In SECTION 316(b) Proceedings

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

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 * * *."

, 4 I. & N. Dec. 196, 203, it was determined that

In hatter of R

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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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