HAMLIN

                                                              Interim Decision #2426




                              MATTER OF ,HAIVILIg

                          In Visa Petition Proceedings.
                                     A-21761104          -•
                                     A-21761106
                                     A-21761108
                      Decided by Board August' 29, 1975
Despite birth in an independent country of the Western Hemisphere, an alien child within
 the purview of section 202(b).(1) of the Immigration and Nationality Act, as amended,
 may be alternately charged he
 m                              to tforeign state of his accompanying alien parent (the
  beneficiary of an approved - visa petition according him immediate relative status) and
 within such alternate chargeability may be accorded preference classification under
  section 203(051 of the Act, as amended, conditioned on the later simultaneous applications by him and his accompanying parent for visas and for admission to the United
  States.
ON BEHALF OF PETITIONER: Franklin S. Abrams, Esquire
                                 One Penn Plaza
                                 250 West 34th Street
                                 New York, New York 10001


   The United States citizen petitioner applied for preference status for
the beneficiaries as his brother and sister's under section 203(a)(5) of the
Immigration and Nationality Act. In a decision dated May 28, 1974 the
district director denied the petition on the ground that preference
categories were not available to natives of the Western Hemisphere.
The petitioner moved for reconsideration on the ground that the beneficiaries were alternately chargeable to the country of birth of their
father under the provisions of section 202(b)(1) of the Act. In a decision
dated September 11, 1974, the district director denied the motion on the
ground that no evidence had been submitted that the beneficiaries'
father had been admitted as a lawful permanent, resident of the United
States or classified as an immediate relative. The district director certified his decision to us.
   Each of the beneficiaries was born in British Guiana, which is now the
independent country of Guyana. The beneficiaries are all unmarried and
under the age of twenty-one. The father of the beneficiaries, and of the
petitioner, was born in Surinam (Dutch Guiana), although it appears
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Interim Decision #2426

that he is now a citizen of Guyana. Surinam is a dependent colony of the
Netherlands, and therefore not an independent country of the Western
Hemisphere. 1 The petitioner has submitted with the appeal a letter
from the American Embassy, Georgetown, Guyana, which he claims to
have submitted previously to the district director. The letter, which is
dated February 8, 1972, indicates that the father was the beneficiary of
an approved visa petition classifying him as an immediate relative.
  Section 202( b)(1) of the Act provides,in pertinent part:
  an alien child, when accompanied by his alien parent or parents, may be charged to the
  same foreign state as the accompanying parent or of either accompanying parent if such
  parent has received or would be qualified for an immigrant visa . . .

The beneficiaries, though natives of the Western Hemisphere,' are
statutorily eligible for the benefits of this section, Matter of Chatterton,
14 I. & N. Dee. 82 (BIA 1972).
   We have not previously considered the precise factual situation presented here. Li Matter of Ascher, 14 L & N. Dee. 271 (BIA 1972,1973),
an analogOus situation was presented. However, there the beneficiary
was not a "child" within the meaning of the Act, and no determination
was reached with respect to section 202(b)(1) of the Act. The case was,
however, considered in light of section 202(b)(2) of the Act relating to
alternate chargeability to the country of birth of an alien spouse. In
Ascher, the spouse of the beneficiary, although ostensibly eligible for a
visa, had not received one. We held that in that situation the district
director could grant a conditional approval subject to the subsequent
simultaneous application for visas and admission.
   We believe that the same approach should be followed here. Section
202(b)(1), like section 202(b)(2), requires that the beneficiary accompany
the alien who is conferring the benefit of alternate chargeability. The
term "accompany", though not defined in the Act, is defined in 22 CFR
42.1. See also Matter of Ascher, supra. There is nothing in the record to
indicate that the father ever intends to make use of his approved visa
petition. If the beneficiaries do not accompany him, then alternate
chargeability is not available to them. Only if alternate chargeability is
available may 'the beneficiaries qualify for the preference status sought.
 ' We shall remand the record to the district director for further inquiry. If he is satisfied that the father of the beneficiaries intends to
enter the Unfired States, he may issue a conditional' grant of approval
subject to later simultaneous applications for visas and admission.
  ORDER: The record is remanded.




  ' See Department of State, 9 Foreign Affairs Manual, Exhibits II and III to 22 GFR 42.50.

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