U.S. Citizen Child Born Out-of-Wedlock Petitioning for Father

August 17, 2012 | Family Petition

Q.  I am a 23-year-old US citizen. I was born in New York and now I am petitioning for my father. The problem, however, is that my father never married my mother and was previously and still is married to another person. My question is, how can I petition for him since the I-130 form requires the certificate of marriage of my parents? By the way, the nationality of my father is Peruvian. Thank you in advance for your help and consideration.

A. Don’t worry, you should be able to petition your father even though he was never married to your mother.  As a general rule, U.S. citizens over the age of 21 are eligible to petition their parents.  The documentary requirements differ somewhat when the child is born of out of wedlock (i.e. he wasn’t married to your mother).   When a U.S. citizen petitions his father and that U.S. citizen was born out of wedlock, USCIS requests more information about that relationship than if the parents had been married.

To petition for your father, you must have been born legitimate, have been legitimated before age 18 or you must have had a relationship with your father before you turned 21.   Legitimation is defined as the act of placing a child born out of wedlock in the same legal position as a child born in wedlock.  Legitimation is determined by the law of the country you resided or were domiciled in.  Under Peruvian law, there is no longer a distinction between children born in wedlock and children born out of wedlock.  As long as you can prove that you are the natural child of your father, you can petition for him.  The best proof would be if he put his name on your birth certificate at the time your birth was registered.

In cases where a child is not born legitimate or is not legitimated before the age of 18, the child must demonstrate that a bona-fide (i.e. good faith) parent-child relationship existed between the child and father before the child turned 21.  This may include evidence that your father lived with you, supported you or otherwise showed continuing parental interest in your welfare.  USCIS may also require a DNA test to establish he is your biological father.