MATTER OF C 

In VISA PETITION Proceedings 

VP 3-1-119205 

Decided by Board September 5, 1961 

Visa petition—nonquota status—Adopted child—Change in interpretation of 

law—No authority to grant retroactive apprnval. 

No authority exists to grant retroactive approval of petition to accord nonquota status where petition had been properly denied under the then existing rule of law and change in the interpretation of the law occurred after 

beneficiary ("adopted child") had reacheu the age or 21 years. 

BEFORE THE BOARD 

DISCUSSION: The case comes before us on motion of counsel requesting that the prior decision of this Board dated March 30, 1960, 

denying the visa petition be reversed, and that the beneficiary be 

accorded nonquota immigrant status notwithstanding the fact that 

he is no longer under 21 years of age. Counsel persists in his appeal 

notwithstanding that the visa petition has been approved for preference status under section 203(a) (2) of the Immigration and 

Nationality Act, contending such approval is of dubious value inasmuch as the Chinese quota is oversubscribed. 

The petitioner, a native of China, naturalized citizen of the 

United States, filed a visa petition on October 2, 1957, at the New 

York office, for nonquota status on behalf of the beneficiary as his 

adopted child. The beneficiary is a native and citizen of China, 

born March 8, 1939. The beneficiary had been adopted by the petitioner's wife, with the consent of- the petitioner, when about two 

years of age and, had resided solely with the petitioner's wife from 

1941 to 1958 when the adoptive mother joined the petitioner in the 

United States. 

The case was previously before us on March 30, 1960, on appeal 

from .the decision of the District Director at New York dated November '24, 1V50, denying the visa petition. Al that time we denied 

the visa petition on the authority of Matter of C—F—L, 8-151 

(Atty. Gen., 1959), which held that for the purposes of section 

101(b) (1) (E) of the Immigration and Nationality Act, as amended, 

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the two-year legal custody and residence required of an adopted child 

must be with both of the adoptive parents where two exist. It is 

to be noted that at the time of our decision on March 30, 1960, the 

beneficiary was then over 21 years of age. 

Subsequently, the Attorney General had occasion to reconsider 

his holding in Matter of C F L , supra, because of several ad - 

verse court decisions, and in Matter of J' K—W—, 9-176 (Atty. 

Gen., Feb. 28, 1961), held that the two-year legal custody and 

residence requirement imposed upon an adopted child under the 

provisions of section 101(b) (1) (E) of the Immigration and Nationality Act, as amended, were satisfied when custody and residence 

have been with but one of the two adoptive parents rather than 

with both. The visa petition has been reconsidered by the New York 

office in the light of the Attorney General's latest holding, and approval has been granted for preference status on behalf of the beneficiary under section 203(a) (2) of the Immigration and Nationality 

Act, as amended, since the beneficiary is an unmarried son over 21 

years of . age and, therefore, is no longer able to qualify for nonquota status as a minor child. 

Counsel argues that due to the oversubscribed condition of the 

quota for Chinese persons second preference status will be of dubious value to the beneficiary, and that had the Case been originally 

considered in the light of the Attorney General's present view, as 

expressed in Matter of Y—K—W—, supra, the petition would have 

been approved for nonquota status. He requests, therefore, that the 

petition be approved mate pro tune for nonquota status. 

Counsel cites Matter of S—, 8-221, as precedent authority for 

such action. Matter of S—, supra, involved a question of acquisition 

of citizenship by a child horn abroad and the action necessary to 

retain such citizenship, involving an interpretation of the retention 

provisions of sections 201(g) and (h) of the Nationality Act of 1940 

and of section 301(b) of the Immigration and Nationality Act. The 

Solicitor General confessed error in the Supreme Court despite a 

favorable decision in the Circuit Court of Appeals and concluded 

that section 301(c) rendered the general savings clause inapplicable, 

so that, although a petitioner had lost citizenship under the 1940 Act, 

he could regain that citizenship under sections 301(b) and (c) of the 

1952 Act by coming to the United States before he became 23 years of 

age. Based upon this holding, it was determined that where such a 

person was incorrectly informed by an American consular officer 

before his twenty-first birthday that he had lost United States citizenship, and if, in reliance upon such information and without any lack 

of diligence, such person did not apply for and receive a United States 

passport until after his twenty-third birthday -but thereafter pro434 
seeded immediately upon passport iss uance to this country, that person 

would be entitled to admission as a United States citizen. 

We are sympathetic with the plight in which the beneficiary finds 

himself, but we do not believe that authority exists to grant a ramie 

pro turac approval of the visa petition herein. In order to qualify 

as a child for nonquota status, the beneficiary must be unmarried 

and under 21 years of age.' By regulation, 8 CFR 206.1(b) (4), 

provision is made for automatic revocation of nonquota status 

granted a beneficiary as the minor child of a United States citizen 

upon reaching the age of 21 years, except that such a petition is 

valid to accord status under section 203(a) (2) of the Act. When 

we considered this case on appeal on March 30, 1960, the beneficiary 

was then over 21 years of age, and even at that time had the present 

view of the Attorney General been in effect we could do nothing 

more than approve second preference status. There appears to be 

Ito authority to grant retroactive approval of a petition to establish 

nonquota or preference' quota status. 2 

It is to be noted that at the time the prior order of denial of the 

visa petition was entered the rule of law as to the construction to 

be placed upon section 101(h) (1) (E) of the Immigration and 

Nationality Act, as amended, was that enunciated by the Attorney 

General in Matter of C—F—L, 8 151 (Apr. 27, 1959). The previous 

decision of the District Director and of this Board was in accord with 

the then existing rule of law. The fact that the rule has now been 

changed does not mean that our prior decision constituted a gross 

miscarriage of justice.' The law and the regulations prevent the 

issuance of a nonquota visa to the beneficiary and we are unable to 

find any provisions which expressly- or impliedly authorize a retroactive approval of the visa petition in order to grant nonquota status 

to the beneficiary. 

ORDER: It. is ordered that the motion be and the same is hereby 

denied. 

Section 101(b) (1), 8 U.S.O. 1101(1)(1). 

a Cf. Yu v. Iltirney, 192 F. Supp. 707 (E.D. Pa., 1981), in which the petitioner sought retroactive approval of third preference quota status for his 

wife to a date prior to January 1, 1959, in order that the benefits of section (; 

of the Act of September 22, 1919 could accrue to her. 

un it ed Etatoe oa rel. octeffrto-r n. Carmir.lrael, 1W1 F •)ri 10 (C A. 5, 1950), 

cert. den. 340 U.S. 829; Daskaloff v. Zurbrick, 103 F.2d 579; United states er 

Koe,hler v. Corsi, fi0 F.2d 12.3; Alaticr ∎ )f S--, 01; Matter of fe--, 

4-173 ; Matter of C—, 8-611. 

435