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Haitian Orphans can be adopted through legal immigration adoption means

There are many orphans in Haiti at this time. The U.S. has the procedures under Immigration Law in place to legally adopt the orphans and bring them to the U.S. without undercutting the procedure or making it so things are not on the “up and up”. Immigration Adoptions of Haitians make certain that the parents in the U.S. can properly take care of the children and that the child will have a good home after being petitioned and after an Immigration Attorney processes all the paperwork.

What is Child Citizenship Act of 2000?

On October 30, 2000, President Clinton signed into law H.R. 2883, the Child Citizenship Act of 2000. The new law permits foreign-born children—including adopted children —to acquire citizenship automatically if they meet certain requirements. It becomes effective on February 27, 2001. This is citizenship immigration, not naturalization.

Which Children Automatically Become Citizens Under the New Law?

Beginning February 27, 2001, certain foreign-born children—including adopted children—currently residing permanently in the United States will acquire citizenship automatically. The term “child” is defined differently under immigration law for purposes of naturalization than for other immigration purposes, including adoption. To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law and must also meet the following requirements:

  • The child has at least one United States citizen parent (by birth or naturalization);
  • The child is under 18 years of age;
  • The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent;
  • The child is a lawful permanent resident;
  • An adopted child meets the requirements applicable to adopted children under immigration law; and
  • Acquiring citizenship automatically means citizenship acquired by law without the need to apply for citizenship. A child who is currently under the age of 18 and has already met all of the above requirements will acquire citizenship automatically on February 27, 2001. Otherwise, a child will acquire citizenship automatically on the date the child meets all of the above requirements.

Is the Law Retroactive? Is Automatic Citizenship Provided for Those Who Are 18 Years of Age or Older?

No. The new law is not retroactive. Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under this law, even if they meet all other criteria. If they choose to become U.S. citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.

Will Eligible Children Automatically Receive Proof of Citizenship—Such As Citizenship Certificates and Passports?

No. Proof of citizenship will not be automatically issued to eligible children. However, if proof of citizenship is desired, beginning February 27, 2001, parents of children who meet the conditions of the new law may apply for a certificate of citizenship for their child with INS and/or for a passport for their child with the Department of State.

What Will INS Do With Currently Pending Applications for Certificates of Citizenship?

For pending applications filed to recognize citizenship status already acquired, INS will continue to adjudicate such applications under the relevant law applicable to the case. For applications that required INS approval before an individual could be deemed a U.S. citizen, INS will adjudicate those cases under current law until February 27, 2001. On February 27, 2001, INS will adjudicate those cases under the new law and for applicants who automatically acquire citizenship as of the effective date, INS will issue certificates of citizenship reflecting the person’s citizenship as of that date.

Is Automatic Citizenship Provided for Children (Including Adopted Children) Born and Residing Outside the United States?

No. In order for a child born and residing outside the United States to acquire citizenship, the United States citizen parent must apply for naturalization on behalf of the child. The naturalization process for such a child cannot take place overseas. The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance.

To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law3, and must also meet the following requirements:

  • The child has at least one U.S. citizen parent (by birth or naturalization);
  • The U.S. citizen parent has been physically present in the United States for at least five years, at least two of which were after the age of 14—or the United States citizen parent has a citizen parent who has been physically present in the United States for at least five years, at least two of which were after the age of 14;
  • The child is under 18 years of age;
  • The child is residing outside the United States in the legal and physical custody of the United States citizen parent;
  • The child is temporarily present in the United States—having entered the United States lawfully and maintaining lawful status in the United States;
  • An adopted child meets the requirements applicable to adopted children under immigration law; and
  • If the naturalization application is approved, the child must take the same oath of allegiance administered to adult naturalization applicants. If the child is too young to understand the oath, INS may waive the oath requirement.

Adjustment granted in Court after 4 years of waiting

Adjustment of Status under 245A finally approved (immediate relative: step-father to child). Case has been pending for approximately 4 years. First in absentia MTR was granted and then AOS. Only issue was whether Client was adopted or not (no adoption papers in the file) but adoption was not nessary because Client qualified as a step child. IJ noted that Client and step-father were interviewed and indicated that she would defer to the I-130 approval. DHS waived appeal.

Adoption of Haitian orphans in order to obtain lawful permanent residence has been a confusing journey

In light of the situation regarding adoption of Haitian orphans USCIS has issued a list of questions and answers that will be used for adoptive parents of paroled Haitian orphans on obtaining lawful permanent residence (LPR) status and U.S. citizenship.

Adoption Issues

A. 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 BCIS or the Department of State.

B. Legitimated Children

Most countries have legal procedures for the legitimation 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 a orphan unless only one of the parents is living or both of the parents have abandoned the child.

C. Abandonment

A child abandoned by both parents may qualify as an orphan under U.S. immigration law.

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.

D. 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.

E. 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. BCIS has kept the documentary, regulatory and procedural requirements to a minimum, while conforming with the intent of the law. In addition to BCIS 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 BCIS 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.

Investigation Issues

When a request is sent to an orphan or registered in a U.S. embassy or consulate for the possible acquisition of an immigrant visa for a child, an orphan of research abroad as part of normal procedure. This research is conducted by the consular officer of the Department of State or an officer of the BCIS for those posts where the BCIS has an office. The officer will make every effort to expedite the investigation, but the process may take a longer time. Before arranging the trip, the adoptive parents who are going abroad to complete the formalities, please contact the appropriate U.S. embassy or consulate, or the foreign office of the BCIS to request information about the terms of the process. The objective of this research is to confirm that the child is an orphan under the Immigration Law of the United States, and that the child has no illness or disability that has not been specified in the solicitation of an orphan. If the child does not comply with the requirements for classification as an orphan under the Immigration Law of the United States, the BCIS will prepare a report to try to revoke the approval of the request for an orphan. When the applicant receives such a notice, he or she have an opportunity to provide evidence in order not to revoke the approval.

If we knew that the child has an illness or disability that has not been mentioned in the petition the BCIS or the embassy or consulate, depending on the location of the request for an orphan, they will provide to the petitioner and his spouse, if they are married Details of the medical condition. The petitioner and her spouse, if they are married, to decide if they still want the child to enter the United States as an immigrant.

If the prospective adoptive parents choose the child to enter the United States, parents should be warned that the child is still admissible in the United States. Some diseases cause the child to be inadmissible. For example, if a child has a contagious disease, the child may be inadmissible. If we apply the margins of inadmissibility, they notify parents about the requirements to be met before the child to legally enter the United States.

Prospective adoptive parents are advised to avoid fraudulent practices of adoption and agree with agencies or individuals involved in such activities. Just have to agree with sources recommended for children in adoption and ensure that the entire procedure is legal.

The INS has found that foreign children are often stolen for adoption in the United States. There is also a market for fraudulent documents for children who may be beneficiaries of petitions for orphans. There are unscrupulous individuals that attract customers saying that they have a faster, economical and easy to adopt children. The adoptive parents are exploited by the exorbitant amounts of money without requiring them to receive the child, or getting a sick child, or proving to be parts of fraudulent acts.

When the BCIS has reason to believe that a request for an orphan may be involved in fraudulent acts, a foreign investigation of orphan before the petition is approved. The investigation may delay the completion of the case whenever done as quickly as possible. The BCIS will make every effort to ensure that the request for an orphan is not involved in fraudulent practices of adoption. In addition, research is done as a service to adoptive parents. Protects them from any painful situation that might occur when an adoption is illegal.

Adoption in general

This page explains the process for adopting children from foreign countries. Additionally, it provides information on immigration benefits obtainable through adoptive relationships. These resources are intended for adoptive and prospective adoptive parents of foreign-born children, as well as adoption agencies, and state and local officials involved in adoption proceedings.

Orphan petitions are the most common way of bringing foreign adopted and prospective adoptive children to the United States. The material addressed on this link is comprehensive and meant for readers who want to avoid problems and/or delays with the adoption process. Information is included on some of the difficult issues that can occur in orphan cases.

The Immigration of Adopted and Prospective Adoptive Children materials feature a section on immigration benefits that may be gained from adoptive relationships through procedures other than the orphan petition. There is also some general information on how a foreign-born adopted child can become a U.S. citizen.

Above all, this material alerts prospective adoptive parents about some serious problems that may happen in foreign adoption cases. For example, unscrupulous adoption practices are common in many areas of the world. Moreover, adoption of a foreign-born child does not guarantee the child’s eligibility to immigrate to the United States. The adoptive parent must comply with the U.S. immigration law and legal regulatory procedures. There is no way an orphan can legally immigrate to the United States without Bureau of Citizenship and Immigration Services (INS) processing.

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. When necessary, an overseas investigation is initiated. This investigation can cause delays in adjudicating the case. Prospective adoptive parents are advised to retain a reputable agency with foreign adoption experience or competent legal representation in their efforts to bring foreign-born children to the United States.

INS places a priority on processing adoption petitions. Many BCIS field offices have assigned individual officers and clerks to process orphan petitions applications and respond to inquiries from the petitioners concerning the status of their case. Prospective adoptive parents are encouraged to go through their adoption agencies for guidance and insight on the immigration of orphan and adopted children.

The U.S. Department of State’s Office of Children’s Issues coordinates policy and provides information to the public on international adoptions, including country-specific data. Prospective adoptive parents can contact the Office of Children’s Issues at (202) 736-7000.

Adoption information is also available from the U.S. State Department internet website at http://travel.state.gov/family/family_1732.html.

Child Citizenship Act of 2000

 On October 30, 2000, President Clinton signed into law H.R. 2883, the Child Citizenship Act of 2000. The new law permits foreign-born children—including adopted children —to acquire citizenship automatically if they meet certain requirements. It becomes effective on February 27, 2001. This is citizenship immigration, not naturalization.

Which Children Automatically Become Citizens Under the New Law?

Beginning February 27, 2001, certain foreign-born children—including adopted children—currently residing permanently in the United States will acquire citizenship automatically. The term “child” is defined differently under immigration law for purposes of naturalization than for other immigration purposes, including adoption. To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law and must also meet the following requirements:

  • The child has at least one United States citizen parent (by birth or naturalization);
  • The child is under 18 years of age;
  • The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent;
  • The child is a lawful permanent resident;
  • An adopted child meets the requirements applicable to adopted children under immigration law; and
  • Acquiring citizenship automatically means citizenship acquired by law without the need to apply for citizenship. A child who is currently under the age of 18 and has already met all of the above requirements will acquire citizenship automatically on February 27, 2001. Otherwise, a child will acquire citizenship automatically on the date the child meets all of the above requirements.

Is the Law Retroactive? Is Automatic Citizenship Provided for Those Who Are 18 Years of Age or Older?

No. The new law is not retroactive. Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under this law, even if they meet all other criteria. If they choose to become U.S. citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.

Will Eligible Children Automatically Receive Proof of Citizenship—Such As Citizenship Certificates and Passports?

No. Proof of citizenship will not be automatically issued to eligible children. However, if proof of citizenship is desired, beginning February 27, 2001, parents of children who meet the conditions of the new law may apply for a certificate of citizenship for their child with INS and/or for a passport for their child with the Department of State.

What Will INS Do With Currently Pending Applications for Certificates of Citizenship?

For pending applications filed to recognize citizenship status already acquired, INS will continue to adjudicate such applications under the relevant law applicable to the case. For applications that required INS approval before an individual could be deemed a U.S. citizen, INS will adjudicate those cases under current law until February 27, 2001. On February 27, 2001, INS will adjudicate those cases under the new law and for applicants who automatically acquire citizenship as of the effective date, INS will issue certificates of citizenship reflecting the person’s citizenship as of that date.

Is Automatic Citizenship Provided for Children (Including Adopted Children) Born and Residing Outside the United States?

No. In order for a child born and residing outside the United States to acquire citizenship, the United States citizen parent must apply for naturalization on behalf of the child. The naturalization process for such a child cannot take place overseas. The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance.

To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law3, and must also meet the following requirements:

  • The child has at least one U.S. citizen parent (by birth or naturalization);
  • The U.S. citizen parent has been physically present in the United States for at least five years, at least two of which were after the age of 14—or the United States citizen parent has a citizen parent who has been physically present in the United States for at least five years, at least two of which were after the age of 14;
  • The child is under 18 years of age;
  • The child is residing outside the United States in the legal and physical custody of the United States citizen parent;
  • The child is temporarily present in the United States—having entered the United States lawfully and maintaining lawful status in the United States;
  • An adopted child meets the requirements applicable to adopted children under immigration law; and
  • If the naturalization application is approved, the child must take the same oath of allegiance administered to adult naturalization applicants. If the child is too young to understand the oath, INS may waive the oath requirement.

My Adopted Son is a U.S. Citizen

Question: My wife and I were unable to have our own children. Therefore, we looked to adopt a child. Because this took years in the U.S., we decided to do an international adoption which has turned out to be much quicker. However, now that the adoption has gone through, we are unsure what must be done to bring our adopted child into the United States. Can you help?

Answer: Yes. Eduardo Aguirre, Director of U.S. Citizenship and Immigration Services (USCIS), today announced an important step toward the fulfillment of the Child Citizenship Act (CCA). USCIS is launching a CCA Program to simplify and streamline the process by which parents obtain a Certificate of Citizenship for their children.

I want prospective parents, who are seriously considering international adoption, to know that the process just got a little easier. This program will help parents to more rapidly realize the privileges of American citizenship for their children. It accelerates reassurance of their child’s citizenship status,” said Director Aguirre.

One of the Director’s eight strategic initiatives, the CCA Program will eliminate the backlog of N-643 forms (Application for Certificate of Citizenship in Behalf of an Adopted Child) relating to children affected by the CCA. Additionally, the program will soon automatically provide Certificates of Citizenship to certain adopted children within 45 days of entry into the United States. These Certificates of Citizenship will be produced and mailed to the parents without application and without fee.

Managed from the USCIS Buffalo, New York District Office, the program will initiate 45-day processing for children who fall within the Immediate Relative visa category. This will be for adoptions whereby adoptions are made final overseas. This program will eliminate the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens.

Question: What must I do to fall under this program?

Answer: Assuming you are a U.S. Citizen and your child is under 18 years old, he or she will be considered to be an Immediate Relative. You must petition him or her for lawful permanent residency. Once this is done, then the adopted child can enter the United States. The moment the child takes one step in the United States, he or she will automatically become a U.S. Citizen. According to the new policy, the Certificate of Citizenship should be sent within about 45 days.

Why can’t I get my adopted orphan into the U.S.?

Question: My husband and I have tried for years to have a baby. Unfortunately, we have been unable. However, we have found a beautiful baby girl from the Far East. She is an orphan and we thought we could just adopt her and bring her back to the U.S. It appears that this is not the case. Please let me know what we have to do to bring our future daughter home.

Answer: First, the child has to qualify as an orphan. First she must be under 16 at the time the visa petition is filed. Next, the child’s parents must have been either killed or abandoned or deserted her. If one parent is still alive, that parent must commit in writing a document that he or she is completely unable to care for the child and is giving the child up for adoption. Next, you have to qualify to adopt the child. For an orphan petition, you must be a U.S. Citizen and adopting the child jointly with your spouse. Alternatively, one can be an unmarried U.S. Citizen who is at least 25 years old.

Question: How do we go about adopting the orphan?

Answer: There are two ways to adopt an orphan. First, the child may be adopted abroad by a couple or an unmarried U.S. citizen if they personally saw or observed the child before or during the adoption proceedings. Second, the child may come to the United States for adoption by the couple or unmarried person if they have complied with the preadoption requirements, if any, of the child’s proposed U.S. residence. In addition, the Immigration must be satisfied that proper care will be provided for the child.

Question: How do we petition to get the orphan here into the U.S.?

Answer: Petitioning for an orphan involves two distinct determinations. The first determination focuses on the ability of the prospective adoptive parent(s) to provide a proper home environment and on their suitability as parents. This determination is based primarily on a home study and fingerprint checks submitted with the advanced processing application. The second determination, based on the orphan visa petition, concerns whether the child is an orphan under the INA. The prospective adoptive parent(s) may submit documentation for each of these determinations separately or at one time, depending on when the orphan is identified. An orphan visa petition cannot be approved unless there is a favorable determination on the advanced processing application. A favorable determination on the advanced processing application, however, does not guarantee that the orphan visa petition will be approved.

If the State which you are living has preadoption requirements, they must be complied with.

Question: After both petitions are filed, how can I bring our child into the United States?

Answer: First, an orphan petition can be denied for a variety of reasons, including: (1) failing to establish financial ability to care for the child; (2) failing to establish that the child is an orphan; (3) failing to establish an ability to care for the child properly; (4) filing the orphan petition more than 18 months after the I-600A advanced processing application has been approved; or (5) evidence of child-buying. The regulations define child-buying as any money or other consideration given directly or indirectly to the child’s parents, agents, or other individuals as payment for the child or as an inducement to release the child.

Assuming it has been approved, the Immigration will notify the parents and the U.S. embassy or consular post that will issue the visa on approval of the application. The State Department must then complete what is known as an I-604 investigation. If the I-604 investigation reveals negative information, the information is forwarded to the INS for appropriate action.

If the I-604 investigation reveals nothing adverse and the case is otherwise clearly approvable, the State Department consular officer will issue the visa to allow the orphan to enter the United States. If the petition is not clearly approvable, however, the consular officer will refer the case back to Immigration.

As of February 27, 2001, an orphan becomes a U.S. citizen automatically upon admission to the United States, as long as the child is entering on an immigrant visa.

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Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

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