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Immigration Law Associates, PC

When is DNA Testing Required and How Can it be Avoided?

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There are different requirements and procedures between the U.S Department of State (including consulate offices) and the U.S. Bureau of Citizenship and Immigration Services. While blood testing is not and should not be a routine part of the adjudications process, it can be an extremely valuable tool in cases when it otherwise would be impossible to verify a relationship.[1]

U.S. Department of State

The U.S. Department of State typically requires DNA testing for children of U.S. citizen parents whom they suspect are not biological and for children of asylee parents whom they suspect may also be that of other relatives rather than biological. To establish that a child born abroad acquired derivative U.S. citizenship, the Immigration and Nationality Act (INA) requires that a blood and a legal relationship exist between the child and the U.S. citizen parent. Volume 22 of the Code of Federal Regulations, Section 51.40 provides that the burden of proof is upon the applicant to establish a claim to U.S. citizenship. When primary and secondary documentary evidence are deemed insufficient to establish such a claim, parentage blood testing is an option available to applicants.

When genetic testing appears warranted, a Consular Officer may suggest visa applicants undergo DNA testing to establish the validity of the relationship(s). Such testing is entirely voluntary, and all costs of testing and related expenses must be borne by the petitioner and/or beneficiary and paid to the laboratory in advance. In addition, submitting to testing does not guarantee the subsequent issuance of a visa. Consular officers may only accept test results reporting a 99.5 percent or greater degree of certainty with respect to paternity/maternity as sufficient to support a biological relationship between a parent and child in visa cases. Once the Embassy or Consulate receives the results, the visa applicant will be contacted in order to continue processing his or her visa application to conclusion. Only results sent directly to the Embassy or Consulate by the AABB lab will be accepted.

U.S.Citizenship and Immigration Services

USCIS typically relies on Title 8, Code of Federal Regulations, Part 204.2(d)(2)(vi) which states that a “[D]irector may require that a specific Blood Group Antigen Test be conducted of the beneficiary’s father and mother. In general, blood tests will be required only after other forms of evidence have proven inconclusive.” Nonetheless, USCIS 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, using extreme caution, suggest and consider DNA testing results.[2] This credible evidence or initial evidence for a child, son, or daughter includes a birth certificate, but if unavailable, the petitioner must demonstrate that it is not available and submit secondary evidence, such as a baptismal certificate, or church or school records. When initial and secondary forms of evidence have proven inconclusive and blood parentage testing does not clearly establish the claimed parental relationship, field offices may have no alternative to suggesting DNA testing as a means of establishing the relationship. In such cases, field offices should inform the petitioner that: 1) DNA testing is voluntary; (2) the costs of DNA testing and related expenses (such as doctor’s fees and the cost of transmitting testing materials and blood samples) must be borne exclusively by the petitioner; and 3) submitting to DNA testing is in no way a guarantee of the approval of the petition.[3]

The petitioner has the burden of proof when the evidence submitted has not satisfied his evidentiary threshold and the INS would otherwise deny the petition without more conclusive evidence such as that which DNA testing could provide. Due to the expense, complexity and logistical problems and sensitivity inherent in parentage testing, offices should be extremely cautious when requiring blood testing or suggesting DNA testing as a means of establishing a claimed parental relationship.[4] USCIS always has the authority to determine whether the totality of the evidence submitted to demonstrate a family relationship is sufficient to meet the applicant’s or petitioner’s burden to demonstrate that relationship.[5] However, DNA testing can be objected to by the applicant in certain circumstances relating to religious reasons, other sufficient evidence, evidence would be irrelevant  or cost.

[1] INS Memorandum on DNA Testing to Establish Family Relationships (July 14, 2000).

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Citizenship and Immigration Services, Biological Relationship Testing: Opportunities and Challenges (2008).

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