MAFFER OF P— 

In VISA PETITION Proceedings 

A-12472655 

Decided by Board June 21, 1962 

Nonquota status—Orphans—Limitation of two to a family. 

provision of section 205(c) limiting to two the number of petitions which 

may be approved for one petitioner in behalf of a child as defined in section 

101(b) (1) (E) or (F) does not include those children issued special nonquota visas without a petition under betaluu 4 of the Act of Septcmbor 11, 

1957, prior to its amendment by the Act of September 9, 1959. (Overrules 

Matter of M—, 9-542. 

BEFORE-THE BOARD 

DISCUSSION: The petition herein was denied on April 17, 1962. 

The case came forward to the Board for review and final decision 

pursuant to certification by the Officer in Charge, Tokyo, Japan. 

Appeal by the petitioner was received subsequently. 

The petitioner is a native-born United States citizen. He is serving in the United States Armed Forces in Japan. He filed this 

petition pursuant to section 205 (b) of the Immigration and Nationality Act, as amended, requesting approval for nonquota immigrant 

visa status in behalf of the beneficiary, an adopted alien son, under section 101(a) (27) (A) of the Immigration and Nationality Act. 

The petitioner states that the beneficiary was born August 15, 1959, 

at Yokohama, Japan; and that the adoptive parents have had legal 

custody of such child during a period of two years after adoption, 

all of which time the child has resided with them. A court document showing the adoption is attached to the petition. The beneficiary is now in Tokyo, Japan, with the petitioner and his spouse. 

The family will come to the United States soon and reside in the 

State of Connecticut. 

The issue presented is whether the petitioner is precluded, as a 

matter of law and precedent, from haying this petition approved 

for nonquota immigrant visa status under section 101 (a) (27) (A) 

of the Immigration and Nationality Act in behalf of the beneficiary, 

his adopted child (section 101(b) (1) (E) of the Immigration and 

Nationality Act, as amended), in view of the factual situation to 

be noted and the provisions of current law. 

750 
The evidence herein in our opinion shows [here has been a valid 

adoption of the beneficiary. The petition has been denied on evidence of record showing that nonquota immigration visas were 

issued previously (on applications by this petitioner) for two alien 

children that were "eligible orphans" adopted by the petitioner and 

his spouse. The visas were issued on May 29, 1959, pursuant to section 4(a) and (b) of the Act of September 11, 1957 (Public Law 

p5-316). 1The orphan children are still in. Japan. The Officer in 

Charge has decided that the provisions of the immigration laws, 

specifically section 205(c) of the Immigration and Nationality Act 

as amended on September 26, 1961 (Public Law 87-301), limit the 

number of nonquota visas that may be issued and/or the number of 

visa petitions that may be approved for one petitioner in behalf of 

a "child" as the term is defined in section 101(b)(1)(E) and (F) 

of the Immigration and Nationality Act to two, and has denied the 

petition on that basis. 2 

1This petitioner obtained two special nonquota visas on May 29, 1959. At 

that time the term "eligible orphan" was defined in section 4(b) of the Act 

of September 11, 1957, and the procedure to obtain a special nonquota visa 

was set forth in section 4(a) of the Act. Under that statute an orphan 

adopted by an American citizen automatically became entitled to a special 

nonquota visa on application of the citizen petitioner to the United States 

consular service. (Note 3.1 Montgomery v. Pireach, 299 F.2d 730 (C.C.A. 8, 

1362)) Section 4(a) (repealed by section 24(a) of the Act of September 26, 

1961) reads as follows: 

On or before June 30, 1959, spacial nonquota immigrant visas may be issued 

to eligible orphans as defined in this section who are under fourteen years of 

age at the time the visa is issued. Not more than two such special nonquota 

immigrant visas may be issued to eligible orphans adopted or to be adopted 

by any one United States citizen and spouse, unless necessary to prevent the 

separation of brothers and sisters. 

2The pertinent statute defining "adopted child" and a "child who is an eligible orphan" is section 101(b) (1; (E) and (F) of the Immigration and Nationality Act, as amended by section 2 of the Act of September 11, 1957 

(Public Law 85-4116) ; also, as further amended by section 2 of the Act of 

September 26, 1961 (Public Law 87-301). Category "E" was added to section 

101(b) (1) for the first time in 1957. Category "F" was added by the amendment on September 26, 1961. The statute, as amended, provides : 

(b) As used in titles I and II— 

(1) The term "child" means an unmarried person under twenty-one years 

of age who is- 

• • 

(l) a child adopted while under the age of fourteen years if the child has 

thereafter been in the legal custody of, and has resided with, the adopting 

parent or parents for at least two years: • • • 

(F) a child who is an eligible orphan. adopted abroad by a United States 

citizen and spouse or coming to the United States for adoption by a United 

States citizen and spouse: • • • 

The term "parent" is defined in subsection (2) as follows : 

(2) The terms "parent'.', "fathet", or "mother" mean a parent, father, or 

wetter only where the relationship exists by reason of any of the circumstances set forth in (1) above. 

751 
This petition, filed March 7, 1962, is to be adjudicated under current law, that is, the Immigration and Nationality Act as amended 

on September 26, 1961. The procedure for obtaining nonquota or 

preference quota status in behalf of an alien is outlined in section 

205(b) of the Immigration and Nationality Act, as amended, which 

currently provides in part as follows: 

(b) Any citizen of the United States claiming that any immigrant is his 

• * • child and that such immigrant is entitled to a nonquota immigrant 

status under section 101(a) (27) (A), • • • may file a petition with the Attorney General. • • • 

This petitioner has not heretofore filed a visa petition under section 

205(b) in behalf of a "child adopted" as the term is defined in section 101(b) (1) (E) of the Immigration and Nationality Act,. Nor 

.1„s he filed a visa petition in behalf of an eligible orphan child as 

defined in section 101(b) (1) (F) and section 101(b) (6) of the Act. 

The question we must decide is whether this petition may be approved when two nonquota visas have already been issued for orphan children on req sect of the petitioner on May 29, 1959. We 

emphasize the fact that nonquota visas for those children were obtained without approved visa petitions filed pursuant to section 

205(b) of the Immigration and Nationality Act, as amended. The 

question is narrowed to a determination whether those children are 

to be included in the limitation in section '205(c) of the Immigration and Nationality Act, as amended by section \'`b) of the Act of 

September 26, 1961 (Public Law 87-301), to forbid the approval of 

the instant petition. Section 205(c) currently reads: 

* * * Not more than two such petitions may be approved for one petitioner in 

behalf of a child as defined in section 101(b) (1) (E) or (F), unless necessary 

to prevent the separation of brothers and sisters. • * * 

At the outset it is important to note that the provisions of section 

205(c), Immigration and Nationality Act, quoted in the preceding 

paragraph, with respect to a child who is an eligible orphan as 

defined in section 101(b) (1) (F), relate to visa petition procedure 

under section 205(b) and is new legislation. As such, we do not 

believe the limitation therein was intended to revert hack and inelude eligible orphan ehildien'to whom special nonquota visas were 

issued under special legislation, now repealed, under which a visa 

petition was not required. It is our opinion that Congress intended, 

through visa petition procedure, to establish safeguards for alien 

orphan children in each case before a child could be brought to the 

United States; and that only those children who are beneficiaries 

of visa petitions come within the limitation allowing only two orphans to each petitioner. The language in section 205(c), therefore, 

should be literally construed so that the benefits intended under the 

752 
new legislation will result.' This interpretation of the wording in 

section 205(c) is drawn from the fact that the emphasis is clearly 

on the number of visa petitions that may be approved for one citizen in behalf of a child in category "F" of section 101(b) (1), and 

not on the number of nonquota visas that have been issued to eligible orphans where no visa petitions were filed and approved.* 

We, therefore, construe the context of section 205(c) of the Immigration and Nationality Act to mean simply that a limitation of 

two is placed on the number of visa petitions that may be approved 

by the Attorney General for one petitioner in behalf of a child 

adopted, or an eligible orphan child, as those terms are defined in 

section 101(b) (1) (E) and (F) of the Act. We find that Congress 

has, in current legislation, provided a visa petition procedure for 

eligible orphan children by reason of relationship; and that only 

orphan children who are the beneficiaries of visa petitions come 

within the provisions of section 205(c) to limit two orphan children 

to each petitioner. Any other interpretation or construction of the 

language in the statute, it semis to us, would he leading meaning 

into it that is not there. In this connection we have not overlooked 

the distinction between the procedure under the 1957 Act to obtain 

nonquota status for an eligible orphan and the procedure requiring 

approval of a visa petition in every case. The definition of the 

term "eligible orphan" was added to section 101(b), contemporaneously with the amendment to section 205(c) on September 26, 1961 

(Public Law 87-301) . That definition states that an "eligible or3 In Matter of M—, 9-542, the Assistant Commissioner, Immigration and 

Naturalization Service, denied a visa petition in behalf of an eligible orphan 

child, presented for approval under current law by interpreting the provisions 

of section 205(c) to be a continuance of the limitations in prior legislation 

relating to eligible orphan children and to forbid a citizen to obtain nonquota 

status for more than two orphans. M—, the petitioner, had obtained nonquota 

visas for two orphans previously, one under the Itefugee Act of 1953, and one 

under section 4 of the Act of September 11, 1957. Petition for nonquota status 

for a third child was denied. However, the decisions of the Immigration and 

Naturalization Service as precedents are not binding on the Board. 

4 Section 4 of the Act of September 11, 1957, was amended September 9, 

1959 (Public Law 86-253) to require a petition for an orphan child. Under 

the rule of the instant case, two such approved petitions would, of course, 

preclude any further petition under section 205(c), as amended by section 

3 (b) of the Act of September 26, 1961 (Public Law 87-301). 

5 Section 101(b) (6) reads as follows: 

(6) The term "eligible orphan" means any alien child under the age of 

fourteen at the time at which the visa petition is filed pursuant to section 

MVO) wno is an orphan oecause or toe death or disappearance of both parents, or because of abandonment, or desertion by, or separation or loss from, 

both parents, or who has only one parent due to the death or disappearance 

of, abandonment, or desertion by, or separation or loss from the other parent, 

and the remaining parent is incapable or providing care for such orphan and 

has in writing irrevocably released him for emigration and adoption. 

753 

6254377—RS 
phan" means any alien child who is under the age of 11 years at 

the time at which the visa petition is filed pursuant to section 

205 (b) who is an orphan. The distinction is that an eligible orphan child under current law does not mean a child who has been 

issued a nonquota visa. 

Construing the pertinent current legislation as we do, and applying fair humanitarian standards in the administrative adjudication 

of the issue so that the family unit will not be dissolved, we see no 

reason to preclude the approval of this petition. 

.ORDER: It is ordered that the petition be approved for nonquota 

visa status. 

754