Interim Decision II 2769 

MATTER OF WARRACH 

In Section 316(b) Proceedings to Preserve 

Residence for Naturalization Purposes 

A-20614277 

Decided by Regional Commissioner March 16, 1979 

An Application to Preserve Residence for Naturalization Purposes under section 316(b) 

of the Immigration and Nationality Act, 8 U.S.C. 1427(b), does not lie, and will be 

denied, where the employing corporation (which is incorporated in the United States) 

is the subsidiary of a foreign parent corporation which holds over 51 percent of its 

stock. Under these circumstances, the employing corporation is not an American 

corporation, but a foreign corporation, having the nationality of the majority 

stockholders. 

ON BEHALF OF APPLICANT. D. G. Reese, Manager 

Foreign Transfer Programs 

Mobay Chemical Corporation 

Parkway West 

Pittsburgh, Pennsylvania 15205 

This case is • before us on appeal from the decision of the District 

Director, Philadelphia, Pennsylvania, dated October 13, 1978, denying 

the appellant's Application to Preserve Residence for Naturalization 

Purposes under 316(b) of the Immigration and Nationality Act, 8 

U.S.C. 1427(b). The application was denied upon the ground that the 

appellant was not employed by an American firm or corporation, 

within the meaning of section 316(b) of the Act. 

Upon appeal, the appellant does not take issue with the basis of the 

Philadelphia District Director's denial order but urges, instead, that 

the appellant's absence from the United States is necessary to the 

protection of certain corpOrate property rights located abroad of the 

American subsidiary of the foreign parent corporation which employs 

the appellant. 

The appellant became a lawful permanent resident alien of the 

United States on November 12, 1974. He has resided in the United 

States for an uninterrupted period of at least 1 year from that date. He 

has been employed by the Mobay Chemical Corporation of Pittsburgh, 

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Interim Decision # 2769 

Pennsylvania, since November 1973. Mobay Chemical Corporation was 

incorporated under the laws of the State of New Jersey on October 1, 

1971. The corporation is a wholly-owned subsidiary of Bayer A.G. of 

West Germany. The appellant was sent to the parent company in 

Germany on October 1, 1978, to develop European markets for a 

product developed by his American-based employer. His overseas employment will necessitate his presence in Germany from October 1, 

1978, to September 30, 1980. Pursuant thereto, the appellant submitted 

an Application to Preserve. Residence for Naturalization Purposes, 

Form N-470, on May 23, 1978, under the provisions of section 316(b) of 

the Act. The application was denied by the Philadelphia District 

Director on October 13, 1978, and this appeal results. 

Section 316(b) of the Actl requires an alien, if he wishes to preserve 

residence for naturalization purposes, to have been physically present 

and residing in the United States, after being lawfully admitted for 

permanent residence, for an uninterrupted period of at least 1 year 

prior to his employment abroad. His employment in this connection 

must be 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 percent of whose stock is 

owned by an American firm or corporation. The appellant must establish, therefore, that he has complied with this statutory requirement if 

he is to obtain extended absence benefits covering his employment 

abroad by the Mobay Chemical Corporation at the Bayer A.G. in 

Germany from October 1, 1978, to September 30, 1980. 

The Immigration and Naturalization Service has previously held 

that when it is shown that 51 percent or more of the stock of the 

employer corporation is owned by a foreign firm, such firm is a "foreign 

Sec. 816(b). 

Absence 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 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— 

(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 that his absence from the 

United States for such period is ... to he engaged in the development of such foreign 

trade and commerce .. 

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Interim Decision #2769 

corporation" within the meaning of section 316(b). 2The fact that a firm 

is incorporated under the laws of a state of the United States does not 

necessarily determine that it is an American firm or corporation. The 

nationality of such firm would be determined by the nationality of 

those persons who own more than 51 percent of the stock of that firm. 

Since that principal stockholder of Mobay Chemical Corporation is 

Bayer A.G., a German corporation, the American-based subsidiary 

must be considered a foreign corporation for purposes of preservation 

of residence under section 316(b) of the Act. Accordingly, it must be 

concluded that the appellant's application does not come within the 

purview of section 316(b). 

Based upon the foregoing, the appellant has not complied with the 

specific statutory requirement that an alien who seeks to preserve 

residence for naturalization purposes under section 316(b) must establish that he is employed by an American firm or corporation. There is 

no provision of law or regulations which permits a waiver of this 

requirement. It is, therefore, concluded that the action of the Philadelphia District Director in denying the application to preserve residence 

was proper, and his decision will be affirmed. 

ORDER: The decision of the District Director, Philadelphia, Pennsylvania, dated October 13, 1978, denying the application of the above 

named to preserve residence for naturalization purposes be and the 

same is, hereby, affirmed. 

Matter of N—S—, 7 1&14 Dec. 426 (D.D. 1957; C.O. 1957). 

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