the United States. 68 Under this definition, the development of foreign trade and commerce of the U.S should neither be simply incidental to the occupation, nor should it be used to bypass the general naturalization requirements. 69 Part-time employees are only covered if they work a substantial portion of their time. 70 The term trade is to be interpreted broadly and defined as to engage in commerce or business transactions of bargain and sale; barter; exchange; traffic; hence, to deal in something. 71 The statutory provision for expeditious naturalization, described below, uses the exact same term engaged in whole or in part in the development of foreign trade and commerce of the United States. 72 For that purpose, the Immigration and Naturalization Service has recognized the following definition of trade : Trade is the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include, but are not limited to, banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer. 73 The term commerce has been defined as "the exchange of goods, productions, or property of any kind; especially, exchange on a large scale, as between states or nations." Matter of P, 5 I. & N. Dec. 332 (B.I.A. 1953). 69 Id. 70 Interpretations 316.1(c)(4)(ii). 71 In re Fang Lan Dankowski, 478 F. Supp. 1203, 1207 (D. Guam 1979) (In this case, the court addressed whether or not the applicant met the requirements for expeditious naturalization. The court held that the applicant was not eligible for expeditious naturalization since the applicant s husband was a teacher working abroad, which does not fall within a qualifying employment category for purposes of expeditious naturalization. The court s reasoning was that teachers did not have anything to do with commerce or navigation, even though in this case the U.S. citizen spouse teacher taught dependents of U.S. citizens who were engaged in business and commerce). 72 INA 319(b)(1)(B). 73 Legal Opinion of General Counsel, HQ 319-C (Feb. 23, 1993). 74In re Fang Lan Dankowski, 478 F. Supp. 1203, 1207 (D. Guam 1979). 11

15 Evidence of being engaged in the development of foreign trade and commerce could include: a list of foreign clients with their contact information, a specific description of all projects, contracts, and properties which the company will pursue abroad through the employment of the Form N-470 applicant, a description of the funding of the work to be performed abroad, evidence that the employing firm or corporation is permitted to conduct business abroad, copies of all contracts, proposals, requests for proposals, or requests for bids for work to be performed abroad, and copies of financial statements and the applicants tax returns and transcripts. 75 Courts have held that teachers are not included in the definition of trade, and thus, spouses of American citizens who are teachers abroad are not eligible for expeditious naturalization. 76 In contrast, INS has considered certain refugee relief agencies and non-profit organizations to be engaged in development of foreign trade and commerce. 77 There is some authority an unpublished decision of the USCIS Administrative Appeals Office that a company that has overseas operations only but not U.S. operations (only a paper business in the U.S.) is not engaged in the development of U.S. trade and commerce. 78 c. Employed By The applicant must be employed by the American firm or corporation. For this provision, it s not enough to be under contract with the American firm or corporation. 79 The term employed by within the Form N-470 context has been defined as to use, to have in service, to cause to be engaged in doing something, it does not mean to hire, but to use, whether under hire or not. 80 One may file Form N-470 regardless of whether they are paid on a commission basis or according to a fixed-wage arrangement In re [name withheld] (AAO May 16, 2008), published at 2008 WL ; In re [name withheld] (AAO Mar. 28, 2008), published at 2008 WL See In re Fang Lan Dankowski, 478 F. Supp. 1203, 1208 (D. Guam 1979) (where court cited Jeu Jo Wan v. Nagle, 9 F.2d 309 (9th Cir. 1925) which asserted that responsibilities of a teacher did not fall within the term trade as defined by the Immigration Act of The Fang Lan Dankowski court held that although the Immigration Act of 1924 was repealed, the rationale was still applicable in the context of defining foreign trade or commerce for expeditious naturalization purposes. In the case of In re Fang Lan Dankowski, the U.S. citizen spouse taught dependents of U.S. citizens engaged in foreign commerce and trade, but the court held that the teacher was not directly involved in foreign trade or commerce. ). 77 INS Interpretation 316.1(c)(6). Qualifying businesses have included CARE, United HIAS Service, Inc., American Jewish Joint Distribution Committee, Inc. and Catholic Relief Services. Id. INS reasoned that relief supplies, such as food and clothing, were purchased in the United States and then distributed to those in need throughout the world, and U.S. ship holding companies were contracted to transport the donated supplies abroad and bring the refugees to the United States. Id. 78 In Re [name withheld] (AAO Apr. 26, 2007), published at 2007 WL Cf. INA 316(b) (N-470 benefits available to persons employed by and under contract with U.S. Government); Interpretations 316.1(c)(4)(ii) (independent contractors with American firms not covered). 80 Matter of R-, 4 I. & N. Dec. 196, 203 (1950), citing Matter of O-, 2270-D (1944) (USO entertainer considered employed by or under contract with the Government of the United States ). 81 Interpretations 316.1(4)(i); Matter of R-, 4 I. & N. Dec. 196, 203 (1950). 12

16 The owner of a sole proprietorship i.e., a self-employed individual doesn t meet this definition of employed by the firm. 82 In contrast, the sole owner of a corporation who is also employed by that corporation may count as employed by an American firm. 83 Public International Organizations The regulations list the eligible public international organizations of which the U.S. is a member by treaty or statute. 84 The N-470 applicant must not have been employed with the public international organization until after becoming an LPR. 85 American Institutions of Research The eligible American institutions of research in which an N-470 applicant may be employed by or under contract to work for are listed in the regulations. 86 In some circumstances, USCIS will also regard research conducted abroad under a grant from a recognized institution of research as qualifying employment Expeditious Naturalization for a Spouse of a U.S. Citizen Employed Abroad Expeditious naturalization benefits are available to a person who meets the general requirements for naturalization, described in Part 1, if: 1. The applicant is married to a U.S. citizen at the time of filing for naturalization The citizen is in the employment of one of the following: o the U.S. Government; In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953). 83 In re Nathan, 114 F. Supp. 361 (S.D.N.Y. 1953). Contra INS Interpretations 316.1(c)(4) (citing Gen. Coun., No. 7-54, Feb. 5, 1954) C.F.R (b) and (c); Daniel Levy, U.S. Citizenship and Naturalization Handbook, 11:6. 85 INA 316(b)(1) C.F.R (a). 87 See Matter of M-J-, 8 I. & N. Dec. 520 (B.I.A. 1960); Interpretations 319.2(e)(5)(ii) (where the court found that a U.S. citizen conducting his doctoral dissertation abroad, through a fellowship grant by the Foreign Area Fellowship Program, a unit of a recognized American institution of research, the Social Science Research Council, was considered to be regularly stationed abroad in the "employment." According to the terms of the fellowship grant, the citizen spouse would need to devote most of his time to receiving training and engaging in research for which he would be compensated. The court agreed that the citizen's engagement abroad under these conditions amounted to "employment" in the broad sense of employment.) ; Daniel Levy, U.S. Citizenship and Naturalization Handbook, 11:6. 88 INA 319(b)(1)(A); 8 C.F.R (b)(3)(c). See 8 C.F.R. 319(b)(3)(c) (which states that if the marital union between the applicant and the U.S. citizen ends as a result of death of the U.S. citizen, divorce, or expatriation of the U.S. citizen at any time prior to naturalization, the applicant under this provision will become ineligible for expeditious naturalization, even if the applicant marries another U.S. citizen). 13

17 o an American institution of research recognized as such by the Attorney General; 90 o 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 ; 91 o a public international organization in which the U.S. participates by treaty or statute; 92 or o is (a) authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the U.S.; or (b) is engaged solely as a missionary with a religious denomination or an interdenominational mission organization having a bona fide organization within the U.S The U.S. citizen spouse is regularly stationed abroad in such employment The applicant is in the United States at the time of naturalization; The applicant is an LPR at the time of the naturalization interview The applicant will depart the U.S. to live abroad with the citizen spouse within 30 to 45 days after the date of naturalization. 97 And 7. The applicant declares in good faith an intention to take up residence within the United States immediately following the termination of such employment abroad of the citizen spouse Benefits of Expeditious Naturalization 89 INA 319(b)(1)(B). This requirement is the same as for an N-470 applicant, except that here it is not enough to be under contract with the U.S. Government. Cf. INA 316(b). 90 INA 319(b)(1)(B). This is the same requirement that applies to N-470 applicants, except that for expeditious naturalization it is not enough to be under contract with the institution and the applicant need not personally be carrying on scientific research on behalf of the institution. Cf. INA 316(b). 91 INA 319(b)(1)(B). This statutory requirement is the same as the N-470 requirement, with the following exceptions. (A) The statute here, unlike the N-470 statute, doesn t specify that the subsidiary must be more than 50 per centum owned by an American firm or corporation. Cf. INA 316(b). Nevertheless, the INS General Counsel has opined that the 50 per centum criterion should apply to expeditious naturalization too. INS General Counsel Opinion No , 1995 WL (B) There is no statutory requirement here that the employee personally be engaged in the development of such foreign trade and commerce or in protecting the employer s property rights. Cf. INA 316(b). 92 INA 319(b)(1)(B). This requirement is similar to N-470 requirement, except that for expeditious naturalization there is no requirement analogous to the N-470 requirement that the employment must not have been employed until after being lawfully admitted for permanent residence. Cf. INA 316(b). 93 INA 319(b)(1)(B). This requirement differs from the requirement for the N-470 application. For N- 470 purposes, brothers, nuns, or sisters are eligible. Cf. INA INA 319(b)(1)(C). 95 INA 319(b)(2) C.F.R (a)(2) C.F.R (b)(1). 98 INA 319(b)(3); 8 C.F.R. 319(a)(4)(i)-(ii). 14

18 One who meets the above requirements is exempt from the following regular requirements for naturalization: (a) continuous residence requirement before filing the naturalization application 99 ; (b) continuous residence in the U.S. between the time of filing and the naturalization examination 100 ; (c) physical presence requirement 101 ; and (d) state residence requirement. 102 In addition, the good moral character requirement is modified for expeditious naturalization. In a standard naturalization case, the applicant must prove good moral character during the required five years of continuous residence and up to the time of the naturalization ceremony. 103 To be eligible for expeditious naturalization, the applicant must show merely that he or she is a person of good moral character 104, with no test of prior character except as it may relate to present character. 4.2 Procedures As mentioned above, the general requirement that an applicant be an LPR at the time of filing the N is modified for expeditious naturalization so that the applicant need only be an LPR at the time of the naturalization interview. 106 So, for an applicant who resides abroad, it may be possible to file the N-400 at the same time that a Form I-130, Petition for Alien Relative, and immigrant visa application are pursued. 107 For an applicant who is a conditional resident, it s still possible to apply for expeditious naturalization. However, if you are within 90 days of the expiration of your green card or if your naturalization will not be completed before that date, you must also file Form I-751, Petition to Remove Conditions on Residence. If you have already filed your I-751, notify the USCIS office handling your naturalization case so that the I-751 can be adjudicated at the same time as the naturalization application. 108 Place of Filing Under the current USCIS instructions, you should file with the USCIS Lockbox. 109 Fingerprints 99 INA 319(b)(3) C.F.R (a)(2)-(3). 101 INA 319(b)(3). 102 INA 319(b)(3); AFM 73.4(h)(1). 103 INA 316(a) C.F.R (a)(5) C.F.R C.F.R (a)(2). 107 Robert C. Divine, Immigration Practice , 12-28, footnote USCIS Honolulu, Naturalization FAQ Sheet for Spouse of a U.S. Citizen Regularly Stationed Abroad: The Honolulu Process (May 10, 2004), N-400 Instructions at 6(rev. Mar. 22, 2012). 15

19 For applicants residing in the U.S., once your application has been filed, the USCIS National Benefits Center will mail you a notice telling you to report to a USCIS Application Support Service at a specified time to have your fingerprints taken. 110 The fingerprints are used by FBI to perform a criminal background check. Local USCIS offices not the National Benefits Center are responsible for expediting biometrics appointments and background checks. Still, the biometrics appointment notice is issued by the National Benefits Center. If the applicant hasn t received an appointment notice within 30 days of filing, an inquiry can be filed with the National Benefits Center. 111 Naturalization applicants who reside abroad provide to two completed FD-258 fingerprint cards prepared by USCIS, a U.S. consular office, or a U.S. military installation abroad. 112 In this instance, applicants should not include a biometric service fee for fingerprinting with the naturalization application. 113 Documents to Be Filed There is no special application form that needs to be prepared for expeditious naturalization. The following documents need to be filed, at a minimum 114 : 1. The N-400 filing fee 2. The biometrics fee (unless you reside abroad or are age 75 or older) 3. Form G-28, Notice of Appearance as Attorney 4. Form N Two identical photos per USCIS instructions. 6. A cover letter directed to the USCIS office where the case will be filed advising them that: a. You are applying for expeditious naturalization under INA 319(b). b. If you are residing overseas, say so; c. Specify the USCIS office where you wish to be interviewed and naturalized. d. You are not yet an LPR and will enter with an immigrant visa (if applicable). e. The dates you will be available and unavailable for interview, including the date you plan to depart from the U.S. 7. If you reside abroad, 2 sets of FD-258 fingerprint cards completed by a U.S. Consulate or USCIS?? 8. Your marriage certificate (together with proof of termination of all prior marriages of both parties); C.F.R (e)(2). 111 CSC & AILA Liaison Meeting Agenda (Nov. 19, 2008), AILA Infonet Doc. No C.F.R (e)(3) ( Individuals who require fingerprinting and whose place of residence is outside of the United States, must submit a properly completed Form FD-258, Applicant Card, at the time of filing the application or petition for immigration benefits. ) But see USCIS, A Guide to Naturalization 35 (M-476) (Jan. 2009) ( If you are living overseas, USCIS will tell you to have your fingerprints taken at a U.S. consular office. ) C.F.R., 103.2(e)(4)(2); see USCIS Form M-476: A Guide to Naturalization at 53 ( [I]f you are filing from abroad, do not send the biometric services fee with for fingerprinting with your application. ). 114 See generally USCIS, FAQ Sheet for Spouse of a U.S. Citizen Regularly Stationed Abroad, (last visited Aug. 5, 2009). 16

20 9. Proof of the U.S. citizenship of the citizen spouse (e.g., birth or naturalization certificate or ID page and signature page of U.S. passport) 10. An official affidavit from the citizen s employer, including: a. The title of the official making the affidavit, the name of the employer, and whether the official has access to the records of the employer. b. Date and state of incorporation. c. Explanation of how the employer counts as a U.S. firm or corporation. d. The nature of the employer s business. e. Whether the employing entity is engaged in whole or in part in the development of the foreign trade and commerce of the United States. f. The citizen spouse s type of employment (contract, regular employee, etc.) g. The nature of the activity in which the citizen spouse is engaged. h. The anticipated (committed) period of employment abroad. 11. A statement from the applicant regarding whether the applicant intends to reside abroad with the citizen spouse and whether the applicant intends to take up residence within the U.S. immediately upon the termination of the spouse s employment abroad Applicant s birth certificate Copy of both sides of applicant s Form I-551, Permanent Resident Card (if applicable). 14. Evidence of valid marriage: Tax returns for the past 3 years, bank accounts, leases, mortgages, or birth certificates of children. 15. Any other applicable documents listed in the USCIS M-477 Document Checklist Processing Times, Interview, Oath Ceremony, Passport Application See our firm s Naturalization Guide for information about these procedural matters. Please note that some USCIS offices, such as Honolulu, will require both the applicant and the citizen spouse to be present for the interview The U.S. Citizen Spouse Is Regularly Stationed Abroad A U.S. citizen spouse is regularly stationed abroad if he or she has proceeded or will proceed abroad for a period of not less than one year pursuant to an employment contract or orders and in fact assumes the duties of employment. 118 The contract or orders must have already been issued and must specify the term of employment C.F.R (a)(6), (7). 116 USCIS Honolulu, Naturalization FAQ Sheet for Spouse of a U.S. Citizen Regularly Stationed Abroad: The Honolulu Process (May 10, 2004), USCIS Honolulu, Naturalization FAQ Sheet for Spouse of a U.S. Citizen Regularly Stationed Abroad: The Honolulu Process (May 10, 2004), C.F.R (a)(1). 119 Daniel Levy, U.S. Citizenship and Naturalization Handbook, 11:6; Interpretations 319.2(c)(3)(ii). 17