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.
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.
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, legitimation 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.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com