Interim Decision #1726 

MArrmi OP MANDEWIRTE 

In Visa Petition Proceedings 

A-12194837 

Decided by Board April 19, 1967 

Acknowledgement by petitioner, a native or Austria, of fatherhood and agreement of support of beneficiary, who was born out of wedlock in 1945, does 

not constitute legitimation for immigration purposes (section 101(b) (1) (0), 

Immigration and Nationality Act, as amended), since under the law of 

Austria legitimation of a child born out of wedlock is not accomplished by 

mere acknowledgment of paternity and agreement to support 

The case comes forward on appeal from the order of the District 

Director, Washington, D.C., District, dated September 14, 1966 denying the visa petition for the reason that the facts presented disclose 

that the petitioner was never married to the beneficiary's mother and 

that he has not been otherwise legitimated; it is concluded that the 

beneficiary is not a child as defined in section 101(b) (1) of the Act. 

The petitioner;formerly a citizen of Austria, now a citizen of 

Canada, a lawful permanent resident of the United States, seeks preference quota status on behalf of the beneficiary as his son. The beneficiary is a native of West Germany, born April 24, 1945. 

It is admitted by the petitioner that the beneficiary was born out of 

wedlock. However, he has submitted a document of Proof of Fatherhood and Support (Document on the acknowledgment of fatherhood 

and agreement on support) which acknowledges that the petitioner, 

an Austrian citizen, is the natural father of the beneficiary who was 

born out of wedlock and contains an agreement of support. The document is dated December 20, 1951. 

Inasmuch as the beneficiary is an illegitimate child, he must qualify 

as a child under section 101(b) (1) (0) of the Immigration and Nationality Act as a, legitimated child. The document of acknowledgment 

of paternity was submitted to the Library of Congress for an opinion. 

Under the law of Austria, an illegitimate child has the status rights of 

a legitimate child only in respect 'to its mother: it takes her surname 

(sec. 165, par. 1, of the Austrian Civil Code, Dab ailgesaeiszoburgerliohz 

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Interim Decision #1726 

Gesetibuolt, hereinafter ABGB) ; acquires her nationality status (sec. 

3 of the Nationality Act, Staatsburgerschaf Wentz, Bvmdesgezetblatt, 

hereinafter 11(31B1, No. 276/1040) ; and is under the jurisdiction of the 

court of the mother's domicile (sec. 72 of the Law of August 1, 1895, 

as amended, on the Jurisdiction of the Regular Courts in Civil Matters). An illegitimate child does not have the right to bear its father's 

name (sec. 165, par. 1, of the ABGB). 

The article from the Library of Congress then goes on to set forth 

additional information regarding acknowledgment of paternity. It 

states that legitimation is distinguished from acknowledgment of paternity in that the former is an act giving the status of legitimacy to a 

child born out of wedlock. The Civil Code distinguishes three types of 

legitimation: 

(a) A child conceived in a marriage concluded by a valid formal act, but void 

due to an impediment, shall be considered legitimate if the said marriage was 

subsequentiy validated, or if at least one of the parents was bona fide unaware 

of the impadiment (tee. 160). This is applicable in cases of the concealed bigamy 

of one of the spouses, or their error in considering separation as divorce, or in 

taking the declaration of the death of a perSon's spouse as the final act terminating the marriage- This method is applicable today only in rare instances, in 

view of later legislation. 

(b) A child born out of wedlock may be legitimated by the subsequent marriage of its parents (sec. 161). This is the most common ease of legitimation. 

(c) A child may be legitimated by a rescript of grace of the President of the 

Republic on the petition of both parents (sec. 162 of the ABOB in conjunction 

with Art. 65, par. 2, subpar. (d), of the Austrian Constitution). 

The document submitted with the visa petition does not establish 

that the beneficiary was ever legitimated' The visa petition based 

upon a preference on the ground of alleged relationship of father and 

child will be denied. 

It is noted that in commotion with the appeal the petitioner states 

that the beneficiary has a half-sister who is married to an Americanborn citizen. In the event that the brother-sister relationship is through 

the mother, and if the sister is a citizen of the United States, she may 

petition for quota preference on behalf of the beneficiary under section 203(a) (5) of the Immigration and Nationality Act. It is also 

noted that the quota to which the beneficiary is chargeable is open and 

the beneficiary will be eligible for a quota immigrant vise, if he can 

secure a labor certification pursuant to section 212 (a) (14) . 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

1See Matter of 3—, 6I. & N. Dec. 161, 162. 

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