quent to April 26, 1965. He relies on the fact that his application to extend the time of his temporary stay was endorsed by an immigration officer to show that his stay had been extended to October 26, 1965 (Ex. 3). He submitted a Form I-94 so endorsed to support his contention.

The application for extension of temporary stay filed by the respondent was received by the San Antonio Office on April 6, 1965 (Ex. 3). It contains a notation dated May 27, 1965 showing that respondent's temporary stay was extended until October 26, 1965. The respondent's Form I-94 contains a similar notation but is undated. The notations in both documents have been scratched out in ink and there is evidence that this was done on June 17, 1965. There is evidence that an extension of respondent's stay was denied on June 17, 1965 based upon information that he had no desire to depart from the United States and that he had separated from his citizen

spouse.

It has been held that whatever license an alien has either to enter or to remain in the United States such license is revokable at the will of the government (Chun Yim v. United States, 78 F.2d 43, cert. den. 296 U.S. 627; Mahler v. Eby, 264 U.S. 32). Counsel maintains that respondent's case is distinguishable from our decision in Matter of L-, 9 I. & N. Dec. 239, because in the case of respondent there was no change in his immigration status. We do not find this factor controlling in the respondent's case. The Immigration Service had the power to terminate the period for which the respondent was admitted for a temporary visit when it became aware of the fact that he had no desire to depart from the United States coupled with the fact that his wife was in the process of filing for a divorce which would make him ineligible for nonquota classification. We affirm the finding of the special inquiry officer that the respondent is deportable as charged in the order to show cause.

The respondent applied for an adjustment of his immigration status to that of a permanent resident alien under the provisions of section 245 of the Immigration and Nationality Act. He testified that he married a United States citizen on March 28, 1965 (Ex. 5). It appears that the respondent's citizen spouse has refused to petition for his nonquota classification and that she is in the process of terminating their marriage.

Section 245 requires among other things that an immigrant visa be immediately available to the applicant at the time his application is approved. Since the evidence affirmatively establishes that the respondent is in no position to acquire nonquota classification as the right of petition lies solely in his citizen spouse we will affirm the

finding of the special inquiry officer that the respondent is statutorily ineligible for relief under section 245 of the Immigration and Nationality Act. Cf. Sealzo v. Hurney, 225 F. Supp. 560, E.D. Pa., 1963, aff'd. 338 F.2d 339 (C.A. 3, 1964).

The respondent has been granted the maximum relief available. We will dismiss the appeal.

ORDER: It is directed that the appeal be and the same is hereby dismissed.

MATTER OF THE

In Visa Petition Proceedings

A-14048590

Decided by Board September 13, and December 16, 1965

Petition by a naturalized U.S. citizen, born out of wedlock, to accord preference status under section 203 (a)(2), Immigration and Nationality Act, as amended, on behalf of beneficiary, her stepmother through marriage to her natural father when petitioner was 4 years of age, is granted since a valid stepchild-stepparent relationship exists, petitioner's paternity having been acknowledged by her natural father shortly after her birth and following the death of her natural mother in 1931; a bona fide family unit between petitioner, beneficiary, and her natural father having existed until petitioner's immigration to the United States in 1953; and close family ties between petitioner and beneficiary have continued to the present day. [Matter of W—, 7 I. & N. Dec. 685, overruled; cf. Matter of Aleo, Int. Dec. No. 1542.]

BEFORE THE BOARD

The case comes forward on motion of the petitioner requesting the Board to reconsider its prior denial of the visa petition because of the decision in Nation v. Esperdy, 239 F. Supp. 531 (S.D. N.Y., 1965).

The petitioner, a native of Batavia, West Java, Indonesia, born on April 12, 1931, female, a naturalized citizen of the United States, seeks preference status under section 203 (a) (2) of the Immigration and Nationality Act on behalf of the beneficiary, her stepmother. The beneficiary is a native and citizen of Djakarta, West Java, Indonesia, born on November 8, 1918. The petitioner was born out of wedlock, her natural mother died in Indonesia on May 26, 1931, her natural father acknowledged parentage on June 5, 1931, and the natural father married the beneficiary on March 31, 1935, when the petitioner was about four years of age.

We originally considered this case on January 24, 1964, on appeal from the decision of the District Director, Detroit District, dated November 22, 1963, denying the visa petition for the reason that the beneficiary is not a parent as defined in section 101 (b) (2) of the Immigration and Nationality Act in that the petitioner fails to meet

the status of a stepchild as defined in section 101(b)(1)(B) of the Act; and that a child born out of wedlock derives no status as a stepchild by reason of the marriage of the natural father to a person other than the child's mother. In affirming this order of the District Director, we relied on Matter of W-, 7 I. & N. Dec. 685. However, we remanded the case to explore the possibility of legitimation under the law which prevailed in Batavia, West Java, Indonesia, which was the former Netherlands East Indies at the time of the petitioner's birth. On October 22, 1964 we found that the legitimation process appeared to have been incomplete, since according to Article 275 of the Civil Code for Indonesia, the legitimation of a legally acknowledged child requires a declaration of the Governor-General (and at present the President of the Republic of Indonesia) after consultation with the Supreme Court, and dismissed the appeal.

The term "child" is defined in section 101(b)(1)(B) to include a stepchild, whether or not born out of wedlock, provided the child had not reached the age of 18 years at the time the marriage creating the status of stepchild occurred. In Matter of W, 7 I. & N. Dec. 685, we traced the legislation as amended by the Act of September 11, 1917, which at the same time, in section 101(b)(1)(B), amended the term "child" to include an illegitimate child, by, to whom, or on whose behalf, a status, privilege or benefit is sought by virtue of the relationship of the child to its natural mother. We concluded that the amendatory legislation was intended to clarify the law so that a child born out of wedlock in relation to its mother could be included in the term "stepchild" and thereby enjoy the same immigration status as other stepchildren but the amendment did not call for any change in the prevailing administrative view that a child born out of wedlock derives no benefit, status or privilege under the immigration laws in relation to its natural father, and concluded that the illegitimate child of a father married to a United States citizen was not the latter's stepchild and could not qualify for nonquota or preference status.

In the case of Nation v. Esperdy, 239 F. Supp. 531, the court for the Southern District of New York examined the legislative history and concluded that the respective committee reports were not conclusive but tended to suggest conflicting interpretations. In view of the express congressional policy of keeping family units together, and in the absence of special language to the contrary, the court adopted the "plain meaning" rule that when Congress in 1957 defined stepchild in the broad language of "whether or not born out of wedlock", this definition is to be applied literally, and includes any stepchild previously born illegitimately to the mother or to the father.

The Government declined to appeal the decision in Nation v. Esperdy, supra. Our prior holding in Matter of W-, 7 I. & N. Dec. 685, is therefore considered overruled.

In the present case the petitioner was born out of wedlock of an Indonesian father who acknowledged parentage shortly after her birth in 1931 and who married the beneficiary in 1935 when the petitioner was four years old. The petitioner and the beneficiary therefore are regarded as persons having the status of stepchild and stepmother respectively under the rule laid down in Nation v. Esperdy, supra. The visa petition will be approved.

ORDER: It is ordered that the visa petition be approved for preference status on behalf of the beneficiary.

BEFORE THE BOARD

The case comes forward on motion of the Immigration and Naturalization Service dated October 29, 1965 asking for reconsideration of the Board's order of September 13, 1965 approving a visa petition for preference status on behalf of the beneficiary.

The record relates to a visa petition filed by the petitioner, a native of Batavia, West Java, Indonesia, a naturalized citizen of the United States, 34 years old, married, female, who seeks preference quota status on behalf of her alleged stepmother, a native of Djarkata, West Java, Indonesia, 47 years old, female. The petitioner in a sworn statement executed before a Service officer on March 19, 1964 acknowledged that she was born out of wedlock to Kian Kok Lie and Bo Tan Lie, both natives of the Chinese race. The petitioner's natural mother died in Indonesia (Java) on May 26, 1931, her natural father acknowledged paternity on June 5, 1931 and the natural father married the beneficiary, the alleged stepmother, on March 31, 1935 when the petitioner was less than four years of age. Documentary evidence has been submitted to support these allegations.

The visa petition was originally denied by the District Director, Detroit District, on November 22, 1963 for the reason that the beneficiary was not a parent as defined in section 101 (b) (2) of the Immigration and Nationality Act in that the petitioner failed to meet the status of a stepchild as defined in section 101(b)(1)(B) of the Act; and that a child born out of wedlock derives no status as a stepchild by reason of the marriage of the natural father to a person other than the child's mother. On January 24, 1964 we remanded the case for a statement from the petitioner regarding the religion and race of herself and of her natural parents and to explore the possibility of legitimation under the Law which prevailed in Batavia, West Java, which was the former Netherlands East Indies at the time of