Tag: Consular Report of Birth Abroad

Categories
Updates

Change in State Department Policy: Child Born Abroad to Same-Sex Married Couple is a U.S. Citizen

Share this:

In a recent development relating to transmission of U.S. citizenship to children born abroad to same sex couples, the U.S. Department of State said that it will recognize birthright citizenship for children born abroad to married parents, as long as one parent is an American citizen. This is a policy change that makes it easier for same-sex couples to pass citizenship on to their children born overseas.

This change in policy was prompted by a series of federal court cases where the court sided with same-sex couples, many of whom married and started families abroad before the U.S. legalized same-sex marriage.

One of the cases filed was that of Laura Fieldne. Laura, a U.S. citizen, is married to her wife, Maria, a Spanish citizen.  Maria gave birth to their older daughter, L.F.,  in Spain with the help of an anonymous sperm donor.  Laura, being a U.S. citizen, reported the birth of LF abroad as a U.S. citizen but the registration was denied, stating that the qualifying US citizen parent does not have a biological relationship with the child. In 2020, Laura filed a federal lawsuit against the U.S. Department of State policy as being discriminatory and unconstitutional.

Under the Immigration and Nationality Act, while married couples can give birthright citizenship to their children born abroad if either parent is eligible to do so, children born “out of wedlock” must be biologically related to the eligible citizen parent. The State Department’s policy before was to treat babies born through assisted reproductive technology to same-sex couples as out of wedlock. This policy is certainly unconstitutional disregarding the dignity and equality of the marriages of same-sex couples. How can both same sex couples be blood-related to the child?

The change in policy is a welcome development to the immigrant and LGBTQ community. State Department spokesperson Ned Price said in a press statement that children born abroad to married parents can now have birthright citizenship if they have a genetic or gestational tie to at least one of their parents and if at least one of their parents is an American citizen.

“This updated interpretation and application of the [Immigration and Nationality Act] takes into account the realities of modern families and advances in [assisted reproductive technology] from when the Act was enacted in 1952,” Price said.

Categories
Global Pinoy

Dealing with Questionable Parent-Child Relationship

Share this:

When it comes to proving relationships in family petitions or in citizenship applications, submission of legal documents will generally suffice to obtain a visa approval from the U.S. Citizenship and Immigration Services. There are certain times, however, when birth certificate documents are available yet a DNA test is still required to prove relationship. When does this occur and what will happen if the real parent is other than the petitioner?

Jessie is a U.S. citizen who met Alexa, his fiancé, during one of his visits in Manila. After two years of courting Alexa, he finally decided to file a fiancé visa petition for Alexa. A petition was filed with the U.S. Citizenship and Immigration Services and the fiancé visa was approved.

Prior to being interviewed at the U.S. Embassy, Alexa gave birth to Joshua. A birth certificate was obtained indicating that the father is Jessie. The relatives and friends of Jessie had doubts about the paternity of the child. Nonetheless, Jessie filed a Consular Report of Birth Abroad with the US embassy in manila so that a U.S. passport may be issued to Joshua as his U.S. citizen child. Paternity was in doubt because at the time of conception, Jesse was in the United States. Further evidence was required including a DNA testing to determine paternity. Instead of proceeding with the DNA test, Alexa admitted that child Joshua’s father was Alexa’s former suitor. As expected, Jessie was severely distressed by Alexa’s admission but also realized that he still loves Alexa and is willing to accept Joshua as his own child. Can Alexa still obtain the fiancé visa? Will Joshua be able to travel to the United States with his mother?

Derivative Citizenship

A child born abroad to a U.S. citizen parent may derive U.S. citizenship from the parent as long as eligibility requirements are met. These children are U.S. citizens at birth. In conferring derivative citizenship proof of parental relationship is critical. There is usually further scrutiny of the application when the parents of the child are living apart, or, when there is a wide age gap between the parents.

Stepchild of the Fiance

In the case of Jessie, instead of applying for derivative citizenship of the child Joshua, he could still get a K2 visa as the child of his fiancé. Unfortunately, Alexa has to deal with her ‘misrepresentation’ issue when she stated that the father of the child was Jessie. This may affect her ability to obtain the visa unless a waiver is filed and approved by the USCIS.

Proving parental relationship should not be difficult if the truth is asserted from the beginning of the application. Concealment of child’s real parents by the use of a false birth certificate will not be favored in visa applications. There may be good intentions but the best interest of the child is not served by concealing the identity of his real parent until the time of the visa application.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, facebook.com/tancincolaw or (02)721-1963)