Can U.S. citizen's son's girlfriend's baby also get immigrant visa to the U.S., as a derivative?

A baby born out of wedlock can be a derivative only if the immediate male beneficiary is the natural father and has a legal relationship to the child.

Related Ads

Need Professional Help? Talk to a Lawyer

Enter Your Zip Code to Connect with a Lawyer Serving Your Area

searchbox small

Question

I recently became a U.S. citizen and I want to file a petition to bring my adult son to the United States. However, he just informed me that his girlfriend is due with their child in a month. Can his girlfriend’s baby immigrate with him?

Answer

It depends on whether your son can be proven to be the baby’s father or not.

You are probably hoping that your son’s girlfriend and the baby qualify as “derivatives” of your son. In immigration law, derivatives are people who get their ability to immigrate from someone else they’re related to — a spouse or parent. Derivatives don’t qualify for a visa on their own, but in the interest of keeping close family members together, U.S. immigration law allows them be included in the petition for certain persons who do qualify (like your son).

Unfortunately, your son’s girlfriend does not qualify as a derivative, since she and your son are not married. Her baby also is not a derivative if your son is not the natural father and has no legal relationship to the child.

However, the baby could be a derivative, and therefore entitled to immigrate with your son, if your son is the baby’s natural father and your son has or had a bona fide (real) parent-child relationship with the baby.

If your son is not the baby’s natural father, it’s still possible that the baby is a derivative of your son. Your son must have adopted the baby, or “legitimated” the child (recognized it as his) under the law of the child's residence or domicile, or under the law of your son’s residence or domicile, while the child was in his legal custody. (See “Legitimacy of Children Born to Unmarried Parents.”)

If the baby qualifies as a derivative of your son, list the child’s name on the Form I-130 visa petition that you will file with U.S. Citizenship and Immigration Services (USCIS) in order to classify your son as a relative who is eligible to get a visa.

Once USCIS approves that I-130 petition, your son can go to the U.S. consulate in his home country and apply for immigrant visas for himself and his child. No separate I-130 is required for the child in this situation. However, the visa applications will be separate and require separate fees. And your son will need to show evidence that he is the child’s father, such as a birth certificate showing his name, or any documentation to do with the adoption or legitimation. If in doubt, the consulate may require DNA testing or further evidence.

Options If the Baby Does Not Qualify as a Derivative

If your son is not the baby’s natural father and has no legal relationship to the child, one way to get the baby an immigrant visa would be to create a father-child relationship, either by marriage to the girlfriend (creating a stepparent relationship, assuming the child is under 18 at the time of the marriage), or adoption or legitimation.

Be very careful about the timing of a marriage between your son and his girlfriend, however. You might think their marriage before you file the I-130 petition would solve your problem, since the new wife and child would become derivatives who are entitled to get immigrant visas along with your son.

The problem is that your son’s visa category changes when he gets married. Instead of an “F1” adult unmarried son of a U.S. citizen, he becomes an “F3” adult married son of a U.S. citizen. Under current conditions, the wait for a visa is much longer for an F3 visa than it is for an F1 visa (except if you’re from Mexico). Check the Department of State’sVisa Bulletin to see what the current wait times are for visas.

A better solution might be for your son and his girlfriend to get married after he gets his immigrant visa. When he gets to the U.S., he can file an I-130 petition for his wife. The current wait time for a visa for spouses of lawful permanent residents of the U.S. is relatively short, so the period of separation would not be too long. The baby can come with the wife as a derivative.

Talk to an Immigration Attorney

Start here to find immigration lawyers near you.
HOW IT WORKS
how it works 1
Briefly tell us about your case
how it works 2
Provide your contact information
how it works 1
Connect with local attorneys
LA-NOLO2:DRU.1.6.5.20141029.29183