03 Oct Your Tanong, My Sagot, part 1
A popular segment on my weekly immigration television show, Citizen Pinoy, is Your Tanong, My Sagot, where people ask immigration questions on a variety of subjects, and I offer my advice and guidance. Here are a sampling of questions from Filipino viewers, which may also be helpful to you:
Question: I am a Filipino citizen, and was married to a US citizen for 12 years. Two years ago, my wife divorced me. Last year, she and our 12-year-old daughter came to the Philippines for a visit. My wife and I had a heart-to-heart discussion, and found out we are still in love with each other. Right now, she wants to petition me. Do you see any complications, since we are still considered married under Philippine law?
Answer: Although divorce is not recognized in the Philippines, from a U.S. immigration law standpoint, your divorce is recognized and valid in the U.S., since your U.S. citizen wife obtained a valid divorce from you in the US, you would now be considered “unmarried.” Therefore, a fiancé (K-1) visa would be the appropriate way to go.
Question: My US citizen son retired from the military. He is on disability because of a traumatic brain injury. He has an 18 year old daughter living in the Philippines whom he met for the first time in 2013. She did not have a birth certificate, so we had her birth registered late in 2015. My son and his child did a DNA paternity test, which proved 99.99% positive that he is the biological father.. Can my son file a petition for his daughter? Could she possibly be a US citizen?
Answer: It is possible that an out of wedlock child of a US citizen father could be considered an “automatic” US citizen at birth, and therefore no petition would be needed. The basic requirements are the US citizen father should have lived in the US for at least five years before the child’s birth, two of which were after his 14th birthday. (Time in the military also counts as physical presence in the US.) In addition, the child should have been “legitimated” before age 18. It is possible to legitimate a child without marrying the mother. Most importantly, the father must have agreed, in writing, under oath, to support that child up to the child’s 18th birthday. That support agreement is a relatively simple form, but many US citizen fathers do not sign it before the child’s 18th birthday, thus cutting off that child’s ability to become a US citizen at birth. Alternatively, the child could be petitioned as an illegitimate child, provided the father could demonstrate that he supported the child while the child was a minor. (In other words, petitioning an out of wedlock child for green card would not necessarily require a formal written agreement under oath, as is required for citizenship.)
Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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