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ImmigrationTALK: Establishing the Parent-Child Relationship

Aug 12, 2012 News

By Attorney Gail S. Seeram

In current times, the dynamics of the family unit has changed.  It is a norm to see children born to unwed parents and children raised by stepparents.  In these situations, the U.S. Immigration laws impose requirements on proving the parent-child relationship when a sponsorship petition is pending.
The U.S. Immigration laws define “child” as an unmarried person under 21 years of age who is a child born in wedlock, step-child as long as the child was under 18 when the step-relationship was created, child legally legitimated before 18, child born out of wedlock where a bona fide parent-child relationship exists, and child adopted before 16 and having two years legal custody and residence with adopting parents.
Step-Children:
In the situation where a step-parent wants to file a family-based sponsorship petition for a step-child, this can only be done if the step-relationship was created when the step-child was under age 18.  Thereby, the step-parent must have married the child’s biological parent before the child reached age 18.
If the child was under 18 when his/her biological parent married the step-parent, then the step-parent can file a family-based sponsorship petition for the child.  If the step-parent is a U.S. citizen, then a visa is available as the child is an immediate relative of a U.S. citizen.  If the step-parent is a lawful permanent resident, then a visa is available under the 2A preference category and the backlog is at August 2010.
In the same light, a step-child may file a family-based sponsorship petition for a step-parent if the step-parent married the child’s biological parent before the child was age 18.  An immigrant visa would be available for the step-parent as the step-parent would be considered an immediate relative of a U.S. citizen.  For purposes of obtaining automatic citizenship, a step-child is precluded from receiving citizenship through a naturalized step-parent.
Legitimated Children:
The issue of legitimation arises where a child was born out-of-wedlock or born to unmarried parents.  Legitimation is the act of putting a child born out-of-wedlock in the same legal position as a child born in wedlock.  The U.S. Immigration laws provide that a child born out-of-wedlock can obtain immigration benefits through a natural father if a bona fide parent-child relationship existed when the child was under 21 and not married.  In the case where a natural father is a U.S. citizen of a permanent resident and wants to file a family-based sponsorship petition for his child (born out-of-wedlock) then the natural father would have to prove an active concern for the child’s support, instruction and general welfare.  Such evidence to prove legitimacy may include money order receipts showing the father’s financial support, medical records, school records, notarized affidavits from family and friends, correspondences between the parties and photos.
Typically, when a father submits a family-based sponsorship petition for a child born out-of-wedlock, the U.S. Immigration will ask for such documentation to prove that the father legitimized the child before the child was age 18.
In both cases, proving the step-relationship and the legitimacy of a child require complying with specific statutes and regulations.  It is advised to speak with an immigration attorney if you need further advice on these issues.

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