Interim Decision 7z loo 

MATTER OF WU 

In Section 211(b) Proceedings 

A-8853045 

Decided by Regional Commissioner February 27, 1973 

Despite applicant's relatively short stays in the United States, denial of his 

application for a reentry permit under section 223, Immigration and Nationality Act, on the ground that his absence abroad was not temporary was 

incorrect where he has maintained ties in this country, his absences were in 

connection with his employment abroad for an American firm, and an 

application under section 316(b) of the Act to preserve continuity of his 

residence for naturalization purposes while employed abroad by such firm had 

previously been approved. Hence, he never lost his lawful permanent resident 

status and was entitled to admission as such upon application on October 28, 

1972, with a nunc pro tune waiver of the returning resident visa requirement 

pursuant to section 211(b) of the Act. 

ON BEHALF 0FAPPLICANT: Julius Kaplan, Esquire 

1218 Sixteenth Street, N.W. 

Washington, D.C. 20036 

The District Director, Washington, D.C., granted the application 

and then pursuant to 8 CFR 103.4 certified this case to me for 

review and final decision. 

The applicant is a native and citizen of China, born November 3, 

1933. He first entered the United States on February 13, 1955, as a 

nonimmigrant student. He has received a Bachelor of Arts and 

Master of Arts degrees from universities in the United States. 

Under section 245 of the Act, his status was adjusted to that of 

lawful permanent resident on January 27, 1967. Since September 

5, 1967, he has been and continues to be employed in an executive 

capacity by the International Basic Economy Corporation (IBEC). 

The latter is an American diversified operating company with 

subsidiaries abroad. It is substantially involved in the development of private enterprise overseas. During April 1968, IBEC 

assigned applicant to Japan to coordinate various matters involving finance, public relations, marketing programs, and the development of foreign trade and commerce of the United States. 

On February 1, 1968, applicant filed with the District Director of 

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the Service at New York an Application to Preserve Residence for 

Naturalization Purposes under Section 316(b) of the Act. This 

application was approved on February 9, 1968, by the following 

order signed by the District Director: 

It is ordered that the within-named applicant be granted the benefits applied 

for in this application to cover absence from the United States from the date 

stated therein to an indefinite date thereafter so long as he remains in the 

employment and is absent for the purpose alleged therein. 

Section 316 of the Act sets forth the residence requirements that 

a lawful permanent resident must meet to establish eligibility for 

naturalization as a United States citizen. Section 316(b), in part, 

provides for certain exceptions to the required continuous residence available to certain classes of aliens, one such class being 

aliens employed by an American firm or corporation engaged in 

whole or in part in the development of foreign trade or commerce 

or a subsidiary thereof more than 50 per centum of whose stock is 

owned by the American firm or corporation. 

The record shows that on January 27, 1968, applicant was issued 

a reentry permit pursuant to section 223 of the Act; that since his 

departure from this country during April 1968 he has been 

readmitted to the mainland United States on five occasions as a 

returning laviful resident upon presentation of a valid reentry 

permit; that on January 11, 1972, he entered at Agana, Guam for 

the purpose of applying for a new reentry permit because the 

permit he was then holding would expire on January 15, 1972. 

The District Director at Honolulu, Hawaii denied the application 

for a new reentry permit on the ground that applicant failed to 

establish he had a permanent residence in the United States or 

that his stay abroad was temporary within the meaning of section 

223 of the Act. The Regional Commissioner having jurisdiction 

over the Honolulu District of the Service dismissed the appeal 

from denial of the application. The Regional Commissioner concurred in the finding that applicant's absence from this country 

was not temporary. He pointed out that section 223 of the Act 

states in part "Any alien lawfully admitted to the United States 

. . . who intends to depart temporarily from the United States 

may make an application to the Attorney General for a permit to 

reenter...." and cited Matter of Sehonfeld, 10 I. & N. Dec. 669. The 

Regional Commissioner found that Matter of Manion, 11 I. & N. 

Dec. 261, relied on by counsel for applicant, was not applicable. 

The applicant applied for admission to the United States at 

Washington, D.C. on October 28, 1972. His inspection was deferred. 

During the course of the further inspection, he continued to claim 

that he had not lost his status as a lawful permanent resident. He 

filed an Application for a Waiver of a Returning Resident Visa 

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under Section 211(b) of the Act. As stated above, the District 

Director, Washington, D.C. approved the waiver application and 

found applicant admissible as an immigrant lawfully admitted for 

permanent residence who is returning from a temporary stay 

abroad. 

Additional evidence is before me which was not of record at the 

time applicant's last application for a reentry permit was denied. 

It includes copies of applicant's federal income tax returns for the 

years 1968 through 1971. He filed those returns as a resident alien. 

Ii would have been to his pecuniary advantage to file as a 

nonresident alien. Evidence has been submitted that since February 1968, he has maintained a checking and a savings account 

with a bank in the United States as well as an account with a 

large brokerage firm in this country. 

In Matter of Sehonfeld, supra, the applicants were a mother and 

14-year old daughter who within three weeks after admission 

applied for reentry permits to return to their home country about 

one month after their first arrival. The permits were issued. 

Subsequently two more permits were issued to them. At the time 

of their last application for reentry permits, it was found that 

during the four year period following their initial admission for 

permanent residence they had resided in this country less than 

two months. Clearly, they had not established an actual residence 

in this country and their proposed departure was not temporary. 

I do not believe that the facts in the instant case come within 

the purview of Schonfeld. They do substantially come within the 

ambit of Matter of Manion. In Manion, the applicant was admitted 

for lawful permanent residence on January 15, 1959. On and before 

that date he was employed abroad in an executive capacity by an 

American firm engaged in international trade. On January 19, 

1959, December 21, 1959, January 10, 1961, February 7, 1962 and 

April 15, 1963, he applied for reentry permits for the purpose of 

proceeding abroad on business in the same employment. Each of 

these applications was approved. He was still so employed in 1965 

when he applied for another reentry permit. 

When his employment permitted, Manion intended to return to 

and remain in the United States and acquire United States 

citizenship. He was found eligible for and was issued another 

reentry permit in 1965. Manion was divorced and his children lived 

in the United States with his sister. 

The wife of the applicant in the instant case is a lawful 

permanent resident. One of their children was born in this country 

and has a United States passport. A second child is the beneficiary 

of an approved second preference visa petition filed by the applicant. This will facilitate the issuance of an immigrant visa to the 

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child when the applicant and his family return to reside in the 

United States upon termination of his assignment abroad by his 

employer. 

There is no question that the applicant is otherwise admissible 

to this country under our immigration laws. Unlike Schonfeld, he 

and his wife did establish a residence in the United States prior to 

his going abroad to serve in an executive capacity for IBEC. 

I believe one purpose of section 316(b) was to benefit an American firm engaged in developing international trade by permitting 

its lawful permanent resident aliens to retain the continuity of 

their residence for naturalization purposes while employed abroad 

by such firm. It is inconsistent with the objectives of section 316(b) 

to hold that an alien who has been found eligible for the benefits 

thereof has lost his status as a permanent resident solely because 

of his extended absences abroad in the employment of the American firm. The applicant herein has at all times taken every action 

available to him under the applicable statutes to retain his status 

as a lawful permanent resident and to preserve his continuity of 

residence for naturalization as a citizen of the United States. 

The applicant applied for admission to the United States on 

October 28, 1972, for the precise purpose of testing his admissibility 

as a returning resident. On or about November 12, 1972, before a 

decision had been made, the applicant departed from the United 

States after informing the district director that the departure was 

necessitated by urgent business matters. Ordinarily, the applicant's departure would be considered to have rendered moot his 

application for admission. However, under the circumstances of 

this case, and particularly since the district director recognized 

that the alien's last application for a reentry permit may have 

been denied erroneously, the district director agreed to consider 

the application for admission, and I concur in that determination. 

I have carefully reviewed the entire record, including representations by counsel for applicant. Based upon the evidence before 

me, I find applicant's absences from this country have been and 

continue to be temporary and that he has never lost his status as 

a lawful permanent resident. Accordingly, the following order will 

be entered. 

ORDER: It is ordered that the application under section 211(b) 

of the Act for a waiver of the returning resident visa be and the 

same is hereby approved nuns pro tune as of October 28, 1972. 

It is further ordered applicant's admission as a lawful permanent 

resident be recorded as of October 28, 1972. 

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