“I HAVE a friend who is not Irish, who is currently in the process of sponsoring his son who lives in Ecuador for legal status here. My friend is also a native of Ecuador, but became an American citizen many years ago through a marriage that still exists and is thriving. Now he is sponsoring his teenage son that he had out of wedlock in Ecuador, but he has been requested to submit to a DNA test by U.S. immigration there to prove paternity, even though his name is on the son’s birth certificate. Obviously immigration can demand this, but I’ve heard of other people sponsoring children and DNA has never been an issue. Is this a routine process that parents have to go through, submitting DNA to prove paternity of a child?”
While DNA testing isn’t a routine part of the process of sponsoring an immediate relative (a parent, child, and even in some cases spouses, if an immigration officer suspects they are actually siblings), it certainly can and does happen, as your friend is discovering.
Usually, a DNA test is requested when a vital piece of paperwork linking the parent and child is missing and irretrievable, such as the birth certificate, or if the father’s name is not on the certificate.
However, if a U.S. immigration official continues to express doubts about the relationship even if all the relevant documentation has been provided, a DNA test can be called for.
In a 2008 internal memo issued by the U.S. Citizenship and Immigration Service (USCIS) to its field officers about DNA testing, the agency points out that USCIS officers “cannot require DNA testing to establish a claimed biological relationship. However, in situations where credible evidence is insufficient to prove the claimed biological relationship, officers may suggest and consider DNA testing results.”
Even though an immigration officer cannot demand a DNA test in order to approve a petition, those who are asked to offer a submission would be well advised to do so, given the likelihood that the petition would be denied if questions still linger over the validity of the case.
The cost of the test, which can cost several hundred dollars, must be borne by the petitioner. The test must also be conducted at a USCIS-approved lab, and the agency is obligated to supply a petitioner with a list of accredited labs.
“The petitioner must select a laboratory, contact the laboratory directly, and make the necessary arrangements for conducting the tests,” the USCIS memo says. “To ensure the integrity of the test results, all stages of parentage testing must be conducted under appropriate safeguards.”
The USCIS memo also notes that DNA test results do not guarantee the approval of the petition. Though a DNA test establishes a biological link between parent and child, it does not allow for sidestepping other case requirements.
In your friend’s case, he would have to prove that his son was legitimated. Legitimation is the process whereby a natural father legally acknowledges a child born out of wedlock.
For immigration purposes, the legitimation of a child must have taken place before the child turned 18, and the child must have been in the custody of the father at the time of legitimation. It’s a fairly intricate area of immigration law that should definitely be performed with the aid of an immigration attorney.
Presumably your friend is working with an attorney on his complex petition, and hopefully a confirmed DNA test will prove the last hurdle that has to be cleared before father and son can be reunited.
Originally published in 2012.