Illegitimate child included, but not fiancée

Dear Atty. Gurfinkel:

I am a green card holder, and I filed a petition for my unmarried son. It was approved in the F-2B category (single adult child of green card holder). Last year, his live-in girlfriend got pregnant, and they now have a baby.

The priority date on my son’s petition is now current, and he is to be processed for his immigrant visa. What will happen to his girlfriend and the baby? Can my son’s girlfriend and child get immigrant visas and accompany my son to the US?

Very truly yours,

ZF

Dear ZF:

Based on the situation you have explained, it could be possible that both your son and his illegitimate child may be eligible 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 “dos” and “don’ts”, which you and your son must follow:

1. Your son must remain single up until the time he enters the US. Your son must NOT get married. This is because green card holder parents can only petition single children. The marriage of a child who is under petition by a green card holder parent (F-2B) automatically voids the petition. (Only US citizens can petition married children.) In addition, your son should not play games 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. If a secret marriage is discovered, he could be banned for life for fraud.

2. Since your grandchild is illegitimate, the grandchild is also included in your petition. However, if 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 an illegitimate child’s birth certificate, the Embassy (or USCIS) 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.

3. If the child is illegitimate, but there is a date of marriage on the birth certificate, there are ways to “repair the damage.” But do not get a simulated birth certificate from Recto Street, listing the child as illegitimate and hilot birth, then having that birth certificate “late registered.” The Embassy will catch this.

4. Your son should definitely declare the existence of his illegitimate child to the US Embassy. Having an illegitimate child does 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, their petition would be void. That is not true. Illegitimate children (or grandchildren) 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. If your son wants to bring his girlfriend to the US, then your son would first need to be processed for his immigrant visa at the US Embassy while he was still single, and must 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 to 5 years.

I again want to emphasize perhaps the two most important points about your letter: that your son has to remain single, and no “secret marriages.” Good luck! 

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