MATTER OF 111 -

In SECTION 316(b) Proceedings 

A-8768702 

Decided by Acting Regional Commissioner January 14, 1900 

Approved by Assistant Commissioner January 22, 1960 

Pesidence for naturalization—Study abroad under fellowship maintained by 

Public Health Service qualifies applicant for section 316(b) of 1952 act. 

An alien who will study abroad under a Special Research FellOwship Award 

established and maintained by the Public Health Service is eligible to preserve reaideuce fnr naturalization under section 316(h) of the 1952 at as a 

person employed by or under contract with the Government of the United 

States. 

BEFORE THE REGIONAL COMMISSIONER 

Discussion: The alien has tile. -1 an application for the benefits of 

section 316(b) of the Immigration and Nationality Act, to cover his 

absence from the United States from March 5, 195'3, to March 5, 

1961, while studying at the Lister Institute, London, England, and 

at the University of Cambridge, Cambridge, England. The district 

director has granted the application upon the ground that the applicant may properly be held to he employed by or under contract with 

the Government of the United States within the meaning of section 

316(h), and has certified the case to this office. 

The applicant was lawfully admitted to the United States for 

permanent residence on October 26, 1954. Since, that date he has 

been absent from the United States on only one occasion, namely 

from December 30, 1954, to October 28, 1957, on which latter tint( 

he was readmitted to the United States as a returning legal resident 

He has the uninterrupted period of at least one year of physica 

presence and residence in the United States, pursuant to his lawfu 

admission, which is required by the section of law under which hi 

application has been submitted. 

While abroad the applicant will be studying under a Special R,( 

search Fellowship Award established and maintained by the Pubt 

Health Service, Department of Health, Education and Welfar 

United States Government, the establishment and maintenance 

such fellowships being provided for by Public Law 655, 80th Co . 

- gress. One of the avowed purposes of this law is to provide fello

ships for and to use qualified persons, with a background such 

that possessed by the applicant, in the conduct of further resear 

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and investigation for the improvement of the health of the people 

of the United States. 

The Special Research Fellowship Award granted the applicant 

was bestowed upon him foliolAing his application therefor and following the. approval of his application by the Surgeon General, 

Department of Health, Education and Welfare. The record establishes that such scholarships are awarded to qualified research scientists who have demonstrated research accomplishment or research 

potential beyond the postdoctoral level and who desire specialized 

training for a specific problem. 

The applicant will receive a stipend of $5,500 annually, which 

amount is considered by the Department of Health, Education and 

Welfare to be a salary. He will receive a further sum of $422 in 

the form of a travel allowance. 

In passing upon the question of whether the applicant will be considered an employee or a student, the Department of Health, Education and Welfare has indicated the applicant must more appropriately be considered a student, since he will he receiving advanced 

cardiovascular research training, although, because of his already 

high degree of training, he will probably occasionally assist in 

teaching. However, the award letter supplement furnished the applicant incident to the award granted him described his fellowship 

in terms of being "official work" and mentions his entering "on 

duty." That letter further advises that "official work must begin 

within the inclusive dates stated in the award letter" and directs 

that "90% of a fellow's time must be spent in research and/or academic work"; that "they must not devote more than 10% of the 

working time available during the fellowship term to teaching and 

lecturing." The award letter referred to still further sets forth the 

procedure to be followed by a fellow desiring to change his sponsoring institution. Likewise mentioned therein is the fact that the 

vacation period is "not to exceed one month." A report on work 

accomplished during the fellowship is set forth as a requisite and 

advance notice is required of the fellow who desires to resign before 

the completion of the fellowship. 

The sole issue involved in this case is the matter of whether the 

applicant may be considered to be employed by or under contract 

with the Government of the United States. 

Webster's New International unabridged dictionary defines "employment" as "that which engages or occupies; that which consumes 

time or attention; also, an occupation, profession, or trade; service; 

as agricultural employments." Black's Law Dictionary defines "employment" in the following terms: "The act of hiring, implying a 

request and a contract for compensation * * *." 

In hatter of R , 4 I. & N. Dec. 196, 203, it was determined that 

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an applicant who was employed by the Air Transport Command, 

and who was also employed at the United States Consulate, was 

performing duties warranting a conclusion that he was employed 

by or under contract with the Government of the United States 

within the meaning of section 307(b) of the Nationality Act, which 

latter provision of law similarly provided for the preervation of 

residence. by one so engaged abroad. In the decision here cited, 

reference is also had to two unreported decisions which are pertinent 

in the present case. The first of these two latter decisions refers to 

a civilian guard at a post exchange, who was neither within the 

Civil Service nor in the employ of the United States Army, and 

whose wages were met solely from exchange profits, but who was 

held to be "in the employ of or under contract with the Government 

of the United States." The second such decision refers to the case 

of a USO entertainer who, although not a Civil Service employee 

or a member of the Armed Forces, was nevertheless held to be "in 

the employ of or under contract with the Government of the United 

States." In the last case here referred to the following statements 

were made concerning the matter of what constitutes employment: 

The source of whatever compensation they receive does not affect the capacity in which they actually serve. 

Employ means "to use, to have in service, to cause to be engaged in doing 

something," it does not mean to hire, but to use whether unr'er hire or not. 

It would appear that the purpose for which the applicant is abroad 

clearly brings his assignment within the definition of "employment" 

as set forth above. His time and attention will be almost entirely, 

if not entirely, absorbed in carrying on his research activities under 

the fellowship granted him by the United States Government,. 

Further, he must adhere to restrictions no less confining than an 

actual contract if he is to maintain eligibility under the fellowship 

accorded him. 

If a subject, may he regarded as being employed by or under contract with the Government of the United States when the Government pays his compensation only indirectly, which conclusion has 

already been reached in other cases, then it would seem that it mus 

surely be held that a subject is similarly engaged when he receive 

funds in the form of a salary directly from the Government. 

In the light of the foregoing, it is concluded that the applican 

must be regarded as being employed by or under contract with th 

Government of the United States within the contemplation of sectio 

316 (b) of the Immigration and Nationality Act. 

Order : It is ordered that the decision of the district directo 

finding the applicant to be employed by or under contract with ti 

Government of the United States within the meaning of section 3 

(b) of the Immigration and Nationality Act be and is herel 

approved. 

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