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Accompany or follow to join benefits some history

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  • 1. ACCOMPANY OR FOLLOW-TO-JOIN BENEFITS FOR DERIVATIVE BENEFICIARIES: Semi-Obsolete Precedents.Matter of Khan, 14 I&N Dec. 122 (BIA 1972) [superseded by enactment of INA§ 204(j)] Respondent, who was admitted in possession of an immigrant visa issued to him as an alien child "accompanying or following to join" his father but who preceded his father, the principal alien, to the United States, was not an "accompanying" alien within the meaning of section 203(a) (9) of the Immigration and Nationality Act, as amended; further, his immigrant status, which was contingent upon the continuing immigrant status of his father, was terminated upon the fathers death prior to respondents admission, notwithstanding he lacked knowledge of such death and notwithstanding the approval of the fathers visa petition had not been revoked. Hence, respondent is deportable because he was not of the status specified in his visa and was not in possession of a valid immigrant visa at entry.Matter of Ponce De Leon, 14 I&N Dec. 106 (BIA 1972)This case addressed the application of cross-chargeability utilizing the spouse’scountry. In this case, the spouse was also the petitioner already in possession ofLPR status and residing in the U.S. In this case cross-chargeability enabled a“follow-to-join” in an untested way.Matter of Ascher, 14 I&N Dec. 271 (BIA 1972), vacated and remanded (BIA1973)Ascher involved a complex situation of Polish parents fleeing Nazi Germany andthen having children in Ecuador, one of whom moved to Great Britain and marriedthere, his brother moved to the U.S. and naturalized. Eventually the Ecuadorianborn brother was allowed to be cross-charged to his wife’s country of birth in orderto get a visa but they (principal beneficiary, his dependent spouse and two kids)had to go abroad for Consular Processing. In this case, cross-chargeability wasapplied in order to allow the dependent spouse to supply the visa availability andthe principal enabled the spouse and children to accompany him. While the 1
  • 2. mechanics of adjustment have changed, cross-chargeability remains a reality andhas been clarified and enacted in the statute.Matter of Naulu, 19 I&N Dec. 351 (BIA 1985) 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), affd sub nom. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976), distinguished. [IMMACT90 rearranged the basic underlying immigrant visa classifications.]Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991) (1) The Board of Immigration Appeals and the immigration judges are without authority to apply the doctrine of equitable estoppel against the Immigration and Naturalization Service so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation. [This is generally still accurate.] (2) The Service has no authority to grant an application for adjustment of status nunc pro tunc under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1988). (3) As the Board has no jurisdiction, according to 8 C.F.R. § 245.2(a)(5) (1991), to review a district directors decision to deny adjustment of status, it follows that the Board also lacks jurisdiction to review or remedy a failure of the Service to act on the application. [Superseded: An I-485 is renewable before an IJ.] 2
  • 3. For Easy Reference:INA § 202 - NUMERICAL LIMITATION TO ANY SINGLE FOREIGNSTATE*****(b) Rules for Chargeability. - Each independent country, self-governing dominion,mandated territory, and territory under the international trusteeship system of theUnited Nations, other than the United States and its outlying possessions, shall betreated as a separate foreign state for the purposes of a numerical level establishedunder subsection (a)(2) when approved by the Secretary of State. All otherinhabited lands shall be attributed to a foreign state specified by the Secretary ofState. F or the purposes of this Act the foreign state to which an immigrant ischargeable shall be determined by birth within such foreign state except that- (1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year; (2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year; (3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and (4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such aliens birth may be charged to the foreign state of either parent. 3
  • 4. INA § 203 ALLOCATION OF IMMIGRANT VISAS(a) Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to theworldwide level specified in section 201(c) for family-sponsored immigrants shallbe allotted visas as follows:*****(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject tothe worldwide level specified in section 201(d) for employment-based immigrantsin a fiscal year shall be allotted visas as follows:*****(c) Diversity Immigrants. -*****(d) Treatment of Family Members. - A spouse or child as defined insubparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if nototherwise entitled to an immigrant status and the immediate issuance of a visaunder subsection (a), (b), or (c), be entitled to the same status, and the sameorder of consideration provided in the respective subsection, if accompanyingor following to join, the spouse or parent.(e) Order of Consideration. - (1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under section 101(a)(27)(D) , with the Secretary of State) as provided in section 204(a) . (2) Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved. (3) Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations prescribed by the Secretary of State. 4
  • 5. (f) Authorization for Issuance. - In the case of any alien claiming in his applicationfor an immigrant visa to be described in section 201(b)(2) or in subsection (a), (b),or (c) of this section, the consular officer shall not grant such status until he hasbeen authorized to do so as provided by section 204 .(g) Lists.- For purposes of carrying out the Secretarys responsibilities in theorderly administration of this section, the Secretary of State may make reasonableestimates of the anticipated numbers of visas to be issued during any quarter of anyfiscal year within each of the categories under subsections (a), (b), and (c) and torely upon such estimates in authorizing the issuance of visas. The Secretary ofState shall terminate the registration of any alien who fails to apply for animmigrant vi sa within one year following notification to the alien of theavailability of such visa, but the Secretary shall reinstate the registration of anysuch alien who establishes within 2 years following the date of notification of theavailability of such visa that such failure to apply was due to circumstances beyondthe aliens control.(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARECHILDREN- [Codification of Child Status Protection Act (CSPA)]***** 5