I-130 Alien Relative petitions – Comprehensive New Policy on DNA Testing

AILA provided a very important update from the State Department, we wish to share with our readers.

The Department of State has issued comprehensive new policy guidance on the use of DNA testing in the visa application process. This new guidance is set forth in a new set of extensive Notes to 9 FAM 42.44.

In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method for proving a biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.

According to the Department, DNA testing is expensive, complex and time consuming and thus should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as a last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer.

Consular officers may recommend DNA testing solely to prove a relationship; they may never recommend DNA testing in an attempt to disprove a relationship. Only DNA test results reporting a 99.5 percent or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.

The Department clarifies that consular officers adjudicating Form I-130 Alien Relative petitions are not authorized to approve the petition if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not “clearly approvable” per the provisions of 9 FAM 42.41 N4.2-3; accordingly, they must be forwarded to USCIS for adjudication. Parenthetically, USCIS is authorized to approve I-130 petitions supported solely on DNA testing.

Under a new procedural protocol, all DNA collections must take place at the embassy or consulate; it is no longer acceptable to collect samples at an off-site facility. DNA samples are to be taken only by lab technicians employed by the panel physician. Even then, these lab technicians seeking to take DNA samples at the embassy or consulate must be first approved by the post’s consular management. In so doing, consular management must, inter alia, complete CLASS name checks and review previous visa applications submitted by the technician. Consular management may validly reject a lab technician who has had multiple visa refusals.

The DNA collection must be witnessed by the consular officer or another American citizen employee of the consular section possessing an appropriate national security clearance. The collection itself may be undertaken at a regular interview window.