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PETITIONING ILLEGITIMATE CHILDREN
by Michael J. Gurfinkel, Esq.
As every parent knows, children are our most precious
natural resource. People are willing to endure painful sacrifices,
as well as years of separation from their children, to come to
America in the hopes of making a better life and future for their
children.
Sometimes, children are born without the benefit
of their parents being married. Nevertheless, they are still a
person's own "flesh and blood", and the parent tearfully
longs for the day when parent and child are united under one roof
again.
Sometimes, when people seek immigration benefits,
they try to hide, from the INS and/or the Embassy, that they have
illegitimate children. Some people think that if they have an
illegitimate child, they could be denied a visa. For example,
a person may have been petitioned by their parent, but he or she
has an illegitimate child (the grandchild of the petitioner).
When that person is about to be interviewed for his visa at the
Embassy, he is advised by friends that if he discloses the existence
of an illegitimate child, he could be denied the visa. This
is not true. The mere fact that a person has an illegitimate
child, does not disqualify him from obtaining a visa. In
fact, in many cases, the illegitimate child could be included
for a green card under his or her grandparent's petition, as a
"derivative beneficiary".
For example, if a person is either a U.S. citizen
or green card holder, and he petitions his adult, unmarried
child, and if that adult, unmarried child has an illegitimate
child, the illegitimate child is considered a derivative beneficiary
of the grandparent's petition. In that case, the illegitimate
grandchild could be entitled to receive a visa, along with his
or her parent, when the priority date is finally current.
However, if the parent hides the existence of his
or her illegitimate child, obviously the child would not be included
as a derivative beneficiary.
WHY DO PEOPLE HIDE THE EXISTENCE OF ILLEGITIMATE
CHILDREN?
Many times, people hide the existence of a child
because they are, in reality, trying to hide the existence of
a marriage. For example, a person may be petitioned as
single, but they are really married. In the case
of a petition by a green card parent, the child's marriage would
result in the petition being void or automatically revoked. In
the case of a child being petitioned by a U.S. citizen, the child's
marriage could result in a much longer wait for a visa than if
the child were single. If the child being petitioned has children
of his own, birth certificates typically disclose the date
of marriage of the parents. Thus, if the child was being petitioned
as single, but is really married, it is really the existence
of the marriage, not the existence of the child, that
creates the problem.
Thus, if a person was truly unmarried, and
his or her child was truly illegitimate, this would not
invalidate his or her petition.
PETITIONING AN ILLEGITIMATE CHILD
Not only would the existence of an illegitimate
child not affect a person's pending petition, but a person can
also petition his illegitimate child. Under immigration law, an
illegitimate child is also considered a person's "child"
for immigration purposes. The fact that a person was not married,
does not destroy the fact that the child is still his own flesh
and blood. Both a mother and a father can petition an illegitimate
child. In the case of a father, he must also show that there was
a bona fide parent/child relationship between himself and the
child, while the child was still under 21 years of age and unmarried.
A "bona fide parent/child relationship"
means that the father needs to prove that he maintained some form
of ongoing contact and relationship with his child. Congress does
not want a situation where a man had a one night romance with
a lady, then disappears for many, many years, without having any
communication with his child. Congress wants to make sure that
the father maintains some kind of contact with the child through
the years, and have the father demonstrate some kind of emotional
or financial ties, or some form of active concern by the father
for the child's support, education, and welfare.
Among the things a father can show to demonstrate
an ongoing relationship would include remittances back home, cancelled
checks, money order receipts, or other documents, showing that
the father is demonstrating his financial responsibility for the
support of the child, medical insurance records, school records,
letters or cards between the father and the child, phone bills
showing that there has been phone contact between the father and
the child, affidavits from friends, neighbors, or school officials,
or from any other person who might have knowledge of this parent/child
relationship.
The bottom line is that a person can petition his
illegitimate child. Also, having an illegitimate child would not
automatically disqualify the parent from receiving a green card
himself.
If you have an illegitimate child whom you left
back home, and want to bring the child here, I would suggest that
you seek the advice of a reputable attorney who can analyze your
situation and assist you in connection with petitioning your illegitimate
child. I have handled many, many cases involving parents who petition
their illegitimate children, and they are now happily reunited
with their child. In one case, the father was "undeclared"
on the birth certificate, and did not acknowledge his child until
the child was 13. In another case, the grandparents had first
attempted to petition the child, using a fake birth certificate,
but were caught at the Embassy. Nevertheless, my office was successful
in bringing the child to the U.S. on the real mother's
petition, using the real birth certificate.
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