When a married U.S. citizen has a child, that child is entitled to U.S. citizenship even if its parents are LGBTQ, a federal judge has just ruled. The State Department had refused citizenship to one such child because he was not the biological child of his U.S. citizen parent.
The case was especially illustrative because it involved twins. They were born, through surrogacy, to a married gay couple. Each child was the biological son of one of the two men. However, only one of the men was a U.S. citizen.
After DNA testing revealed that only one twin had a U.S.-citizen father, the State Department refused to grant the other child citizenship. So, one twin was a citizen and the other was not.
"This family was shocked and appalled and angry when they were told their family wasn't legal," one immigration advocate told the Associated Press. "They wanted their twin boys to be treated exactly the same."
It turns out, according to U.S. District Court Judge John F. Walter, that the State Department had no authority to demand DNA testing or to use it to deny the child citizenship. There is nothing in the Immigration and Naturalization Act that requires the children of married U.S. citizens to be biologically related specifically to their U.S.-citizen parent.
Like most parentage statutes, the law assumes that, legally, any children of one member of a married couple is the child of the other, as well.
In this case, one of the spouses was a U.S. citizen and the other was an Israeli citizen. They married abroad and then had their children, as many people have done. If the couple had been heterosexual, they could easily have obtained citizenship for both boys. If the children had been adopted, there would have been a different process required, but they would have been able to obtain citizenship for both children.
The parents in this case were shocked and humiliated by their treatment, but they are now elated to have their children treated equally.
"This is justice! We are hopeful that no other family will ever have to go through this again. It's like a giant rock has been removed from our hearts," the couple said in a joint statement.
If you are a U.S. citizen or lawful permanent resident, you may be able to bring your minor children to the U.S. permanently. Whether you are exploring your options or have run into trouble, Yew Immigration Law Group has years of experience helping people with family-based immigration. Reach out for help today.