WARRACH

                                                        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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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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corporation" within the meaning of section 316(b). 2 The 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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