9 FAM 601.11
Visas and DNA
(CT:VISA-936; 09-10-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 601.11-1 dna testing to
verify relationships
9 FAM 601.11-1(A) Introduction
to DNA Testing, Accredited Labs
(CT:VISA-936; 09-10-2019)
a. General Information on DNA Testing:
(1) DNA Testing: Deoxyribonucleic
Acid (DNA) testing is the most accurate and widely available technology to test
a biological relationship. The types of tests used by the DNA scientific
community continue to evolve; currently, the Polymerase Chain Reaction-Short
Tandem Repeat (PCR-STR) and the Restriction Fragment Length Polymorphism (RFLP)
methods are the two tests that we believe to be the most advanced, offering the
best results. These tests are preferred over older technologies such as human
leukocyte antigens (HLA) and human blood alleles (ABO) blood typing because
they do not require blood samples and are more accurate when all parties are
not available for testing and/or when the other possible father (in a paternity
case) or mother (in a maternity case) is thought to be related to the tested
party.
(2) Maternity/Paternity
Relationships: 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.
(a) Retest(s): However,
retest(s) can follow a test that supports paternity/maternity to a degree less
than 99.5 percent. If, after several attempts, it is not possible to reach the
accepted level, and you remain unconvinced of the bona fides of the
relationship in question, return the petition to the Department of Homeland
Security (DHS)/U.S. Citizenship and Immigration Services (USCIS) via the
National Visa Center along with a memo explaining the return and a copy of the
DNA test(s) results.
(b) IR-2 Cases: Keep in mind
that in IR-2 cases, the definition of a child is not limited to a biological
relationship and thus the adjudicator must also rule out adoptive and
step-children relationships before returning a petition.
(3) Direct Sibling-to-Sibling
Relationship Testing: You may accept
direct sibling-to-sibling DNA test results reporting a 99.5 percent or greater
degree of certainty. However, be cautioned that bona fide sibling-to-sibling
biological relationships may result in DNA test results less than 99.5 percent
of certainty. Therefore, a sibling-to-sibling DNA test with results less than
99.5 percent, is often not sufficient evidence on its own to show that the
required relationship is non-existent.
(a) The Board of Immigration Appeals, in Matter of
Ruzku, 26 I&N Dec. 731 (BIA 2016), concluded that test results of 99.5
percent or greater certainty "should be accepted and be considered
probative evidence" of the sibling relationship. However, the BIA found
there is not a particular percentage of probability that alone would be
sufficient to establish a claimed sibling relationship.
(b) Lower Probability Results: Direct testing
between siblings may show an apparent lack of relationship even when the
individuals are full siblings because of the variations in genetic contribution
by each parent to the individual children. However, in cases in which the
sibling-to-sibling test results are lower than 99.5 percent you can still make
a finding - based on other evidence and in the totality of the circumstances -
that the sibling-to-sibling relationship is legitimate.
(c) Totality of Evidence for Bona Fide
Relationships: You should look at the totality of the evidence,
including DNA results, if available, when determining whether a legitimate
sibling relationship exists. A bona fide biological sibling relationship may
exist even with a sibling-to-sibling DNA result of less than a 99.5 percent
degree of certainty.
(d) Sibling to Parent Test: A
direct sibling test that includes parental testing is generally more reliable
than sibling-to-sibling testing, and you may consider sibling-to-parent tests
that meet the 99.5 percent certainty standard as establishing the sibling
relationship through DNA.
(4) Half-Sibling Test: You may
accept DNA results supporting half-sibling relationships, but must keep in mind
that half-siblings have shared genetic contribution from only one parent. As
with full-sibling results, you should consider test results with a 99.5 percent
or greater degree of certainty as "probative evidence."
(5) Questions regarding DNA testing can be addressed
to CA-DNA-Team@state.gov; this email collective consists of individuals from
CA/EX, CA/VO/F, CA/FPP, CA/PPT, and CA/OCS/ACS. For
procedural information on DNA testing, please see 7 FAH-1 H-944.
9 FAM 601.11-1(B) Genetic
(DNA) Testing
(CT:VISA-283; 01-24-2017)
a. When to Recommend Genetic Testing
to Verify Relationships:
(1) Genetic testing is a useful tool for verifying an alleged
biological relationship when no other form of credible evidence is available in
conjunction with a visa application. Commonly tested relationships requiring
DNA testing include paternity, maternity, or full-siblingship. More distant
relationships cannot be proven reliably using DNA testing.
(2) DNA technology is the only non-documentary method
accepted for proof of a biological relationship. However, due to the expense,
complexity, and logistical delays inherent in parentage testing, genetic testing
should be used only if no other credible proof (documentation, photos, etc.) of
the relationship exists. The process is time-consuming for the applicant, the
petitioner, and the consular section, and it does not necessarily yield
conclusive results. Note that you may recommend DNA testing, but may not
require it.
(3) When genetic testing appears warranted, advise the
applicant that genetic testing may establish the validity of the relationship;
that such testing is entirely voluntary; and that 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, caution the applicant that submitting
to testing does not guarantee the subsequent issuance of a visa.
b. When Not to Recommend Genetic
Testing to Verify Relationships:
(1) You may recommend DNA testing to establish a blood
relationship that would qualify an applicant for an immigration benefit. You
may not request DNA testing in an attempt to disprove a relationship. For
example, do not request DNA testing between marital partners on suspicion that
they are blood relatives.
(2) Recommend a DNA test of step-children only to
establish paternity or maternity with the biological parent who is the spouse
of the qualified petitioner. Do not recommend DNA testing to test for cousins,
aunt/uncle, niece/nephew, or other such extended relationships, as these tests
cannot reach the minimum requirement of 99.5 percent probability.
9 FAM 601.11-1(C) Genetic Testing for USCIS and Adjudication
of Form I-130, Petition for Alien Relative
(CT:VISA-936; 09-10-2019)
When USCIS does not find enough documentary evidence to
approve a Form I-130 the officer may request further proof of the
relationship. Much like our own standards, USCIS officers may suggest DNA
testing, but they may not require it. At posts without a USCIS officer who can
conduct the testing, the consular section conducts the DNA testing.
(1) If the petitioner decides to pursue DNA testing,
it is up to the petitioner to contact an approved AABB-accredited lab and
arrange for her/her own testing and for the lab to send a kit to the
appropriate embassy or consulate.
(2) All procedures for handling the test kits,
conducting the tests, and the storing and/or shipping of samples are the same
as for our own cases.
(3) In IR-2
cases, keep in mind that the definition of a child is not limited to a
biological relationship and thus the adjudicating officer must also rule out
adoptive and step-children relationships in addition to the biological
relationship not being valid.
(4) If post has
been approved to adjudicate an I-130, Petition for Alien Relative, under
exceptional circumstances per 9 FAM 504.2-4,
but it lacks documentary evidence and relies upon genetic testing as sole proof
of the qualifying relationship, do not approve the I-130. Such cases are not
clearly approvable and therefore the petitions must be forwarded to USCIS for
adjudication. Explain in the accompanying return memorandum why other evidence
of the alleged relationship is unavailable or not credible, that the case is
not clearly approvable, and suggest USCIS inform petitioner of DNA testing
option. USCIS can approve a petition based solely on genetic testing.