ELIGIBILITY FOR IMMIGRATION BENEFITS AS AN ORPHAN
What is an Orphan?
Under U.S. immigration law, an orphan is a foreign child who does not have any parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. An orphan can also be a foreign-born child with a sole or surviving parent who is unable to provide for the child’s basic needs, consistent with the local standards of the foreign sending country, and has, in writing, irrevocably released the child for emigration and adoption.
For such a child to gain immigration benefits, an orphan petition must be filed before his or her 16th birthday. The only exception to this is when a child is adopted with or after a sibling who is considered a “child” under the Act who has been or will be adopted by the same adoptive or prospective adoptive parent(s). In this type of case, the petition must be filed before the child reaches age 18.
Who Can File an Orphan Petition?
A married U.S. citizen and spouse (no special age) or an unmarried U.S. citizen at least 25 years of age may file an orphan petition. The spouse does not need to be a U.S. citizen; however, if living in the United States, the spouse must have a legal immigration status. The adoptive or prospective adoptive parent who signs the “certification of petitioner” on the orphan petition is the petitioner.
Who is Not Eligible to File an Orphan Petition?
The following persons are not eligible to file an orphan petition:
–an individual residing lawfully in the United States who is not a U.S. citizen.
–a married couple residing lawfully in the United States, neither of whom is a U.S. citizen
–an individual or couple who do not have lawful immigration status in the United States
–a U.S. citizen who is still legally married but separated from his or her spouse, unless the spouse joins in the petition
An Orphan Petition May be Denied if:
–INS determines that the prospective adoptive parent(s) do not have the physical, mental and/or emotional capabilities to properly parent a child;
–INS finds that the prospective adoptive parent(s) do not have the financial capabilities to care for a child;
–an INS investigation or the home study reveals a history of abuse and/or violence and/or a criminal history;
–an INS investigation reveals unsuitable living conditions; and/or
–INS determines that the child does not fit the legal definition of “orphan.”
How is the Immigration Benefit Gained?
If an orphan petition is approved, the beneficiary (the child) of the petition is considered to be an immediate relative of a U.S. citizen. This means the child can get an immigrant visa right away without being placed on a visa waiting list.
However, the child must still qualify for an immigrant visa just like any other immigrant. For example, the orphan cannot get a visa if he or she is considered to be inadmissible to the United States. One reason an orphan could be inadmissible to the United States is if he or she has a contagious disease of public health significance. Waivers for certain grounds of inadmissibility may be sought. If an orphan petition is approved, an application for an immigrant visa may be made at the American embassy or consulate having jurisdiction over the child’s residence.
When an orphan enters the United States with an immigrant visa, the child is considered to be a lawful permanent resident of the United States, not a U.S. citizen. General information about U.S. citizenship for foreign-born adopted children can be found in Section VII of this publication.
What if the Child is Already in the United States?
An orphan petition may not be filed in behalf of a child who is in the United States unless that child is in “parole” status and has not been adopted. If an orphan petition is approved for a child in the United States, the child can become a lawful permanent resident through a procedure called adjustment of status. In some ways, adjustment of status is similar to applying for an immigrant visa in a foreign country.
For information on how a child can become a permanent resident if the child is not eligible to benefit from an orphan petition, see Section VI.
DIFFICULT ISSUES IN ORPHAN CASES
Children Born Out of Wedlock
The prospective adoptive parent(s) should be aware that although a child may be born out of wedlock, that child may still have two parents.
A child born out of wedlock in a country that has not eliminated all legal distinctions between “legitimate” and “illegitimate”, and who has not been legitimated under the laws of the child’s or father’s residence or domicile, has a sole parent — his or her mother — unless the child has or had a bona fide relationship with the father.
If the child has or had a bona fide relationship with his or her father, the child may be considered to have a sole parent — his or her mother — only if the father has disappeared, abandoned, deserted, or in writing irrevocably released the child for emigration and adoption.
In both cases it must be evident that the mother is incapable of providing proper care for the child according to the standards of the country where she and the child reside and, in writing, irrevocably releases the child for emigration and adoption.
If a child is born out of wedlock in a country that has eliminated all legal distinctions between “legitimate” and “illegitimate”, paternity has been established, and the father has recognized or acknowledged the child, that child is considered “legitimated” with the child having both parents, not a sole parent.
Adoptive and prospective adoptive parents of children who were born out of wedlock should become familiar with the legitimacy laws in the countries where the children were born and/or live. If a child born out of wedlock is from a country which has eliminated all legal distinctions between legitimate and illegitimate, the child may still qualify for classification as an orphan under U.S. immigration law as long as there is proof that paternity has not been acknowledged or established before the civil authorities in that country. Prospective adoptive parent(s) may obtain information regarding a specific country’s legitimacy laws from INS or the Department of State.
Legitimated Children
Most countries have legal procedures for the legitimating of children by their natural fathers. Accordingly, adoptive and prospective adoptive parents of children born out of wedlock should become familiar with the laws of a foreign country to determine how children become legitimated. A legitimated child has all the same rights as a child born in wedlock. A legitimated child from any country has two legal parents and cannot qualify as an orphan unless only one of the parents is living or both of the parents have abandoned the child.
Abandonment
A child abandoned by both parents may qualify as an orphan under U.S. immigration law. A complete definition of abandonment can be found in Appendix B of this manual.
INS regulations state that a child who has been unconditionally abandoned to an orphanage is considered to have no parents. A child is not deemed abandoned, however, when he or she has been temporarily placed in an orphanage and the parent or parents are contributing or trying to contribute to the child’s support or the parent or parents otherwise show that they have not ended their parental obligations to the child.
While a finding of abandonment may normally be made when the child is in the custody of an orphanage or an orphanage-like institution, the definition of the term “abandonment” is not limited to those instances. Children in other situations could possibly be considered abandoned, but adoptive or prospective adoptive parents seeking to prove the claimed abandonment should obtain legal documentation from a competent authority in the country where the child resides.
For example, in a case where a child is a ward of the court, the parents must refuse to meet their parental and legal obligations to care for and support their child and give up parental claims to the child. On the other hand, if the natural parents are deprived of custody only temporarily and afforded a chance to care for the child, the child would not be considered an orphan.
Also, a relinquishment or release of a child by the biological parents to the prospective adoptive parents or for a specific adoption does not constitute abandonment.
Occasionally, some persons will try to make a child appear to have been abandoned in order to facilitate the child’s immigration to the United States. If a child has been designated a ward of the court merely as a contrivance, the child would not qualify as an orphan. If the decree declaring the child to be a ward of the court does not describe circumstances establishing that he or she is an orphan, other proof of abandonment must be submitted in support of the petition.
Intra-Familial Adoptions
Prospective adoptive parents wishing to adopt a family member may encounter problems that are not found in other adoption cases. Most will find it difficult to prove that the child meets the definition of an orphan under U.S. immigration law.
As stated previously, a child is a orphan only if the sole or surviving parent is unable to care for the child properly according to the standards of the country where the parent and child reside and has, in writing, irrevocably released the child for emigration and adoption; or if the child has been abandoned or deserted by, separated or lost from, both parents, or if both parents have disappeared or died.
Additional documentation is required to verify the claim of abandonment, desertion, separation from both parents or that both parents have disappeared or died.
Once the child has been irrevocably released by the natural parents, the parents can never gain any immigration benefit through the child.
Some Problems Faced by Adoptive and Prospective Adoptive Parent(s) of Foreign-Born Children
The adoptive and prospective adoptive parent(s) of foreign-born children face complex requirements which appear in the law itself. INS has kept the documentary, regulatory and procedural requirements to a minimum, while conforming with the intent of the law. In addition to INS requirements, petitions for orphans must also comply with state and foreign adoption laws.
The laws of some countries do not permit adoption. Laws of other countries restrict persons eligible to adopt children. There are children legally adopted abroad who do not qualify as orphans according the U.S. immigration laws (see definition of orphan in Appendix B). The adoptive and prospective adoptive parent(s) should be aware that not all children adopted abroad are orphans, and what appears to be a foreign adoption may not comply with the laws of the foreign state; and some valid foreign adoptions are not sufficient to classify the adopted person as a “child” under U.S. immigration law.
It is the responsibility of the petitioner to prove to INS that a child is eligible for classification as an orphan for immigration purposes. The evidence must be in the form of documents. This evidence may vary, depending on the facts of the case. Therefore, it is sometimes necessary to submit documents in addition to those described in Section II, B, Forms Used for an Orphan Petition.
BASIC ORPHAN PETITION PROCEDURES
Advance Processing
A U.S. citizen who plans to adopt a foreign-born orphan but does not have a specific child in mind can have the immigration paperwork done much faster by using a procedure called “advance processing.” Advance processing allows INS to first adjudicate the application that relates to the prospective adoptive parent(s) at a local district office. Later, only the part of the petition relating to the child is processed.
Advance processing can also be done in the following case: the child is known and the prospective adoptive parent(s) are traveling to the country where the child is located. However, it is important for the prospective adoptive parent(s) to know that while travel back and forth between the foreign country and the United States is permitted for the prospective adoptive parent(s), the child must remain in the foreign country until processing is completed.
Even though INS places a priority on processing orphan petitions, INS regulations require that all foreign adoptions undergo an investigation to guarantee compliance with the laws of both the United States and foreign sending country. Because this investigation takes time, prospective adoptive parents are encouraged to take advantage of the advance processing procedure. However, it is important to know that filing an advance processing application is optional. An orphan petition can be filed without the prospective adoptive or adoptive parent(s) ever filing the advance processing application.
Where to file an Advance Processing Application
Advance processing applications are generally filed while the prospective adoptive parent(s) are waiting for a child to be identified. When the child is unknown, the prospective adoptive parent(s) must submit the advance processing application packet to the local INS office having jurisdiction over their residence in the United States. INS office addresses are located in Section VIII, Part D. Information on which INS office has jurisdiction over a prospective adoptive parents’ residence can be found on the INS website at www.ins.usdoj.gov.
In cases where a child has already been identified, no advance processing application is necessary. The orphan petition may be filed at the overseas INS office having jurisdiction or, if there is no overseas INS office, at the American consulate or embassy having jurisdiction.
There are INS offices in Aruba, Austria, the Bahamas, Canada, China, Cuba, Denmark, the Dominican Republic, Ecuador, El Salvador, England, Germany, Greece, Guatemala, Haiti, Honduras, Hong Kong, India, Ireland, Italy, Jamaica, Japan, Kenya, Korea, Mexico, Pakistan, Panama, Peru, the Philippines, Russia, Singapore, South Africa, Spain, Thailand, and Vietnam.
Eligibility for Advance Processing
An application for advance processing may be filed by anyone who is eligible to file an orphan petition. An unmarried U.S. citizen may also file the application at least 24 years of age, as long as he or she will be at least 25 when an orphan petition is filed on behalf of an actual child and when the child is adopted. The prospective adoptive parent who signs the “certification of prospective petitioner” on the advance processing application is the prospective petitioner.
Forms Used for Advance Processing
Form I-600A, Application for Advance Processing of Orphan Petition. This form is orange. The required filing fee, which is noted in the instructions or attached to the form, must accompany the application.
FD-258, Fingerprint Chart. Fingerprints for each prospective adoptive parent and for each adult member of the prospective adoptive parents’ household (individuals who are 18 years of age or older) must be taken on Form FD-258.
INS will schedule an appointment for fingerprinting after receiving the application. If the application is filed at an INS field office in the United States, do not submit fingerprints with the application. However, the fingerprint fee for each household member to be fingerprinted must be submitted with the advance processing application. The fingerprint fee is in addition to the application fee, all payable to INS.
Note, however, the prospective adoptive parent(s) who reside outside the United States must submit a properly completed FD-258 when filing the application.
The prospective adoptive parent(s) residing abroad may have their fingerprints taken by an American embassy or consulate, U.S. military installation or INS office having jurisdiction over their residence. The prospective adoptive parent(s) are exempt from the INS fingerprint fee charged in the United States; however, they are subject to fees assessed by the Department of State or Defense. The prospective adoptive parent(s) who choose to be fingerprinted by INS personnel overseas may be charged a fee at the time the fingerprints are taken.
According to policy, INS expedites all orphan cases for humanitarian reasons. Nevertheless, it takes a certain amount of time to conduct fingerprint checks even though procedures are in place to ensure that the checks will be done as quickly as possible. This is why a prospective adoptive parent(s) are encouraged to use the advance processing procedures before locating a child for adoption.
Necessary Documents
Proof of the prospective petitioner’s U.S. citizenship
Proof of the marriage of the prospective petitioner and spouse, if married
Proof of legal termination of all prior marriages of the prospective petitioner and spouse or unmarried prospective petitioner, if applicable
Proof that preadoption requirements, if any, of the state of the orphan’s proposed residence have been met This is required when it is known that the adoption will not be done abroad, or when both the married prospective adoptive parents or the unmarried prospective adoptive parent will not personally see the child prior to or during the adoption abroad, and/or the final adoption abroad will not be full and final
A favorably recommended home study. This is a report on the ability of the prospective adoptive parent(s) to care for a child or children. If the home study is not available, it must be submitted within one year from the date of filing the advance processing application or the application will be considered abandoned. See Section III, D for additional information about the home study.
Decision
INS must decide whether the prospective adoptive parent(s) are able to take care of one or more orphans properly, depending on the number of children they want to adopt. Form I-171H, Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petition, is sent to the prospective petitioner if the prospective adoptive parent(s) appear to qualify for further processing. This decision, however, does not guarantee that the orphan petition(s) to be filed will be approved. An orphan petition may still be denied because the child does not qualify as an orphan or for other proper cause.
When there is unfavorable information about the prospective adoptive parent(s) or about an adult member of the prospective adoptive parents’ household, and INS concludes that proper care could not be given to a child or children, INS will make an unfavorable decision. As a result, INS will advise the applicant of the action in writing and provide instructions on how to appeal an unfavorable decision.
Filing an Orphan Petition After an Advance Processing Application Has Been Filed
A separate orphan petition must be filed in behalf of each child with separate documentation relating to each child. An orphan petition or petitions may be filed while an advance processing application is pending or within 18 months after the date of an approved application. This date is shown on the Form I-171H, Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petitions.
No additional filing fee is necessary if only one orphan petition is filed, and if the petition is filed while an advance processing application is pending or within 18 months after a favorable decision on an advance processing application. An additional filing fee is required, however, for any additional orphan petitions. The only exception to this is when more than one petition is submitted by the same petitioner in behalf of orphans who are brothers and/or sisters.
If there has been an unfavorable decision in an advance processing case and the grounds for the unfavorable decision are not overcome, but the prospective adoptive parent(s) file an orphan petition anyway, a filing fee is required. In such cases, the orphan petition will be denied unless the prospective adoptive parent(s) can prove that the grounds for the unfavorable decision no longer apply and that they can take care of a child or children properly.
Where to File an Orphan Petition After an Advance Processing Application Has Been Filed
Normally, an orphan petition is submitted at the same INS office where the advance processing application was filed. In fact, when an advance processing application is still pending, the orphan petition must be filed at the same office.
If, after INS has made a favorable decision on an advance processing application, the prospective adoptive parent(s) travel abroad, the orphan petition may be filed abroad. In cases like this, the decision to submit the petition abroad, instead of in the United States, is up to the petitioner.
If the child lives in a foreign country where there is an INS office and the petitioner wants to file the petition abroad, the petition is submitted at the INS office abroad. If there is no INS office in the foreign country, the petition should be filed at the American embassy or consulate having jurisdiction.
The prospective petitioner must state on the I-600A, Application for Advance Processing of Orphan Petition, where the I-600, Petition to Classify Orphan as an Immediate Relative, is to be filed once a favorable decision is made. If the I-600 is to be filed in the United States, it is filed with the INS office having jurisdiction over the prospective adoptive parent(s) residence. If it is to be filed at an INS office or consulate outside the United States, the I-600A is generally sent to the appropriate office overseas to be associated with the I-600.
Abandonment of Advance Processing
If an orphan petition is not filed within 18 months after the date of the approval of an advance processing application, the application is considered abandoned, and the prospective petitioner is notified in writing. After an advance processing application is abandoned, the prospective petitioner must file either a new application or an orphan petition, if the petitioner later decides to petition for an orphan. In that case a new fee is necessary.