Interim Decision #3003 

MATTER OF GRAVES 

In Section 316(b) Proceedings 

A-23443197 

Decided by Commissioner November 13, 1985 

(1) It is not possible to construe the uninterrupted physical presence requirement of 

section 316(b) of the Act, 8 U.S.C. § 1427(b) (1982), to allow departures from the 

United States. INS v. Phinpathya, 464 U.S. 183 (1984), followed; INTERP. 

316.1(cX3) overruled. 

(2) The effect of Rosenberg v. Fleuti, 374 U.S. 449 (1963), cannot be extended to statutory schemes which include a rcoplirenacnt of uninterrupted or continuous physical presence. 

(3) An applicant's failure to establish that he or she has been present in the United 

States for an uninterrupted period of 1 year after lawful admission for permanent 

resident bars eligibility for preservation under oeulicni 310(b). 

(4) Any departure from the United. States for any reason or period of time bars a 

determination that an alien has been continuously physically present in the 

United States or present in the United States for an uninterrupted period during 

the period including the departure. 

ON BEHALF OF PETITIONER: Lydia 'rugendrajch, Esquire 

283 Broadway, Suite 760 

New York, New York 10279 

DISCUSSION: This matter comes forward on appeal from denial 

by the acting district director, Hartford. The appeal will be dismissed. 

I. FACTS 

The applicant is a native and citizen of the United Kingdom who 

was admitted to the United States for permanent residence on May 

12, 1982. He is an employee of ITT Rayonier, Inc., a wholly owned 

subsidiary of ITT Corporation. His employer desires to transfer him 

to its London office in the capacity of senior sales representative. 

The applicant seeks to preserve residence for naturalization purposes under section 316(b) of the Immigration and Nationality Act, 

8 U.S.C. § 1427(b) (1982). His application for that benefit was denied 

by the acting district director, Hartford, Connecticut, based on a 

non 
Interim Decision # 3003 

determination that the applicant had not been physically present 

and residing in the United States for an uninterrupted period of at 

least 1-year subsequent to his admission for permanent residence. 

Under the aegis of his employment by ITT, the applicant, in the 

period from May 12, 1982, to March 23, 1984, was absent from the 

United States for an aggregate of 108 days in that 680-day period. 

The 108-day aggregate absence was caused by a total of 15 business 

trips ranging from 1 to 16 days. Examination of any particular 1-

year period within the overall period would result in a roughly proportionate amount of international travel. 

II. THE APPLICANT'S ARGUMENT 

The applicant argues on appeal that the acting district director 

failed to assess the significance of his departures under the doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), regarding exclusion proceedings under section 212 of the Act, 8 U.S.C. 

§ 1182 (1082), whereby certain departures from the United States 

may be regarded as sufficiently insignificant as not to have occurred for purposes of law. The applicant argues that such an analysis is properly utilized in determining eligibility for preservation 

of residence under section 316(b). We disagree. 

III. THE LEGISLATIVE HISTORY OF SECTION 816(b) 

REQUIRES A STRICT INTERPRETATION OF THE PHYSICAL 

PRESENCE REQUIREMENT 

Although the published legislative history of this provision does 

not offer any specific information touching on this issue, the evolution of section 316(b) and its predecessors indicates quite clearly a 

steady tightening of the residence requirement_ The Act of March 

2, 1929, 45 Stat. 1512 (repealed 1940), provided that absences from 

the United States for periods of 1 year would break the continuity 

of residence for purposes of naturalization. 

Subsequently, however, Congress determined that some relief 

was warranted for aliens whose duties as employees of the United 

States required them to remain in foreign countries for extended 

periods of time. Congress consequently amended the residence requirements to allow permanent residents who had declared an intention to become United States citizens to reside abroad without 

breaking the 8-year residence required for naturalization. To qualify, such persons had to satisfy the Secretary of Labor, prior to 

leaving the United States, that the residence abroad was for the 

purpose of working for the United States Government, a United 

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States institution of research, or a United States firm engaged in 

the development of foreign trade. Act of June 25, 1936, 49 Stat. 

1925 (repealed 1940). 

This amended statute was found to be inadequate. It was discovered that aliens came to the United States for short periods of 

time, declared their intention to be naturalized, applied for and received the benefits of the statute, and then returned to their employment abroad. In re Pinner's Petition, 161 F. Supp. 337, 389 

(N.D. Cal. 1958), citing IT Rep. No. 2659, 75th Cong., 3d Sess. (1938). 

The statute was therefore further amended to limit its benefit to 

aliens who had resided in the United States for at least 1 year 

prior to applying for preservation of their United States residence. 

Act of June 29, 1938, 52 Stat. 1247 (repealed 1940). 

In 1952, Congress added the requirement that an alien be physically present in the United States for at least one half of the required 5-year residence period for naturalization. This requirement 

did not apply to aliens working for or under contract with the 

United States Government. The 1952 revisions did, however, add a 

new qualification to the 1-year residency requirement which was 

already in effect for such aliens. This new qualification required 

them not only to reside in the United States for 1 year, but to actually be continuously physically present in the United States during 

that time. Immigration and Nationality Act of 1952, section 316(b), 

8 U.S.C. § 1427(b). These provisions remain in effect. 

It is clear from this history of revisions to the residence and 

physical presence requirements that Congress intended to ameliorate the harshness of the requirements by providing some exemptions. It is equally clear that the exemptions were meant to be specific and exclusive. While Congress provided some relief from the 

usual residence and physical presence requirements for certain persons, it also levied specific conditions before this relief could ha 

granted. 

IV. THE "PHYSICAL PRESENCE" REQUIREMENT OF 

SECTION 316(b) CANNOT BE LIBERALLY CONSTRUED 

The crucial language in the section 316(b) exemption is that requiring a person to be "physically present" for an "uninterrupted 

period of at least one year." This language is very similar to the 

physical presence language of the suspension of deportation provision in section 244 of the Act, 8 U.S.C. § 1254 (1982). In addition, 

the history of the suspension of deportation provision is also very 

similar to that of section 316(b), an ameliorative provision made 

more restrictive over time, which provides a benefit to certain spe- 
Interim Decision #3003 

cific categories of people. For these reasons, section 316(b) and section 244 should be interpreted and applied consistently with one 

another. 

Section 244 of the Act states in part that an alien may be granted suspension of deportation if he has "been physically present in 

the United States for a continuous period of not less than seven 

years immediately preceding the date of such application." The Supreme Court in INS v. Phinpathya, 464 U.S. 183 (1984), held that 

this requirement was meant to be literally construed. The court 

stated that the "statutory switch from 'continuous residence' to 

`continuous physical presence' was no simple accident of draftsmanship." In the Court's view, the change was made to prevent 

abuses, and Congress would not have made the statutory change if 

it had been seeking only to require the maintenance of a "domicile 

or general abode." Id. at 191. The Court further stated that the 

"citizenship and suspension of deportation provisions are interrelated parts of Congress' comprehensive scheme for admitting aliens 

into this country," id. at 191-92, and that it is clear "that Congress 

intended strict threshold criteria to be met" before an alien could 

qualify for suspension of deportation. Id. at 195. 

In the face of this holding by the Supreme Court, construing 

similar language with a similar legislative history, it is not possible 

to construe the uninterrupted physical presence requirement of 

section 316(b) to allow departures. 

V. CONCLUSION AND ORDER 

The ameliorative effect of Rosenberg v. Pleuti, supra, therefore is 

not properly extended to statutory schemes premised on a requirement of continuous physical presence. We concur in the decision of 

the district director and we will dismiss this appeal accordingly. 

IT IS ORDERED: that the appeal be and the same is hereby 

dismissed.