NEUSCHUL

Interim Decision #2296




                           MATTER OF NETTSCHUL

                         In Visa Petition Proceedings
                                   A-14642239

                      Decided by Board June 14, 1974

For the purposes of section 202(bX4) of the Immigration and Nationality Act, as
  amended, the lawful permanent resident petitioner is considered as having
  had a residence in Chile at the time of the birth of the beneficiary, his son, in
  that country in 1948, since Chile had been his only residence for almost 10
  years at the time of beneficiary's birth; he had established himself in a
  business in Chile by 1948; and in 1949 he acquired Chilean citizenship.
  Accordingly, beneficiary is ineligible for alternate visa chargeability under
  section 202(b)(4) of the Act and, eonserytipntly. cannot Qualify for preference
  classification under section 203(a)(2) of the Act as the petitioner's unmarried
  son.
ON BEHALF OF PETITIONER:      George K. Rosenberg, Esquire
                              3600 Wilshire Blvd.
                              Los Angeles, California 90010


   The petitioner, a lawful permanent resident, applied for preference classification for the beneficiary as his unmarried son under
section 203(aX2) of the Immigration and Nationality Act. In a
decision dated December 13, 1973 the Acting District Director
denied the petition on the ground that, as a native of Chile, the
beneficiary is a "special immigrant" under section 101(aX27XA) of
the Act, for whom there is no preference classification available
pursuant to the terms of section 201(a). The petitioner appeals
from this denial on the ground that the beneficiary qualifies for
alternate visa chargeability to the quota of a foreign state in the
Eastern Hemisphere, under section 202(b)(4) of the Act, and is thus
eligible for preference status. The appeal will be dismissed.
  The beneficiary is a citizen of Chile who was born there in 1948
and is presently residing in the United States as a student. The
record indicates that the petitioner and his wife, the beneficiary's
mother, are natives of Czechoslovakia and Germany, respectively,
whn fled their homelands prior to World War II in fear of
persecution at the hands of the Nazis. They each sought and
obtained refuge in Chile, where they met and were married in
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1944. The beneficiary was born in 1948, and the following year the
petitioner acquired Chilean citizenship.
  The question presented on appeal is whether the petitioner had
a "residence" in Chile at the time of the beneficiary's birth so as to
preclude invocation of the alternate chargeability provision found
in section 202(bX4) of the Act. That section states:
     ... For the purposes of this Act the foreign state to which an immigrant is
  chargeable shall be determined by birth within such foreign state except that
  ... (4) an alien born within any foreign state in which neither of his parents
  was born and in which neither of his parents had a residence at the time of
  such alien's birth may be charged to the foreign state of either parent.
  (Emphasis supplied.)

   Counsel contends that this provision covers the beneficiary's
 case in that the petitioner's presence in Chile was not voluntary
 and so he cannot be said to have had a "residence" there at the
time of the beneficiary's birth. Counsel maintains that this reasoning is underscored by the fact that the petitioner at all times
 harbored an intention to emigrate to the United States. We reject
this argument and cannot endorse counsel's construction of section 202(b)(4) in this situation.
   At the time of the beneficiary's birth in 1948, Chile had been the
petitioner's only residence for almost ten years. Section 101(aX33)
states: "As used in this Act—The term "residence" means the
place of general abode; the place of general abode of a person
means his principal, actual dwelling place in fact, without regard
to intent...." By 1948 the petitioner had established himself in a
business in Chile and was apparently reaping the benefits of his
long presence there as an integrated member of its society. The
roots of resettlement planted during this period culminated in the
petitioner's acquisition of Chilean citizenship in 1949.
   Accordingly, we cannot find, as counsel urges, that neither of
the beneficiary's parents had a "residence" in Chile at the time of
his birth, as that term is contemplated by section 202(bX4). The
decision of the Acting District Director was therefore correct, and
it will be affirmed. The following order will be entered.
 ORDER: The appeal is dismissed.




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