Banned from US for life for not adopting grandchild - Immigration Corne

Dear Atty. Gurfinkel:

In 1986, my US citizen mother petitioned me in the F-3 category (married child of US citizen). Eight years ago, when my daughter was only 16 years old, she got pregnant and gave birth to our grandson. Our family was embarrassed and we wanted to save the good reputation of my daughter. Furthermore, we did not want our grandson to grow up as an illegitimate child. To avoid this stigma of illegitimacy, I registered our grandson's birth in the Local Civil Registrar, and made it appear that my wife and I were his biological parents. He came out to be our legitimate son. Although we have raised and considered our grandchild as our own, we never formally adopted him in court. Our grandchild grew up, and has known us to be his real parents.

When my priority date finally became current, I filled out the papers for the Embassy, listing my grandson as my biological child, and submitted his birth certificate, which showed me as the biological father. Now problems have cropped up because the Consul is requiring me to undergo DNA testing to establish the blood relationship between me and my "son."

I am afraid to go back to the Embassy, because I am sure that the DNA testing will show that I am not the natural father.

Do you think I will encounter problems for having listed my grandchild as my biological child? I was hoping that I, my wife, and two other teenage children can go to America, along with my grandson. My grandson is only eight years old, and I am worried to leave him behind.

Very truly yours,

A.G.

Dear A.G.:

Based on the situation that you described (claiming your grandchild as your biological child), you may be guilty of alien smuggling. This means that you and your entire family will be denied visas, and you may be banned from ever going to America. The law defines smugglers as:

"Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law..."

Had you taken the steps during the past eight years to legally adopt your grandchild in court (rather than trying to pretend he was your biological child), then you would not have encountered these problems.

Some people have the misconception that smugglers are only those people who are paid to sneak people into the US across the borders. That is not true. A person can be guilty of alien smuggling, even if he is just attempting to bring in his own family members when that family member is really not entitled to a visa (i.e. simulating a birth certificate, to make it appear that a grandchild, or a niece or nephew, is a "biological" child).

The Embassy is very strict when it comes to alien smuggling. They believe that people who are entitled to visas, should get visas. But, people who are not entitled to visas, should not get visas. There have been many cases where, once the Embassy finds out that somebody is attempting to obtain a visa for a relative who is not entitled (such as a grandhild), the Embassy denies a visa not only to the person being smuggled, but also to the person who was under petition.

For example, in one case, a mother was petitioned by her US citizen daughter. But this mother tried to list her nephew as a biological child. The Embassy considered this to be alien smuggling and refused to issue a visa to the mother, on the grounds that she attempted to smuggle an alien. So, by including a family member who was not entitled to a visa, the woman lost her own visa.

The bottom line is that the law allows only certain family members to be included in a petition. If you try to sneak in friends or relatives who are not eligible for a visa, you could be guilty of alien smuggling. And, the stakes are very high.

In your particular case, you have already submitted paperwork to the Embassy, claiming that your grandchild is your biological child. Obviously, because the Embassy is asking for DNA testing, they were already suspicious that he is not your child. You already know that the DNA results will confirm the Embassy's suspicions. Therefore, in the eyes of the law, you would be an alien smuggler.

Although in some limited circumstances, waivers (or forgiveness) are available (such as when a person tries to smuggle in his spouse or real child), that waiver is not available to you, since this was a grandchild.

As to other people who are thinking about submitting paperwork to the INS or Embassy, claiming children who are not their own: don't do it! Adopt the child in court if they are still under 16 years of age. If a person has already submitted such paperwork, I would strongly recommend that, before it goes too far, you seek the advice of a reputable attorney, who could possibly assist you in "retracting" your lies before it's too late. However, if the case goes too far along (such as when DNA testing is already being requested), retraction may no longer be an option.

Michael J. Gurfinkel has been an attorney for 20 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 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 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.)