Interim Decision #2877
MATTER OF AIYER
In Adjustment of Status Proceedings
A-22210207
Decided by Regional Commissioner June 17, 1981
(1) Since the dependent of a principal alien ,derives benefits from the principal alien,
an applicant for adjustment of status under section 13 of the Act of September 11,
1951 (71 Stat. 642), 8 U.S.C. 1255(b), is ineligible for section 13 benefits if he/she
is the dependent of a principal alien ineligible for such benefits.
(2) Where an applicant for adjustment of status under section 13 of the Act of September
11, 1957, was admitted under metiers 101(a)(15)(0)(i) of the luunigration and Nationality Act, 8 U.S.C. 1101(aX15)(G)(i), as the inunediate family member of a principal alien
admitted under section 101(aX15)(G)(0 of the Act, 8 U.S.C. 1101(a)(15)(G)(i), and the
principal alien is ineligible for section 13 benefits because he/she did not fail to maintain
his/her section 101(a)(15)(Glfi1 status while remaining in the United States, the appli -
cant is ineligible for section 13 benefits.
ON BEIIALF OF APPLICANT: Pro as
This matter is before the Regional Commissioner on certification from
the District birector, who denied the application on the ground that the
applicant is ineligible for the benefits of section 13 of the Act of September 11, 195'7, since his status is dependent on the principal alien who is
not eligible for the benefits of section 13 of the Act of September 11,
1957.
The applicant is a 28-year-old native and citizen of India. He was
admitted to the United States on September 1, 1975, under the provision of section 101(a)(15)(G)(i) of the Immigration and• Nationality Act, 8
U.S.C. 1101(a)(15)(G)(i). The applicant's admission was based on the
fact that he was an immediate family member (son) of the First Secretary of the Permanent Indian Mission to the United Nations who was
the principal alien admitted pursuant to section 101(a)(15)(G)(i) of the
Act, S U.S. C. 1101(a)(15)(G)(i). The record indicates that the applicant's
father served as First Secretary to the Permanent Indian Mission to the
United States from the date of his admission to the United States on
April 15, 1973, until he was transferred in his employment with the
Indian Diplomatic Corps to the position of Indian Ambassador to Laos
on September 1, 1976.
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Interim Decision #2877
The record of proceedings indicates that the applicant has remained in
the United States continuously since the transfer of his father, except
for two departures pursuant to the advance parole procedure of section
212(d)(5) of the Act during December 1977 and July 1978. The instant
application was filed on Decemb:r 28, 1976, accompanied by a Record of
Sworn Statement in support of the request for permanent resident status.
The sworn statement indicates that the applicant is a Ph.D. student at
the Wharton Applied Research Center, University of Pennsylvania.
The applicant stated that after he obtains his Ph.D. he expects to be
employed in an International Bank in New York City.
To qualify for the benefits of section 13 of the Act of September 11,
1957, the applicant must establish the following:
1. He is a person of good moral character.
2. He is admissible to the United States for permanent residence under the Inunigradon and Nationality Act.
3. He has executed and submitted the written waiver required by section 247(b) of the
Act, 8 U.S.C. 1257(b), and 8 C.F.R. 245.1(c).
4. He is prime fade ineligible for adjustment of status to that of a lawful permanent
resident under another provision of the law.
5. His adjustment to lawful permanent resident status would not be contrary to the
national welfare, safety, or security.
6. He must have been admitted to the United States under the provisions of either
section 101(a)(15XA)(i), or (ii), or 101(a)(15)(G)(i), or (ii) of the Act, 8 U.S.G.
1101(aH15XA)(i), or (ii), 8 U.S.C. 1101(a)(15)(G)(i), or (ii).
7. He must have performed diplomatic or semi-diplomatic duties or have been an framecliate family member of a principal alien who performed diplomatic or semi-diplomatic
duties. (Duties of a custodial, clerical, or manual nature are not qualifying).
8. He must have failed to maintain status under the provisions of either section
101(a)(15)(AXi), ar (ii), or 101(a)(15XG)0), or (ii) of the Immigration and Nationality
Act, 8 U.S.C. 1101(a)(15)(A)(i) or (ii), or 8 U.S.C. 1101(a)(15)(G)(i) or (ii).
In addition to the requirements set forth above, the Service is responsible for consulting with the Secretary of State and furnishing that office
the necessary information concerning the section 13 applicant. The Secretary of State will in turn furnish the Service information concerning
the applicant's classification and employment, and a statement whether
they have any objection to the granting of the alien's application for
adjustment of status under section 13.
The record indicates that the applicant has satisfied the requirements
of items one through seven above. We find that the requirement of item
eight above has not been met. The Secretary of State, upon consultation,
has indicated that he has no objection to the granting of permanent
resident status. However, in a letter dated January 28, 1978, the Secretary of State advised this Service of the following
According to information in this Department relating to INS regulations concerning adjustment under Sec. 13, a dependent is not entitled to consideration unicee the
principal is applying for adjustment under Sec. 13. From the information provided, Mr.
Srinivasan's father had departed the United States and did not apply for adjustment of
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status under Sec. 13. Therefore, we do not believe the applicant is entitled to apply
under this provision of the law. .
We concur in the conclusion reached by the Secretary of State. In the
instant case the applicant was admitted under the provisions of section
101(a)(15)(G)(i) of the Act, 8 U.S.C. 1101(a)(15)(G)(i), as an immediate
family member of the principal alien. 22 C.F.R. 41.1 defines the terms
"principal alien" and "immediate family" as follows:
Principal alien. "Principal alien" means an alien from whom another alien derives a
privilege or status under the laws or regulations.
Immediate family. "Immediate family", as used in sections 101(a)(15)(A), I01(a)(15)(G)
. means close relatives who are members of the immediate family by blood, marriage,
or adoption, who are not members of some other household and who will reside regularly in the household of the principal alien.
Prior to arriving at our conclusion, we reviewed each of the four
precedent administrative decisions relating to section 13 proceedings. A
similar Situation arose in Matter of Penaherrera,13 I&N Dec. 334 (BIA
1969). In Matter of Penaherrera, supra, the father of the applicants
officially terminated his position as Counsel General at San Francisco,
California, on July 8, 1953. He had been admitted to the United States
under the provisions of section 101(a)(15)(A)(i) of the Immigration and
Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(A)(1). After his position was .officially terminated on July 8, 1053, he remained in the United
States until the summer of 1956 when he departed for San Salvador, El
Salvador. The applicants (daughters of the principal alien) remained in
the United States continuously since their admission and were found to
be eligible for the benefits of section 13 in that their status was dependent on the principal alien and the principal alien failed to maintain his
status from July 8, 1953, until his departure from the United States
during the summer of 1956.
The instant case is distinguished from the Matter of Penaherrera,
supra, in that the principal alien did not fail to maintain his status,
therefore, he was never eligible for the benefits from the principal alien,
he is ineligible for the benefits of section 13 of the Act of September 11,
1957. Accordingly, the decision denying the application will be affirmed.
IT IS ORDERED: that the decision of the District Director be
hereby affirmed.
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