United States Orphan Classification
Author: Kelly Caldwell
Organization: Guatadopt.com & US Department of State
Date Last Modified: 19-APR-2006
For an adopted child to legally immigrate to the US with his/her parents, the child must legally meet the definition of an orphan. In Guatemala, a large percentage of adoptions are relinquishments (where the birthmother is signing over her/his parental rights) and the Guatemalan government has not yet established that the child meets all the criteria for adoption. The US Embassy also investigates each case to make sure the child fits the orphan definition. They have a gentleman's agreement with PGN not to finalize an adoption prior to the child being cleared (PreApproval). The orphan definition differs from other countries (like the UK) and this arrangement between the US and Guatemala should ensure that a child is not legally adopted by a US Citizen but not able to immigrate to the US.
Some examples of relinquishments where the child does NOT qualify:
- The birth father or another male is recorded on the birth certificate and the mother is still alive, the child generally does NOT qualify.
- The birth mother is married.
- The mother fails a DNA test where she does not match the child she is relinquishing.
- The birth mother has previously lost her parental rights to the child
In a few relinquishment cases, the birthfather or "legal" father may be the relinquishing party if he is classified as the "sole parent" of the child.
There have been suggested revisions to the classification of orphans (like the ICARE bill), but as of the date above, the orphan classification for US adopting parents is LEGALLY described as such......
ORPHAN DEFINITION
9 FAM 42.21 N12 Orphans : 9 FAM 42.21 N12.1 "Orphan" Defined(TL:VISA-170; 10-01-1997) a. Under INA 101(b)(1)(F), an orphan is a child, under the age of sixteen at the time a petition is filed on his or her behalf: (1) Who has no parents because of the death or disappearance of, abandonment or desertion by, or separation from or loss of both parents; or
(2) Whose sole or surviving parent is incapable of providing proper care and has, in writing, irrevocably released the child for emigration and adoption. b. INS regulations establish very specific meanings for terms such as "abandonment", "irrevocably released", and "sole or surviving parent". [See INS definitions in 8 CFR 204.3(b) 9 FAM 42.21 Exhibit II.] The meanings of these terms are discussed in more detail in 9 FAM 42.21 N12.7 9 FAM 42.21 N12.7-5 Unconditional Release by Sole or Surviving Parent
(TL:VISA-204; 05-15-2000)
a. A child can be unconditionally released for adoption by a sole or surviving parent who is unable to provide for the child's basic needs, con-sistent with local standards.
b. A surviving parent is defined as a child's living parent when the child's other parent is dead, and the child has not acquired another parent within the meaning of INA 101(b)(2) (i.e., marriage by the surviving parent has not created a stepparent relationship). Primary evidence would be a death certificate in the name of the deceased parent.
c. INS regulations limit the term "sole parent" to the mother of a child born out of wedlock.
The child is considered to have a sole parent only if:d. The sole or surviving parent's release or relinquishment must be in writing, in a language that the parent is capable of reading and signed by the parent. The release must be irrevocable and without stipulations or conditions. If the parent is illiterate, but in an interview satisfies the consular officer that he or she had full knowledge of the contents of the document and understood the irrevocable nature of the release, the officer may also treat the document as primary evidence. Note from CR Consul: In some cases, the problem has been the irrevocable release...meaning the mother formally releases all rights to the child. Many sole parents do not clearly understand what this will mean. The child cannot come back and petition her biologica mother to come to the United States when she is grown. The biological mother will lose all rights as parent and next of kin. Obviously, you may want or not want to retain a relationship with the mom, but legally she ceases to exist for the child.
(1) The child was born out of wedlock; and
(2) The child has not been legitimated under the law of the child's residence or domicile or under the law of the natural father's residence or domicile while the child was in the legal custody of the legitimating parent or parents; and
(3) The child has not acquired a stepparent; and
(4) The natural father has disappeared or abandoned or deserted the child or the natural father has in writing irrevocably released the child for emigration and adoption (Pub. L. 104-51).