Interim Decision #3020 

MATTER OF GARCIA 

In Visa Petition Proceedings 

A-26285801 

Decided by Board September .9, 1986 

(1) In order to accord preference status to the beneficiary as his unmarried son 

under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1153(aX2) (1982), a petitioner must establish that the beneficiary qualified as his 

"child" within the meaning of section 101(bXl) of the Act, 8 U.S.C. §1101(bX1) 

(1982). 

(2) Under the New Jersey Parentage Act, effective May 21, 1988, all children and 

parents have equal rights with respect to each other regardless of the marital 

status of the parents. N.J. Stet. Ann. §§ 9:17-38 to -59 (West 1983). Matter of 

Clarke, 18 184N Dec. 369 (B1A 1983), modified. 

(3) To qnslify as a legitimated "child" under section 101(bX1XC) of the Act, a beneficiary must be under 21 years of age and must have been legitimated before reaching the age of 18 years. 

(4) Where the petitioner seeks to establish that the beneficiary was legitimated 

wader the New Jersey Parentage Act within the meaning of section 101(bX1XC) of 

the Act, he must prove that he had a residence or domicile in New Jersey prior to 

the Beneficiary's 18th birthday. 

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: 

Hedi Framm Montesinos, Esquire Edward Weiss 

2447 Mission Street General Attorney 

San Francisco, California 94154 

BY: Nfilhollan, Chairman; Dunne, Morris, Vacea, and Heilman, Board Members 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his unmarried son under section 

203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1153(a)(2) (1982). In a decision dated June 10, 1986, the Regional 

Adjudication Center ("RAC") director denied the petition but certified his decision to the Board for review. The record will be remanded for further proceedings. 

The beneficiary is a 20-year-old native and citizen of El Salvador 

who was born out of wedlock on June 1, 1966. The petitioner is a 

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57-year-old native and citizen of El Salvador who became a lawful 

permanent resident of the United States on June 9, 1980. He now 

resides in New Jersey. The petitioner filed a visa petition on behalf 

of the beneficiary on March 16, 1986. 

A birth certificate submitted with the visa petition reflects that 

the beneficiary is the natural son of the petitioner. The record further reflects that the beneficiary's natural parents never legally 

married. 

The RAC director noted in his decision that the Board has held 

that under the law of El Salvador, the beneficiary's legal residence 

and domicile, a child must be acknowledged and the natural parents must marry in order for the child to be legitimated by operation of law. See Matter of Ramirez, 16 I&N Dec. 222 (BIA 1977). 

The RAC director further noted that the Board held in Matter of 

Clarke, 18 I&N Dec. 369 (BIA 1983), that under the law of New 

Jersey, the petitioner's legal residence and domicile and the state 

where the visa petition was filed, the subsequent marriage of the 

child's natural parents was necessary for legitimation to take 

place. The RAC director correctly stated, however, that subsequent 

to the Board's decision in Matter of Clarke, supra, the State of New 

Jersey repealed the sections relied upon in that decision and adopted the Uniform Parentage Act, effective May 21, 1983. The RAC director denied the visa petition, noting that he was bound by the 

Board's precedent decision in this matter, but certified the case for 

our review for a determination on the effect of the change of law in 

New Jersey. 

In visa petition proceedings, the burden is on the petitioner to 

establish eligibility for the benefits sought. Matter of Brantigan, 11 

I&N Dec. 493 (BIA 1966). In order to qualify as the petitioner's son, 

the beneficiary must at one time have been the petitioner's child 

within the definition of section 101(b)(1) of the Act, 8 U.S.C. 

§ 1101(b)(1) (1982). Matter of Coker, 14 I&N Dec. 521 (BIA 1974). 

Under section 101(b)(1) of the Act, a person may qualify as a 

"child" within the context of the immigration laws only where the 

parent-child relationship exists by reason of any of the circumstances set forth in section 101(b)(1). The term "child," as defined 

in that section, does not include illegitimate children not claiming 

an immigration status by virtue of their relationship to their 

mother under section 101(b)(1)(D). The child must either be legitimate under section 101(b)(I)(A) or legitimated in accordance with 

section 101(b)(1)(C) of the Act, which includes within its provisions: 

a child legitimated under the law of the child's residence or domicile, or under the 

law of the father's residence or domicile, whether in or outside the United States, 

if such legitimation takes place before the child reaches the age of eighteen years 

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Interim Decision #3020 

and the child is in the legal custody of the legitimating parent or parents at the 

time of such legitimation. 

In the present case, the beneficiary was born out of wedlock. 

Therefore, it must be established that he was either deemed legitimate or legitimated under the law of El Salvador or New Jersey. 

In Matter of Clarke, supra, we referred to sections 9:15-1 and 9:15-

2 of the Nev Jersey Statutes Annotated and found that legitimation of a child born out of wedlock required the marriage of the 

child's natural parents. However, these sections were repealed and 

the New Jersey Parentage Act was subsequently invoked on May 

21, 1983. The New Jersey Parentage Act of 1983 reflects that, regardless of the marital status of the parents, all children and parents have equal rights with respect to each other. See N.J. Stat. 

Ann. §§ 9:17-38 to -59 (West 1983). Accordingly, our decision in 

Matter of Clarke, supra, is modified insofar as it applies to New 

Jersey legitimation law. Hence, we now hold that a child who was 

born in New Jersey on or after May 21, 1983, or who was under 18 

years of age on that date may be included within the definition of a 

legitimate or legitimated "child" as set forth in section 101(b)(1) of 

the Act. We emphasize that our holding is retroactive only insofar 

as it applies to a child why was under 18 years of age on May 21, 

1983. We note that when the New Jersey Parentage Act was enacted on May 21, 1983, the beneficiary was 16 years old. Thus, the 

act of eliminating all legal distinctions between legitimate and illegitimate children had occurred before the beneficiary had reached 

the age of 18 years. See Matter of Cortez, 16 I&N Dec. 289 (BIA 

1977); Matter of Obando, 16 I&N Dec. 278 (BIA 1977). However, although the petitioner was clearly residing in New Jersey at the 

time he filed the visa petition in March of 1986, we are not satisfied from our review of the record that he has established his residence or domicile in New Jersey prior to the beneficiary's 18th 

birthday. Therefore, we will remand the record to the RAC director 

to determine whether the petitioner was a resident or domiciliary 

of New Jersey after May 21, 1983 (the date the New Jersey Parentage Act was enacted), but before June 1, 1984 (the date the beneficiary turned 18 years of age). Thereafter, the RAC director will enter 

a new decision based on the record. Accordingly, the record will be 

remanded for further proceedings. 

ORDER: The record is remanded for further proceedings and 

the entry of a new decision. 

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