Interim Decision #2577 

MATTER OF CHO 

In Visa Petition Proceedings 

A-31184541 

Decided by Board April 19, 1977 

(1) Beneficiary was born in Korea on June 21, 1960, and had lived there in the home of his 

adoptive parents (petitioners) from 1968 to 1972. In 1972 the adoptive parents emigrated to the United States. In 1973, beneficiary was adopted by proxy when his name 

was entered in the Korean Family Registry as the adopted child of the petitioner and his 

wife. 

(2) Even though the adoption was not formalized until after the adoptive parents had 

emigrated to the United States, the adoption was valid under Korean law because the 

registration provisions of section 878(1) of the Korean Civil Code had been complied 

with, and because the documents had been examined by the Family Registrar and found 

to comply with the provisions of section 881 of the Korean Civil Code. 

{3) More fact that a preference classification is an incidental benefit of the adoption does 

not raise a presumption the arinpfinn is invalid or entered into to evade the immigration 

laws. 

(4) This adoption meets the requirements of section 101(b)(1)(E) of the Immigration and 

Nationality Act because the beneficiary had been validly adopted in Korea before the 

age of 14 years, and be cause he had resided with the adoptive parents for a period of two 

years preceding the adoption which satisfies the statutory requirement. See Matter of 

M—, 8 I. & N. Dec. 118 (BIA 1958; A.G. 1959). The visa petition will be granted. 

ON BEHALF OF PETITIONER: Pro se 

B Y: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his adopted child under section 203(a)(2) of 

the Immigration and Nationality Act. In a decision dated August 25, 

1976, the District Director denied the petition on the ground that the 

adoption, although perhaps technically valid under section 101(b) of the 

Act, was nonetheless insufficient to support the accord of immigration 

'benefits, since it "seemed" to have been entered into for the purpose of 

evading the immigration laws. The petitioner appeals. The appeal will 

to sustained. 

The beneficiary, a native and citizen of Korea, was born on June 21, 

1960. In 1968, at the age of eight years, she was taken into the home of 

the petitioner and his wife. She lived with the petitioner and his wife as 

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a member of the family unit until 1972, when the petitioner and his wife 

immigrated to the United States, leaving the beneficiary and two 

natural children in the care of relatives. In 1973, the beneficiary was 

registered in the Korean Family Registry as the adopted child of the 

petitioner and his wife. Our first inquiry on appeal must be whether 

such a "proxy" adoption is valid under Korean law. 

We have made reference to a memorandum of law from the Far 

Eastern Law Division of the Library of Congress.' This memorandum 

states that a "proxy" adoption, while not specifically described in the 

Korean Civil Code of 1960, is clearly permissible under Korean law if the 

specified notification and registration requirements are complied with. 

Under section 878(1) of the Code, an adoption. is not deemed valid until 

it has been registered in the Korean Family Register. In the case of the 

adoption of a minor under the age of 15 years, the adoption must be 

registered by the natural parents or guardian of the adopted child. 

Section 881 of the Code states that a notification of adoption may be 

accepted for registration in the Korean Family Register only after it 

has been examined by the Family Registrar for compliance with all 

relevant Korean law. 

The petitioner has submitted a notification of adoption and a copy, 

authenticated by the Family Registrar, of the Korean Family Register. 

These two documents indicate that the beneficiary has been adopted by 

the petitioner, that notification of the adoption was given by the natural 

parent, and that this notification has been accepted by the Family 

Registrar for registration in accordance with section 881 of the Code. 

We find, therefore, that a valid adoptive relationship exists under 

Korean law. 

However, the Immigration and Nationality Act imposes additional 

requirements which must be satisfied before an adoption, valid under 

the laws of a foreign country, can support the grant of immigration 

benefits. Under section 101(b), a "child" is defined, in relevant part, as 

"an unmarried person under twenty-one years of age, who is—(E) 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 . . . ." 

Since the adoption concededly took place in 1973, the beneficiary has 

been in the legal custody of her parents for at least two years subsequent to the adoption. In Matter of M—, 8I_ & N. Dec. 118 (BIA 1958; 

A.G. 1959), the Attorney General held that the two-year cohabitation 

requirement of section 101(b) is satisfied by a two-year period preceding 

the adoption. Since the beneficiary lived with her parents for four years 

' Memorandum from Dr. Sung Yuma Cho, Far Eastern Law Division, Law Library, 

Library of Congress, received October 23, 1968. 

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prior to their immigration to the United States, the two-year cohabitation requirement is thus satisfied. Similarly, the beneficiary was 13 

years of age at the time of the adoption. 

Despite the satisfaction of all the requirements of a valid adoption 

under section 201(b), the District Director denied the petition. In so 

doing, he relied upon the fact that the legal adoption took place after the 

parents were in the United States. This "seen-tied] to indicate" to the 

District Director "that the adoption was solely entered in the family 

register to enable the beneficiary to emigrate." On appeal, the petitioner argues that the delay in the formal adoption was due to the 

Korean legal requirement that the natural mother consent in writing to 

the adoption. Despite repeated efforts, he argues, the natural mother 

was not located until 1973. In a brief filed on appeal, the District 

Director states that this new evidence would "in no way alter" his 

original decision, which apparently was based solely on the fact that the 

beneficiary was adopted "after the petitioner's entry." 

We disagree that an adoption valid in every respect under section 

101(b) may be disregarded by the District Director solely because it was 

legally formalized after the petitioner's immigration to the United 

States. The mere fact that a preference classification was an incidental 

benefit to the adoption does not per se invalidate the adoption or raise a 

presumption that the adoption is a sham, and entered into for the 

purpose of evading the immigration laws of this country_ In designing 

section 101(b)(1)(E), 'Congress inserted specific safeguards against ad 

hoe adoptions for the purpose of evading the immigration laws. The age 

limitation of 14 years and the two-year legal custody and cohabitation 

requirements were inserted for this very purpose. See Matter of—, 

supra. It is not for the District Director to impose stricter standards than 

Congress. The District Director erred in denying the visa petition on the 

sole ground that the adoption, admittedly valid in every respect under 

section 101(b), was completed after the parents had entered the United 

States. The petitioner's appeal will thus be sustained. 

ORDER: The appeal is sustained, and the visa petition is granted. 

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