VP 3-I-74405.
Decided by Board May 23, 1955.
Preference quota status — Section 203 (a) (4) of Immigration and Nationality Act — Legitimation not limited to children under 18.
Brothers and sisters born out of wedlock and legitimated by the subsequent marriage of the parents are entitled to the benefits of section 203 (a) (4) of the Immigration and Nationality Act, even though legitimation did not occur until all the children had reached majority.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, New York District, dated April 26, 1955, denying the visa petition on the ground that the beneficiary is not considered to be a brother within the meaning of section 203 (a) (4) of the Immigration and Nationality Act and hence not entitled to preference quota status.
The citizen petitioner seeks preference status on behalf of the beneficiary under the provisions of section 203 (a) (4) which grants a preference to brothers of citizens of the United States. The petitioner was born in Italy on February 24, 1891, and the beneficiary was born in Italy May 10, 1909. They are the offspring of common parents who were not married until May 25, 1934. It is conceded that the subsequent marriage of the parents effected the legitimation of the children born prior to the marriage.
It appears from the notations in the file that the denial is predicated upon the theory that the petitioner and beneficiary were of illegitimate birth and that the parents' marriage in 1934 was too late for legitimation. It must be assumed that this reasoning is based upon section 101 (b) (1) (C) of the Immigration and Nationality Act which defines the term "child" to mean an unmarried person under 21 years of age, who is legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, if such legitimation takes place before the child reaches the age of 18 years. In the instant case the legitimating act occurred when the petitioner was 43 and the beneficiary 25 years of age.
We disagree with the conclusion that the legitimation in the instant case occurred too late to confer any benefit upon the parties herein. The instant petition seeks a preference under the provisions of section 203 (a) (4), granted to "brothers" of citizens of the United States. The subsequent marriage of the parents has legitimated the children and they are since the date of such marriage legitimate brothers of the whole blood. The limitation set forth in section 101 (b) (1) applies only to children under 21 years of age. That limitation has no application to a petition under section 203 (a) (4) for a preference to a brother who may be over 21 years of age and who may be eligible for such a preference.
It is concluded that since it has been established that the parties are legitimate brothers, the beneficiary is eligible for preference status under section 203 (a) (4) ( Matter of W----, VP 8-3340, Int. Dec. No. 619). The visa petition accordingly will be approved.
Order: It is ordered that the visa petition be and the same is hereby approved.