9 FAM 601.11
(u) Visas and DNA
(Office of Origin: CA/VO)
9 FAM 601.11-1 (u) dna testing to verify relationships
9 FAM 601.11-1(A) (U) Introduction to DNA Testing, Accredited Labs
a. (U) General Information on DNA Testing:
(1) (U) DNA Testing: Deoxyribonucleic Acid (DNA) testing is the most accurate and widely available technology to test a biological relationship. The types of DNA tests used by the 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 offer 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) (U) 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) (U) 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) (U) 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) (U) Direct Sibling-to-Sibling Relationship Testing: You may accept direct sibling-to-sibling DNA test results reporting a 90 percent or greater degree of certainty as probative evidence that the claimed relationship exists. However, be cautioned that bona fide sibling-to-sibling biological relationships may result in DNA test results less than 90 percent of certainty.
(a) (U) 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. Following the BIA decision, the DHS Science and Technology Directorate worked with the AABB Relationship Testing Subcommittee to provide USCIS with revised standards to assist with interpreting full- and half- sibling test results for adjudication. The Visa Office adopted these standards for consistency between petition and visa adjudications.
(b) (U) Full-Sibling Test: Test results that are 90 percent or greater are probative evidence that the claimed full-sibling relationship exists. You must consider a result between 9 percent to 89 percent as inconclusive. Inconclusive results are not sufficient evidence on their own to show that the required relationship exists or does not exist without additional affirmation from an AABB-accredited lab. DNA results between full-siblings that show less than 9 percent are probative evidence that the relationship does not exist.
(c) (U) 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 90 percent or greater degree of certainty as "probative evidence" that the claimed relationship exists. You must consider any result that is lower than 90 percent, including results that are lower than 9 percent, as inconclusive and not sufficient evidence on its own to show that the required relationship exists or does not exist without additional affirmation from an AABB-accredited lab. For half-siblings, a result lower than 9 percent may not be used as probative evidence to exclude the claimed relationship.
(d) (U) 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 90 percent and inconclusive you can still make a finding - based on other non-DNA evidence that the sibling-to-sibling relationship is legitimate.
(e) (U) Sibling to Parent Test: A direct sibling test that includes parental testing the common parent 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.
9 FAM 601.11-1(B) (U) Genetic (DNA) Testing
a. (U) When to Recommend Genetic Testing to Verify Relationships:
(1) (U) 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) (U) 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) (U) 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. (U) When Not to Recommend Genetic Testing to Verify Relationships:
(1) (U) 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) (U) 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 in lieu of parent or sibling testing. However additional first-degree or second-degree relatives may be tested in addition to siblings to improve the accuracy of results.
9 FAM 601.11-1(C) (U) Genetic Testing for USCIS and Adjudication of Form I-130, Petition for Alien Relative
(U) 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. Consular sections will schedule and oversee all DNA sample collection on behalf of USCIS cases where the beneficiary is overseas, of a DNA kit sent from an AABB-accredited lab that is associated with a USCIS receipt number. This includes posts with a USCIS presence. Posts may prioritize and schedule DNA collection based on urgency, but in general, DNA collection for USCIS cases should receive the same prioritization as those from consular cases. DNA collection for USCIS cases must be conducted in accordance with the procedures specified in 7-FAH-1.
(1) (U) If the petitioner decides to pursue DNA testing, it is up to the petitioner to contact an approved AABB-accredited lab and arrange for his/her own testing and for the lab to send a kit to the appropriate embassy or consulate.
(2) (U) 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) (U) Posts should use the no-fee receipt code 97 in ACRS when a consular officer collects a DNA sample on USCIS’ behalf, except in V92/93 cases where the cost is already included. If a USCIS officer is at post, either permanently or on TDY, and collects DNA samples, this code should not be used. Post should keep records of any time periods when USCIS officers collect DNA samples during TDY assignments at post. CA and USCIS will use that information to help reconcile DNA collection volume reports each fiscal year.
(4) (U) If a petition has been approved by USCIS, but DNA testing performed at the suggestion of post has disproven the biological relationship, return the petition to USCIS with all the supporting derogatory evidence in a consular return memorandum. 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.
(5) (U) Consular staff must place special emphasis on verifying the identity of donor at every step of the DNA collection and IV adjudication process. A careful review of a donor's documents to confirm their identity, especially in cases where DNA collection was performed at another post, is critical to guard against malfeasance.
(6) (U) 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 the DNA testing option.