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BANNED FROM U.S. FOR LIFE FOR NOT ADOPTING
GRANDCHILD
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
In 1986, my U.S. citizen mother petitioned me in the F-3 category
(married child of U.S. citizen). Eight years ago, when my daughter
was only16 years old, she got pregnant and gave birth to our grandson.
Our family was embarrassed and we wanted to save the good reputation
of my daughter. Furthermore, we did not want our grandson to grow
up as an illegitimate child. To avoid this stigma of illegitimacy,
I registered our grandson's birth in the Local Civil Registrar,
and made it appear that my wife and I were his biological parents.
He came out to be our legitimate son. Although we have raised
and considered our grandchild as our own, we never formally adopted
him in court. Our grandchild grew up, and has known us to be his
real parents.
When my priority date finally became current, I
filled out the papers for the Embassy, listing my grandson as
my biological child, and submitted his birth certificate, which
showed me as the biological father. Now problems have cropped
up because the Consul is requiring me to undergo DNA testing to
establish the blood relationship between me and my "son".
I am afraid to go back to the Embassy, because I
am sure that the DNA testing will show that I am not the natural
father.
Do you think I will encounter problems for having
listed my grandchild as my biological child? I was hoping that
I, my wife, and two other teenage children can go to America,
along with my grandson. My grandson is only eight years old, and
I am worried to leave him behind.
Very truly yours,
A.G.
Dear A.G.:
Based on the situation that you described (claiming your grandchild
as your biological child), you may be guilty of alien smuggling.
This means that you and your entire family will be denied visas,
and you may be banned from ever going to America. The law defines
smugglers as:
"Any alien who at any time knowingly
has encouraged, induced, assisted, abetted, or aided any
other alien to enter or to try to enter the United States
in violation of law..."
Had you taken the steps during the past eight years
to legally adopt your grandchild in court (rather than
trying to pretend he was your biological child), then you would
not have encountered these problems.
Some people have the misconception that smugglers
are only those people who are paid to sneak people into the U.S.
across the borders. That is not true. A person can be guilty of
alien smuggling, even if he is just attempting to bring in his
own family members when that family member is really not entitled
to a visa (i.e. simulating a birth certificate, to make it appear
that a grandchild, or a niece or nephew, is a "biological"
child).
The Embassy is very strict when it comes to alien
smuggling. They believe that people who are entitled to visas,
should get visas. But, people who are not entitled to visas, should
not get visas. There have been many cases where, once the Embassy
finds out that somebody is attempting to obtain a visa for a relative
who is not entitled (such as a grandchild), the Embassy denies
a visa not only to the person being smuggled, but also to the
person who was under petition.
For example, in one case, a mother was petitioned
by her U.S. citizen daughter. But this mother tried to list her
nephew as a biological child. The Embassy considered this
to be alien smuggling and refused to issue a visa to the mother,
on the grounds that she attempted to smuggle an alien. So, by
including a family member who was not entitled to a visa, the
woman lost her own visa.
The bottom line is that the law allows only certain
family members to be included in a petition. If you try to sneak
in friends or relatives who are not eligible for a visa, you could
be guilty of alien smuggling. And, the stakes are very high.
In your particular case, you have already submitted
paperwork to the Embassy, claiming that your grandchild is your
biological child. Obviously, because the Embassy is asking for
DNA testing, they were already suspicious that he is not your
child. You already know that the DNA results will confirm the
Embassy's suspicions. Therefore, in the eyes of the law, you would
be an alien smuggler.
Although in some limited circumstances, waivers
(or forgiveness) are available (such as when a person tries to
smuggle in his spouse or real child), that waiver
is not available to you, since this was a grandchild.
As to other people who are thinking about submitting
paperwork to the INS or Embassy, claiming children who are not
their own: don't do it! Adopt the child in court if they
are still under 16 years of age. If a person has already submitted
such paperwork, I would strongly recommend that, before it goes
too far, you seek the advice of a reputable attorney, who could
possibly assist you in "retracting" your lies before
it's too late. However, if the case goes too far along (such as
when DNA testing is already being requested), retraction may no
longer be an option.
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