MATTER OF 1- 11
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
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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 .
- gres.Onofthavwdpurseilatopvdef
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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