MATTER OF KIM In Visa Petition Proceedings A-14243522 Decided by Regional Commissioner December 21, 1964 Two visa petitions having been previously approved for petitioner in behalf of eligible orphans, as defined in section 101(b) (1) (F), Immigration and Nationality Act, as amended, notwithstanding one of the orphans died subsequent to entry, section 205 (c) of the Act precludes approval of a third visa petition by same petitioner for an eligible orphan, absent the factor of prevention of separation of brothers and sisters. Discussion: This case is before me on appeal from the District Director, San Francisco, who denied the petition on November 20, 1964 as follows: Your petition has been denied. You have previously filed visa petitions under section 205 (b) of the Immigration and Nationality Act in behalf of two orphans who were subsequently admitted to the United States. Section 205 (c) of the Immigration and Nationality Act states "not more than two such petitions may be approved for one petitioner unless necessary to prevent the separation of brothers and sisters". The petitioner and his wife, both adult citizens of the United States, reside in Chico, California where the petitioner is employed as a watchmaker and his wife as a school teacher. They live in a modern home in Chico. Their combined income exceeds $10,000.00 yearly. They have three children of their own ranging in age from 12 to 16 years. Their ability to properly support and maintain the orphan for whom petitioned is not in question. The petitioner had previously petitioned for two orphans who were subsequently admitted to the United States on the basis of two separately approved petitions as eligible orphans. One of these orphans is presently residing with the petitioner. This orphan is an 18-month-old Korean girl born May 23, 1963 who was admitted to the United States in the company of the petitioner as his adopted daughter on November 30, 1963 at Anchorage, Alaska. Subsequently, a second visa petition was filed by the petitioner and approved for a second Korean orphan girl born May 24, 1963. This child was admitted on the basis of the approved petition on May 1, 1964 at Seattle, Washington. A death certificate has been presented to show that this second adopted orphan died on June 5, 1964 of pneumatic bronchitis in Chico, California. The petitioner filed a petition for a third child, the beneficiary of the petition now before me on appeal, on October 30, 1964. Section 205 (c) of the Immigration and Nationality Act, as amended, provides in part that: "Not more than two such petitions may be approved for one petitioner in behalf of a child defined in section 101 (b) (1) (E) or (F) unless necessary to prevent the separation of brothers and sisters". Section 101(b)(1) (F) of the Immigration and Nationality Act defines a child as: "A child who is an eligible orphan adopted abroad by a United States citizen and spouse or coming to the United States for adoption by a United States citizen and spouse". The beneficiary falls within this definition, but is not a brother or sister of the previously adopted orphans. The statute precludes the granting of the instant petition. In the decision in Matter of P-, 9 I. & N. Dec. 750, decided by the Board June 21, 1962 it is stated: "We, therefore, construe the context of section 205 (c) of the Immigration and Nationality Act to mean simply that a limitation of two is placed on the number of visa petitions that may be approved by the Attorney General for one petitioner in behalf of a child adopted, or an eligible orphan child, as those terms are defined in section 101 (b) (1) (E) and (F) of the Act. We find that Congress has, in current legislation, provided a visa petition procedure for eligible orphan children by reason of relationship; and that only orphan children who are the beneficiaries of visa petitions come within the provisions of section 205 (c) to limit two orphan children to each petitioner. Any other interpretation or construction of the language in the statute, it seems to us, would be reading meaning into it that is not there". Two visa petitions for eligible orphans have previously been approved for the petitioner in the instant case. The approval of a third visa petition for an eligible orphan by the same petitioner is statutorily prohibited. The decision of the District Director was proper. The appeal must be dismissed. ORDER: It is ordered that the decision of the District Director be affirmed and the appeal is dismissed. MATTER OF COLLETTI In Visa Petition Proceedings A-13417458 Decided by Assistant Commissioner March 5, 1965 A tailor who has had at least 5 years' journeyman experience in all of the hand and/or machine sewing operations necessary to make an entire garment, such as a suit or overcoat, is accorded first preference quota classification under section 203(a)(1), Immigration and Nationality Act, as amended, regardless of his age at the time he acquired such experience. [Matter of 8—, 9 I. & N. Dec. 299, overruled.] On December 11, 1964 the Regional Commissioner, Southeast Region, Richmond, Virginia, affirmed the decision of the District Director, Philadelphia, Pennsylvania, who had denied the visa petition to accord the beneficiary first preference classification under section 203 (a)(1)(A) of the Immigration and Nationality Act. Thereafter, the Regional Commissioner reopened the petition on his own motion and, on February 11, 1965, entered an order withdrawing his decision of December 11, 1964 and approving the petition. Since the Regional Commissioner's order of February 11, 1965 was contrary to the decision of July 10, 1961 by the Assistant Commissioner, Central Office, in the Matter of S-, 9 I. & N. Dec. 299, the Regional Commissioner certified his order of February 11, 1965 to this office. The beneficiary is a native and citizen of Italy born November 8, 1937. From 1952 to 1956 he served his apprenticeship as a tailor in Italy. Except during the period July 12, 1959 to December 5, 1960 when he was performing military duty in the Armed Forces of Italy, the beneficiary was continuously employed in his native country as a journeyman tailor from 1956 until August 1963 when he came to the United States. At the time of the adjudication of the petition by the District Director, the beneficiary had over five years' journeyman experience, but only about 48 months of which was acquired after his 21st birthday. The District Director had denied the petition on the ground that the beneficiary did not have five years' journeyman experience as a tailor, acquired after the age of 21 years, as required by the Matter of S-, supra. The Matter of S-recited that, after consultation with representatives of labor and industry the Service had concluded that an aggregate of five years' actual working experience as a journeyman tailor in the performance of all hand and/or machine sewing operations to make an entire garment, such as a suit or overcoat, was necessary for an individual to be recognized as a skilled tailor. Based upon Service experience prior to July 10, 1961 indicating that many young tailors were deserting the tailoring field after having gained admission to the United States as first preference quota immigrants, it was further decided in the Matter of S- that the five years' journeyman experience must have been acquired after the beneficiary's 21st birthday in order to qualify for first preference classification. Upon further consideration, it has now been concluded that a tailor who has had at least five years' journeyman experience in all of the hand and/or machine sewing operations necessary to make an entire garment, such as a suit or overcoat is qualified as a skilled tailor, regardless of his age at the time he acquired such experience. Therefore, the decision in the Matter of S-, 9 I. & N. Dec. 299, is hereby overruled. The record establishes that the beneficiary has had the requisite journeyman experience to qualify as a skilled tailor. The petitioner has established an urgent need for the beneficiary's services in that capacity. The Regional Commissioner's decision of February 11, 1965 approving the petition is affirmed. ORDER: It is ordered that the petition be approved. MATTER OF AIRCRAFT No. "N-2476-U" In Fine Proceedings LOS-10/2.121 Decided by Board March 18, 1965 Since remission in full of $500 penalty imposed under section 239, Immigration and Nationality Act, is not limited to emergent circumstances of 8 CFR 239.2(d), and since section 239 specifically provides that the penalty incurred for violation of any regulation made thereunder may be remitted or mitigated, penalty of $500 incurred under section 239 of the Act for failure of pilot to present himself and passenger for inspection is mitigated to extent of a remaining $25 penalty when both are United States citizens returning from a bona fide business trip in Mexico, bringing no merchandise, and evidence establishes violation was unintentional and pilot acted in good faith throughout. IN RE: CESSNA AIRCRAFT, Model 172, No. "N-2476-U” which arrived at Lindbergh Airfield, San Diego, California, from Mexico on September 11, 1963. Persons involved: James D. Ellis, Pilot; and John Thomsen, Esquire, passenger. This appeal is directed to an administrative penalty of $400 ($500 mitigated to the extent of $100), which the District Director has ordered imposed on the aircraft's pilot for "failure to present the aircraft, yourself, and one passenger for inspection by an immigration officer as required by 8 CFR 239.2(c).” This flight involved the return portion of a Mexican business trip by the two persons named above, both United States citizens, who brought back no merchandise. At the time of landing, as had been the case during the entire return trip from Mexico, the pilot and his passenger were engrossed in a discussion of the business problem which had caused them to make the flight. They also had not eaten for several hours and were hungry. Accordingly, the pilot forgot about the inspection requirements, taxied the aircraft to that part of the airfield used by the company from whom he had hired. the plane, parked it there, and proceeded to a restaurant in San Diego with his passenger to continue their business discussion. While dining, the pilot remembered about inspection and, with his passenger, promptly returned to the airport. He reported to the |