Immigration
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LEGAL NOTES |
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posted
14 May 2007 |
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Immigration Rights of Illegitimate Children
By Reuben S. Seguritan
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The most favored route to immigration in the US among
Filipinos is family sponsorship. In determining who can
sponsor or be sponsored, it is important to clarify the
legal definition of “child,” at least for the purpose of
US immigration.
Definition of “child”
The term “child” under the Immigration and Nationality
Act (INA) generally refers to an unmarried person who is
under 21 years of age who is a : (a) legitimate or born
in-wedlock child; (b) legitimate or illegitimate
step-child who was under 18 when the step-relationship
was created; (c) a child legitimated before 18, if under
the father’s custody at the time of legitimation; (d)
out-of-wedlock child where relationship is with either
parent; (e) child adopted before 16 with at least 2
years of legal custody and resident with the parent; and
(f) certain orphans.
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While there are little or no complications in
establishing the parent-child relationship in most
cases, there are instances where additional evidence
showing the relationship must be submitted for
purposes of obtaining immigration benefits, such as
permanent residency.
Immigration benefits and the out-of-wedlock
child
Initially, a child born out-of-wedlock could only be
petitioned by the mother. Under the INA, the father
can also petition the out-of-wedlock child if there
was a bona fide parent-child relationship when the
child was under 21 and unmarried.
What constitutes a “bone fide parent-child
relationship”?
The Bureau of Immigration Appeals in one case said
that the term must be “generously interpreted.”
There is a parent-child relationship where there are
“emotional and/or financial ties” between the father
and out-of-wedlock child, such as, actual or
attempts to provide child support, or communication
with or about the child.
The evidence of the relationship may take the form of
money order receipts or cancelled checks showing
financial support, insurance documents, school records,
even private letters between the father and child at
various points in the child’s life. Notarized statements
from family friends, neighbors, school officials and
other persons having personal knowledge of the
parent-child relationship would also help. |
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Legitimated children are persons who were born
out-of-wedlock but subsequently placed in the same legal
position as a legitimate child. |
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Immigration benefits and the legitimated
children
Legitimated children are persons who were born
out-of-wedlock but subsequently placed in the same legal
position as a legitimate child.
Legitimation can be acquired by virtue
of either the laws of the country (or state) of the
child; the laws of the father’s domicile or residence
that eliminate legal distinctions between legitimate or
legitimated child; subsequent marriage of the biological
parents; court decree; formal recognition of paternity;
or through open acknowledgment of paternity.
For the purpose of immigration benefits through the
father, the legitimated child should meet four
requirements: first, egitimation according to any of
the aforecited legal modes; second; the child is under
18 at the time of legitimation; third, paternal custody
at the time of legitimation; fourth, child is the
natural child of the father.
Previously, immigration rules presume that the child is
under the mother’s custody, unless there is proof that
custody is with the father. In a petition of a US
citizen father for a legitimated child, therefore, the
petitioner must submit proof that he has custody of the
child.
At present, however, a 1980 case (Matter of Rivers, 17 I
& N Dec. 419) changed the standard and now permits the
presumption that the father still has custody of the
child, thereby eliminating the burden to show paternal
custody. (11292006)
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REUBEN S. SEGURITAN
has been practicing law for
over 30 years. He was former immigration editor and is author of a
book on immigrant experiences. He frequently speaks on immigrant
issues and for his advocacy efforts he was the recipient of two
presidential awards by President Ramos and an award by the
Commission on Filipinos Overseas. He previously taught business law
and international politics. For further information, you may call
him at 212 695 5281 or log on to his website at www.seguritan.com |
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