Petitioning an Illegitimate Child

By Reuben Seguritan


One of the ways of immigrating to the United States is through a family petition. This is done by a US citizen or lawful permanent resident (LPR) by filing a Form I-130 Petition for Alien Relative for his spouse or child with the United States Citizenship and Immigration Services (USCIS).

In order to petition a child, the petitioner US citizen or lawful permanent resident must show that the person petitioned or beneficiary is a “child” as defined by law. 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 created; c) a child legitimated before 18, if under the father’s custody at the time of legitimation; d) illegitimate or 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.

The situation of illegitimate children is often a source of confusion as to whether the US citizen or LPR biological parent can petition them. The illegitimate child could be petitioned by his biological mother as long as she can present a copy of the registered birth certificate of the child indicating that the mother-petitioner is listed as the mother therein. If it is not possible to present the birth certificate, then other evidence may be presented. This could be an official letter (often referred to as a “certificate of nonavailability”) explaining why an acceptable birth certificate cannot be issued. Alternative documents may also include two or more affidavits of birth (sworn letters written by relatives or other persons with personal knowledge of the facts of a child’s birth), as well as medical records, school records, and religious records (such as certificate of baptism issued by a church) showing the names of the mother and the child.

However, if the father would be the one to petition the illegitimate child, he must establish that there is a “bona fide” parent-child relationship with the child and he must petition the child while the child was under 21 years and unmarried. This “bona fide” parent-child relationship means there must be an “emotional and/or financial ties” between the father and illegitimate child. This can be shown by attempts to provide child support or communication with or about the child. The evidence submitted can include money order receipts, checks showing child support, insurance documents, school records, private letters between the child and father. Notarized statements from family friends, neighbors, school officials and other persons having personal knowledge of the parent-child relationship may also be submitted.

On the other hand, legitimated children are those who were born out-of-wedlock but subsequently placed in the same position as a legitimate child or a child in-wedlock. Legitimation can be acquired by: 1. the application of the laws of the country or state where the child was born or the laws of the father’s domicile or residence provide for legitimation of children; or 2. Subsequent marriage of the biological parents of the child; or 3. Court decree of legitimation; or 4. Formal recognition of paternity; or 5. Through open acknowledgement of paternity.

In order for the father to bring his legitimated child to the US, the following requirements must be met: 1. Legitimation in accordance with one of the mentioned methods above; 2. The child is under 18 years of age at the time of legitimation; 3. Paternal custody at the time of legitimation and 4. The child is the natural or biological child of the father.

If the legitimation is through marriage of the parents, then the registered marriage certificate must be submitted. If the marriage certificate can not be submitted, submit a certificate of nonavailability in addition to alternative documents. Alternative documents include  affidavits of marriage and religious records stating the date when the marriage was celebrated and witnesses to the marriage.