A-7708191
Decided by Central Office December 21, 1950
Status — Benefits under section 307 (b) of the Nationality Act of 1940 to cover an absence from the United States, for naturalization purposes.
(1) The relationship of employer and employee is not precluded merely because the applicant's remuneration is based on a commission from his employer rather than on a fixed wage (in connection with an application under section 307 (b) of the Nationality Act of 1940).
(2) Approval of an application (1946) for benefits under section 307 (b) ( supra), is not barred because of time-lapse if it was submitted timely with the necessary supporting evidence, but a request for additional information was not answered for years (1950) because the request was not received by the applicant; and in an appropriate case such approval may be for a longer period than originally requested.
(3) A civilian physician for our Air Transport Command abroad may be considered employed by or under contract with this Government, within the meaning of section 307 (b) ( supra).
(4) Substantial (constructive) compliance with section 307 (b) ( supra), and regulations governing an application thereunder, may be found under the circumstances here as to an application for such benefits executed abroad on October 17, 1947, but not delivered to this Service until the applicant's return in 1950.
BEFORE THE CENTRAL OFFICE
Discussion: This Service, on August 28, 1950, entered an order directing that the application of the above-named applicant for the benefits of section 307 (b) of the Nationality Act of 1940, to cover his absence from the United States for naturalization purposes from about July 25, 1946, to May 30, 1950, be denied. The applicant has requested reconsideration of his application and in support thereof submitted a statement of facts dated September 29, 1950, and personally appeared in support of his application at the Central Office of this Service. The application for reconsideration is presently before us for determination.
The record discloses that the above-named applicant was lawfully admitted to the United States for permanent residence on March 27, 1943, at New York, N.Y. He departed from the United States on July 25, 1946, and returned to this country on May 30, 1950, at which time he was readmitted to the United States upon presentation of a reentry permit. The applicant filed Declaration of Intention No. 543294 in the United States District Court, Southern District of New York on July 8, 1943, and his Petition for Naturalization No. 305811 in the United States District Court, Boston, Mass., on July 5, 1950.
One May 22, 1946, prior to the applicant's departure from the United States, he executed and filed an application for the benefits of section 307 (b) of the Nationality Act of 1940 to cover his absence from the United States for naturalization purposes from June 1946 "for about 1 year," during which time he was to be the sales representative in Casablanca, Morocco for the Boston Medical Supply Co. of Boston, Mass.
In support of this application the applicant submitted an affidavit executed May 15, 1946, by Mr. Leo Appleby, treasurer of the Boston Medical Supply Co., in which the affiant stated that the applicant was authorized to act as sales representative for the Boston Medical Supply Co. in French Morocco, North Africa; that the Boston Medical Supply Co. was an American firm incorporated in the State of Massachusetts engaged in the development of foreign trade and commerce of the United States in the sale of medical supplies, equipment, and sundries; that the applicant was authorized to solicit orders in behalf of the Boston Medical Supply Co. for the sale of medical supplies, equipment, and sundries, until notified by the company to the contrary, on the following terms: Each order subject to the company's written confirmation setting forth the price, quantity, and commission or other compensation due on each sale and all merchandise to be paid for by direct remittance in advance in United States currency, in cash, or letter of credit.
The record indicates that this Service, on July 9, 1946, sent a letter to the applicant at the address of the Boston Medical Supply Co. requesting that he forward a supplementary affidavit evidencing that he was proceeding abroad principally as an individual employed or under contract with an American firm or corporation engaged in the development of foreign trade and commerce of the United States and informing him that if the solicitation of orders in behalf of the company was merely incidental to other reasons for his trip abroad, his case would not be within the provisions of 307 (b) of the Nationality Act of 1940. During his interrogation under oath on July 5, 1950, before an officer of this Service, the applicant testified that he never received such letter; that he had left Massachusetts on July 8, 1946, to go to New York and wait for the ship which was scheduled to leave July 15.
In his statement of facts dated September 29, 1950, the applicant alleges that from the date of his arrival at Casablanca, he gave full time to his job as sales representative for the Boston Medical Supply Co.; that shortly after his arrival the French Government did two things which seriously interferred with his sales efforts: (1) It sold medical equipment at much lower prices; and (2) It refused to grant import licenses for all foreign products which were similar to those manufactured by French companies; that as a result, the applicant was able to sell only American medical equipment which did not compete with French products and such restrictions resulted in a curtailment of business; that in order to support his wife and son who had accompanied him from the United States to Casablanca he accepted other employment although continuing the original arrangement made with his American employer, the Boston Medical Supply Co.; that that company did not object to such additional employment for the reason that it realized that with the imposition of the French restrictions he and his family would starve unless additional revenue was made available and that if the applicant did not take other employment to support himself and his family, it would be necessary for him to return to the United States, thus wasting all of the preliminary work already performed in exploiting the sale of medical equipment in behalf of the Boston Medical Supply Co.
The record indicates that prior to his immigration to the United States the subject was a practicing physician in Casablanca, Morocco, and rendered valuable service as a medical officer to the United States Army during the hostilities of the African campaign and to the United States consulate. The record further indicates that in March 1947 the applicant was asked by the United States Army Air Transport Command to take medical care of the military personnel remaining in Casablanca; that this request was made by the United States Army for the reason that all medical officers of the United States Army previously stationed there were being withdrawn and the army hospital closed; that he was the only physician having adequate knowledge of the English language. The applicant stated that this employment continued for some period of time after 1948; that in the beginning this work required 6 hours a day but this was gradually reduced as more American forces left that vicinity; that he was paid by United States Government checks through the United States consulate.
In support of the applicant's statement concerning his employment with the Air Transport Command, he submitted an order dated March 6, 1947, by Colonel Birchard, Headquarters, 1252d AAF BU (inactive), European Division, Air Transport Command stating that:
1. This is to certify that Dr. A---- R----, general practitioner, 117, Boulevard de Lorraine, Casablanca, FM, will take care of all United States military personnel remaining in Casablanca from a medical and surgical standpoint and is authorized here with to enter Cazes Air Base at any time.
The above order was signed by Curtis F. Culp, Major, MC, Base Surgeon and by Thomas B. Nordan, Captain, Air Corps, Adjutant.
The applicant further stated that from 1947 to 1950 he was employed as an examining physician by the United States consulate in Morocco; that he was so employed for the reason that he was well known to the consulate staff by reason of his previous employment as a consular physician in Morocco from 1932 to 1943 and as a civilian medical volunteer attached to United States Army Headquarters, Western Task Forces during the years 1939 to 1942 when the United States armed forces invaded Casablanca during which time he did special highly important work for the United States Government at such risk to his own life that he was placed on a list of protected personnel compiled by the United States consulate since he would have had no protection in the event of capture by the enemy. He stated that each alien he examined paid his fee.
In support of the applicant's employment by the American consulate, Casablanca, Morocco, the applicant submitted a certificate dated May 17, 1950, signed by Walter S. Blair, vice consul of the United States of America, stating that:
I, Walter S. Blair, vice consul of the United States, hereby certify that Dr. A---- R---- has been in the employ of the consulate general as medical examining officer for the visa section from January 1947 to date. Dr. R---- also treated members of the consulate general's staff during this period.
Dr. R----'s services had been highly satisfactory. This certificate is issued in connection with Dr. R----'s return to the United States.
The applicant further stated that from 1947 to 1950 he was employed as a surgeon by the American Export Lines, an American company. In support of such employment the applicant submitted a letter dated May 20, 1950, on the letterhead of the American Export Lines, Inc., signed by Marcos J. Toledano, agent, certifying that:
A---- G---- R----, M.D., was employed by American Export Lines, Casablanca Agency, as surgeon, from October 1947 to this date. In this capacity he treated the crew on board American Export Lines vessels, attended sick sailors on shore and in the hospitals, and examined passengers proceeding to the United States.
Dr. R----'s services were highly successful and we regret his departure.
The applicant further stated that he was employed in Casablanca as an examining and consulting physician from about October 1946 to 1950 by the Socony-Vacuum Oil Co., an American company. In support of this employment the applicant submitted a letter dated October 3, 1947, on the letterhead of the Socony-Vacuum Oil Co. Inc., signed by its general manager at Casablanca, certifying that:
Dr. A---- R---- is recognized by Socony-Vacuum Oil Co., Inc., Casablanca, Morocco, as a physician authorized to grant a certificate of medical condition for — and to give treatment to the company's employees — American, European, and native.
Dr. R---- has been active in this capacity on behalf of the company since October 1946.
The applicant's continued employment with the Boston Medical Supply Co. notwithstanding his other employment as set forth herein is established by an affidavit by Leo Appleby, treasurer of that company, executed June 27, 1950, stating that Dr. A---- R---- acted as their sales representative in French Morocco from July 1946 to January 1950, inclusive.
The record establishes that although each individual employment required only a portion of the applicant's time, his entire time was utilized as an employee of the several employers enumerated herein.
The applicant's employments referred to herein are further verified by the fact that while abroad he submitted applications for extensions of his reentry permit on six occasions (April 11, 1947, October 17, 1947, April 5, 1948, October 7, 1948, and October 13, 1949), in which his stated reasons for requesting such extensions were that he might continue his employment as a physician with the United States Army Air Transport Command, American consulate, American Export Line, and the Socony-Vacuum Oil Co., all in Casablanca.
On October 17, 1947, the applicant appeared at the office of the consulate general of the United States of America, Casablanca, and there executed an application for the benefits of section 307 (b) of the Nationality Act of 1940 (Form 2363). This application was sworn to by the applicant before the vice consul. In support of this application the applicant submitted the order of Colonel Birchard dated March 6, 1947, previously referred to herein, claiming that his continued residence abroad was on behalf of the United States Government and would continue for an indefinite period. The applicant stated that the consulate did not inform him that this application was to be forwarded to this Service, but merely told him that he had done all that was necessary to protect his rights under the Nationality Act of 1940. This application was not delivered to this Service until after the applicant's return to the United States. The applicant states that he did not forward this application immediately following its execution for the reason that no mention was made of it at the consulate and since he had never heard from this Service concerning his original application of May 22, 1946, he was fearful that this second application might go astray if he tried to forward it from Casablanca.
A third application for the benefits of section 307 (b) of the Nationality Act of 1940 (Form N-470) was executed by the applicant on June 27, 1950, and filed with this Service on that date. This application sought to cover the applicant's absence for naturalization purposes for the period from July 1946 to May 30, 1950, and alleged that the applicant's absence from the United States for such period was on behalf of the United States Government and on behalf of American firms engaged in the development of foreign trade and commerce. In support of this application the applicant submitted the certifications from the American consulate general, the United States Army Air Transport Command, the American Export Lines, the Socony-Vacuum Oil Co., and the Boston Medical Supply Co. previously referred to herein.
The applicant contends that had he ever been informed or of the belief that he was jeopardizing his chance to apply for United States citizenship by reason of his absence from the United States he would never have remained abroad; that he was lulled into a sense of security that he qualified for the benefits of section 307 (b) when the data that he presented to the American consulate was there accepted as qualifying him for those benefits and no objections were raised as to his status as an employee of the Boston Medical Supply Co.; that his employment with the several organizations previously mentioned herein was useful and necessary in behalf of the United States Government and organizations connected with the development of general trade of this country; that he felt it was his duty to remain in Morocco as there were no American doctors present; that only the useful and urgent need of his work abroad kept him from returning to the United States earlier; that his return to this country in 1950 was made possible by the fact that two American doctors came to Casablanca; one at the end of 1949, the other in 1950, thus relieving him from his obligation to remain.
The applicant further stated that upon his return to the United States he resumed his employment as a medical officer at the Soldiers' Home and Hospital, Chelsea, Mass., in which institution he had been a medical officer prior to his departure from the United States in 1946; that his work there is devoted exclusively to the care and treatment of the American veterans of World Wars I and II; that his license to practice medicine was granted conditionally and required his acquiring United States nationality not later than July 1953; that if such nationality is not then acquired his license to practice medicine will be revoked; and that if his application for the benefits of 307 (b) is not granted, it will be necessary for him to obtain a new declaration of intention and he could not thereafter become a citizen of this country until a date too late to protect his conditional license.
Re: Application Executed May 22, 1946
The application executed and filed with this Service in May 1946 was proper in all respects and the affidavits submitted in support thereof adequately established that the applicant's absence from the United States was to be as an employee of an American firm for the purpose of engaging in the development of its foreign trade and commerce. The fact that the applicant's remuneration was based upon a commission rather than a fixed wage does not by itself preclude the relationship of employer and employee. Matter of K----, A-6231138 (September 8, 1949); Matter of S----, A-6194840 (August 8, 1949); Matter of K----, A-7613410 (May 11, 1949). The facts presented are clearly distinguishable from Matter of D----, A-6854090 (December 14, 1949) in which the alien was to look solely to his customers for his income and not to the firm whose merchandise he was selling. The instant case is likewise clearly distinguishable from Matter of C----, A-7068510 (January 11, 1950), in which the alien purchased merchandise from the American firm which he in turn resold to others his remuneration being the difference between the price he paid for the merchandise and the price for which he resold it. The fact that this Service by letter dated July 9, 1946, requested additional information establishing that the applicant's employment was his principal reason for departing from the United States, which additional information was not submitted until after the applicant's return to this country in 1950 due to the fact that such letter was never received by him, does not warrant a denial of that application. Matter of R----, A-6301314 (July 31, 1950). As the application for the benefits of section 307 (b) with the necessary supporting evidence was submitted within the time required by the regulations, it may be approved for a period from July 1946 to an indefinite date thereafter notwithstanding that the original period requested was only for one year.
The approval of the application dated May 22, 1946, confers the benefits of 307 (b) upon the applicant only so long as his employment with the Boston Medical Supply Co. constituted the principal reason for his continued absence from the United States. From all of the evidence of record it appears that his employment with the Boston Medical Supply Co. ceased being his principal reason for remaining abroad on or about March 1947 at which time by reason of certain regulations of the French Government the applicant could no longer perform the duties for which he had been sent to Morocco. Since his residence abroad was protected up until March 1947 by the approval of his application executed May 22, 1946, it was necessary for the applicant to either return to the United States within a year of March 1947 or within that period apply for and receive the benefits of section 307 (b) upon a showing that he was then entitled to those benefits.
Re: Application Executed October 17, 1947
As noted herein the applicant executed an application for the benefits of section 307 (b) on October 17, 1947, before a consular officer of the United States at Casablanca. This date was within the year during which such application was required to be submitted. This application was predicated upon the alien's employment by the United States Army Air Transport Command and the Socony-Vacuum Oil Co. In addition to such employment it has been established that on that date the applicant was also employed by the United States consulate general as a medical examining officer and by the American Export Lines, Inc.
With reference to the applicant's employment with the Air Transport Command and the United States consulate, it is noted that the applicant was not a member of the Armed Forces, military or civilian, and not a civil-service employee of this Government. Nevertheless, his duties warrant the 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 of 1940. Matter of C----, A-2941434 (1949), where 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, was held to be "in the employ of or under contract with the Government of the United States"; Matter of O----, 2270-D-460267 (1944), where a USO entertainer who was not a civil-service employee or a member of the Armed Forces was held to be "in the employ of or under contract with the Government of the United States."
Concerning the fact that in connection with his employment with the consulate the alien applicants for immigration who were examined by the applicant paid his fee, attention is directed to Matter of O---- ( supra), wherein this Service stated:
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 under hire or not."
The applicant's employment with joint distribution committee is not being considered in the disposition of his application since it has not been established that that organization is engaged in the furtherance of the trade and commerce of the United States.
There can be no question but that the alien's employment with the consulate general must have been a fact known to the vice consul before whom the application was executed. Since the alien based this application on his service with the Air Transport Command and in view of his testimony that in the beginning of his employment with that command he spent approximately 6 hours per day in such employment, the conclusion is warranted that on October 17, 1947, his residence abroad was occasioned principally by such employment. For the reasons hereinbefore set forth this application although duly executed and supported by the required document was not filed with this Service until June 1950, following the subject's return to the United States.
It is to be noted that in the alien's application for an extension of his reentry permit executed April 11, 1947, he informed this Service that the extension was desired because of his furnishing medical and surgical treatment to United States Army personnel remaining in Casablanca at the request of the United States Army. This extension was granted. In his application for extension of his reentry permit executed October 17, 1947, the applicant stated that his continued residence abroad was necessary by reason of his acting as a physician for the United States Army Air Transport Command and the Socony-Vacuum Oil Co. This application for an extension was granted. In a third application for an extension of his reentry permit executed April 5, 1948, the applicant stated that his continued residence abroad was required by reason of his employment as a physician for the Socony-Vacuum Oil Co., the United States consulate, and the United States Army Air Transport Command. This application was granted. In the next application for an extension of his reentry permit executed October 7, 1948, the applicant stated that his continued residence abroad was required by reason of his employment as a physician for the American Export Lines, the Socony-Vacuum Oil Co. and the United States consulate. This application was granted. In the next application for an extension of his reentry permit executed April 7, 1949, the applicant stated that his continued residence abroad was required by reason of his employment as a physician by the American Export Lines, the Socony-Vacuum Oil Co., the United States consulate and the American Joint Distribution Committee. This application was granted. In this last application for an extension of his reentry permit executed October 13, 1949, the applicant stated that his continued residence abroad was required by reason of his employment as a physician by the joint distribution committee, the United States consulate, the Socony-Vacuum Oil Co., and the American Export Lines. This application was granted.
In Matter of F----, 246-D-95777 (August 17, 1942) the alien requested advice from this Service on May 24, 1940, and June 8, 1940, as to the effect of his contemplated departure from the United States for more than 6 months while in the employ of this Government. He departed on July 16, 1940, without receiving a reply and without submitting an application. Since August 5, 1940, he has been employed with the United States Army.
The record in the case indicated that on September 18, 1940, in replying to one of the alien's letters this Service mailed to the alien an application form required to be submitted in protecting residence for naturalization purposes while residing abroad. The alien later informed this Service that during November 1940 he executed and mailed to this Service the application but no record of its receipt appears. On February 20, 1942, the alien filed a new application.
The Service concluded that had the alien been promptly informed he would have been entitled to the benefits of the statute; that his letters to this Service contained the information essential to establish his right to those benefits; and that the application allegedly mailed to this Service in November 1940 should be considered as having been received by this Service inasmuch as his other communications addressed to this Service had been received. In view of the equities involved this Service concluded that the case should be considered on its merits without strict adherence to the formalities or procedure and granted the alien the benefits of the statute to cover his absence from the United States from August 5, 1940, to an indefinite date thereafter.
In Matter of M---- T----, A-6266616 (August 21, 1950) the alien filed an application on July 12, 1950, for the benefits of section 307 (b) of the Nationality Act of 1940 to cover his absence from the United States for naturalization purposes from February 11, 1949, to May 3, 1950, while employed abroad.
The facts in that case indicate that prior to his departure he approached an officer of this Service for the purpose of executing Form N-470; that the officer advised him that the execution of such an application was unnecessary in view of his then contemplated absence of about 6 months; that when he requested advice as to the effect of his possible extension of absence, the officer informed him that a letter from his company explaining the delay would "right the situation"; that the alien's wife informed this Service by letter that her husband had been unavoidably detained abroad and requested postponement of his petition and stated that the applicant was looking forward to the opportunity to file for citizenship and to "make it possible for him to appear according to your wishes and to abide by your rules and regulations." These letters were not answered by this Service.
In addition, the alien's employer informed this Service by letter concerning the necessity of the applicant's continued absence and requested advice as to anything further that had to be done in the matter. This letter was not answered.
Because of the equities involved in that case this Service concluded that the applicant had constructively met the requirements of the regulations with regard to the timely submission of an application for the benefits of section 307 (b) and his application was approved to cover his absence from February 12, 1949, to May 3, 1950.
In Matter of H----, A-6011590 (July 5, 1950), the alien executed an application on Form N-470 on June 6, 1950, for the benefits of section 307 (b) of the Nationality Act of 1940 to cover her absence from the United States for naturalization purposes from June 7, 1948, to an indefinite date thereafter, while employed abroad.
The record in that case indicated that the applicant on June 21, 1948, executed an application for extension of reentry permit under oath before the vice consul of the United States of America at Bombay, India, in which she stated that she had departed from the United States on September 2, 1947, and in support of her application for an extension she stated that she was employed by an American firm engaged in the development of United States foreign trade and that she did not want to risk losing the right to become a United States citizen or her 3 years' continuous residence in the United States and that if her reentry permit could not be extended without breaking the continuity of her residence required for admission to citizenship, that the reentry permit be returned in such time as to enable her to return to the United States before the expiration of the reentry permit. Attached to the application for the extension was a statement dated June 11, 1948, from the alien's employer confirming her employment as of June 6, 1948.
The reentry permit was extended and returned to the petitioner with a form letter containing no information as to the procedure the subject was to follow in order to obtain the benefits of section 307 (b). The alien requested a further extension of her reentry permit advancing the same reasons as in her first application for an extension and requesting that if the extension would entail the breaking of the continuity of residence required for admission to citizenship that she be so informed. One further extension was granted and again returned to the alien with a form letter with no information regarding section 307 (b).
Because of the equities involved this Service concluded that under the circumstances of the case the application for extension of the reentry permit be properly considered as an application for the benefits of section 307 (b) of the Nationality Act of 1940 and since this was mailed on June 21, 1948, and received by this Service on July 6, 1948, prior to the expiration of 1 year following the subject's departure from the United States, it was timely as contemplated by the appropriate statute and could be acted upon at that time.
In Matter of W----, A-6496504 (July 5, 1950), the alien executed an application on April 20, 1950, to cover her absence from the United States from December 1, 1948, to an indefinite date thereafter while abroad in the employ of International Engineers, Inc.
The facts in that case indicate that prior to her departure from the United States on December 1, 1948, the subject obtained a reentry permit on the basis of an application dated September 27, 1948, which stated as her reason for going abroad the fact that her employer desired that she serve as a secretary and translator in Europe and that the firm and its subsidiaries were engaged in the development of foreign trade and commerce of the United States of America.
The facts further indicate that on August 1, 1949, the alien addressed a letter to this Service transmitting her reentry permit with a request for extension in which she inquired as to whether her absence from the United States would delay her becoming eligible for naturalization and expressed the belief that since she was working for an American company, that her absence would not break the continuity of her residence. She requested confirmation of that fact. With that letter the alien submitted a letter from her employer in which he confirmed her employment abroad since January 12, 1949. The reentry permit was extended and returned to the subject without comment concerning the effect of her extended absence on her residence for naturalization purposes.
On December 6, 1949, the alien again requested confirmation of her belief and on December 16, 1949, this Service informed her that if she did not file an application for the benefits of section 307 (b) prior to the expiration of 1 year following the date of her absence, the continuity of her residence was broken.
Because of the equities involved in that case this Service concluded that her letter of August 1, 1949, be considered as an application for the benefits of section 307 (b) and a constructive compliance with the requirement that such application be made prior to the expiration of 1 year following her departure from the United States. Her absence from the United States from December 1, 1948, to an indefinite date thereafter was approved.
The application of the subject applicant executed October 17, 1947, was supported by documentary evidence establishing the applicant's employment by the United States Army Air Transport Command for an indefinite period from March 6, 1947. On the basis of the cases above cited the conclusion is warranted that this application, although it was not filed with this Service until after the alien's return to the United States, plus the information supplied to this Service in the six applications for extensions of his reentry permit be considered substantial compliance with the statute and regulations and that the alien be granted the benefits of section 307 (b).
Order: It is ordered that the application for reconsideration be granted.
It is further ordered, That upon such reconsideration, the order of this Service dated August 28, 1950, be and the same is hereby withdrawn.
It is further ordered, That A---- R---- be granted the benefits of section 307 (b) of the Nationality Act of 1940 to cover his absence from the United States from July 25, 1946, to March 1947 and from October 17, 1947, to an indefinite date thereafter predicated upon his employment with the Boston Medical Supply Co., the Socony-Vacuum Oil Co., the American Export Lines, Inc., the United States Army Air Transport Command, and the American consulate general all of such employment having been performed in Casablanca, Morocco, Africa, with the understanding that he shall prove to the satisfaction of the court wherein his admission to United States citizenship is proposed that he has been absent during those periods for the purposes described in the application and shall to the satisfaction of that court overcome the presumption raised by the statute that the continuity of residence required for naturalization has not been broken by reason of his absence from the United States for the period from March 1947 to October 17, 1947, an absence of more than 6 months but less than 1 year.