Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

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.

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