DEAR Atty. Gurfinkel:
I was petitioned as “single” by my immigrant (green card) parent in 2008. The priority date is now current, and I am getting paperwork and forms from the NVC to fill out.
I have a live-in partner, and we had a child together. Although we never married, we put a date of marriage on our child’s birth certificate, because we wanted to save our child from shame and embarrassment of being illegitimate when he would go to school.
I’ve been getting advice from relatives and friends to not disclose my child on the immigration forms, because the date of marriage on my child’s birth certificate will mess up my case. Therefore, I should simply tell the Embassy I have no children.
Is it true that it will mess up my case to declare my child because of the date of marriage on his birth certificate, since I’m being petitioned as single? Should I get a late-registered birth certificate from Recto Street, showing no date of marriage?
Very truly yours,
VR
Dear VR:
I have heard this rumor many times (that a date of marriage on an illegitimate child’s birth certificate will mess up the parent’s case). That is NOT true! Having an illegitimate child, even with a date of marriage on their birth certificate, should not affect the single parent’s eligibility for a green card.
The real problem is when a person who is being petitioned as single, is actually (secretly) married. In that case, they would NOT be eligible for a visa as “single” whether they have children or not, or whether their child’s birth certificate has a date of marriage or not. It is the fact or existence of the marriage that makes the parent ineligible for the visa, not the existence of children.
Even if a single parent has a date of marriage on their child’s birth certificate, the parent could still be eligible for their visa. Not only that, but their child could be included under the petition if the child is still under 21 (or CSPA eligible). What is necessary is to prove you truly are single, and the date of marriage was made up. My office has encountered many cases like that, where the family’s impulse was to process the case without declaring the child. In fact, not declaring the child could actually mess up the case:
It would require you to lie, by signing papers stating you have “no children.”
Later on, if you try to petition the child, the USCIS or Embassy may look back at your file and wonder how it was that when you immigrated you had “no children”, and then later, you have a grown child, who was obviously born before you immigrated.
When you apply for U.S. citizenship, there are also questions about children. How are you going to fill that out? Continue to lie and say you have no children? Then after you become a citizen, and try to petition the child, your lie will be uncovered that you claimed you had no children.
Most important, by declaring the child and demonstrating you were truly single, you would able to bring the child with you.
If you are under petition as single, but have an illegitimate child with a date of marriage on the birth certificate, I would recommend that you consult with an attorney, who can evaluate your case and straighten things out so you would not be committing fraud and possibly be able to bring your child with you.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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