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which meet the statutory requirements in the definition of an adopted child is immaterial for the purposes here considered.

In addition to applying section 101 (b) (1) (E), erroneously, the Service's motion misconstrues the effect of our decision. We believe the Service's difficulty arises primarily from misstatement of the issue. The motion states the issue to be whether a child, who in all respects comes within the definition of an adopted child in the immigration and Nationality Act, can have a visa petition approved for her natural parent on the ground that the child had not gained a benefit under the immigration laws by reason of the adoption. As we have seen, petitioner does not "in all respects" come within the definition of an adopted child in the Immigration and Nationality Act. Actually she does not come within it at all.

Assuming that petitioner was legally adopted, the circumstances of her adoption merely coincide mechanically with the conditions imposed by the definition. Moreover, the criterion here is not that the adopted person has not at the time of petitioning already obtained a benefit under the immigration laws. Our decision contemplates that petitioner not only has not gained a benefit under the immigration laws through her adoption but could not now or ever obtain such a benefit. Both conditions must be present.

We believe the foregoing statement disposes of the Service's contention that our holding permits an adopted child to have greater rights than a natural child in that the adopted child could petition for two sets of parents and two sets of brothers and sisters. We need not discuss the Service's suggestion that petitioner might be considered to make an election in favor of the natural parent-although the motion urges that an adopted person should not have an election. There is no election here. Beneficiary is the only mother petitioner now has. The possibility that petitioner might someday be in a position to petition for her adoptive mother is so remote that it can have no part in any realistic appraisal of the situation.

The motion suggests that our original decision should have been based upon the failure of the record to show petitioner has been legally adopted under Chinese law and urges that we remand the case for further evidence on this point. The petition was initially approved on October 15, 1962. Beneficiary is now over 74 years old. Although we noted in our original decision that the record did not properly develop petitioner's adoptive status, we were not disposed to remand the case to overcome deficiencies we considered to be immaterial. If anything, we are less disposed to do so now.

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Finally, the Service declares that our order of October 19, 1964 departs from our other decisions relating to section 101(b)(1) (E). The motion attaches significance to our resting our decision in Matter of B― upon the age of the child at the time of adoption rather than the child's nonacquisition of any benefits under the immigration laws through the adoption. We see no such significance. The situation merely presented an obvious basis for decision apart from any question of benefits arising from the adoption. Moreover, the case was before us on certification to consider the District Director's decision approving the petition. Apparently, the District Director reached his decision because of petitioner's age when adopted.

The motion also cites Matter of Martinelli, unpublished. There, we first approved a petition by a mother for her natural daughter, who had been adopted in Italy at the age of 17. We noted that beneficiary was over 14 years of age when adopted but preferred to rest our decision upon the failure of any immigration status or benefit to result from the adoption. The Service moved for reconsideration of our order. On reconsideration we found to be appropriate adoption of the doctrine of Matter of B-, which had been decided subsequent to our original order in Martinelli and just a few days before the Service's motion. Therefore, we concluded that the petition should be approved on the basis of petitioner's daughter's age at the time of adoption. Our final action in Martinelli, did not necessarily repudiate the previous basis for our decision. As in Matter of B—, we simply used another, and perhaps then more convenient, basis for decision.

In the present motion, counsel for the Service attributes to Matter of B-, the rule that the determining factor is whether the child comes within the statutory definition of an adopted child. Although we do not find this specific language in either B- or Martinelli, we believe it may be a fair statement of the rule, but only if properly understood. For example, as we have emphasized, we consider petitioner here does not "come within" the statutory definition of an adopted child.

In Matter of K-, discussed also in the Service's motion, we held that, because of the provisions of section 101 (b) (1) (E), an adoption at the age of two years precluded the natural parent of the adopted child from asserting any right, privilege or status with respect to the child. The natural mother, a permanent resident of this country,

3 Supra 2.

'A-11490302, decided October 19, 1960.

59 I. & N. Dec. 116.

had filed the visa petition. The opinion is brief and contains no facts about the adoptive parents. Nothing indicates whether we considered the possibility of disregarding the adoption on any basis. Some of the language in the opinion is quite broad and must be read in the light of our statements in other matters involving the definition of an adopted child for immigration purposes-including our opinion here. We do not consider Matter of K- to be inconsistent with our present holding. The circumstances in which that opinion was rendered do not sufficiently appear to determine whether there is any conflict.

Matter of S-, in which petitioner had been adopted at 13 years of age and was petitioning for his natural parents, must also be read in the light of our ruling here. The statement from Matter of Squoted in the Service's motion-to the effect that the adoption changed, for immigration purposes, petitioner's preadoption relationship to his natural parents applies in many, if not most situations, but not in all.

None of the decisions which we have discussed squarely meet the question of the applicability of section 101 (b) (1) (E) where the adoptive parents are deceased, or presumed deceased. In Matter of B— the adoptive parents, who were petitioner's aunt and uncle were living in Arizona. Martinelli's adoptive parents-again an aunt and uncle were living in Italy. Matter of K- does not reveal whether the adoptive parents were alive or dead. The adoptive parents in Matter of S- were living in New York City.

Although we answered the Service's motion when we pointed out the inapplicability here of the statutory definition of an adopted child, we have discussed it at some length in an attempt to overcome much apparent confusion concerning the effect of the definition. Upon cursory reading, the provision appears to support the Service's position. The District Director-as well, apparently, as the consular officer who returned the approved petition to the Service for consideration under the definition-labored under the same misapprehension as the Service's counsel here. We have not previously had occasion to consider the precise situation now before us. As a result, some of the language of our prior opinions has not served to dispel confusion of thought in this area.

We affirm our order of October 19, 1964. Matter of B-, supra, laid down the rule that an adopted child who could not benefit by the adoption under the immigration laws because not within the definition of an adopted child under section 101 (b) (1) (E) was not dis

69 I. & N. Dec. 567.

qualified by the proviso to that sub-section from receiving the benefit from his natural parents. Our present decision holds that the prohibition contained in the proviso also has no application where an adopted child has received no benefit under the immigration laws through the adoptive parent or parents and cannot in the future receive such a benefit, as in the instant case where the adoptive parents are dead (the death of one is proved; the death of the other is presumed). Hence, there is no reason for not approving the petition for the natural mother of the petitioner. We deny the motion. ORDER: It is ordered that the Service's motion be, and hereby is, denied.

MATTER OF KRAUS PERIODICALS, INC.

In Visa Petition Proceedings

NYC-N-16043

Decided by Regional Commissioner November 30, 1964

Petition, by a jobber of periodicals of scientific and scholarly nature in various languages, to accord beneficiary classification under section 101(a)(15) (H) (iii), Immigration and Nationality Act, as an industrial trainee for a sixmonth period during which he will receive a salary of $100 per week, is denied since the petition fails to set forth a training program, the specific position, duties, or skills in which beneficiary is to be trained, and the substantial salary beneficiary will receive suggests that productive employment, which may displace a United States citizen, will be involved.

This matter comes before the Regional Commissioner as an appeal from the decision of the District Director denying the petitioner's request for classification of the beneficiary as a nonimmigrant trainee under section 101 (a) (15) (H) (iii) of the Immigration and Nationality Act. The petitioner, a jobber of periodicals of scientific and scholarly nature in various languages, desires to accord the beneficiary training for a period of six months and will pay him a salary of $100 per week plus time and one half for overtime.

Section 214.2 (h) (2) (iii), Title 8 of the Code of Federal Regulations, provides that such trainee status cannot be granted unless the required petition is accompanied by a statement describing the type of training to be given and the position or duties for which the beneficiary is to be trained. It further provides that such trainee may not engage in productive employment if such employment will displace a United States resident.

It is believed that this petition, even when supplemented by the brief submitted on appeal, fails to meet the requirement set forth above. No training program is set forth; the specific skills in which the beneficiary is to be trained are not described; the specific position or duties which the beneficiary will perform upon conclusion of the

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