Matter of Chawathe (BIA  2010)

Because the issued involved in citizenship cases are so straightforward, they rarely get appealed.  When it does happen, however, the lessons which emerge can be useful.  Matter of Cahwathe involved an employee of ChevronTexaco who had applied for naturalization.  In order to qualify for naturalization, he must establish, among other things, that he had resided continuously in the United States for at least five years prior to his filing an application.  Note that “reside,” for purposes of naturalization, is not the same thing as physically living in the U.S.   A person can “reside” in one place and be physically living in another.   However, a person who is physically outside of the U.S. for more than one year breaks the continuous residence period.  That is, a person may still be considered a continuous resident of the U.S., even if such a person is not physically present in the country, unless that period of absence is greater than a year. 

Section 316(b) of the INA provides for an exception to the above rule in situations where the applicant was physically absent from the country due to his or her job duties.  If the applicant can establish that his or her absence was due to employment by an American firm or corporation or a subsidiary of an American firm engaged in foreign trade, the applicant may still qualify for naturalization even if he or she had been living outside the country for more than a year.   At first glance, this seems to be a simple matter.  How hard can it be to prove that the company one works for is “American?”  In the past, USCIS used a formula whereby a company is considered American if 51% or more of its individual shareholders are American.  This works fine for small companies with few owners.  However, it is almost impossible for multinational corporations, such as ChevronTexaco which has issued billions of stock certificates to millions of shareholders.  In such cases, trying to establish the nationality for each shareholder is out of the question.  It was a situation which presented itself to the petitioner, whose application was originally denied by USCIS because he failed to establish that his employer was American during the time he worked overseas.

The petitioner appealed to the BIA, and thanks to his efforts, the immigration community has a more manageable way in which a company could be defined as American.   Based upon the BIA’s ruling on the case, a publicly held company would be considered American for immigration purposes if the petitioner established that it was incorporated in the U.S. and trades its stock exclusively on U.S. stock markets.  Along the same lines, a subsidiary of an American corporation would also be considered American if it is established that the parent company owned more than 50% of the shares of the subsidiary. 

In the age of giant multination corporations, this decision is a welcome one.  It makes the burden of proof for an petitioner more manageable and realistic.