Over the last few months, the Trump Administration has vociferously touted its plan to reform the immigration system by truncating “chain migration.” Put simply, adult children, brothers, sisters, and parents would no longer be eligible through a family relationship to a US citizen or lawful permanent resident. Fortunately, there is no such law yet. US Citizens currently remain able to file I-130s petitions for their siblings under the fourth preference family category-and should strongly consider doing so, given the interminable backlog as well as the specter of extinction.
In order to file for a brother or sister, there are a few fundamental documents that must be provided including the US Citizen’s and sibling’s birth certificates demonstrating that the parties share at least one common parent. Typically, we also submit the parents’ marriage certificate to prove that both children were born in wedlock, if applicable. If the parties share the same father but have different biological mothers, then documents must be furnished proving that the father was married to each respective mother, and that any previous marriages of the father and mother were legally dissolved. Additionally, if the siblings are related through adoption or stepparents, or if any of the parties were born out of wedlock, there are additional evidentiary requirements.
When adjudicating applications, USCIS always looks for primary evidence, namely, the birth and marriage certificates. Only if and when the primary evidence is not available, will the government consider secondary evidence, such as affidavits or other records such as school or medical papers. Note that there is a big difference between a document being unavailable and a document being too onerous or inconvenient for a party to secure. Generally speaking, an officer will expect to see an official letter from a governmental agency confirming that a record is not available or was never recorded to consider it “unavailable.”
In the latest development regarding these types of cases, USCIS recently issued a policy memorandum to officially reflect its long-standing policy of accepting DNA test results to prove a sibling relationship. Under the amendment, USCIS may now “suggest and accept” DNA test results as evidence of a sibling relationship after an officer has determined that primary evidence is unavailable or unreliable. When an AABB-accredited lab returns a result that indicates a 90 percent or higher probability that the claimed full or half-siblings are related, USCIS will consider the test as probative evidence under a totality of circumstances test. The petitioner must still prove the relationship by a preponderance of the evidence, so one would not want to rely on the DNA tests solely but also submit any available secondary evidence. In the case of a full-sibling case, USCIS will consider a result to be “inconclusive” if it falls below 90 percent but is greater than or equal to 9 percent probability. Full-sibling test results that return less than 9 percent probability will be considered evidence that the claimed relationship does not exist. Half-sibling test results below 9 percent will be treated as inconclusive.
Although this is a positive development, it ironically comes at a time when immigration petitioners are experiencing an unprecedented uptick in rejections, requests for evidence, and denials-many of which are unwarranted and improper. Issues in proving a sibling relationship should be explored with an attorney prior to filing in order to avoid complications later on in the process. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.