Petitioning a child who is not a blood relative

A child of a United States citizen or legal permanent resident can get immigration benefits as long as there is a legal relationship between the child and the USC/LPR parent.

But what if there is no relationship with the child? How will the USC/LPR be able to petition a child who is not a blood relative?

To address this issue, we look into this case from a reader:

“I met a wonderful woman while on vacation in the Philippines. In the few months that we were together, I fell in love with her. Upon my return to the States, she informed me she was pregnant and I was the father of the child. I returned to the Philippines after the birth of the child and acknowledged (him) as my own in the birth certificate. I (tried to register him as an American citizen) at the US Embassy in Manila… I was told to take the DNA test, which I did.

“…the DNA tests showed… I was not the biological father of the child. I left for the US and returned after a few years… to visit the child. I felt bad for (him) because he seemed to be neglected by his mother. I want to petition the child even if he is not my own. What should I do?”

—Anonymous

Proving the relationship

Generally, the birth certificate is the sole document proving the relationship between a parent and child. In the immigration petition, a parent submits proof of his citizenship or resident status and the birth certificate of the child. To prove the child’s legitimate status, the parents’ marriage certificate is usually submitted.

Since the birth certificate is strong proof of relationship between parent and child, in  some instances, an individual, not the real parent, would simply have his/her name written down as the “parent” on the birth certificate thinking this will create the parent-child relationship.

This often happens in adoption cases. A child’s birth certificate shows the name of the adoptive parent, instead of the natural/birth parent, to eliminate the need for a judicial decree of adoption. This is commonly known as a “simulated” birth certificate.

In immigration petitions, however, “simulated” birth certificates are not acceptable proofs of parent-child relationship. As soon as an immigration examiner or consular officer gets proof that the listed parents are not the biological parents, the petition is denied for lack of legal relationship.

The submission of birth certificates is not enough to show parental relationship for immigration petitions. Other factors are taken into account.

To illustrate, a grandparent who obtained a birth certificate naming him/her as “parent” of a grandchild would be circumventing the immigration process for petitioning direct issues/children and would not be allowed.

Factors that raise red flags could be the age of the grandparent at the time of the birth of the child, the age gap between other children and the child claimed to be the grandparent’s, the age difference between the grandparent and the child, etc.

DNA tests

Nothing in the regulations requires mandatory DNA testing to prove parent-child relationship. Consular officers and immigration examiners use their own discretion if there are doubts about a parent-child relationship.

Most high fraud posts, which include the US Embassy in Manila, often require DNA testing, especially in cases involving illegitimate children or those born out of wedlock.

This is what happened to the letter writer. To his dismay, the required DNA test found that the child was not his.

Despite the negative result of the DNA test, the letter-sender would still want to petition the child and bring him to the US.

There are two ways to petition a nonbiological child. One way is through adoption. Since 2008, adoption of orphans is governed by the Hague Convention on Adoption. Generally, the child is not supposed to be pre-identified, meaning the child to be adopted may not be chosen by the adoptive parents. Instead, the Inter Country Adoption Board will  identify who should be adopted.

If inter-country adoption is not applicable, the child must be domestically petitioned as a “relative” child, in which case, the adoptive parent must prove at least two years of physical presence in the Philippines and at least two years of legal custody over the adopted child before the immigration petition could be processed.

The other way to petition a nonbiological child is through the stepchild petitioning process. This is not applicable to all nonbiological children.  A US citizen may petition a stepchild only if the biological mother and the US citizen enter into a valid and good-faith marriage before the stepchild turns 18 years old.

In this case, the US citizen may petition the child as long as there is proof of the marital relationship with the mother.

(Tancinco may be reached at [email protected] or at 887-7177 or 721-1963)