DNA Test Allowed to Evidence Sibling Relationship09 Nov 2017
In light of the Board of Immigration Appeals decision in Matter of Ruzuku, which directed the U.S. Department of Homeland Security (DHS) to accept sibling-to-sibling DNA tests as probative evidence to be considered in determining whether a qualifying family relationship exists, the U.S. Department of State (DOS) has updated its related guidance to consular officers processing visas overseas. The DOS will now accept sibling-to-sibling and half-sibling DNA tests as evidence to establish the existence of a sibling relationship.
DNA Testing Helps to Establish Qualifying Family Relationship
The DOS has allowed DNA testing to establish parental relationships for some time, and will now permit such tests as evidence of sibling relationships. This would primarily be used in certain family-based, fourth preference (FB4) cases, where a U.S. citizen must evidence the family relationship with the foreign national sibling being sponsored to become a lawful permanent resident (i.e. “green card” holder).
Given the expense, complexity, and delays associated with DNA testing, consular officers are instructed to use such testing only when no other credible proof of the claimed relationship exists. Furthermore, consular officers may only recommend DNA testing to visa applicants and may not require it. Visa applicants bear costs associated with DNA testing.
DNA Results Require 99.5 Percent Certainty to Be “Probative Evidence”
DNA test results typically are presented as a percentage of statistical certainty that the claimed biological relationship exists. The DOS guidance directs consular officers to accept as “probative evidence” DNA test results for siblings or half-siblings that have a 99.5 percent or greater degree of certainty. However, because variations in the genetic contributions of parents to their individual children may vary, cases that have DNA results with less than 99.5 percent certainty should not automatically be denied. Rather, consular officers should consider the test results along with other evidence of the relationship in the “totality of the circumstances.”
Visa applicants have the burden of proving that a qualifying family relationship exists. Under new DOS guidance, DNA testing may now be used to help prove the existence of sibling and half-sibling relationships. Consular officers are directed to recommend DNA tests as a last resort, and to consider such tests along with other evidence presented by the applicant. Therefore, visa applicants should not rely on DNA testing alone to prove a family relationship, but should also prepare strong documentary and other available evidence.
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