denied, of the reasons therefor and of his right to appeal to the Board within 15 days after mailing of the notification of the decision in accordance with the provisions of Part 3 of this chapter. Without the approval of a separate petition in his behalf, an alien spouse or a child defined in section 101(b)(1) (A), (B), (C), (D), or (E) of the Act, may be accorded the same preference classification under section 203(a) as his spouse or parent whom he is accompanying or following to join, if the immediate issuance of a visa or conditional entry is not otherwise available under the provisions of section 203(a)(1) through (8) of the Act. However, the alien spouse or child of an alien parent who has been classified as an immediate relative is not within the purview of section 203(a)(9) of the Act and may not be accorded derivative immediate relative status. No alien may be classified as an immediate relative unless he himself is entitled to such status and is the beneficiary of an approved visa petition according him such classification.

(b) Orphan. A petition in behalf of a child defined in section 101(b)(1)(F) of the Act shall be filed on Form I-600 by the United States citizen with the office of the Service having jurisdiction over the place where the petitioner is residing, shall identify the child, and shall be accompanied by the fee required under § 103.7(b) of this chapter. If the petitioner is married, the Form I-600 shall be signed also by the petitioner's spouse. If unmarried, the petitioner must be at least twenty-five years of age at the time of the adoption and when the petition is filed. If the petitioner resides outside of the United States, the petition shall be filed with the foreign office of the Service designated to act on the petition, which can be ascertained by consulting an American consul. However, since no Service office in Canada has been so designated, a petitioner residing in that country shall file the petition with the office of the Service having jurisdiction over the place of the child's intended residence in the United States. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and the right to appeal in accor

dance with the provisions of Part 103 of this chapter. If the petitioner (or spouse, if married), intends to proceed abroad to locate an orphan for adoption, a request in writing may be submitted to the district director in whose jurisdiction the petitioner resides to initiate preliminary processing prior to filing a petition.

(c) Petition under section 203 (a)(3) or (6)—(1) General. A petition to classify the status of an alien under section 203(a) (3) or (6) of the Act shall be filed on Form I-140. For each beneficiary a separate Form I-140 must be submitted, accompanied by the fee required under § 103.7(b) of this chapter. The petition shall be made under oath administered by any individual having authority to administer oaths, if executed in the United States, but, if executed outside the United States, administered by a consular officer or an immigration officer. Before it may be accepted and considered properly filed, the petition must be accompanied by Labor Department forms entitled "Statement of Qualifications of Alien" and "Job Offer for Alien Employment" to which the certification under section 212(a)(14) of the Act has been affixed by the Secretary of Labor or his designated representative, except that such certification may be omitted if the beneficiary is qualified for and will be engaged in an occupation currently listed in the Department of Labor's Schedule A (20 CFR Part 656). The petition shall be filed in the office of the Service having jurisdiction over the place of intended employment.

(2) Filing date. In the case of a third or sixth preference petition (except for an occupation listed in Schedule A), the filing date of the petition within the meaning of section 203(c) of the Act shall be the date the request for certification was accepted for processing by any office within the employment service system of the Department of Labor. In the case of a third or sixth preference petition for an occupation listed in Schedule A the filing date of the petition shall be the date it was properly filed with the appropriate Service office.

(3) Sixth-preference petition for member of the professions or person

having exceptional ability in the sciences or arts. Nothing contained in this Part shall preclude an employer who desires and intends to employ an alien who is a member of the professions or a person having exceptional ability in the sciences or the arts from filing a petition for a sixth-preference classification; however, any such petition shall be subject to the requirements of this Part governing sixthpreference petitions.

(4) Interview and decision. Prior to decision by the district director, the beneficiary and the petitioner may be required as a matter of discretion to appear in person before an immigration or consular officer and be interrogated under oath concerning the allegations in the petition. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter. However, no appeal shall lie from a decision denying a petition for lack of a certification by the Secretary of Labor pursuant to section 212(a)(14) of the Act.

[41 FR 11171, Mar. 17, 1976, as amended at 41 FR 55847, Dec. 23, 1976]

§ 204.2 Documents.

(a) Evidence of U.S. citizenship—(1) Birth in the United States. A Petition filed under § 204.1 (a) or (b) by a U.S. citizen whose citizenship is based on birth in the United States must be accompanied by his birth certificate; or, if his birth certificate is unobtainable, a copy of his baptismal certificate under seal of the church, showing his place of birth and a date of baptism occurring within 2 months after birth; or if his birth or baptismal certificate cannot be obtained, affidavits of two U.S. citizens who have personal knowledge of his birth in the United States. A native-born citizen of the United States who files a petition while physically outside the United States may establish his birth by presenting his valid unexpired U.S. passport containing the date and place of his birth in the United States. A statement executed by a consular officer, certifying the petitioner to be a U.S. citizen and the bearer of a valid U.S. passport showing him to be a native-born citizen, may be

accepted in lieu of the passport. When a native-born member of the armed forces of the United States serving outside the United States submits a petition without documentary proof of his birth in the United States, a statement from the appropriate authority of the armed forces to the effect that the personnel records of the armed forces show the petitioner was born in the United States on a certain date may be accepted as proof of his birth in the United States if the approving officer finds that to require documentary proof of the petitioner's birth in the United States would cause the petitioner unusual delay or hardship.

(2) Birth outside the United States. A petition filed under § 204.1 (a) or (b) by a United States citizen born abroad who became a citizen through the naturalization or citizenship of a parent or husband, and who has not been issued a certificate of citizenship in his or her own name must be accompanied by evidence of the citizenship and marriage of such parent or husband, as well as the legal termination of any prior marriages. In addition, if the petitioner claims citizenship through a parent, he must submit his birth certificate and a separate statement showing the date, port, and means of all his arrivals and departures into and out of the United States. If the petitioner is a naturalized citizen of the United States whose naturalization occurred within 90 days immediately preceding the filing of the petition, or if it occurred prior to September 27, 1906, the naturalization certificate must accompany the petition.

(b) Evidence of lawful admission for permanent residence. The status of a petitioner who claims that he is a lawful permanent resident alien of the United States will be verified from official records of the Service. In the absence of such a record, the petitioner shall be required to establish that he is a lawful permanent resident alien by the submission of evidence such as his passport bearing a Service endorsement reflecting a lawful admission for permanent residence, his Form I-151 alien registration receipt card, or his immigrant identification card.

(c) Evidence of family relationship between petitioner and beneficiary

(1) General. A petition filed under § 204.1 (a) must be accompanied by evidence of family relationship.

(2) Petition for a spouse. If a petition is submitted on behalf of a wife or husband, it must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both wife and husband.

(3) Petition for child. If a petition is submitted by a mother on behalf of a child, regardless of the child's age, the birth certificate of the child showing the name of the mother must accompany the petition. If a petition is submitted by a father or stepparent on behalf of a child, regardless of age, a certificate of marriage of the parents, proof of legal termination of their prior marriages, and the birth certificate of the child must accompany the petition.

(4) Petition for a brother or sister. If a petition is submitted on behalf of a brother or sister, the birth certificate of the petitioner and the birth certificate of the beneficiary, showing a common mother, must accompany the petition. If the petition is on behalf of a brother or sister having a common father and different mothers, the marriage certificate of the petitioner's parents, and the beneficiary's parents, and proof of the legal termination of the parents' prior marriages, if any, must accompany the petition.

(5) Petition in behalf of a parent. If a petition is submitted in behalf of a mother, the petitioner's birth certificate showing the name of the mother must accompany the petition. If a petition is submitted on behalf of a father or stepparent, the petitioner's birth certificate and the marriage certificate of his parent and stepparent must accompany the petition, as well as proof of the legal termination of their prior marriages, if any.

(6) Married women. If either the petitioner or the beneficiary is a married woman, her marriage certificate must accompany the petition. However, when the relationship between the petitioner and beneficiary is that of a mother and child, regardless of the child's age, the mother's marriage certificate need not be submitted if the mother's present married name ap

pears on the birth certificate of the child.

(7) Relationship by adoption. If the petitioner and the beneficiary are related to each other by adoption, a certified copy of the adoption decree must accompany the petition.

(8) Blood tests. When a blood relationship is claimed, the district director may require that blood tests be conducted of the petitioner, beneficiary, and other family members. Such blood tests shall be conducted at the expense of the petitioner by the United States Public Health Service or by a qualified medical specialist designated by the district director. Refusal to submit to blood tests when required may constitute a basis for denial of the petition. When the petitioner, the beneficiary, or other family members are outside the United States, a visa petition may be approved on condition that the results of any requested blood tests will show that the existence of the claimed relationship is not precluded. When a visa petition is approved conditionally, the names and addresses of the persons of whom blood tests are to be conducted shall be set forth by the district director in the visa petition and in the notice of approval. Upon receipt of medical advise that the blood test results preIclude the existence of the claimed blood relationship between the petitioner and the beneficiary, the district director shall withdraw his conditional approval and shall reopen the visa petition proceeding.

(d) Evidence required to accompany petition for orphan-(1) General. A petition filed on behalf of an orphan under § 204.1(b) must be accompanied by fingerprint charts on Form FD-258 of the petitioning U.S. citizen (and of the spouse if married); by evidence of the age and of the United States citizenship of the petitioner as provided in paragraph (a) of this section; by a certificate of marriage of the married petitioner and spouse and evidence of legal termination of any previous marriages, or, in the case of an unmarried petitioner, by evidence of legal termination of any previous marriage(s); by proof of age of the orphan in the form of a birth certificate, or if such certificate is not available, by other evidence

of the orphan's birth; by evidence that the petitioner, if unmarried, or the petitioner and his spouse, if married, is or are able to care for the orphan properly, such as letters from employers, banks, and accountants, financial statements, and copies of income tax returns; by a certified copy of the adoption decree together with copy of certified translation, if the orphan has been lawfully adopted abroad; and by evidence that the sole or surviving parent is incapable of providing for the orphan's care and has in writing irrevocably released the orphan for emigration and adoption, if the orphan has only one parent. A child shall be considered as having a sole parent, his mother, when it is established that the child is illegitimate, and has not acquired a second parent within the contemplation of section 101(b)(2) of the Act. A child shall be considered as having a surviving parent when it is established that one of the child's parents is living while one is deceased, and the child has not acquired a second parent within the meaning of section 101(b)(2) of the Act. When a child who has a sole or surviving parent has been adopted abroad, the requirement for an irrevocable release in writing for the child's emigration and adoption shall be considered to have been met if the adoption decree clearly sets forth that the adoptive petitioner and spouse, if married, reside in the United States and that the child's only parent has agreed to release the child for adoption. A child who has been unconditionally abandoned to an orphanage shall be considered as having no parents. However, a child shall not be considered as having been abandoned when he has been placed temporarily in an orphanage, if the parent or parents intend to retrieve the child, or the parent or parents are contributing or attempting to contribute to the child's support, or the parent or parents otherwise exhibit that they have not terminated their parental obligations to the child. If the child was adopted abroad by an unmarried United States citizen, the latter must have been at least twentyfive years of age at the time the child was adopted; if such adoption was by a married United States citizen, the

decree shall show that the adoption was by husband and wife jointly.

(2) Preadoption requirements. If the orphan is to be adopted in the United States, the petitioner must submit evidence of compliance with the preadoption requirements, if any, of the state of the orphan's proposed residence, except any such requirements that cannot be complied with prior to the child's arrival in the United States. If the child is to be adopted in the United States by an unmarried United States citizen, the petitioner must also establish that adoption by an unmarried person is permitted in the state of the child's proposed residence.

(3) Beneficiary whose adoption abroad not deemed valid or who is adopted abroad without having been seen and observed. An orphan whose adoption abroad is determined by the Service to be invalid for benefits under the immigration or nationality laws, or who is adopted abroad without having been personally seen and observed by the petitioner (and by the spouse, if married) prior to or during the adoption proceedings, shall be processed as a child coming to the United States for adoption. Before a petition in behalf of such a child is approved, the petitioner (and spouse, if married) must submit a statement indicating the petitioner's and, if married, the spouse's willingness and intent to readopt the child in the United States. Unless the Service has already ascertained from the appropriate state authority that readoption is permissible in that state, the petitioner shall be required to submit evidence in the form of a statement from the court having jurisdiction over adoption, the state department of welfare, or the attorney general of the state, indicating that readoption is permissible. As in the case of a petition for any other orphan coming to the United States for adoption, evidence of compliance with the preadoption requirements, if any, of the state of proposed residence must be submitted. If the child is to be readopted in the United States by an unmarried United States citizen, the petitioner must also establish that adoption by an unmarried person is permitted in the state of the child's proposed residence.

(e) Evidence of eligibility for thirdor sixth-preference classification—(1) General. The documentary evidence which the petitioner must submit to establish the beneficiary's eligibility under section 203(a) (3) or (6) of the Act shall include Statement of Qualifications of Alien and the Job Offer for Alien Employment forms as provided in § 204.1(c), and any documents required to be presented with those forms. If the alien's eligibility is based in whole or in part on higher education, a certified copy of his school record shall be submitted. The record must show the period of attendance, major field of study, and the degrees or diplomas awarded. If the alien has received a license or other official permission to practice his profession, the license or other official permit to practice must also be submitted. If the alien's eligibility is based on a claim of exceptional ability in the sciences or the arts, documentary evidence supporting the claim must be submitted by the petitioner. Such evidence may attest to the universal acclaim and either the national or international recognition accorded to the alien; that he has received a nationally or internationally recognized prize or award or won a nationally or internationally recognized competition for excellence for a specific product or performance or for outstanding achievement; or that he is a member of a national or international association of persons which maintains standards of membership recognizing outstanding achievement as judged by recognized national or international experts in a specific discipline or field of endeavor. An affidavit attesting to an alien's exceptional ability in the sciences or the arts must set forth the name and address of the affiant, state how he has acquired his knowledge of the alien's qualifications, and must describe in detail the facts on which the affiant bases his assessment of the alien's qualifications. If material published by or about the alien is submitted, it must be accompanied by information as to the date, place, and title of the publication. If the alien's eligibility is based on training or experience, affidavits by the trainers or employers attesting to the training or experience

which they provided to the alien must be submitted by the petitioner. These affidavits must set forth the name and address of the affiant, state how he ac quired his knowledge of the alien's! qualifications, state the places where | and the dates between which the alien gained the training or experience, and describe in detail the duties performed by the alien, any tools used, and any supervision received or exercised by the alien. If such affidavits cannot be obtained, the petitioner shall submit an affidavit by the alien beneficiary, attesting to the reasons therefor, and shall also submit other documentary evidence of the alien's qualifications, such as copies of company records or affidavits by persons other than the alien's trainers or employers having personal knowledge of the facts to which the affiants are attesting, setting forth the information specified in the preceding sentence.

(2) Physicians or Surgeons. An alien who is coming to the United States principally to perform services as a member of the medical profession shall not be considered eligible for classification as a third or sixth preference immigrant unless he estab lishes that he is a graduate of a medical school or has qualified to practice medicine in a foreign state; has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health, Education, and Welfare); and is competent in oral and written English.

(2a) Dentists. An alien dentist shall be considered eligible for classification as a member of the professions if he establishes that he was graduated from a dental school in the United States or Canada, or that he was graduated from a foreign dental school and has obtained a full and unrestricted license to practice dentistry in the country where he obtained his dental education. In any other case the district director may consult with organizations and experts in the dental field for the purpose of obtaining an advisory opinion of the alien's qualifications as a dentist.

(3) Advisory opinion. The district director may request the Employment and Training Administration to fur