T-1896469
Decided by the Central Office April 20, 1954
Adjustment of status — Section 245 of the Immigration and Nationality Act — Minor may be charged to quota of parents with whom she resides.
For the purposes of adjustment of status under section 245 of the Immigration and Nationality Act, a native of Venezuela is regarded as accompanying her parents (natives of the Netherlands) with whom she resides, and, in accordance with section 202(a)(1) of the act, may be charged against the quota of her accompanying parents to prevent her separation from them. Therefore, she is eligible for adjustment of status under section 245 to that of a quota immigrant even though she might also be admitted to the United States as a nonquota immigrant under section 101(a)(27)(C) of the act as a native of Venezuela.
BEFORE THE CENTRAL OFFICE
Discussion: Upon consideration of the entire record it is concluded that subject's appeal should be sustained and that the application should be granted.
The applicant is a 17-year-old unmarried female, a native and citizen of Venezuela. Her application was denied by the district director, Miami, on the ground that she is not a quota immigrant and that she does not have a nonquota status under section 101(a)(27)(A) of the Immigration and Nationality Act. The file shows that the applicant is the legitimate child of W---- J---- and his wife, M---- J---- J----, nee S----; that her parents were admitted to the United States at the port of New York on May 20, 1953, as nonpreference quota immigrants under the quota for the Netherlands; and that she is residing with them.
Section 245 of the Immigration and Nationality Act permits the adjustment of a nonimmigrant's status to that of a quota immigrant or a nonquota immigrant under section 101(a)(27)(A). As found by the district director, the applicant is not a nonquota immigrant under section 101(a)(27)(A). Furthermore, by reason of her birth in Venezuela, she might be admitted to the United States as a nonquota immigrant under section 101(a)(27)(C) rather than as a quota immigrant.
Section 201(d) of the Immigration and Nationality Act provides that nothing in that act shall prevent the issuance (without increasing the total number of quota immigrant visas which may be issued) of an immigrant visa to an immigrant as a quota immigrant even though he is a nonquota immigrant. Section 202(a)(1) of that act further provides that an alien child, when accompanied by his alien parent or parents may be charged to the quota of the accompanying parent or of either accompanying parent if such parent has received or would be qualified to receive an immigrant visa, if necessary to prevent the separation of the child from the accompanying parent or parents, and if the quota to which such parent has been or would be chargeable is not exhausted for that fiscal year.
For the purposes of adjustment of status under section 245, the applicant's parents, with whom she makes her home in the United States and who are aliens who have been lawfully admitted to the United States for permanent residence, are regarded as accompanying the alien. Section 202(a)(1) permits her to be charged against the quota of her accompanying parents to prevent her separation from them. She is therefore, eligible for adjustment of status under section 245 to that of a quota immigrant, provided that a quota visa is immediately available to her. Under section 203(a)(3), as a child of aliens lawfully admitted for permanent residence, she is eligible for a preference quota visa. Information from the State Department is to the effect that a third preference quota visa under the quota for the Netherlands is immediately available. Accordingly, the appeal will be sustained and the application granted.
Order: It is ordered that subject's appeal from the order of the district director denying her application under section 245 be sustained and that her application be granted.
It is further ordered that the file in this case be returned to the district director, Miami, for appropriate action.