IMMIGRATION CORNER
By Michael J. Gurfinkel, Esq.

AS every parent knows, their children are their most precious natural resource. Parents are willing to sacrifice and endure years of separation from their children, to come to America and give a better life and future for their children.

The same love and dream apply to those children born out of wedlock (or illegitimate). These children’s natural parents tearfully long for the day when parent and child are united.

INCLUDING ILLEGITIMATE CHILDREN AS DERIVATIVES

Often, when people seek immigration benefits, they hide from the U.S. Citizenship and Immigration Services (USCIS) and/or the Embassy, that they have illegitimate children. They think that if they have an illegitimate child, they could be refused a visa. For example, a person with an illegitimate child was petitioned by his parent, as a single child of a U.S. citizen or green card holder. 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 the applicant or beneficiary 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, as a “derivative beneficiary” of the person’s petition.

For example, if a parent 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 adult unmarried child does not disclose the existence of his or her illegitimate child, obviously the illegitimate child would not be included as a derivative beneficiary.

PETITIONING AN ILLEGITIMATE CHILD

Also, if a parent is already a citizen or immigrant, he can petition his own illegitimate child. The fact that the petitioning parent was not married, does not destroy the fact that the child is still his own flesh and blood. Either a mother or a father can petition an illegitimate child. However, in the case of a father, he must also show that there was a bona fide parent/child relationship between himself and his 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. The law does not want a situation where a man had a one night stand with a lady, had a child with her he didn’t know of, then disappears for many, many years, with no contact with his child. The law wants to make sure that the father maintains contact with the child through the years, and that the father demonstrates emotional or financial ties, or some form of active concern for the child’s support, education and welfare.

The bottom line is that a person can include or 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.