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Immigration for illegitimate children

Question: 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  girlfriend got pregnant, and they now have a baby who is born out of wedlock. The priority date on my son’s petition is now current, and he is ready to be processed for his immigrant visa.  What will happen to his girlfriend and the baby?  Can my son’s girlfriend and child obtain their  immigrant visas and accompany him to the U.S.?

Answer:   From what you have stated, it is possible that  your son and his illegitimate child may be eligible to immigrate at the same time, but his girlfriend would not be able to get a visa.

First, In order for both your son and his child to get visas, there are some very important rules he must followHe must first remain single up until the time he enters the U.S.  Your son must NOT get married.  This is because permanent resident parents can only petition single children.  The marriage of a child who is under petition by a green card holder parent (F-2B) even a so called secret marriage  automatically voids the petition.  (Only U.S. citizens can petition married children.)

The Embassy is very much aware of attempts to hide marriages and frowns upon them.  Therefore, he should simply remain single.  If a secret marriage is discovered, he could be banned for life for fraud.Next, your new grandchild is technically illegitimate, or born out of wedlock, the grandchild is nonetheless also included in your petition.

However, if the child is really illegitimate, his or her birth certificate should not reflect a date of marriage between your son and his girlfriend.  If there is a such a date of marriage on an illegitimate child’s birth certificate, the Embassy in Manila (or USCIS) will assume that your son is really married and, therefore, his petition is void.  This is one of the largest fraud problems in the Philippines when married children attempt to immigrate to the U.S. as “single”, so the Embassy is on the lookout for this.

If the child is really illegitimate, but there is a date of marriage on the birth certificate, there are ways to repair the damage. Your son should definitely declare the existence of his illegitimate child to the U.S. 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 secretly married, but tries to trick the Embassy by claiming that he is “single”.  In your case, because your son truly is single, he can include his illegitimate child under your petition safely and it will not affect his petition.

Your son’s girlfriend is another story. She cannot come to the U.S. with him because they are not married and should not marry yet as this will void your son’s petition. Your son would first need to immigrate while he is still single, and once he arrives in the U.S. 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 4-5 years, but lately the quota has moved more quickly.

(Atty Paul Choi will answer all questions regarding immigration, naturalization and deportation defense for FREE. Contact him at  pchoi@pchoilaw.com or at 818 714-2226. He is located at 16000 Ventura Blvd, Ste. 1201, Encino, California 91436.)


Paul Choi is an immigration attorney practicing in Encino, California. As a public service, he will answer all questions regarding immigration and naturalization for free either by mail, email at pchoi@pchoilaw.com, on the phone, or in person or you may contact his administrator, Philip Abramowitz at 818 714-2226, or pabramowitz@pchoilaw.com.  The following is one such question and the answer by Mr. Choi.

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