By Attorneys Eric R. Welsh & Nancy E. Miller
Being related to a U.S. citizen brings many immigration benefits but what does “related” mean and how is it proven? The answer can mean the difference between getting relief or being denied.
Last fall, the U.S. Citizenship & Immigration Services (USCIS) and the Department of State (DOS) expanded the immigration definition of “parent” to include non-genetic gestational mothers who became pregnant with the use of Assisted Reproductive Technology (ART), which is a fancy way of saying “surrogate mothers”. Prior to this policy shift, the DOS and USCIS required proof of a genetic relationship with a U.S. citizen parent in order for a child born abroad to acquire citizenship at birth through that parent. Under the new policy, any mother who carries and gives birth to the child, and who is also the child’s legal mother at the time of the birth, will be considered the “mother” of the child for immigration purposes, regardless of the existence of a genetic relationship.
This expanded definition underscores the importance of parentage in matters related to immigration. Parentage has wide-ranging immigration implications and benefits. A child born outside of the United States might obtain U.S. citizenship automatically through acquisition (citizenship at birth based on the citizenship of the parents at the time of the birth), or derivation (citizenship upon the occurrence of certain events after the birth). A U.S. citizen child over the age of 21 can file a petition to classify a parent as an “immediate relative,” and a U.S. citizen or permanent resident parent can petition a child for classification (which will vary depending on the status of the parent, the age of the child, and the marital status of the child). Many forms of relief from removability or deportation and waivers of inadmissibility depend upon the existence of a parent-child relationship. Simply put, parentage—and proof of parentage—may be critical to determining a child or parent’s immigration status and rights.
Even when a parent can establish a biological relationship to a child, special challenges can arise. For example, additional proof of relationship may be required in the case of a child born out-of-wedlock. Evidentiary challenges most often present themselves when a father seeks to petition an out-of-wedlock child, or claim a benefit based on a petition from that child. Unless the father can demonstrate that he has legitimated the child, the out-of-wedlock father is required to prove that, in addition to a biological relationship, he has or had “a bona fide parent-child relationship” with the child. This stands in contrast to the “natural mother,” who is required only to prove the fact of parentage—that is, that she is the genetic mother or that she qualifies under the expanded ART policy. This means that the father (unlike the mother) has the burden of providing an actual involvement in and commitment to the child’s life.
In addition to natural parentage, the immigration definition of the parent-child relationship includes legal parental relationships created through marriage and includes adopted children meeting certain specific criteria. For example, a child may have a legal parental relationship with a stepparent, if the child’s natural parent married the stepparent before the child is 18 years old.
In the case of adoptions and other forms of post-birth legitimation, legal parentage may still be established for immigration purposes, but a number of special challenges arise. Complex and burdensome rules apply when a parent seeks a U.S. immigration benefit for an adopted child who was born in a country that is a member of the Hague Convention on the Protection of Children (including, for example, the Philippines, Mexico, China, Canada, and many others). More generous rules apply to define a parental relationship when the adopted child meets the immigration definition of an “orphan.”
Alternatively, a parent-child relationship with an adopted child may exist when the adopting parent or parents legally adopt the child before the age of 16, and live abroad with the child in the child’s native country for two years. However, once the child is legally adopted and obtains an immigration benefit from that adoption, the biological family cannot obtain an immigration benefit from the child’s status.
When properly established, the parent-child relationship carries numerous benefits and provides for relief eligibility that, in some cases, may mean the difference between removal from the United States and permanent residence. Matters of proof and legal eligibility are often significant hurdles to overcome, but the benefits of establishing a parental relationship are very often beyond measure.