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This is so screwed up. My partner and I are not married. We've been together 7 years and we have a 6-year-old son. Our son was coming with us on a visit to the US and we got him a tourist visa, no problem.

On my partner's return 3 weeks later for her interview they took our son's passport and stamped denied over his visa.

The reason for this is, they said, as he could possibly be eligible for US citizenship, he cannot enter the US on a visa. We must register his birth abroad and get him a passport.

The problem is he won't qualify because it's almost 100% guaranteed that he is not my biological son. We are devastated and so is he. I have never intended to attempt to get him a passport but it seems ludicrous that he can't get a visitor visa.

The suggestion of the embassy was to remove me as his father on his birth certificate. I would never do that. What else can we do?

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    Are you sure your son should not be treated as a US citizen? See Definition of Child for Citizenship and Naturalization "In general, absent other evidence, USCIS considers a child’s birth certificate as recorded by a proper authority as sufficient evidence to determine a child’s genetic relationship to the parent (or parents).". – Patricia Shanahan Apr 6 '17 at 16:34
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    Screwed up? This looks to me like good news for you. Your son may be eligible for US citizenship, meaning you and he could go to the US whenever you want – DJClayworth Apr 10 '17 at 17:07
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What else can we do?

One thing you could do is apply for a Consular Report of Birth Abroad (CRBA) for your son as if he were a US citizen, and tell them that he's not likely your biological son. They request a DNA test and it turns out he is not your biological son, and they deny the CRBA. You then take the denial as evidence he is not a US citizen when applying for a visa for him. (Or maybe you can just go and do a DNA test directly and use the result that he is not your biological son when applying for the visa.)

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As long as the child is born within wedlock, you should be able to get his citizenship approved, read up on Section 301(g) of the INA:

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter3.html

Look at point 3, "Child of U.S. Citizen Parent and Foreign National Parent​"

It says nothing about blood relation, only about marriage and being the recognized legal parent.

You can apply for citizenship as is, and await a result. If the citizenship is denied (for whatever reason), you are almost 100% guaranteed to get the visa afterwards.

Clarifying nationality is a required formality, but not qualifying for such does not automatically mean a visa rejection or prejudice.

It may take time, but don't worry, surely your child will make it to the US sometime.

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If you're listed on his birth certificate then it doesn't matter whether you are biologically father and son; you are legally father and son, so your son is a US citizen, and therefore ineligible for a US visa.

What else can we do?

Apply for a US passport for your son. If in fact the determination is made that your son isn't for some reason a US citizen, then you'll have that on the record, and subsequent visa applications should be processed normally.

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    "If you're listed on his birth certificate then it doesn't matter whether you are biologically father and son" It does matter. Acquisition of US citizenship at birth abroad is only based on blood relationship. See 7 FAM 1131.4. – user102008 Apr 6 '17 at 18:06
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    So if he is not the biological parent, then he cannot transmit citizenship to a child at birth no matter if he is on the birth certificate, has custody, and/or is considered the parent under local law (though he may be able to petition the child to immigrate after birth); and conversely, if he is the biological parent (and this can be proven by DNA test, etc. if necessary), he can transmit citizenship even if he isn't on the birth certificate, doesn't have custody, and/or isn't considered the parent under local law. – user102008 Apr 6 '17 at 18:07
  • Thank you excellent replies and useful. I will do the CBA of birth abroad. – Dok Apr 7 '17 at 3:46
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If he is proven not to be your biological child, you could always adopt him and then use this method:

The Child Citizenship Act of 2000 allows certain foreign-born, biological and adopted children of American citizens to acquire American citizenship automatically. These children did not acquire American citizenship at birth, but they are granted citizenship when they enter the United States as lawful permanent residents (LPRs)..

Q: What Are the Requirements of the Child Citizenship Act of 2000?

The child must meet the following requirements: Have at least one American citizen parent by birth or naturalization; Be under 18 years of age; Live in the legal and physical custody of the American citizen parent; and Be admitted as an immigrant for lawful permanent residence. In addition, if the child is adopted, the adoption must be full and final.

https://travel.state.gov/content/adoptionsabroad/en/adoption-process/faqs/child-citizenship-act-of-2000.html

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Exonerated is all I can say. The USA embassy notified us today to return our son's passport to them. Seems my logic won over all that was said and done. Never give up. I appreciate some of the helpful posts. 

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