PISCIOTTA

                                                    Interim Decision #1381




                           MATTER OF PISOTOTTA

                   In VISA PETITION Proceedings

                                 .A-12338226
                    Decided by Board Aseguet 1.9,1984

Since the approval of the prior visa petition filed by beneficiary's first wife to
  accord him nongnota status was revoked and such revocation resulted in the
  denial of hie application for adjustment of statue under section 246, Immigration and Nationality Act, as amended, beneficiary has not been previously
  accorded a nonquota status within the meaning of section 205(c) of the Act,
  as amended Dimarante v. Rosenberg, 

 (CA. 9, 1964) j.

  The case comes forward on appeal from the order of the Officer in
Charge, Palermo, Italy dated April 3, 1964 denying the visa petition
for the reasons more fully set forth in the attached order of April 2,
1964 accompanying such denial.
  The facts are summarized in the memorandum accompanying the
order. The petitioner, a native and citizen of the United States, 32
years old, seeks nonquota status on behalf of the beneficiary, a native
and citizen of Italy, 32 years old. The parties were married at
Palermo, Italy on October 19, 1963. The petitioner was not previously
married. The beneficiary was previosuly married to a citizen of the
United States on August 16, 1961 in Hempstead, Long Island, New
York. This marriage was terminated by annulment by decree of the
Supreme Court of New York, Nassau County, New York in an interlocutory judgment dated April 19, 1963 which became final as of course
three months after the entry and filing, the filing date being April 22.
1963. The petitioner and the beneficiary are cousins. A certificate
reciting their marriage on October 19, 1963 at Palermo, Italy has been
submitted and it is assumed that the marriage is valid. Both the
petitioner and the beneficiary have executed sworn statements at
Palermo, Italy before an immigration officer in which they declare
they are living together as man and wife and that the marriage was
not for the purpose of aiding the beneficiary to enter the United
States.

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Interim Decision #1381
  The beneficiary's file discloses that he entered the United States as
a visitor on January 20, 1961 and the terminal date of his temporary
stay in the United States was on or before August 20, 1961. However, the petitioner married his first wife, a United States citizen, on
August 16, 1961 and the following day a visa petition for nonquota
status and application for status as a permanent resident were filed
at the New York office. The visa petition, after being approved on
September 12, 1961, was withdrawn by the first wife and was revoked
on January 26, 1962. As the result the application for permanent
residence status was denied on February 2, 1962 on the ground that
an immigration visa was not available. The beneficiary was found
deportable in deportation proceedings under section 241 (a) (2) of the
Immigration and Nationality Act and was granted the privilege of
 voluntary departure with an alternate order that should he not depart
when required, he be deported to Italy on the charge contained in
 the order to show cause. The memorandum of the Officer in Charge
 indicates that the beneficiary was deported on June 29, 1962 but the
 file before us does not contain any verification thereof.
    The basis for denial by the Officer in Charge of the visa petition
 is predicated upon section 205 (c) of the Immigration and Nationality
 Act as amended which provides that no petition shall be approved if
 the alien previously has been accorded, by reason of marriage determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws, a nonquota status under
section 101(8) ,(27) (A) as the spouse of a citizen of the United States.
The Officer in Charge concludes that the beneficiary was "accorded"
a nonquota status when the visa petition filed by the first wife of the
beneficiary, Amalia Pisciotta nee Gubbo, was approved by the New
York office. He likewise concluded that that first marriage had been
entered into for the purpose of evading the immigration laws.
    The conclusion that the alien had been accorded a nonquota, status
when the visa petition was approved followed the administrative decision in Matter of A—, 

. However, that conclusion
was reversed in the case of Amarante v. Boienberg, 

 (1964),
which held that when the consular officer acts favorably on a visa or
when the Attorney General acts favorably on an application for adjustment of status of an alien married to a citizen, the alien is thereby
"accorded" nonquota immigrant status within the meaning of section
205 (c) of the Immigration and Nationality Act, but not when the
petition of the citizen spouse is approved.
   In the instant case the visa petition for nonquota status on behalf
of the beneficiary filed by the first -wife was granted and then revoked
and as the result of that revocation, the application for permanent
resident status was denied. Under the holding of the court in

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                                             Interim Decision #1381
Amarante v. 

 the alien beneficiary has not previously
been accorded a nonquota status and he does not fall within the proscription contained in section 205 (c) of the Immigration and
Nationality Act. The appeal will be sustained.
  ORDER: It is ordered that the appeal be sustained and that the
visa petition be approved for nonquota status on behalf of the
beneficiary.




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