September 5, 2012
Children of United States citizens and lawful permanent residents are qualified to be petitioned for immigrant visas to the United States. Complications in the petition process may arise, however, if the child was not listed when the US citizen or permanent resident parent applied for their own immigrant visa and/or naturalization. These complications can be severe, potentially resulting in the removal of the individual from the United States, or hopefully fixable through proper action with the immigration service.
The omission of children from visa petitions and naturalization applications occur for a variety of reasons. Typically, the omission is an innocent error, such as when an individual does not review an application prepared on their behalf by an attorney or paralegal that inadvertently does not list the children. Another innocent error common amongst individuals are the mistaken beliefs that children outside of the United States, children who are already over the age of twenty-one, children who are married, or illegitimate children should not be included in the list of their children. The immigration laws are clear that all children, regardless of any situation, must be listed when applying for immigration benefits.
In addition to innocent mistakes, children are sometimes left out of being listed on visa petitions intentionally. This most commonly occurs when an individual has been petitioned as a single child and fears that listing the children will prevent the individual from obtaining the immigrant visa. This fear, however, is a mistake as an individual continues to be eligible to obtain the immigrant visa so long as the individual is truly not married. In fact, in most situations, the children would actually be eligible to obtain immigrant visas at the same time as the primary applicant.
The reason for the omission is certainly an important factor when a parent is seeking to obtain a visa for a child. Careful analysis must be done to ensure that the petitioning parent’s US residency is not endangered. Presuming that the omission does not endanger the petitioning parent’s US residency, a petition by a parent who omitted a child from their own visa petition or naturalization application will likely be scrutinized as the immigration service may question whether the child truly is the individual’s child or not.
Individuals faced with this situation must be prepared to explain the cause for the omission and adequately document the parent-child relationship. In addition to the child’s birth certificate, documents such as the baptismal certificate, school records, and medical records could be persuasive in proving that the child truly is the individual’s child. In some circumstances, the immigration service may also require the parent and child undergo DNA testing to prove the relationship.
Although challenging, solutions for the inadvertent or intentional omission of a child from immigration records may be available. Individuals need not be separated from their loved ones due to an innocent oversight or a regrettable intentional error in judgment. Given the likely challenges that will be presented by the immigration service, however, individuals in this situation must ensure that they have proper legal counsel to guide them through the intricacies of the immigration laws.