MATTER Of' Y—J—GIn VISA PETITION Proceedings 

VP 16-1-23207 

Decided by Attorney General September n, 1961 

Preference quota status—Transfer to nnnqunta status—Act of September 22. 

1959—Retention of parent-child relationship not affected by age of child. 

Petitioner who was admitted for permanent residence in 1955 as a nonquota 

immigrant under the Refugee Relief Act filed a petition, which was approved on December 10, 1057, to accord third preference quota etatue to his 

unmarried son, then 19 1/2 years of age. Approval of the visa petition was 

automatically revoked on June 2, 1959, when the beneficiary-son attained 

the age of 21. 

(1) Petition may be revalidated at initio under the September 22, 1959 

amendment to the Immigration and Nationality Act enlarging the fdire preference category to include unmarried sons or daughters of resident aliens. 

(2) Upon revalidation, beneficiary's third preference status is transferable to 

nonquota status miner section 4 or section 6 of the Act of September 22, 

1959. Proviso in sections 4 and 6 that beneficiary, upon application for 

immigrant visa and for admission to the United States, be found to have 

retained his relationship to the petitioner, and status, as established In the 

approved visa petition, is satisfied, since 

(a) Eligibility for preference quota status need not be continuous and uninterrupted. It is enough that eligibility (Listed at the time the petition was 

approved and at the time of the application for an immigrant visa and for 

admission to the United States. 

(b) "Status" as used in the provisos refers to beneficiary's preference quota 

status as defined in section 203(a) (2), (3), or (4) of the Immigration and 

Nationality Act. Roth marital status and age may be relevant to determining "status." In the instant case, fact that beneficiary is still unmarried is relevant to his third preference status but fact that he is now over 

is not relevant because of 1959 amendment broadening third preference 

category to include unmarried sons and daughters. 

BEFORE TIIE ATTORNEY GENERAL 

DISCUSSION: The Board of Imlaigra tion Appeals, at the request 

of the Cuntulibbione.r of Immigration and Naturalization, has referred to me for review, as provided by 8 CFR 3.1(h), its order of 

October 4, 1960, that the petitioner's visa petition he approved for 

nonquota status under sections 4 and 6 of the Act of September 22, 

1959, Public Law 86-363, 73 Stat. 611. 

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The petitioner, a native and citizen of China, 50 years old, was 

admitted to the United States for permanent residence on May 10, 

1955, by virtue of a special nonquota immigrant visa issued under 

the Refugee Relief Act of 1953, as amended (50 U.S.C. 1971, et seq.). 

The beneficiary is the son of the petitioner, a native and citizen of 

China, born June 2, 1938. 

The father first filed a petition on December 10, 1957, for preference status on the immigrant quota for his son under section 203 

(a) (3) of the Immigration and Nationality Act, 8 U.S.C. 1153 

(a) (3). Third preference quota status under this subsection was 

available to "the spouses or the children of aliens lawfully admitted 

for permanent residence." At this time petitioner's son was 19I/2 

 years of age. Although the petition was approved on January 31, 

1958, an immigrant visa could not be issued because the quota for 

Chinese persons, including those eligible for preferences, was heavily 

overaubaeribed. On Juno 2, 1059, the eon attained his majority_ 

Since he was no longer a "child" within the meaning of section 

203(a) (3),1approval of the petition for a preference was automatically revoked pursuant to administrative regulation, 8 CFR 

206.1(b) (5). Accordingly, the son's name was removed from the 

third preference quota waiting list and inserted on the waiting list 

of nonpreference quota immigrants. 

The father then sought reconsideration of the petition under the 

Act of September 22, 1959, "An Act to provide for the entry of certain relatives of United States citizens and lawfully resident aliens." 

Section 2 of the Act amended section 203(a) (3) of the Immigration 

and Nationality Azt so as to broaden the provision for third preference eligibility from "children," i.e., unmarried minors, to "unmarried sons or daughters" of permanent resident aliens. The term 

"sons or daughters" includes persons over 21 years of age. Accordingly, under the provisions of section 203(a) (3) as amended by 

section 2 of the Act of September 22, 1959, the son, who is now over 

21 years of age, is eligible for third preference quota status. It was 

not disputed at the hearing before the Board of Immigration Appeals that the petition may be revalidated ab initio for that category. 

Sections 4 and 6 of the Act of September 22, 1959 provide for additional relief, namely, nonquota immigrant visas for certain classes 

of immigrants. The question before me is whether the son is eligible 

for nonquota status under the provisions of section 4 or section 6 

of the 1959 Aut. 

Section 4 provides as follows: 

Any alien who (1) is registered on a consular waiting list pursuant to 

section 203(c) of the Immigration and Nationality Act (66 Stat. 179) under 

'Section 101(b) (1) of the Immigration and Nationality Act, 8 U.S.C. 

1101(b) (1), defines "child" to mean "an unmarried person under twenty-one 

years of age." 

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a priority date earlier than December 31, 19D3, and (2) is eligible an a quota 

immigrant status under the provisions of section 203 (a) (2), (3), or (4) of 

such Act on the basis of a petition approved by the Attorney General prior 

to January 1, 1959, and the spouse and the children of such alien, shall be 

held to be nonquota immigrants and, if otherwise admissible under the provisions of the Immigration and Nationality Act, shall be issued nonquota 

immigrant visas: Provided, That, upon his application for an immigrant visa, 

and for his admission into the United States, the alien is found to have 

retained Lib relationship to the petitioner, and status, as established in the 

approved petition. 

Section 6 provides as follows: 

Notwithstanding the provisions of sections 3 and 20 of the Refugee Relief 

Act of 1953, as amended, special nonquota immigrant visas may be issued to 

aliens eligible to enter the United States for permanent residence under all 

the applicable provisions of the Immigration and Nationality Act: Provided, 

That each such alien is found to be the beneficiary of a visa petition approved by the Attorney General pursuant to section 203(a) (2) and (3) and 

section 205 of the Immigration and Nationality Act prior to January 1, 1959, 

and such petition was filed by a person lawfully admitted into the United 

Staten under the provisions of the Refugee Relief Art of 1953. as amended: 

Provided further, That, upon his application for an immigrant visa, and for 

his admission into the United States, the alien is found to have retained his 

relationship to the petitioner, and status, as established in the approved 

petition. 

The record establishes that the son is eligible for nonquota status 

under both section 4 and section 6 2unless he is barred from eligibility by the proviso common to both sections "that, upon his application for an immigrant visa, and for his admission into the United 

States, the alien is found to have retained his relationship to the 

petitioner, and status, as established in the approved petition." 

There is no controversy as to the relationship, which is conceded to 

be established. The question is the meaning of the word "status." 

The Asiistant Commissioner, in his order of April 11, 1960, reviewed the legislative history of the Act, of Saptemher 22, 1959, and 

concluded that "status" was intended to refer to the marital status 

of a beneficiary and not to his age. Accordingly, he ordered that 

the son be considered a nonquota alien entitled to a nonquota, immigrant visa. The decision was certified to the Board of Immigration 

Appeals for review as authorized by the immigration regulations. 

In the hearing before the Board, the Department of State, as an 

The Immigration Service's. Assistant Commissioner, Examinations, the officer charged with the initial review of the petition, limited his determination 

to the son's eligibility under section 6 since eligibility under section 4 could 

nut be determined without verification of the son's priority date on the eonsular waiting list. The Department of State thereafter confirmed that the son 

had a priority date of November 18, 1953, which he derived from his father 

pursuant to regulation. 22 CFR 42.21(a) (since renumbered 22 CFR 42.65 

(a)). Consequently, the Board was satisfied that the son is eligible under 

both sections, and I accept this factual determination. 

473 
interested agency, took the position that "status" referred to both 

age and marital status. The Department reasoned that when the 

third preference petition was approved, the son's status was that of 

a l'child," that is, unmarried and under 21 years of age, and that 

when he reached his majority he no longer had the status of a 

"child" as established in the approved petition_ The Board of Immigration Appeals took still a third position, that "status" refers 

neither to age nor to marital status but to "the consanguinity which 

gave the alien-beneficiary second, third or fourth preference status 

as the result of the approval of his visa petition prior to January 1, 

1959." 8Accordingly, the Board directed that the visa petition be 

approved for nonquota status. 

The purpose of sections 4 and 6 of the 1050 Act was to reunite 

families and to relieve a backlog resulting from oversubscribed 

quotas which cause unusually long delays in the issuance of immigration quota visas for aliens already accorded preference status. 105 

Cong. Rec. 12716, 18996. This purpose is achieved by granting nonquota status to certain beneficiaries in whose behalf petitions for 

preference quota status had been filed and approved before a certain 

cut-off date, January 1, 1959. A qualification established by these 

sections is the proviso that "upon his application for an immigrant 

visa, and for his admission into the Unite States, the alien [i.e., the 

beneficiary] is found to have retained his relationship to the petitioner, -and status, as established in the approved petition." What 

status is referred to? Presumably the status is that defined in the 

preceding parts of sections 4 and 6, that is to say, preference quota 

status under subsections (a) (2), (3) and (4) of section 203 in the 

case of aliens relying on section 4 and preference quota status under 

subsections (a) (2) and (3) of section 203 in the case of an alien 

relying on section 6.4This interpretation scorns to me the most 

3 In a memorandum dated May 5, 1061, supplementing its opinion, the Board 

explained that "'consanguinity' was used in the broad sense of relationship 

which gave rise to th'e beneficiary's preference status, whether such relationship arose by consanguinity, adoption or marriage." 

4 Prior to the 1959 Act, subsection (a) (2) granted a preference to parents 

of adult citizens of the United States, subsection (a) (3) granted a preference 

to the spouses and ehildrPo of aliens lawfully admitted for permanent residence, and subsection (a) (4) •granted a preference to brothers, sisters, and 

adult sons and daughters of a United States citizen. (Children of United 

States citizens are entitled to nonquota status, section 101(a) (27) of the 

immigration and Nationality Act. 8 U.S.C. 1101(a) (27),) The preferences 

are established by these subsections, in descending order of priority (section 

203(d), 8 U.S.C. 1153(d)), and are customarily referred•to as second, third 

and fourth preferences, respectively. In addition to expanding the third preference category to include unmarried sons and daughters of aliens, who have 

reached the age of 21 years, the 1959 Act moved unmarried sons and daughters of citizens of the United States from the fourth preference to the more 

desirable second preference. 

474 
mania] one, even in the absence of the phrase "as established in the 

approved petition"; the presence of this phrase fortifies my conclusion, for the very purpose of filing such petitions is to obtain approval of preference quota status. See section 205 of the Immigration and Nationality Act, 8 U.S.C. 1155. 

My analysis compels me to disagree with the interpretation placed 

on the word "status" by the Board of Immigration Appeals. The 

Board concluded that, as used in the proviso to sections 4 and 0, 

"status" refers solely to degree of the alien's relationship—by blood, 

adoption or marriage—to the petitioner and not to either his age or 

marital status. In the first place, the Board's interpretation would 

make "status" redundant since retention of the preexisting relationship to the petitioner is one of the two specific requirements of the 

proviso. 5 Secondly, to hold that "status" has no reference to marital 

status would not square with the intent of Congress, as manifested 

in section 2 of the 1959 Act, amending section 203(a) (3), that married sons or daughters of aliens should not be accorded preferential 

treatment under the Inunigration and Nationality Act. The Board's 

interpretation would lead, therefore, to an anomalous result in the 

case of a child of an alien lawfully admitted for permanent residence, who marries subsequent to the approval of a petition on his 

behalf for a third preference. If the petition was approved before 

January 1, 1059, the child would be entitled ,to a nonquota immigrant 

visa under section 4 or 6 notwithstanding the subsequent marriage. 

However, if the petition was approved subsequent to January 1, 

1959, it is indisputable that the child would not even be entitled to 

third preference status under section 203(a) (3), as amended. I cannot believe that Congress intended such disparate results, and I 

must conclude, therefore, that where the marriage of the beneficiary 

subsequent to the approval of the preference petition would adversely affect the beneficiary's present eligibility for a preference, 

the marriage is a change in "status" within the meaning of the 

proviso.° 

'Conversely, it might appear that to interpret "status" to include all the 

qualifications for preference status spelled out In the relevant subsections of 

section 203 would make "relationship to the petitioner" redundant. However, 

a beneficiary may have more than one relative in the United States within 

the defined degree of relationship. Therefore, his status as a person eligible 

for a preference may not be changed although his relationship to the petitioner 

may cease. 

6The above situation could occur only in the case of the child of an alien. 

Since adult sons and daughters of United States citizens were entitled to 

fourth preference until September 22, 1959, and are now entitled to either 

second or fourth preference depending on their marital status, a son or daughter of a United States citizen otherwise eligible for a nonquota visa under 

section 4 of the 1959 Act, who married subsequent to the approval of the 

petition, would now have the same fourth preference status he had at the 

time his petition was approved. 

475 
As with marital status so with age. It is clear that but for section 2 of the 1959 Act amending section 203(a) (3) to remove the 

requirement that the beneficiary be a minor, the son's achieving his 

majority would automatically bring about a change in his status 

within the meaning of sections 4 and 6. It is the contention of the 

Department of State that when this preference petition was approved in 1958, the son's "status" was "that of a 'child', that is, unmarried and under 21 years of age," and hence that such "status" 

was irretrievably lost upon his reaching the age of 21. In my view, 

the Department errs in equating status with the facts that go to 

determining status. The law does not give it that meaning. Status 

is the standing or legal position of an individual. Kandelin v. 

Social Security Board, 136 F.2d 327, 328 (C.A. 2, 1943) ; Gibbons 

v. Sioux City, 242 Ia. 160, 164; 45 N.W.2d 842, 844 (1951) ; In re 

Adoption of Doe, 231 N.C. 1, 7; 56 S.E.2d 8, 12 (1944). Of course, 

facts are significant, but status cannot be determined solely by reference to facts. Some facts are relevant to status and other are 

not. For example, in 1958 when the petition for a preference was 

approved, the son was male, unmarried, and 19 1/2years of age. 

Under section 203(a) (3), as it then read, the facts that he was unmarried and was 19 1/2years old --vere relevant to his status as eligible for third preference; his gender was not. Under section 203 

(a) (3) as amended by the 1959 Act, the fact that he is unmarried is 

still relevant to his status, but his age has no more effect on his 

status than his sex. This is because age has been by law removed 

as a relevant fact. It seems to me incontrovertible, therefore, that 

if the son had reached the age of 21 years after September 22, 

1959, the effective date of the 1959 Act, his status, that is, his legal 

position, would have been unchanged. Since he reached that age 

prior to September 22, there is no doubt that his status was changed 

temporarily, but section 2 of the Act of September 22, 1959 restored 

his previous status.? 

It has apparently been conceded in the argument before the Board 

that this restoration of third preference status operated retroactively 

to revalidate the petition ab initio, and the Department of State has 

not attempted to distinguish between beneficiaries reaching the age 

I have considered the Department's arguments based on the statutory history of the Act of September 22, 1959, but I find them inconclusive. The 

significance which the Department attaches to the fact that the benefits of 

section 4 are limited to "the spouse and the children" of the alien-beneficiary 

is unwarranted. It is not to be expected that the class of eligible dependents 

of beneficiaries would be as broadly defined as the class of beneficiaries. The 

fourth paragraph of the memorandum by Congressman Rodino, 105 Cong. Rec. 

18997, does indeed tend to support the Department's interpretation, but the 

memorandum is entitled "a brief explanation" of the Act and it cannot be 

assumed that it was intended to exhaust the possibilities of relief thereunder. 

476 
of 21 years before September 22, 1959, and those who reach that age 

after that date. I do not find it necessary to consider this problem 

for as I view the provisos of sections 4 and 6 they do not require 

that eligibility for a preference be continuous and uninterrupted 

for the whole period between the approval of the petition and application for a visa. It is enough that, as in this case, eligibility 

existed at the time the petition was approved and exists at the time 

of application for an immigrant visa and for admission into the 

United States. 

The decision ordering that the visa petition be approved for nonquota status under sections 4 and 6 of the Act of September 22, 

1959 is affirmed. 

477