Interim Decision #2133 

MATTER OF CHATTERTON 

In Visa Petition Proceedings 

A-19942340 

Decided by Board March 21, 1972 

Despite birth in an independent country of the Western Hemisphere, an alien 

who meets the conditions set forth in section 202(bX4) of the Immigration and 

Nationality Act may be alternately charged to the foreign state of either 

parent, and within such alternate chargeability may be accorded any classification under section 203(a) of the Act for which eligible (in the instant case, 

beneficiary accorded second preference classification as the unmarried daughter of a lawful permanent resident alien).* [Matter of Tiszai, 12 I. & N. Dec. 

425, superseded.] 

ON BEHALF OF PETITIONER: 

Pro se 

The petitioner, a lawful permanent resident of the United 

States, applied for preference status for the beneficiary as his 

unmarried daughter under section 203(a)(2) of the Immigration 

and Nationality Act. The District Director, in his order dated July 

20, 1971, denied the petition on the ground that the beneficiary, a 

native of the Western Hemisphere, is eligible only for a special 

immigrant visa, notwithstanding the alternate chargeability provisions contained in section 202(b) of the Act. The District Director 

based his decision upon this Board's prior ruling in Matter of 

Tiszai, 12 1. & N. Dec. 425 (BIA, 196'7). Because of significant 

changes in law and regulations since that case was decided, the 

District Director certified his decision to this Board. His decision 

will be overruled, and the matter will be remanded for further 

proceedings. 

The petitioner is a native and citizen of Great Britain. The file 

contains no information with regard to the mother of the beneficiary. The beneficiary, the daughter of the petitioner, was born in 

* See also, Matter of Ponce de Leon, Interim Deciaitm No. 2130, and Mattes- of 

Ascher, Interim Decision No. 2182. 

ON BEHALF OF SERV1UE: 

Irving A. Appleman 

Appellate Trial Attorney 

(Brief filed) 

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Interim Decision #2133 

Peru at a time when the petitioner was temporarily residing in 

that country in connection with a three-year contract of employment with an accounting firm. 

Section 202(b) of the Immigration and Nationality Act, which 

contains the provisions relating to alternate chargeability to the 

country of birth of a parent or spouse, has remained unchanged 

since we decided Matter of Tiszai, supra. It reads, in relevant part, 

as follows: 

... For the purposes of this Act the foreign state to which an immigrant is 

chargeable shall be determined by birth within such foreign state except that 

(1) an alien child, when accompanied by his alien parent or parents, may be 

charged to the same foreign state as the accompanying parent or of either 

accompanying parent if such parent has received or would be qualified for an 

immigrant visa, if necessary to prevent the separation of the child from the 

accompanying parent or parents, and if the foreign state to which such parent 

has been or would be chargeable has not exceeded the numerical limitation 

set forth in the proviso to subsection (a) of this section for that fiscal year; (2) 

if an alien is chargeable to a different foreign state from that of his 

accompanying spouse, the foreign state to whch such alien is chargeable may, 

if necessary to prevent the separation of husband and wife, be determined by 

the foreign state of the accompanying spouse, if such spouse has received or 

would be qualified for an immigrant visa and if the foreign state to which such 

spouse would be chargeable has not exceeded the numerical limitation set 

forth in the proviso to subsection (a) of this section for that fiscal year; (3) .... 

(4) an alien born within any foreign state in which neither of his parents was 

born and in which neither of his parents had a residence at the time of such 

alien's birth may be charged to the foreign state of either parent. 

For the sake of simplicity, we shall refer to the exception from 

the general rule for chargeability contained in section 202(b)(1) as 

the "first exception"; that contained in section 202(b)(2) as the 

"second exception"; and so on. 

The implementing regulations with respect to alternate chargeability are contained in 22 CPR 42.51 through 42.54, inclusive. 

They now read as follows: 

§ 42.51 Exception for accompanying child. 

An immigrant child, including a child born in a dependent area, or in an 

independent country of the Western Hemisphere, accompanied by his alien 

parent may be charged to the foreign state of birth of the accompanying 

parent, as provided in section 202(b)(1) of the Act. 

§ 42.52 Exception for accompanying spouse. 

An immigrant spouse, including a spouse born in a dependent area, or in an 

independent country of the Western Hemisphere, may, as provided in section 

202(bX2) of the Act, be charged to the foreign state of his accompanying 

spouse. 

§ 42.53 * * *. 

§ 42.54 Exception for alien born in foreign state of which neither of his 

parents was a resident. 

An alien who was born in a foreign state r - as defined in §42.1, in which 

neither of his parents was born, and in which neither of his parents had a 

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Interim Decision #2133 

residence at the time of his birth, may be charged to the foreign state of 

either parent as provided in section 202(b)(4) of the Act. The parents of 

such an alien shall not be considered as having acquired a residence within 

the meaning of section 202(b)(4), if at the time of such alien's birth within 

the foreign state they were merely visiting temporarily or were stationed 

there under orders or instructions of an employer, principal or superior 

authority foreign to such foreign state in connection with the business or 

profession of the employer, principal or superior authority. (Emphasis supplied.) 

The term "foreign state" is defined in 22 CFR 42.1, which reads as 

follows: 

For the purpose of according alternate chargeability pursuant to section 

202(b) of the Act, the term "foreign state" is not restricted to those areas to 

which the numerical limitation prescribed by section 202(a) of the Act applies 

but includes dependent areas, as defined in this section, and independent countries of the Western Hemisphere and the Canal Zone. (Emphasis supplied) 

The term "accompanying" is not defined in the Immigration and 

Nationality Act but is defined in 22 CFR 42.1 as follows: 

"Accompanying" or "accompanied by" means, in addition to an alien in the 

physical company of a principal alien, an alien who is issued an immigrant "visa 

within 4 months of the date of issuance of a visa to the principal alien, within 4 

months of the adjustment of status in the United States of the principal alien, 

or within 4 months from the date of the departure of the principal alien from 

the country in which his dependents are applying for visas if he has traveled 

abroad to confer his foreign state chargeability upon them. An "accompanying" 

relative may not precede the principal alien to the United States. 

In Matter of Tiszai, supra, which was decided on August 31, 1967, 

the issue was whether a special immigrant, born in Mexico of 

Japanese diplomats assigned to that country, came within the 

fourth exception. That is, the question was whether the beneficiary was entitled to alternate chargeability to the quota of Japan, 

the place of her parents' birth. Under the law then in effect, a 

native of a Western Hemisphere country was not chargeable to 

any quota, was subject to no numerical limitation, and needed no 

preference in order to secure an immigrant visa. We held, accordingly, that the provisions of section 202(b)(4) did not apply to a 

special immigrant. 

Since that time a basic change has occurred in the immigration 

law. On July 1, 1968 the provisions of section 21(e) of the Act of 

October 3, 1965 became effective, providing for an annual limitation of 120,000 immigrant visas for natives of independent Western 

Hemisphere countries and the Canal Zone. This has resulted in 

oversubscription of the "Western Hemisphere quota". For example 

during the month of March, 1972, immigrant visas are available 

only to those Western Hemisphere natives whose priority date is 

earlier than November 22, 1970. 

The version of 22 CFR 42.54 in effect when Tiszai was decided 

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• Interim Decision #2133 

was amended on June 27, 1968 with the addition of a reference to 

the definition of "foreign state" contained in 22 CFR 42.1 (33 P.R. 

9398). The definition found in that section, which now specifically 

includes "independent countries of the Western Hemisphere and 

the Canal Zone," was added at the same time. The heading under 

which these sections appear was changed simultaneously from 

"Foreign state chargeability" to "Chargeability to numerical limitations." 

These changes in law and regulation have so changed the legal 

framework in which our precedent decision in Matter of Tiszai, 

supra, was decided that we now conclude that our decision in 

Tiszai is no longer applicable. We shall now proceed to a resolution 

of the present case on that basis. 

According to section 202(b)(4) which contains the fourth exception, an alien born within any foreign state may be charged to the 

foreign state of either parent if (1) neither of his parents was born 

in such state, and (2) neither parent had a residence in the state of 

his birth at the time of his birth. The facts available upon the 

present record indicate that the beneficiary was born in Peru 

when her father was temporarily in that country in connection 

with his employment. Provided the beneficiary's mother is not a 

native and resident of Peru, this case appears to fall within the 

purview of section 202(b)(4). Therefore, the beneficiary may be 

charged to the foreign state of the birth of the petitioner, unless 

the beneficiary's mother is a native or resident of Peru. 

The beneficiary is chargeable in the first instance under section 

101(aX27), by reason of birth in Peru, to the Western Hemisphere 

annual limitation of 120,000. By virtue of the operation of section 

202(b)(4) of the Immigration and Nationality Act and 22 CFR 42.1 

and 42.54 she is alternatively chargeable to the numerical limitation of 170,000 provided in section 201(a) for aliens who are not 

special immigrants or immediate relatives of United States citizens. 

Section 203(a) of the Act provides that aliens who are subject 

to the numerical limitations in section 201(a) shall be allotted visas 

in the manner prescribed in subparagraphs 1 through 9 of 'section 

203(a). The beneficiary, then, may be accorded any preference 

classification under section 203(a) for which she is eligible. As the 

unmarried daughter of a permanent resident alien she is eligible 

for preference classification under section 203(a)(2). 

We also considered the question of whether the beneficiary, 

inasmuch as she is a child, must qualify under the first exception, 

either in addition to, or instead of, under the fourth exception. We 

have given this question careful consideration and conclude that 

she need not quailify under the first exception. It is enough that 

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she meets the requirements of the fourth exception. We note that 

the fourth exception, although overlapping the first and second 

exceptions in some instances, is evidently based upon a different 

rationale than those two exceptions. 

We note that the first exception would apply to the present case 

if it were established that (1) the beneficiary is an alien child, (2) 

she were "accompanied by" her parent or parents, (3) the accompanying parent was born in a "foreign state," (4) the accompanying 

parent must have either received or be qualified for an immigrant 

visa, and (5) there must be a visa available if the child be charged 

to the foreign state of birth of the accompanying parent. As is 

stated in section 202(b)(1), the purpose of this exception is to 

prevent unnecessary separation of an alien child from its parent 

or parents. 

The fourth exception does not contain the same requirements as 

the first exception. It concentrates on the case of birth in a foreign 

country when the connection of both parents with that country is 

tenuous in nature. Hence, the sole requirement is that neither 

parent was born in or had a residence in the foreign state at the 

time of birth of the beneficiary. 

The fourth exception is not limited to the case of an alien child, 

as is the first exception; neither is it limited to the case of an alien 

spouse, as is the second exception. In fact, section 202(b)(4) contains no requirement that an alien qualifying under it be accompanied by anyone. The prevention of the separation of family 

members is obviously not the primary purpose of this section. That 

being the case, the fourth exception is also open to alien beneficiaries whose parents may have died, or whose parents are not 

connected in any direct way with the alien's immigration to the 

United States. Accordingly, the beneficiary of any preference 

status, and even beneficiaries of a preference status not geared to. 

close familial relationships with United States citizens or permanent resident aliens, may also come within its purview. Indeed, we 

find nothing in the statutory language of the section to preclude 

its application to nonpreference aliens as well. In every case, an 

alien qualifying for the fourth exception becomes entitled to 

alternate chargeability only to the foreign state of birth of his 

parent or parents. - 

In the present case, the beneficiary might also qualify under the 

first exception if (1) she were "accompanied by" the petitioner and 

(2) a visa would be available if she were charged to the foreign 

state of the petitioner's birth. However, she need not satisfy these 

requirements since she already qualifies for the fourth exception. 

Based upon the foregoing, we hold that the decision of the 

District Director should be overruled. We could order that the 

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Interim Decision nil 

application for preference classification filed by the petitioner I 

approved forthwith except for the fact that we have no basis fi 

finding that the beneficiary's mother is not a native of Peru an 

had no residence in that country at the time of the beneficiary 

birth. The matter will be remanded and the following order will 

entered. 

ORDER: The decision of the District Director is overruled an 

the matter is remanded for further proceedings not inconsister 

with the foregoing. 

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