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PETITIONS OF SINGLE CHILDREN CAN INCLUDE ILLEGITIMATE GRANDCHILDREN
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I am a green card holder, and I filed a petition
for my adult, unmarried son, which was approved in the F-2B category
(single adult child of green card holder). Last year, his girlfriend
got pregnant, and they now have a 2-week-old baby.
What happens to my son’s petition now that
he has a baby? Is the petition void because he has a baby? Can
he bring his family under my petition?
Very truly yours,
ZF
Dear ZF:
Based on the situation you have explained, it is
possible that, when the priority date on your son’s petition
becomes current (or visa becomes available), your son and his
illegitimate child may be processed for visas at the same time.
However, your son’s girlfriend would not be able to get
a visa.
In order for both your son and grandchild to get
visas, there are some very important “do’s”
and “don’t’s” which you and your son must
follow:
1. Your son must remain single.
Your son must NOT
get married. This is because marriage of a child under petition
by a green card holder (F-2B) automatically voids the petition,
as green card holder parents can only petition single
children. (only U.S. citizens can petition married children.)
Your child must remain single up until the time he enters the
U.S. Thus, there should be no “secret marriages”,
or attempting to have any marriage contract “pulled”.
The Embassy is already aware of these schemes. Therefore, he should
simply remain single.
2. Since, as you said, your grandchild is illegitimate,
then his or her birth certificate should not
reflect a date of marriage between your son and his girlfriend.
If there is a date of marriage on a child’s birth certificate,
the Embassy (or INS) will assume that your son is
really married and, therefore, his petition is void. In
fact, one of the largest fraud problems in the Philippines is
when married children attempt to immigrate to the U.S. as “single”.
The fraud is detected at the time of interview, based on a date
of marriage on an “illegitimate” child’s birth
certificate.
3. Your son should definitely declare the existence
of his illegitimate child to the U.S. Embassy. Having an illegitimate
child would not, in any way, affect your son’s own eligibility
for a visa, or void the petition. Many people are under the mistaken
belief that if they declare an illegitimate child, the petition
would be void. That is not true. Illegitimate children can
be included under the petition. Problems arise only when a person
is really married, but tries
to fool the Embassy, by claiming that he is “single”.
In your case, because your son truly is single (and should remain
so), he can include his illegitimate child under your petition.
4. If your son wants to bring his girlfriend to the U.S., then
he would first need to be processed for his own visa at the U.S.
Embassy (while he is still single,
and arrive in the U.S. as single).
After immigrating to the U.S. as single, he can go back to the
Philippines and marry his girlfriend. Then, he can thereafter
petition her in the F-2A category (spouse of green card holder).
Her wait for a visa would be approximately 5 years.
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