Matter of Lauer (Board decision, April 20, 1967)

Plain-English summary

A lawful permanent resident petitioned for preference quota status for his son, who was born out of wedlock in Germany. The father had acknowledged paternity before a German court in 1950. The Board held that acknowledgment alone did not legitimate the child under German law. It said legitimation required either the natural parents' later marriage or a court or state order on the father's application. The Board dismissed the appeal from the denial of the visa petition and left possible labor certification and other preference questions to the consular officer or district director.

Decision snapshot

• Cited authorities: Immigration and Nationality Act §§ 101(b)(1)(C), 203(a)(6), and 212(a)(14); German Civil Code §§ 1719 and 1723.
• Outcome: Visa petition denial sustained; appeal dismissed.
• Key point: A father's acknowledgment of paternity alone did not legitimate his child under the German law applied by the Board.

Full text (BIA official public release)

Interim Decision #1729

MATTER OF LAUER

In Visa Petition Proceedings

A-14863530
Decided by Board April 20, 1967

Paternity acknowledgment alone by petitioner (the natural father) of bene- ficiary, who was born out of wedlock in Germany in 1950, does not constitute legitimation for immigration purposes (section 101(b)(1)(C), Immigration and Nationality Act, as amended) since under German law legitimation is accomplished either by the subsequent marriage of the natural parents or upon application by the natural father that the child be declared legitimate by order of the court or state. ON BEHALF OF SERVICE: R. A. Vielhaber Appellate Trial Attorney
(Oral argument)

The case comes forward on appeal from the order of the District Director, New York District, dated January 26, 1967 denying the visa petition for the reason that the evidence establishes that the petitioner was never married to the mother of the beneficiary and, therefore, the relationship of father and child has not been established as defined in section 101(b)(1) of the Act, as amended. The petitioner, a native of Ukraine, a lawful permanent resident of the United States, seeks preference quota status on behalf of the beneficiary as his legitimated son. The beneficiary is a native and citizen of Germany, 16 years old, male. The evidence establishes that the beneficiary was born out of wed- lock and that the petitioner acknowledged paternity before the dis- trict court in Bamberg on July 10, 1950. The effect of the acknowledg- ment of paternity is the issue in the case. Under German law, legitimation is accomplished either by the sub- sequent marriage of the natural parents,¹ or upon application by the

¹ Section 1719, German Civil Code.

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Interim Decision #1729 natural father that the child be declared legitimate by order of the court or state.² Inasmuch as the beneficiary is not the legitimate nor the legitimated child of the petitioner, he cannot qualify for preference quota status as the child of a lawfully resident alien. The question of whether the beneficiary is exempt from the requirement of a labor certification pursuant to section 212(a)(14) either under 8 CFR 212.8(b)(5) or whether he can qualify for a preference under section 203(a)(6) of the Immigration and Nationality Act may be resolved by the appro- priate consular officer or the local district director. ORDER: It is ordered that the appeal be and the same is hereby dismissed. ² Section 1723, German Civil Code. See also, unreported Matter of Stiehl, File VP3-57228 (November 17, 1954) involving the same circumstances as the instant case which occurred in 1921. The Library of Congress notifies us that there has been no change in the German law.

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