Interim Decision #3421

In re Theodore M. MINKOVA, beneficiary, as child of the

widow of Milko Nikodov Mankov

File A77 433 508 - Nebraska Service Center

Decided as amended December 1, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

There is no provision in the Immigration and Nationality Act for a widow or widower

to file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) on behalf of

a child; however, under 8 C.F.R. § 204.2(b)(4) (1999), the child may be eligible for derivative

classification as an immediate relative and may accompany or follow to join the principal

alien (widow or widower) to the United States, if the principal alien includes the child in a

visa petition filed pursuant to section 204(a)(1)(A)(ii) of the Act, 8 U.S.C. § 1154(a)(1)(A)(ii)

(1994).

Bart Klein, Esquire, Seattle, Washington, for beneficiary

Terry A. Smith, Assistant Central Regional Counsel, for the Immigration and Naturalization

Service

Before: Board Panel: HOLMES, GUENDELSBERGER, and JONES, Board Members. 

HOLMES, Board Member:

ORDER:

PER CURIAM. In a decision dated January 21, 1999, the Nebraska

Service Center (“NSC”) director denied the Petition for Amerasian,

Widow(er), or Special Immigrant (Form I-360), which sought to classify the

child of a widow of a United States citizen as an immediate relative under

section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. §

1151(b)(2)(A)(i) (1994). The petitioner, the child’s mother, appealed from

that decision.

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On our own motion, we amend the September 27, 1999, order in this case. The amended order makes editorial changes consistent with designating the case as a precedent.
Interim Decision #3421

The NSC director denied the petition on the ground that there is no provision under the Act to confer immigration status on the child of a widow

of a United States citizen through the filing of Form I-360. On appeal, it is

argued that the NSC director did not adequately consider the entirety of the

language of section 201(b)(2)(A)(i) of the Act. It is also argued that such a

filing is necessary because the “immediate relative” category does not have

derivatives, and that the beneficiary “needs to be petitioned or self-petitioned.”

We agree with the NSC director’s decision to deny the petition. Section

201(b)(2)(A)(i) of the Act provides in pertinent part as follows:

In the case of an alien who was the spouse of a citizen of the United States for at least

2 years at the time of the citizen’s death . . . , the alien (and each child of the alien)

shall be considered, for purposes of this subsection, to remain an immediate relative

after the date of the citizen’s death but only if the spouse files a petition under section

204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse

remarries. (Emphasis added.) 

Further, the implementing regulations do not provide for the filing of a

Form I-360 on behalf of the child of a widow or widower. See 8 C.F.R. §

204.2(b) (1999). The record before us does not reflect whether or not the

spouse (widow) has filed a petition under section 204(a)(1)(A)(ii) of the

Act, 8 U.S.C. § 1154(a)(1)(A)(ii) (1994). Accordingly, the petition before

us was properly denied. 

We note, however, that, contrary to the argument of petitioner’s counsel,

the controlling regulations expressly provide in pertinent part as follows:

A child of an alien widow or widower classified as an immediate relative is eligible

for derivative classification as an immediate relative. Such a child may be included in

the principal alien’s immediate relative visa petition, and may accompany or follow to

join the principal alien to the United States. 

8 C.F.R. § 204.2(b)(4). Thus, a child does not need a separate visa petition

filed on his or her behalf, because the child of an alien widow or widower

is eligible for derivative classification.

Accordingly, the appeal is dismissed.

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