Financee Pregnant...

[TimsDaisy 0]

Again - family law isn't as simple as biology - especially when it comes to paternity. So it isn't accurate to say that it would be a "federal offense" to say that it is yours. If that baby is born while you're processing, and your name is on the birth certificate, then you're the father (a lot of case law and presumptions back that up. In law, science doesn't necessarily equal fact, ESPECIALLY in family law).

This situation is pretty nuanced. If that's what a lawyer told you, then perhaps he/she is right - but you might want to cross-check the whole thing with someone who practices in the family law area specifically. You should disclose what you need to disclose, always. But at the same time, you shouldn't disclose what you don't need to, unnecessarily.

[Andy 2]

This situation is pretty nuanced. If that's what a lawyer told you, then perhaps he/she is right - but you might want to cross-check the whole thing with someone who practices in the family law area specifically. You should disclose what you need to disclose, always. But at the same time, you shouldn't disclose what you don't need to, unnecessarily.

It's important to note that this is immigration law, and thusly while there are subtleties to family law that might apply in certain respects, those subtleties are not present in immigration law. As an example, a US citizen claiming a beneficiary's child as his own creates an issue where it would seem there to be very clear evidence of a genuine and on-going relationship - the basis on which a K-1 is adjudicated. If the child is not actually his, evidencing it as such could be seen as misrepresentation of a material fact - given that the parentage of the child goes to the heart of the question of relationship. Not only that, it would serve to disguise the potential that the beneficiary is seeking entry to the US for the sake of entry, not genuinely for marriage, and that therefore there is visa fraud being perpetrated.

Family law is established to interpret and control a completely different area than immigration law - that's why the significance of things are different!

ON EDIT: I would not, personally, want to question the authenticity of good advice from a qualified lawyer on the subject - and it sounds like good advice to me, given that any such claim or representation COULD lead to the petitioner being accused of collusion in visa fraud - a federal offense for which imprisonment is certainly an option for the courts.

Edited April 2, 2007 by Andy

[meauxna 15]

Again - family law isn't as simple as biology - especially when it comes to paternity. So it isn't accurate to say that it would be a "federal offense" to say that it is yours. If that baby is born while you're processing, and your name is on the birth certificate, then you're the father (a lot of case law and presumptions back that up. In law, science doesn't necessarily equal fact, ESPECIALLY in family law).

This situation is pretty nuanced. If that's what a lawyer told you, then perhaps he/she is right - but you might want to cross-check the whole thing with someone who practices in the family law area specifically. You should disclose what you need to disclose, always. But at the same time, you shouldn't disclose what you don't need to, unnecessarily.

How can you then explain the requirement of DNA testing in pregnant fiance cases, typically at higher fraud posts?

It may wind up that the OP can still claim the child as his own *ultimately* and perhaps pass along US citizenship (can't imagine how they are going to get here before the birth, btw), but I agree that this all needs to be disclosed.

[TimsDaisy 0]

Again - family law isn't as simple as biology - especially when it comes to paternity. So it isn't accurate to say that it would be a "federal offense" to say that it is yours. If that baby is born while you're processing, and your name is on the birth certificate, then you're the father (a lot of case law and presumptions back that up. In law, science doesn't necessarily equal fact, ESPECIALLY in family law).

This situation is pretty nuanced. If that's what a lawyer told you, then perhaps he/she is right - but you might want to cross-check the whole thing with someone who practices in the family law area specifically. You should disclose what you need to disclose, always. But at the same time, you shouldn't disclose what you don't need to, unnecessarily.

How can you then explain the requirement of DNA testing in pregnant fiance cases, typically at higher fraud posts?

It may wind up that the OP can still claim the child as his own *ultimately* and perhaps pass along US citizenship (can't imagine how they are going to get here before the birth, btw), but I agree that this all needs to be disclosed.

I can't. Because I'm not pregnant and I don't have any kids to worry about in the process. But there is going to be an overlap because all areas of US law are shaded by . . . you got it, US law.

I'm not giving legal advice and I'm not advocating ignoring a lawyer. I'm just saying in this complex situation, it might be worth it to have some more conversations with educated parties about what's going on.

My only point is that what makes the kid his or not may be a more complex question than just where the sperm came from. If he hasn't filed yet, it sounds likely that she could give birth prior to her being issued a visa. I don't know what Costa Rican law dictates as far as who gets listed as the "Father" on the documentation. Here, the name listed creates a strong presumption of fatherhood (though not conclusive).

As with lots of questions we get here, this one is too complicated to give open and shut "this is illegal" or " this is legal" answers. None of us here knows.

[ploovo 0]

I appreciate the advice. I think my options are to go about the paperwork and see what happens. Clearly I would love to get her here before the baby is born but if it can't happen, so be it. It does not change my wishes at all to spend the rest of my life with this person and OUR kids. Neither one of these little ninos will have a father figure until I step in to the picture so as far as I am concerned it really does not matter. My question was whether to disclose this information or not and I think I have my answer. Thank you all for the advice. This is a great site and it is because of people like you that those of us who are just starting our journey can know that there is light at the end of this tunnel. Life is in the adventure and I am just starting mine out. Thanks again.

Ploovo

[pushbrk 13,627]

The question is should I list the unborn on the I-129F form in the children section? She has one other child and I am told that the father is not on the birth certificate of her first child as well. She obviously has not idea who the father is of the unborn as she was attacked by two people who were not apprehended. My guess is I need to state this either in the cover letter or some other documentation, any thoughts?

By the way, thanks for the insights. I really appeciate it.

It's critical that the pregnancy is declared, because it will show up in the medical one way or another. If not declared the consulate would have to return the petition to the USCIS for review, because you would have to be given the opportunity to confirming your knowledge of it and wish to continue or withdraw. If the pregnancy is declared, the circumstances should also be provided such that you can make clear that you are aware of the impending child and wish the case to continue (that being so of course).

The fact that she is pregnant with someone else's baby will raise some questions at the interview (hence the need to divulge the circumstances and preferably be able to provide a copy of the police report) but as long as it is clear you know of the issue and wish to proceed, will not prevent the K-1 being issued.

I would list her other child if intended to come as a K2 and simply indicate, "My fiance is pregnant". I would offer no other information unless asked at interview. If asked, she should pull out a notarized statement from you and hand it over with her verbal reply. Chances are, if the visa is issued while she is still pregnant, there will be no questions asked about paternity.

[Andy 2]

I think the issue of paternity, of an unborn child, conceived during the period the petitioner and beneficiary have had the relationship, but where there is no evidence of the couple being together would be of some interest in this process to the adjudicator who's task is to specifically determine whether the relationship is genuine or not.

I also think it's important, while people are prepared to bandy all this 'helpful' advice, to realize that it's the USCIS who 'own' this procedure, not the consulate. Thus, while the consulate are responsible for determination of whether the beneficiary is eligible for the K-1 visa, if there is any material fact that hits at the validity of the case - such as any detail that can be seen to question whether the petitioner is in full knowledge of the facts relating to the beneficiary, the case has to go back to the USCIS.

And again, while the petitioner may be able to take legal ownership of the as-yet-unborn child in the eyes of appropriate family law, immigration law has fundamentally different purposes. It is concerned with determination of rather different issues - not the least of which is visa fraud. Many fraudulent immigration cases involve women who are pregnant and who pay US citizens to marry and petition for them, or petition for them and marry for the sole purpose of getting themselves and their child into the US to live. That's why paternity of children is crucial to the case and very likely to be questioned in relation to it. It's not hard to imagine, for example, what impact on the case there would be if the petitioner here was able, at the time, to get his name put on the as-yet-unborn child's birth certificate yet when the case is adjudicated at the consulate it becomes clear the couple were not together at the time of conception. Would no-one here think that would raise an eyebrow in the consulate, given their specific responsibilities in processing a case?

It's very easy, even for legal specialists in other areas, to forget or be unaware of how different immigration law is in it's emphasis and practice than almost every other area of US law, just as it is for those observing the system system to make assumptions and hold beliefs on how it functions and what responsibilities it places on those going through it based on notions of common sense, human decency and other such polite societal criteria.

Thus in this sort of situation it's easy to think, from the standpoint of good law, that the immigration system hasn't any need to know, that the petitioner and beneficiary haven't any need to tell adjudicators or that such details as raised here don't really matter or can be handled at some point if not at the outset. But when the context of immigration law is considered - the principled attempt by Congress to prevent as many immigrants as possible from entering the country and create the tightest framework of narrowest options for doing so, it's not difficult to see that such laxness, privacy and detail really does matter - greatly.

[pushbrk 13,627]

Good point and I will take it under advisement.

If she filed a report of the rape, then getting a copy of that would be a good idea because it adds substance that will not only win some sympathy, but also show there to be valid reasons for you to stick by her despite the pregnancy. Don't be misled by suggestions that these sort of things are not anyone's business but yours and your partner's, or that you don't have to tell them what you might not wish to - all details are relevant in an immigration case where the visa will be denied or approved based on clear evidence that you and your partner have a genuine relationship. The consulate will take nothing of a material nature for granted, and an unborn child of a beneficiary seeking entry to live in the US is certainly one of those!

At the outset it isn't necessary however to declare the circumstances, just to give a basic statement along the lines suggested. The explanation may be more critical to provide later, at interview, and you might want to consider the possibility of attending that with her. It's not necessary, but it might be a wise thing to consider. In the meantime, you can talk over what details to declare and what, perhaps need not be. Of course if there was a report filed with the police at the time, best to let the details out anyway, I would say. They would present very little risk to the case and yet be of great potential benefit.

Good luck to you!

You make valid points but seem to presume the petitioner was not with the beneficiary somewhere near the time of conception. While I agree there could be a problem there also may not be. If questioned, the answers will be very important, as will all other relationship proof.

The OP has given little information. He calls her "a loved one". We've all assumed he means bonafide fiance because he posted in the K1 forum. We tend to proceed on the assumption the relationship is a bonafide one and can be successfully presented as such. I agree that if paternity is questioned, it will add considerable difficulty to convincing a Visa Officer, the relationship is bonafide. Great attention to documentation, visits and petitioner presence at interview time (don't know if he can be in actual interview in Costa Rica) will go a long way toward success.

If the OP is simply helping a loved one out of a tough spot, the chances of success are slim indeed.

Edited April 3, 2007 by pushbrk

[Andy 2]

While I agree there could be a problem there also may not be. If questioned, the answers will be very important, as will all other relationship proof.

The OP has given little information. He calls her "a loved one". We've all assumed he means bonafide fiance because he posted in the K1 forum. We tend to proceed on the assumption the relationship is a bonafide one and can be successfully presented as such. I agree that if paternity is questioned, it will add considerable difficulty to convincing a Visa Officer, the relationship is bonafide....

I think the OP has to be taken at face value in his opening question relating to being 'at the start of his visa journey with his loved one', and as such the salient point are those that are of a material importance to the case. There are many such factors in all K-1 cases, all different because of each case-specific set of circumstances, but the existence of a pregnancy is certainly one in this instance, and the circumstances of that pregnancy could (only COULD) play a significant part in the outcome for the reasons described.

It all depends on details, circumstances, documents, paperwork, background, questions, answers - a complex mix of threads that at any time could result in a problem if any one of them goes astray. Handling it the way suggested allows the couple the best chance of controlling each of those threads from the outset and thus risking the least opportunity of things going wrong.