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Prospective Naturalization Applicants Who Have Been Asked By Their U.S. Employer To Take A Job Abroad May Now More Easily Preserve Their Residence for Naturalization Purposes

Posted on Thursday, November 18, 2010

Are you a prospective naturalization applicant and have been asked by your U.S. employer to take a job abroad? If so, then preserving your residence for naturalization purposes has recently become somewhat easier.  On October 20, 2010, USCIS issued a decision from the Administrative Appeals Office ("AAO") regarding preserving one’s residence for naturalization purposes as binding precedent. In the decision, Matter of Chawathe,  the AAO reversed a denial of an applicant's N-470 Application to Preserve Residence for Naturalization Purposes on the basis that the applicant’s employer, ChevronTexaco Corporation, qualified as an American corporation for N-470 purposes. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010).

In order to be naturalized as a United States citizen, the Immigration and Nationality Act ("INA") requires in part that a person reside continuously in the United States as a lawful permanent resident for at least five years prior to filing an application for naturalization. The INA further provides that an absence from the United States for a continuous period of one year or more shall break the continuity of the required five-year period of continuous residence. However, no period of absence from the United States shall break the continuity of residence if a prospective naturalization applicant employed by an American corporation abroad (and who meets certain other criteria) files an application to preserve residence for naturalization purposes prior to the beginning of the overseas employment.

In Matter of Chawathe, the AAO acknowledged that, for purposes of preserving residence for naturalization, the nationality of a firm has traditionally been determined by tracing the nationality of those persons who own more than 51 percent of the stock in that firm.  This method of determining the nationality of a corporation, however, fails to address or take into account the difficulties of tracing the ownership interests and nationalities of modern, publicly held corporations that have thousands of stockholders and capital stock that is traded on a daily basis on the stock market. The AAO concluded that, for N-470 purposes, a publicly held corporation meets the definition of American firm or corporation if (1) it is incorporated in the United States and, (2) it trades its stock exclusively on U.S. stock markets. As such, if you are a prospective naturalization applicant and have been asked by your U.S. employer to take a job abroad, this AAO decision makes it somewhat easier to establish that your employer is an American corporation and thus to preserve your residence for naturalization purposes.

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