MANDEWIRTH

                                                  Interim Decision #1726




                         MArrmi OP MANDEWIRTE

                      In Visa Petition Proceedings
                                A-12194837
                   Decided by Board April 19, 1967
Acknowledgement by petitioner, a native or Austria, of fatherhood and agreement of support of beneficiary, who was born out of wedlock in 1945, does
  not constitute legitimation for immigration purposes (section 101(b) (1) (0),
  Immigration and Nationality Act, as amended), since under the law of
  Austria legitimation of a child born out of wedlock is not accomplished by
  mere acknowledgment of paternity and agreement to support


  The case comes forward on appeal from the order of the District
Director, Washington, D.C., District, dated September 14, 1966 denying the visa petition for the reason that the facts presented disclose
that the petitioner was never married to the beneficiary's mother and
that he has not been otherwise legitimated; it is concluded that the
beneficiary is not a child as defined in section 101(b) (1) of the Act.
  The petitioner; formerly a citizen of Austria, now a citizen of
Canada, a lawful permanent resident of the United States, seeks preference quota status on behalf of the beneficiary as his son. The beneficiary is a native of West Germany, born April 24, 1945.
   It is admitted by the petitioner that the beneficiary was born out of
wedlock. However, he has submitted a document of Proof of Fatherhood and Support (Document on the acknowledgment of fatherhood
and agreement on support) which acknowledges that the petitioner,
an Austrian citizen, is the natural father of the beneficiary who was
born out of wedlock and contains an agreement of support. The document is dated December 20, 1951.
   Inasmuch as the beneficiary is an illegitimate child, he must qualify
as a child under section 101(b) (1) (0) of the Immigration and Nationality Act as a, legitimated child. The document of acknowledgment
of paternity was submitted to the Library of Congress for an opinion.
Under the law of Austria, an illegitimate child has the status rights of
a legitimate child only in respect 'to its mother: it takes her surname
(sec. 165, par. 1, of the Austrian Civil Code, Dab ailgesaeiszoburgerliohz
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 Interim Decision #1726
Gesetibuolt, hereinafter ABGB) ; acquires her nationality status (sec.
3 of the Nationality Act, Staatsburgerschaf Wentz, Bvmdesgezetblatt,
hereinafter 11(31B1, No. 276/1040) ; and is under the jurisdiction of the
 court of the mother's domicile (sec. 72 of the Law of August 1, 1895,
 as amended, on the Jurisdiction of the Regular Courts in Civil Matters). An illegitimate child does not have the right to bear its father's
name (sec. 165, par. 1, of the ABGB).
   The article from the Library of Congress then goes on to set forth
additional information regarding acknowledgment of paternity. It
states that legitimation is distinguished from acknowledgment of paternity in that the former is an act giving the status of legitimacy to a
child born out of wedlock. The Civil Code distinguishes three types of
legitimation:
   (a) A child conceived in a marriage concluded by a valid formal act, but void
due to an impediment, shall be considered legitimate if the said marriage was
subsequentiy validated, or if at least one of the parents was bona fide unaware
of the impadiment (tee. 160). This is applicable in cases of the concealed bigamy
of one of the spouses, or their error in considering separation as divorce, or in
taking the declaration of the death of a perSon's spouse as the final act terminating the marriage- This method is applicable today only in rare instances, in
view of later legislation.
   (b) A child born out of wedlock may be legitimated by the subsequent marriage of its parents (sec. 161). This is the most common ease of legitimation.
   (c) A child may be legitimated by a rescript of grace of the President of the
Republic on the petition of both parents (sec. 162 of the ABOB in conjunction
with Art. 65, par. 2, subpar. (d), of the Austrian Constitution).
   The document submitted with the visa petition does not establish
that the beneficiary was ever legitimated' The visa petition based
upon a preference on the ground of alleged relationship of father and
child will be denied.
   It is noted that in commotion with the appeal the petitioner states
that the beneficiary has a half-sister who is married to an Americanborn citizen. In the event that the brother-sister relationship is through
the mother, and if the sister is a citizen of the United States, she may
petition for quota preference on behalf of the beneficiary under section 203(a) (5) of the Immigration and Nationality Act. It is also
noted that the quota to which the beneficiary is chargeable is open and
the beneficiary will be eligible for a quota immigrant vise, if he can
secure a labor certification pursuant to section 212 (a) (14) .
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
 1   See Matter of 3—, 6I. & N. Dec. 161, 162.



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