A-7273061
Decided by the Central Office July 16, 1953
Absence during period required for naturalization — Eligibility under section 316 (b) of the Immigration and Nationality Act — Purpose of absence — Part-time employment abroad.
(1) A person is eligible for the benefits of section 316 (b) of the Immigration and Nationality Act if he is employed abroad on behalf of an organization specified in the section or the United States Government even though his motive in going or remaining abroad was not to accept such employment.
(2) Part-time employment is not sufficient to satisfy the requirements of section 316 (b) of the Immigration and Nationality Act unless the applicant devotes a substantial portion of his time to such employment. However, a person employed abroad as a language instructor by the United States Navy who handles all of the language requirements of the school operated by the United States Navy is considered as being abroad on behalf of the United States Government pursuant to that section even though such employment does not require his full time during the usual working day.
BEFORE THE CENTRAL OFFICE
Discussion: The alien filed an application for the benefits of section 316 (b) to cover his absence from the United States from July 14, 1952, to an indefinite date while employed by the Government of the United States. The case has been referred to this office by the New York office for an advisory opinion with respect to the following questions:
(1) Is a person eligible for the benefits of section 316 (b) when employment is undertaken while abroad for a purpose other than one specified in section 316 (b), in order that the applicant may remain abroad to fulfill such purpose; and
(2) Is part-time employment sufficient to satisfy the requirements of section 316 (b).
The applicant departed from the United States on February 23, 1952, in possession of a reentry permit. In his permit application he stated that his reason for going abroad was to visit his parents. On December 31, 1952, he executed an application for extension of the validity of the reentry permit stating that the application was being made because he was employed by the American Naval Command, Naples, Italy, as an Italian language instructor, and also because he was completing a language course at the University Oriental Institute, Naples, Italy. Under date of April 15, 1953, A.G. Pritschet, Superintendent, Headquarters Support Activities, United States Navy, Fleet Post Office, New York, N.Y., advised that the applicant was employed full time as a language teacher by the Headquarters Support Activities, United States Navy 510, Naples, Italy, beginning July 14, 1952; and that from January 16, 1953, he had been employed part time by the United States Navy as a language teacher in its American Dependents' School, Naples, Italy.
The applicant appeared at the New York office on July 3, 1953, and testified that prior to his departure from the United States he had matriculated in the University of Naples and that he left the United States for the purpose of taking a 2-year course in languages at that university; and that at the time of his departure it was his plan to remain in Italy until the completion of the first year of such course of study, and then return to the United States until the second year began, at which time he would again go to Italy. He exhibited a contract entered into with the Bureau of Naval Personnel, United States Navy, on July 14, 1952, to teach Italian at a school maintained for naval personnel, the contract to run until January 13, 1953. The applicant then testified that he was employed full time under the contract and that on January 16, 1953, 3 days after termination of the contract, he was engaged to teach at the American Dependents' School in Naples, also operated by the United States Navy, and that while such employment was part time he handled all the language requirements of the school. He further testified that throughout the period of his employment by the United States Navy in Italy, he continued his school work at the University of Naples, although he had to drop some courses during the period from July 1952 to January 1953, that he had taken employment with the Navy in order to help pay his expenses and enable him to complete his studies in Italy, and that he expects to return to Italy in August 1953 to complete his studies at the University of Naples. He also expects to resume his employment at the American Dependents' School, where he is to be employed on a full-time basis in the high school as language and physical education teacher.
The applicant executed the application under consideration on January 29, 1953, at which time his full-time employment had terminated and he was employed on a part-time basis in the Dependents' School.
Section 316 (b) of the Immigration and Nationality Act provides certain benefits for an alien employed abroad by or under contract with the United States Government provided that, among other things, he establishes to the satisfaction of the Attorney General that his absence from the United States was on behalf of the Government. The question here is whether the applicant was abroad on behalf of the United States Government when his purpose in going and remaining abroad was primarily to study at the University of Naples. It is believed that this question should be answered in the affirmative. When the applicant accepted employment with the United States Navy on July 14, 1952, he was abroad on behalf of the United States Government so long as he was employed by the Government regardless of his motive in accepting such employment. To hold otherwise would make it necessary to inquire into the motive in the case of each alien who accepts foreign employment by the United States Government. The primary motive of the alien in seeking foreign employment with the United States Government is immaterial so long as the alien is abroad on behalf of the Government.
The question as to whether part-time employment meets the requirements of section 316 (b) poses a more difficult problem. However, in this particular case it is not believed that the applicant was employed part time in the usual sense of the word. The applicant has testified that his employment from January 16, 1953, was on a part-time basis but that he handled all the language requirements of the school. Generally, when a person is employed to teach a particular subject in a school his employment is considered as full employment even though such employment does not require his full time during the usual working day. It is believed that this applicant can be considered as being abroad on behalf of the United States Government during the period from January 16, 1953, while he was employed as a language teacher by the American Dependents' School, Naples, Italy, and handled all the language requirements of the school.
Section 316 (b) of the act with respect to employment abroad is a restatement of section 307 (b) of the Nationality Act of 1940 with some changes which are not at issue in the question presented here. It has been held that under section 307 (b) of the Nationality Act of 1940 (A-1756732, October 18, 1946) an applicant for the benefits of that section must show 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, and that such occupation would not be merely incidental to his other activities or a subterfuge to avoid the requirements of the naturalization laws, and that it was not intended to permit exemption from the residence requirements of the Nationality Act by virtue of pro forma employment and a token payment of salary. The same requirements should be met by an applicant for the benefits of section 316 (b) of the Immigration and Nationality Act.
The answers to the questions asked by the New York office are:
(1) A person is eligible for the benefits of section 316 (b) of the Immigration and Nationality Act if he is employed abroad on behalf of an organization specified in the section or the United States Government even though his motive in going or remaining abroad was not to accept such employment.
(2) Part-time employment is not sufficient to satisfy the requirements of section 316 (b) unless the applicant devotes a substantial portion of his time to such employment. Employment which is only incidental to other activities will not suffice.
With respect to the subject applicant it is ordered that he be considered as being employed abroad on behalf of the United States Government from January 29, 1953, for so long as he was employed by the United States Navy.