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An Orphan by any Other Name…
Understanding the Immigration Service’s Orphan Definition
One of the most confusing, and misunderstood, aspects of
Intercountry Adoption is the Immigration Service’s definition of an orphan.
Some think any child who resides in an orphanage is automatically an orphan.
Others think the U.S. Citizenship and Immigration Services (formerly INS) definition of an orphan automatically
disallows a child with two living parents from being classified as an orphan.
Yet others think that a child who has lost one birth parent is automatically
eligible if released by the surviving parent. All of these assumptions are
false.
The USCIS definition of an orphan reads:
(F) (i) 17a/
a child, under the age of sixteen at the time a petition is filed in his behalf
to accord a classification as an immediate relative under section 201(b),
who is an orphan because of the death or disappearance of, abandonment or
desertion by, or separation or loss from, both parents, or for whom the sole or
surviving parent is incapable of providing the proper care and has in writing
irrevocably released the child for emigration and adoption
For ease of discussion, the applicable law is divided into
sections below.
Age of Child:
(F) (i) 17a/
a child, under the age of sixteen at the time a petition is filed in his behalf
to accord a classification as an immediate relative under section 201(b),
Under immigration law, an adopted child must be under
16 when the petition is filed. However, the law was recently amended to
provide for children up to age 18 who are siblings of children who have already
been adopted, or are being adopted at the same time as their siblings.
Orphaned by Both Parents
…who is an orphan because of the death or disappearance
of, abandonment or desertion by, or separation or loss from, both parents,
Children can be orphaned by both parents in six ways:
Death: In order to meet this definition, both parents
must be deceased AND the child must not have acquired another parent. For
example, if the parents died and the grandparents legally adopted the child,
the child is not considered an orphan because he acquired new parents through
the adoption by the grandparents. Proof of the parents’ deaths must be provided
in the form of death certificates.
Disappearance: To be eligible under this definition,
all four of the following criteria must be met: both parents have
unaccountably or inexplicably passed out of the child’s life; their whereabouts
are unknown; there is no reasonable hope of their reappearance; and there has
been a reasonable effort to locate them as determined by a competent authority
in accordance with the laws of the foreign-sending country. To prove this, a
court decree must be obtained by which a competent authority has
unconditionally divested the parents of all parental rights.
Abandonment: This is undoubtedly the most
misunderstood definition. In order to prove abandonment by both birth parents,
the following criteria must be met: the parents have willfully forsaken all
parental rights, obligations, and claims to the child, as well as all control
over and possession of the child, without intending to transfer, or without
transferring, these rights to any specific person(s).
The key to understanding abandonment is to realize that
there has to be both an intention and an act present to qualify. Abandonment
has to include not only the intention to willfully forsake all parental rights,
obligations and claims to the child, but also the actual act of surrendering
such rights.
Important Note: The act of surrendering a child directly to
the adoptive parents, or for adoption by specific adoptive parents, does NOT
constitute abandonment, as the designation of a specific person is considered a
“condition” of abandonment.
Similarly, the relinquishment or release of the child by the
parents to a third party for care or to prepare for an adoption does not
constitute abandonment unless the third party is authorized under the child
welfare laws of the foreign country to accept abandonments. A third party can
be a governmental agency, a court, an adoption agency or an orphanage but the
party MUST be authorized to accept abandonments. The presence of a child in an
orphanage does not automatically prove that the child is an orphan.
If parents place their child in an orphanage but express the
intention to retrieve the child later; contribute to the care of the child; or
express ongoing parental interest in the child; then the child is not
considered abandoned under U.S. law. The child must be given unconditionally
to be considered abandoned. As primary evidence of abandonment, the USCIS usually looks for a court decree that unconditionally divests parents of their
parental rights.
Desertion: Desertion by both parents means that the
parents have willfully forsaken their child and have refused to carry out their
parental rights and obligations and that, as a result, the child has become a
ward of a competent authority in accordance with the laws of the
foreign-sending country.
The difference between Desertion and Abandonment is that in
Desertion the inaction of the parents has caused a competent authority
to step in and terminate parental rights. The primary evidence that USCIS looks
for to determine desertion is a court decree which makes the child a ward of
the state and terminates parental rights.
Separation: Separation from the child is virtually
identical to Desertion. Separation from both parents means the involuntary
severance of the child from his or her parents by action of a competent
authority for good cause and in accordance with the laws of the foreign-sending
country. The parents must have been properly notified and granted the
opportunity to contest such action. The termination of all parental rights and
obligations must be permanent and unconditional.
Loss: Loss means an involuntary detachment of the
child from the parents in a permanent manner caused by a calamitous event like
a natural disaster or civil unrest in which the competent authorities in the
country have verified the event and divested the parents of their parental
rights.
Sole Surviving Parent
…or for whom the sole or surviving parent is incapable of
providing the proper care and has in writing irrevocably released the child for
emigration and adoption;
This is the only category in which a child that has been
directly relinquished to an adoptive parent can be classified as an orphan.
However, some countries may not permit a child to be adopted or to emigrate
after adoption, in which case such a release would not be valid.
To meet the definition of sole surviving parent, the child’s
other parent must have died (death certificate is required) and the child must
not have acquired another parent. If the mother has remarried, the child
is considered to have an acquired parent. In some countries where common law
marriages are allowed, the child may be considered to have acquired a parent
even if the child’s sole surviving birth parent is not legally married to the
spouse.
The sole or surviving parent’s release must be:
- Written
- In accordance with the laws of the foreign country
In a language that the parent can read and sign (if the parent is
illiterate, an interview with the parent can be conducted by an
immigration officer to determine that the release was understood to be
irrevocable) - Must be irrevocable without stipulations or conditions, except
that the parent may identify the adoptive parents to whom the parent is
releasing the child.
Understanding the orphan definition can be difficult in
countries where laws and procedures are not easily defined. Some countries make
adoption of a child who has two living parents virtually impossible, as when
the laws allow for a parent to rescind their surrender of parental rights.
Unless the surrender is irrevocable, the child will remain ineligible. If there
is any question about a child’s orphan status, it is wise to ask the
authorities in the child’s country and the consular officer at the U.S. Embassy
about the child’s status before referring the child for adoption or accepting
the referral of a child.
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