MATTER OF P—
In VISA PETITION Proceedings
A-11759819
A-11759820
Decided by Board January 18, 1960
Preference quota status—Section 293(a) (2), (3), and (4)—Not available to
adopted sons and daughters.
Act of September 22, 1959 excludes adopted sons and daughters from the benefits of section 203(a) ( 2 ), (3), and (4) of the Immigration and Nationality
Act. Hence, where relationship of son and daughter to resident alien petitioner was established by Italian decree of affiliation, comparable to adoption, petition to accord third preference status is denied. (NOTE: Matter
of 5 I. & N. Dec. 438, held no longer applicable prospectively.)
BEFORE THE BOARD
Discussion : The case comes forward on appeal from the order of
the District. Director, Boston District, dated November 16, 1959,
denying the visa petition for the reason that the petitioner has failed
to establish that the beneficiaries are a son and daughter, respectively, as specified in section 203(a) (3) of the Immigration and
Nationality Act.
The petitioner, a permanent resident alien, seeks preference status
under section 203(a) (3) on behalf of the beneficiaries. The beneficiaries were born in Italy on March 1, 1950, and March 10, 1954,
respectively. They are not the natural children of the petitioner
but the petitioner was granted a decree of affiliation of the beneficiaries by the Probate Judge at Torino, Italy, on April 17, 1959,
such action being ratified by the Tribunal for Minors of Torino, by
a decree dated April 24, 1959.
Section 203(a) (3) of the Immigration and Nationality Act, as
amended by the Act of September 22, 1959 (73 Stat. 644), grants
preference quota status to the unmarried sons and daughters of
aliens lawfully admitted for permanent residence. The petitioner
asserts that affiliation may be considered similar to legitimation.
However, in the instant case the beneficiaries are not the children
of the petitioner and their status is not that of legitimate children.
Under the provisions of article 280 of the Italian Civil Code of
1942, legitimation takes place only by a subsequent marriage entered
into by the parents of the child born out of wedlock or by a decree
of , the President, of the Republic of Italy. Thus, there is no merit
to the claim that the beneficiaries are to be regarded as legitimate or
legitimated children of the petitioner.
Affiliation does appear to be a status in many respects similar to
that. of adoption. Previously we have held that the terms "sons" or
"daughters" in section 203(a) (4) of the Immigration and Nationaality Act included adopted sons or daughters. However, when the
Act of September 22, 1959 amended the Immigration and Nationality Act to include sons and daughters within the second and third
preferences, section 205(b) was amended to provide that no petition
for quota immigrant status or a preference on behalf of a son or
d. nghter under paragraphs (2), (3), or (4) of section 203(a) of
the Immigration and Nationality Act should be approved unless the
petitioner establishes that he is a parent as defined in section 101(b)
(2) of the Immigration and Nationality Act of the alien in respect
to whom the petition 's made. It was pointed out in the report to
.accompany H.R. 5896 (which became Public Law 86-363) that the
principal purpose of this second sentence of section 205(b) of the
Immigration and Nationality Act, as amended by section 5(a) of
the Act of September 22, 1959 (
73 Stat. 644), was to make certain
that aliens adopted by United States citizens or lawful resident
aliens (other than children defined in section 101(b) (1) (E) of the
brimigration and Nationality Act) should not be eligible for nonquota or preference status under the immigration and nationality
laws.2
This clearly stated mandate of Congress in enacting the Act of
September 22, 1959, therefore, excludes adopted sons and daughters
from the benefits of section 203(a) (2), (3) and (4). Likewise, the
Act of September 22, 1959 renders inapplicable, prospectively, our
deCision in Matter of 1? — , 5 I. & N. Dec. 438, relating to fourth
preference status for adopted sons and daughters. It may be noted.
however, that section 5(a) of the Act of September 22, 1959 preserVel
the status of adopted daughters or sons of United States citizen
previously granted preference status under section 203(a) (4). It is
therefOre, concluded that the beneficiaries as the affiliated son an
daughter of the petitioner are eligible neither for nonquota state
nor for preference quota status.
Order: It is ordered that the appeal be and the same is herei
dismissed.
Matter of R , 5 1. & N. Dec. 438.
a Senate Report No. 962, 86th Cong., 1st Sess., p. 7.
528
