In the Matter of M---- F---- M

Board of Immigration AppealsNov 19, 1951
4 I&N Dec. 552 (B.I.A. 1951)

VP-452990

Decided by the Central Office November 19, 1951

Visa petition proceedings — Preference quota status — Chinese person as beneficiary petitioner — Children under the age of 21 — Denial of petition.

(1) The act of December 17, 1943, which repeals the Chinese exclusion laws and establishes a quota for Chinese does not authorize the grant of preference quota status, as allotted under section 6(a) (1) (A) of the Immigration Act of 1924, to Chinese persons. (For definition of "Chinese person," see section 5(b) of the act of July 2, 1946.) Hence, a petition for preference quota status in the issuance of an immigration visa filed by citizen children on behalf of their Chinese father beneficiary cannot be approved.

(2) A further ground for denial of such petition lies in the fact that the petitioners are under 21 years of age. Citizen children seeking a preference for their parents under section 6(a) (1) (A) of the Immigration Act of 1924 must be 21 years of age or over.

(3) The Chinese husband of a United States citizen is not entitled to nonquota status under section 4(a) of the Immigration Act of 1924. Although the act of December 17, 1943, allows nonquota status in the issuance of an immigration visa to be conferred upon the Chinese wife of a United States citizen (and certain other classes of immigrants), that act otherwise requires that all Chinese persons entering the United States as immigrants shall be charged to the quota for Chinese.

BEFORE THE CENTRAL OFFICE


Discussion: The visa petition was executed on June 19, 1951, pursuant to section 9 of the Immigration Act of 1924, for the purpose of establishing that the beneficiary R---- S---- H---- M----, is entitled to a nonquota status in the issuance of an immigration visa as the husband of a United States citizen as provided by section 4(a) of the Immigration Act of 1924. The attorney for the petitioner requests that the petition as filed with his accompanying letter be considered as an application by the minor citizen children of the beneficiary for the issuance of a quota immigration visa within the 50 percent of the quota as allotted under section 6(a) (1) (A) of the Immigration Act of 1924, to quota immigrants who are the fathers or the mothers of citizens of the United States who are 21 years of age or over, or who are the husbands of citizens of the United States by marriage occurring on or after January 1, 1948. The attorney contends that the statement "who are 21 years of age or over" as it appears in section 6(a) (1) (A) of the Immigration Act of 1924 relates to the fathers or the mothers who are over 21 years of age and that it is not a requirement that the citizen children be over 21 years of age.

The district director of this Service at Kansas City, Mo., denied the petition on July 12, 1951, and from this decision the attorney for the petitioner has appealed.

The questions presented are (1) is the beneficiary entitled to a nonquota immigration visa under section 4 (a) of the Immigration Act of 1924 as the husband of a United States citizen, or (2) is the beneficiary entitled to a preference within the quota under section 6 (a) (1) (A) of the Immigration Act of 1924 as the father of a United States citizen.

Petitioner has submitted birth certificates of her two children, Stephen, born in China, July 10, 1948, and Phyllis, born in St. Louis, Mo., November 25, 1949.

As section 2 of the act of December 17, 1943, as amended, provides that — "With the exception of Chinese alien wives of American citizens and those Chinese aliens coming under subsections (b), (d), (e), and (f) of section 4, Immigration Act of 1924 ( 43 Stat. 155; 44 Stat. 812; 45 Stat. 1009; 46 Stat. 854; 47 Stat. 656; 8 U.S.C. 204), all Chinese persons entering the United States annually as immigrants shall be allocated to the quota for the Chinese computed under the provisions of section 11 of the said act," the attorney for the petitioner concedes that the beneficiary is not entitled to a nonquota immigration visa as the husband of a United States citizen.

Petitioner's attorney does contend that the beneficiary is entitled to the issuance of a quota visa within the 50 percent allocated under section 6 (a) (1) of the Immigration Act of 1924 and consideration must therefore be given this point.

While the attorney contends that an immigration visa within the 50 percent allocated under section 6 (a) (1) is not a preference quota visa, Congress does refer to the issuance of such visas as preference quota in section 9 of the Immigration Act of 1924 which requires that an application for the approval of the issuance of such a visa be filed with the Commissioner of Immigration and Naturalization in such form as may be by regulations prescribed.

8 C.F.R. 165 provides for the filing of a petition for the approval of the issuance of an immigration visa where a citizen of the United States claims that an immigrant is his relative and properly admissible to the United States as a nonquota immigrant, or that such immigrant is entitled to preference in the issuance of an immigration visa. 8 C.F.R. 165.1 (b) provides:

No Chinese person as defined in section 5 (b) of the act of July 2, 1946 ( 60 Stat. 417; 8 U.S.C. 212c), is entitled to a nonquota or preference quota status solely because of his relationship to a citizen of the United States. A preference up to 75 per centum of the quota for the Chinese prescribed by section 2 of the act of December 17, 1943 ( 57 Stat. 601, 60 Stat. 975; 8 U.S.C. 212a), shall be given to Chinese persons born and resident in China. There are no other preferences in the issuance of immigration visas under the quota for the Chinese prescribed by section 2 of that act. An alien who is a Chinese person as defined in section 5 (b) of the act of July 2, 1946 ( 60 Stat. 417; 8 U.S.C. 212c), and who is seeking a preference in the issuance of an immigration visa under the said quota for the Chinese because of alleged birth and residence in China shall not be required to file an application for such preference with the Commissioner of Immigration and Naturalization but shall submit required proofs to the appropriate American consular officer. The quota for the Chinese authorized by section 2 of the act of December 17, 1943, does not affect the quota of 100 prescribed for China by the President's Proclamation No. 2283, of April 28, 1938. Any citizen of the United States may proceed as described in paragraph (a) of this section in behalf of any relative, other than one who is a Chinese person as defined in section 5 (b) of the act of July 2, 1946 ( 60 Stat. 417; 8 U.S.C. 212c), who was born in China and is not ineligible to citizenship: Provided, That nothing in this section shall be construed to deprive a Chinese alien wife of a United States citizen of nonquota status which she may derive because of marriage to a United States citizen nor to prevent any citizen of the United States from proceeding in accordance with paragraph (a) of this section in behalf of a Chinese alien wife (sec. 9, 43 Stat. 157, 50 Stat. 164 sec. 2, 57 Stat. 601; 8 U.S.C. 209).

From the foregoing regulation and the statement in the act of December 17, 1943, that "a preference up to 75 per centum of the quota shall be given to Chinese born and resident in China" it is clear that Chinese persons do not come within the preference allocation of section 6 (a) (1) of the Immigration Act of 1924.

Even though Chinese persons were included in section 6 (a) (1) of the Immigration Act of 1924 the portion of that statute under which petitioner's attorney seeks benefit relates to "quota immigrants who are the fathers or the mothers of citizens of the United States who are twenty-one years of age or over." The legislative history of the Immigration Act of 1924 clearly shows that the statement in question requires that the citizen children be 21 years of age or over. As originally enacted section 6 (a) (1) of the Immigration Act of 1924 provided that a preference be given to "a quota immigrant who is the unmarried child under 21 years of age, the father, the mother, the husband, or the wife, of a citizen of the United States who is 21 years of age or over." The act of July 11, 1932, provided that a husband of a citizen of the United States by marriage occurring on or after July 1, 1932, would be eligible for a preference under section 6(a) (1). It removed the requirement that the citizen wife be over twenty-one years of age. However, the requirement that citizen children seeking a preference for their parents be 21 years of age or over was retained.

From the foregoing it is evident that the children of the beneficiary being under 21 years of age, are not eligible to petition for the issuance of an immigration visa under section 6 (a) (1) of the Immigration Act of 1924.

Section (a) of the Immigration Act of 1924 provides for the approval of the issuance of immigration visas by the Immigration and Naturalization Service only in those cases where the beneficiary seeks to obtain a nonquota visa under section 4 (a) of the Immigration Act of 1924, or a preference quota visa under section 6 of the Immigration Act of 1924. As the beneficiary in this case is not eligible for a nonquota immigration visa under section 4 (a) or a preference quota visa under section 6, this Service has no authority to approve the visa petition.

Order: It is ordered that the action of the district director in denying the petition for issuance of immigration visa filed by M---- F---- M---- in behalf of R---- S---- H---- M---- be approved, and that the appeal be dismissed.