Petitioned son can bring along illegitimate child, but not fiancée- Immigration Corner

Dear Atty. Gurfinkel:

I am a Filipina green card holder, and I filed a petition for my unmarried son three years ago. It was approved in the F-2B category (single adult child of green card holder). Last year, his girlfriend got pregnant, and they now have a two-week-old baby. That is why they decided to live together.

What happens if my son's petition gets current (I think in about two to three years from now); what will happen to his girlfriend and the baby? Can his girlfriend and their child follow my son to the US after he gets his green card? Is there any category regarding this? Some people say this is a fiancée category, of which I know nothing about.

Very truly yours,

ZF

Dear ZF:

Based on the situation you have explained, it could be possible that, when the priority date on your son's petition becomes current (or visa becomes available), your son and his illegitimate child may be processed for visas at the same time However, your son's girlfriend would not be able to get a visa.

In order for both your son and grandchild to get visas, there are some very important "do's" and "dont's" which you and your son must follow.

1. You, as the petitioner, must remain an immigrant. DO NOT become a US citizen. This is because for people from the Philippines, it takes longer for a single adult child (over 21 years of age) of a US citizen, to obtain a green card, than it does for a single adult child of a green card holder. Therefore, if you take the oath of citizenship before your son arrives in the US, his category as F-2B category (single, adult child of a green card holder) would automatically convert to F-1 (single adult child of US citizen). As a result, his visa would be delayed by several additional years, than had the parent remained a green card holder.

2. Your son must remain single. Your son must NOT get married. This is because marriage of a child under petition by a green card holder (F-2B) automatically voids the petition, as green card holder parents can only petition single children (only US citizens can petition married children). The child must remain single up until the time the child enters the US. In addition, your son should not play games which with either "secret marriages", or attempting to have any marriage contract, "pulled". The Embassy is very much aware of these games, tricks, and tactics. Therefore, he should simply remain single.

3. Since, as you said, your grandchild is illegitimate, then his or her birth certificate should not reflect a date of marriage between your son and his girlfriend. If there is a date of marriage on a child's birth certificate, the Embassy (or INS) will assume that your son is really married and, therefore, his petition is void. In fact, one of the largest fraud problems in the Philippines is when married children attempt to immigrate to the US as "single". The fraud is detected at the time of interview, based on a date of marriage on an "illegitimate" child's birth certificate.

4. Your son should definitely declare the existence of his illegitimate child to the US Embassy. Having an illegitimate child would not, in any way, affect your son's own eligibility for a visa. Many people are under the mistaken belief that if they declare an illegitimate child, the petition would be void. That is not true. Illegitimate children can be included under the petition. Problems arise only when a person is really married, but tries to fool the Embassy, by claiming that he is "single". In your case, because your son truly is single (and should remain so), he can include his illegitimate child under your petition.

5. The only "fiancée visa" available for a girlfriend (or boyfriend) is when a US citizen petitions a fiancé or fiancée, for a K-1 fiancée visa. There is no fiancée visa for a single son under petition by a green card holder parent.

6. If your son wants to bring his girlfriend to the US, then he would first need to be processed for his visa at the US Embassy while he was still single, and arrive in the US as single. Only once he arrives in the US as single, can he go back to the Philippines and marry his girlfriend. He can thereafter petition her in the F-2A category (spouse of green card holder). The wait for a visa would be approximately 4 1/2 years.

I again want to emphasize perhaps the two most important points about your letter that the child has to remain single, and the parent should not naturalize. Good luck!

Michael J. Gurfinkel has been an attorney for 19 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also a member of the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Tel.: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Tel.: 894-0258 or 894-0239.

(This is for informational purposes only, and reflects the firm's opinions and views on general issues. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)