19 I. & N. Dec. 351
BIA
1985

MATTER OF NAULU

A-23122658

Decided by Board

January 30, 1986

Interim Decision #3005

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

A derivative beneficiary “accompanying or following to join” a principal alien under section 203(a)(8) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(8) (1982), cannot precede the principal alien to the United States as an immigrant; however, once the principal alien acquires permanent resident status, his spouse or child is not barred as a matter of law from adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), by reason of having preceded the principal alien to this country as a nonimmigrant. Matter of Khan, 14 I&N Dec. 122 (BIA 1972), aff‘d sub nom. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976), distinguished.

CHARGE: Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]—Nonimmigrant—remained longer than permitted

ON BEHALF OF RESPONDENT:
Bienvenido D. Junasa
Accredited Representative
State Immigrant Services Center
2153 N. King Street, Suite 204
Honolulu, Hawaii 96819

ON BEHALF OF SERVICE:
Joanna London
General Attorney

On September 28, 1983, an immigration judge found the respondent deportable as charged under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as a nonimmigrant who remained in this country longer than permitted, but granted her the privilege of voluntary departure in lieu of deportation. No appeal was taken from that decision. On March 12, 1984, the respondent filed a motion to reopen the proceedings for consideration of her application for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982). An immigration judge denied the motion on July 19, 1984. The respondent has appealed from the denial of her motion to reopen.

The respondent, a 39-year-old married woman, a native and citizen of Tonga, was admitted to the United States as a nonimmigrant visitor on July 15, 1975, and was authorized to remain in this country until January 15, 1976. She has not departed.

The respondent claims eligibility for adjustment of status as a derivative beneficiary through her husband as provided by section 203(a)(8) of the Act, 8 U.S.C. § 1153(a)(8) (1982). Under section 203(a)(8) of the Act, a spouse or child who is not otherwise entitled to an immigrant status or the immediate issuance of an immigrant visa is entitled to the same preference and the same priority date or order of consideration as the principal alien, without the approval of a separate visa petition, if “accompanying or following to join” his spouse or parent.1 See 8 C.F.R. § 204.1(a)(4) (1985). The respondent‘s husband, whom she married in February 1973, was lawfully admitted to the United States for permanent residence on February 9, 1984.

In a brief in opposition to the motion to reopen, the Immigration and Naturalization Service contended that the respondent is not eligible to adjust her status as a derivative beneficiary since she neither accompanied her husband when he was admitted to the United States as an immigrant, nor followed to join him, but she instead preceded him to this country. An alien who precedes the principal alien to the United States, the Service argued, cannot obtain derivative preference status through that principal alien. In support of that proposition, the Service cited State Department regulation 22 C.F.R. § 42.1 (1985) and our decision in Matter of Khan, 14 I&N Dec. 122 (BIA 1972), aff‘d sub nom. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976). Defining the term “accompanying” and “accompanied by,” the foregoing regulation, to which the Board referred in Matter of Khan, supra, concludes with the statement, “An ‘accompanying’ relative may not precede the principal alien to the United States.” 22 C.F.R. § 42.1 (1985). The immigration judge denied the motion to reopen for the reasons set forth in the Service‘s brief.

On November 4, 1985, the Board asked the Service to review its position in the respondent‘s case in light of a policy memorandum, which the Acting Associate Commissioner for Examinations addressed to all Regional Commissioners on July 25, 1985, regarding

the eligibility of derivative beneficiaries to apply for adjustment of status when the principal alien has already gained permanent resident status. That memorandum states, inter alia, that an accompanying alien cannot precede the principal alien to the United States ”as an immigrant.” (Emphasis added.) The memorandum specifies that there is no bar to adjustment where, as here, a derivative beneficiary enters the United States as a nonimmigrant before the principal alien acquires permanent resident status.

The memorandum thus makes clear that the right of a derivative beneficiary to permanent resident status is wholly dependent upon that of the principal alien and may not be exercised unless and until the principal alien becomes a permanent resident. However, once the principal alien gains permanent residence, his spouse or child is not precluded as a matter of law from adjusting status as a person “accompanying or following to join” by reason of having physically preceded the principal alien to this country as a nonimmigrant.

We note that the current Service position is not inconsistent with our holding in Matter of Khan, supra. In that case and in the other cases considered by the United States Court of Appeals for the Ninth Circuit in Santiago v. INS, supra, an alien who had been issued an immigrant visa as one “accompanying or following to join” his spouse or parent was erroneously admitted to the United States for permanent residence in advance of the principal alien. In each case, death or the expiration of her visa prevented the principal alien from joining the derivative beneficiary. It was consequently found that the derivative beneficiary was not in possession of a valid immigrant visa at the time of his entry.

Following the Associate Commissioner‘s policy memorandum, the Service has advised the Board upon reconsideration that the respondent qualifies as a person “accompanying or following to join” for purposes of adjustment of status. As the respondent has made a prima facie showing of eligibility for the relief sought under section 245 of the Act, we shall sustain the appeal, grant the motion to reopen, and remand the record to the immigration judge for consideration of the respondent‘s application for adjustment of status.

ORDER: The appeal is sustained. The proceedings are reopened and the record is remanded to the immigration judge for consideration of the respondent‘s application for adjustment of status pursuant to section 245 of the Act.

Notes

1
The relationship between the principal alien and the derivative beneficiary must exist before the principal alien gains permanent resident status as well as at the time the derivative beneficiary seeks entry as an immigrant or adjustment of status. Vol. 9, Foreign Affairs Manual, Part III, 22 C.F.R. § 42.1, note 5. A child or spouse of an alien who is classified as an immediate relative is not eligible for benefits under section 203(a)(8) and must file a separate visa petition. 8 C.F.R. § 204.1(a)(4) (1985).