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Thursday 30th of March 2017

United States

Adoption Tax Credit

The adoption tax credit was passed by Congress and signed by President Clinton in August of 1996 as part of the law that raised the minimum wage. It does two things: 1) provide a tax credit of up to $5,000 ($6,000 for domestic special-needs adoptions) per adoption to families whose adoptions take place before December 31, 2001, and 2) allow employers to provide adoption assistance benefits free from Federal income tax.

In this article I will only discuss international adoptions, since the law is a little different for domestic ones. I will quote from IRS Bulletin 97-9, which was issued by the IRS early this year to implement the credit. In addition, the IRS has issued the paperwork, Form 8839 with instructions, as well as a bulletin, Publication 968, explaining the benefits. You can call the IRS at 1-800-TAX-FORM to obtain these publications.

Timeline

The expenses must have been paid after December 31, 1996. So whatever expenses you paid before that date would not be covered, even if you actually adopted during 1997 or later. If you adopted prior to that date, but had expenses related to the adoption, such as post-placement social worker visits or readoption expenses that came due and were paid during 1997 or after, you will be able to claim them during the year they were paid. If you have expenses during 1997 and adopt during 1998, you can claim the 1997 expenses on your 1998 tax return.

Covered Expenses

This is how the IRS has defined expenses that will be covered under the credit:

"Qualified adoption expenses" include the reasonable and necessary adoption fees, court costs, attorney's fees, traveling expenses (including amounts expended for meals and lodging) while away from home, and other expenses that are directly related to, and the principal purpose of which is for, the legal adoption of an eligible child by the taxpayer.

Income Limitation

Families whose adjusted gross income (AGI) is less than $75,000 are entitled to reimbursement up to the full credit. Your adjusted gross income (AGI) is the amount on the last line of the first page of Form 1040, and on the first line of the second page (lines 30 and 31). It is limited for families whose AGI is between $75,000 and $115,000 in the year the credit is claimed, and families whose income is higher than $115,000 are ineligible. Generally, it is the total of all your sources of income, including wages, interest, dividends, and self-employment income, less whatever business or investment losses you claim, and less deductible contributions to an IRA or 401K or similar pension plans.

If your AGI falls between the two amounts, the available credit is figured proportionally. So, for instance, $90,000 is exactly in the middle of the two amounts, and a family with an AGI of $90,000 is entitled to a credit of $2,500.

Carrying Over the Credit

If your total Federal income tax burden is less than the amount you're entitled to for the credit, you have five years to claim it.

First, a digression for those of you who might not understand how your income tax return works:

Your income tax responsibility to the Federal government is not the same as what you have to pay with your tax return, or any refund you may get. What you pay the government each year is based on your income, and during the year, money is deducted from your paycheck roughly proportional to the total bill. When you file your income tax return, you (or your tax preparer) figure out the exact amount of your tax bill, and you list the exact amount you've already paid. If you didn't pay enough (via payroll deductions, other withholding or estimated tax), then you have to include a check for the balance with your income tax forms; if you paid more than you owe, you'll be getting a refund.

Your tax obligation for the year is on line 51 of Form 1040. If it is less than the amount you're entitled to receive for the adoption tax credit, you can claim the rest of it during the following four years.

What Happens When You File

I will give a very general example here. Say you made $52,000 during 1997, and you paid $13,000 for an adoption from China, which was paid for and took place during that year. Every week, your gross income was $1,000 and $200 was deducted from your check for Federal income tax.

So the total amount withheld was $10,400. When you prepared your taxes, your total tax for that year (the amount on Line 51) was $4,000. If you didn't have the adoption tax credit, you would get a refund of $6,400 ($10,400 minus $4,000), which is the difference between what you paid already and the total amount of your tax bill.

However, you are eligible for a $5,000 adoption tax credit. So you will get a tax refund of the entire amount you paid during the year, or $10,400. You will use up $4,000 (your tax obligation for the year) of your credit. You still have the remaining $1,000 to reduce your taxes for next year.

Please note that the credit is subject to the Alternative Minimum Tax, which is too complicated to explain here, but may limit your credit during any particular tax year.

Employer Benefits

If you are lucky enough to have an employer who provides benefits for adopting parents, the new law may allow you to get these benefits tax-free.

It is subject to many of the same limitations as the credit. So for international adoption, it is limited to no more than $5,000 for a family whose adjusted gross income is less than $75,000, and less for families whose AGI is between $75,000 and $110,000. Families whose AGI is more than $110,000 are not eligible.

The same costs are covered by both credits. But you can't claim the same expenses twice. So, for example, you could claim $5,000 (say, expenses of preparing your dossier, agency fee, air fare to your child's birth country) for the tax credit, and $5,000 (orphanage donation, hotel and food expenses during the trip, visa and passport fees) for the employer benefit.

If this provision were not included in the law, then whatever adoption benefits you received from your employer would be taxable. So you would have to pay income tax on the money you received.

You will have to pay income tax on benefits from your employer that exceed the amount you're entitled to. So, for instance, if you're entitled to a $3,000 exclusion, and your employer gives you an adoption benefit of $3,500, you'd have to pay income tax on the difference, or $500.

Also, you will still have to pay social security tax, Medicare tax, and state income tax on the entire employee benefit amount.

Changing Your Withholding

Once you've figured out what you're entitled to from the adoption tax credit, you have two choices on how you'll get this money: either you can wait until you file your income taxes, and get a big refund, or you can change your withholding so each week you'll keep more of your paycheck, and get your normal refund.

Note that during the year you adopt, you'll have other issues that will probably reduce your income tax obligation--you'll have another dependent; your tax status may change from single to head-of-household, which means you'll be taxed at a slightly lower rate; and you may have child-care expenses for which you may be eligible for another credit. Your income will probably be lower, since you may take time off for an adoption trip and you and/or your spouse may take unpaid leave for weeks or months to spend with your child when you get home. On the other hand, you may be subject to the alternative minimum tax, which would limit the credit.

You may want to talk to your tax preparer or purchase a computer tax preparation program to help you figure how these benefits will affect your particular situation.

Roberta Ferdschneider lives in Brooklyn, New York, where she has worked for H&R Block as a tax preparer for several years. She is adopting her first child, Juliette Peiyue, from China on February 3, 1998, and she will be eligible for the full tax credit. She can be reached at 718-398-8554, or via e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it., after February 15 to consult on tax preparation issues.

Editors note: Roberta can work with families who live anywhere in the U.S. on their personal taxes.

Proposed: Hope for Children Act of 1999

Editors Note: This bill was formally introduced as H.R. 531 on 2/3/99. Please contact your Representatives and Senators to express your views on this legislation.

Increased Adoption Tax Credit Legislation Proposed

From: Tomilee Harding, Director, Christian World Adoption, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it.

Adoption tax credit legislation was recently proposed in Congress by Representative Tom Bliley (VA) and Speaker Newt Gingrich. If passed The Hope for Children Act would provide a $10,000 tax credit for adoption related expenses. Although Speaker Gingrich is retiring from Congress, I have spoken with Rep. Bliley's staff and I am pleased to tell you that Rep. Bliley will reintroduce the Hope for Children Act early next year in the new Congress.

The Hope for Children Act will make it more affordable for more families to adopt loving children. In order for this bill to become law, you must take time to lobby YOUR Member of Congress in support of Rep. Bliley's Hope for Children Act. Please encourage your friends, family, and co-workers to do the same. If the time is taken to lobby Members of Congress, the legislation stands a good chance of being enacted into law.

If you have $10,000 in qualified adoption expenses, you have full access to this tax credit. For example, if your tax liability one-year is $2200, then you can use the adoption tax credit to cover your entire tax liability for that year. In addition, you can use the remaining $7,800 of the tax credit over the course of the next four years. This credit lasts for a total of five years. The adoption tax credit is adjusted yearly for inflation. Full adoption tax credit is given for incomes under $150,000. For incomes between $150,000 and $190,000, the tax credit will be reduced. For incomes over $190,000, the credit will not apply. Also, the income scale is adjusted for inflation.

As you know, present law provides for a $5,000 tax credit for all adoptions. The tax credit is available for foreign adoptions when the adoption is completed. (Domestic special needs adoptions presently receive a $6,000 tax credit) However, on December 31, 2001 tax credit law for all non-special needs adoptions will expire. Consequently, you are needed to lobby your Member of Congress to help pass The Hope for Children Act so that adoption tax credit becomes permanent law. This bill would double the present tax credit from $5,000 to $10,000, would double the income eligibility, and make it permanent law. Please take the time to lobby YOUR Member of Congress today and again when the bill is reintroduced early next year. It is very important that Members of Congress hear from their own constituents because they will only reply to them.

In your letters please tell about your personal joys regarding adoption and how this bill will help you and more people share that joy again. Such letters need not be fancy or long; but they must be sent. Remember that pictures can often say a thousand words. Your Congressman's address can be found on the web site http://www.house.gov/ Scroll down to "write your Rep" and you can e-mail your congressman. In your letters be sure to include your name, phone number and mailing address in order to receive a response from your Representative. If you still are unable to get the address or fax number of your Congressman, try the capital switchboard at 202-224-3121.

Join us today to help more children have a brighter future when the Hope for Children Act becomes law due to our efforts!

Instructions for INS Form N-643

Application for Certificate of Citizenship in Behalf of an Adopted Child

OMB# 115-0152

 


Translators Note: These instructions were retyped from the printed form distributed by INS.

Who can file? To use this form, you must be a United States citizen and the parent of an adopted child who was born outside the United States. Your spouse (if any) must also be a United States citizen and also the child's adoptive parent. The child must be under 18 years of age and residing with you in the United States as a lawfully admitted permanent resident alien. The approval of this application before the child's 18th birthday will make the child a United States citizen as of the date the application is approved. You will receive a certificate of citizenship as proof of the child's citizenship.

What is the fee? You must pay $80.00 to file this form. The fee will not be refunded. Do not mail cash. All checks or money orders must be payable in the U.S. currency in the United States. Make check or money order payable to "Immigration and Naturalization Service" in the exact amount. If the check is not honored, INS will charge you an additional $5.00.

If you live in Guam and are filing this application in Guam, make your check payable to "Treasurer, Guam", or if you live in the U.S. Virgin Islands and are filing the application there, make it payable to "Commissioner of Finance of the Virgin Islands".

What photographs are needed? You must send three identical, unglazed photographs of the child taken within 30 days of the date of filing of the application. The photographs must be in natural color and taken without a hat. The dimensions of the face should be about 1 inch from the top of the hair to the chin. The face should be a 3/4 frontal view with the entire right ear visible. They must be on thin paper with a light background and not mounted in any way. The photographs must not be signed but you should print the child's name and alien registration number in the center of the back of each photograph in pencil.

What documents are needed?

  • Child's Alien Registration Card.
  • Child's Birth Certificate
  • Final Adoption Decree
  • If the child's name has been legally changed since entry, submit evidence of the name change if not included in the adoption decree.
  • Evidence of U.S. citizenship of adoptive parent(s). Submit your birth certificate, if born in the United States; your naturalization certificate, if naturalized; your certificate of citizenship or FS-240 (Report of Birth Abroad of United States Citizen). In place of any of the aforementioned, you may submit your valid, unexpired U.S. passport.
  • Marriage certificate of adoptive parents.
  • If either of the adoptive parents has been previously married, submit evidence of termination of all prior marriages.

Any document in a foreign language must be accompanied by a translation in English. The translator must certify that he/she is competent to translate and that the translation is accurate.

What if a document is not available? If the documents needed are not available, you may submit the following (INS may require a certification from the appropriate civil authority that the document is not available):

  • Church record: A certificate under the church seal issued within two months of birth.
  • School record: A letter from authorities of the school attended.
  • Census records: State or Federal census record.
  • Affidavits: Written statements sworn (or affirmed) to by two persons who have personal knowledge of the claimed event.

For each document needed, you may submit the original documents or a clear readable copy (INS may still require the originals).

Where should the application be filed?

Submit this application at the local INS office having jurisdiction over your place of residence.

What are the penalties for submitting false information? Title 18 United States Code, Section 1001, states that whoever willfully and knowingly falsifies a material fact, makes a false statement, or makes use of a false document will be fined up to $10,000 or imprisoned up to five years or both. In addition, civil penalties may be imposed in accordance with Title 8 Unites States Code, Section 1324c(a)(2).

What is the authority for collecting this information? Information on this form is requested to carry out the immigration laws contained in Title 8 United States Code 1304 (c). This information is needed to determine whether an applicant is eligible for immigration benefits. The information provided may also be disclosed to other federal, state, local, and foreign law enforcement and regulatory agencies during the course of the investigation required by this Service. It is not necessary to provide this information, however if you refuse, your application may be denied.

Tax Credit for Adoption Expenses

There is a $5,000 tax credit for adoption related expenses. This credit may be used for domestic or international adoptions. Specifically:

  • Any portion of the credit that is not used up in the year expenses were incurred can be carried forward for up to five years.

     

  • Adoptive parents may claim a tax credit for up to $5,000 per child.

     

  • The credit begins to phase out when adjusted gross income (without excluding qualified adoption expenses) tops $75,000 and ends at $115,000.

     

  • The $5,000 limit is per child, not per year. The credit becomes applicable when the adoption is finalized.

     

  • Qualified adoption expenses include almost anything related to your adoption: Travel to China, agency fees, homestudy, etc. If it is is directly related to your adoption, it qualifies.

     

  • The law provides for a $6,000 credit for adoption of special needs children, but this only applies for domestic adoptions! Children adopted from China, even if they were designated as special needs, still qualify for the $5,000 credit, not $6,000.

     

  • Any portion of the credit that is not used up in the year expenses were incurred can be carried forward for up to five years.

     

  • Employer-paid adoption expenses of up to $5,000 per child do not have to be reported as income.

The Immigration of Adopted and Prospective Adoptive Children

Document M-249-Y from the U.S. Department of Justice, Immigration and Naturalization Service.

Revised 1990


This is a private adaptation of the printed official document. Please contact a local INS office for the current official document. The photos of adopted children and families in the original have been omitted due to poor scan quality.
September 24, 1995.
Comments, corrections etc, to: This email address is being protected from spambots. You need JavaScript enabled to view it.

 


 

Table of Contents

  1. Forward
  2. Quick Summary: the Fast Way, the Other Way (4K)
  3. I. Eligibility for Immigration Benefits As an Orphan (4K)
  4. II. Basic Orphan Petition Procedures (18K)
  5. III. Basic Orphan Petition Requirements (8K)
  6. IV. Overseas Orphan Investigation (5K)
  7. V. More Difficult Issues in Orphan Cases (11K)
  8. VI. Other Procedures Concerning Adoptive Relationships (6K)
  9. VII. United States Citizenship for a Foreign Adopted Child (6K)
  10. VIII. Appendices (13K)

 


 

Forward

The purpose of this publication is to give information on the immigration benefits to be gained from adoptive relationships. It is intended for adoptive and prospective adoptive parents of foreign children, but it may be of interest to adoption and voluntary agencies and state and local officials involved in adoption procedures

Orphan petition procedures are the most common way of bringing foreign adopted and prospective adoptive children to the United States. Therefore, most of the information in this publication is about the orphan petition. There is, however a section on the immigration benefits which may be gained through procedures other than the orphan petition. There is also some general information on how a foreign adopted child can become a United States citizen

The basic orphan petition procedures are explained. Information on some of the difficult issues that sometimes come up in orphan cases is also included. In addition, summaries of the published precedent decisions of the Immigration and Naturalization Service which our officers use when they decide orphan cases and other technical information is given. While this information is more comprehensive, it is meant for those individuals who want to have a more in-depth understanding of the subject matter.

 

Orphan Petition Procedures at a Glance: the Fastest Way, the Other Way

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Fastest Way

How to Start

1. File advance processing application before orphan is known

2. Find an orphan to adopt.

3. Then file orphan petition in behalf of orphan.

Forms and Documents

Advance Processing

1. Form I-600A, Application for Advance Processing of Orphan Petition.

2. The fingerprints of each adoptive parent on Form FD-258.

3. Proof of the prospective petitioners United States citizenship.

4. Proof of the marriage of the prospective petitioner and spouse, if married.

5. Proof of termination of any prior marriages of the prospective petitioner and spouse or unmarried prospective petitioner, if applicable.

6. A favorably recommended home study.

7. Filing fee.

Orphan Petition*

1. Form I-600, Petition to Classify Orphan as an Immediate Relative.

2. Proof of orphan's age.

3. Death certificate(s) of the orphan's parent(s) if applicable.

4. Proof that the orphan's sole or surviving parent cannot give the orphan proper care and has, in writing, forever and irrevocably released the orphan for emigration and adoption, if the orphan has only one parent.

5. A final decree of adoption, if the orphan has been adopted abroad.

6. Proof that the orphan has been unconditionally abandoned to an orphanage, if the orphan is in an orphanage.

7. Proof that the preadoption requirements, if any, of the state of the orphan's proposed residence have been met, if the orphan is to be adopted in the United States.

*If filed while an advance processing application is pending or within one year of a favorable decision in a completed advance processing case, new filing fee not required.

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OTHER WAY

How to Start

1. Find an orphan to adopt.

2. File orphan petition in behalf of orphan.

Forms and Documents

1. Form I-600, Petition to Classify Orphan as an Immediate Relative.

2. The fingerprints of each adoptive parent on Form FD-258.

3. Proof of the prospective petitioners United States citizenship.

4. Proof of the marriage of the prospective petitioner and spouse, if married.

5. Proof of termination of any prior marriages of the prospective petitioner and spouse or unmarried prospective petitioner, if applicable.

6. A favorably recommended home study.

7. Filing fee.

8. Proof of orphan's age.

9. Death certificate(s) of the orphan's parent(s) if applicable.

10. Proof that the orphan's sole or surviving parent cannot give the orphan proper care and has, in writing, forever and irrevocably released the orphan for emigration and adoption, if the orphan has only one parent.

11. A final decree of adoption, if the orphan has been adopted abroad.

12. Proof that the orphan has been unconditionally abandoned to an orphanage, if the orphan is in an orphanage.

13. Proof that the preadoption requirements, if any, of the state of the orphan's proposed residence have been met, if the orphan is to be adopted in the United States.

 

I . Eligibility for Immigration Benefits As an Orphan

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A. What is an Orphan?

B. Who Can File an Orphan Petition?

C. How is the Immigration Benefit Gained?

D. What if the Child is in the United States?

A. What Is an Orphan?

Under immigration law, an orphan is a foreign child who has no parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents. An orphan is also a foreign child with only one parent who is not able to take care of the orphan properly and has in writing forever or irrevocably released the orphan 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 term "orphan" is defined in section 101 (b)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1 101(b)(a)(F).

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B. Who Can File an Orphan Petition?

A married United States citizen and spouse (no special age) or an unmarried United States citizen at least 25 years of age. The spouse does not need to be a United States citizen. The adoptive or prospective adoptive parent who signs the "certification of petitioner" on the orphan petition is called the petitioner.

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C. How Is the Immigration Benefit Gained?

If an orphan petition is approved, the beneficiary of the petition (the child) is considered to be an immediate relative of a United States citizen. This means that he or she can get an immigrant visa right away without being put on a visa waiting list with other applicants.

The orphan still must qualify for an immigrant visa just like any other foreign person. For example, the orphan cannot get a visa if he or she is excludable from the United States. One reason an orphan could be excludable is if he or she had a contagious disease. If an orphan petition is approved, then an application is made at an American consulate or embassy in the foreign country for an immigrant visa.

When an orphan enters the United States with an immigrant visa, the orphan is considered to be a lawful permanent resident of the United States, not a United States citizen. (Some general information about United States citizenship for a foreign adopted child is in Section VII of this publication.)

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D. What If the Child Is in the United States?

An orphan petition may not be filed in behalf of a child in the United States unless that child is in parole status and has not been adopted in the United States. 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 which is in some ways similar to applying for an immigrant visa in a foreign country.

For information on how a child in the United States can become a permanent resident if the child is not eligible to benefit from an orphan petition, please see Section VI of this publication.

 

II. Basic Orphan Petition Procedures

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A. Advance Processing

A. 1. A Faster Procedure

A. 2. Eligibility for Advance Processing

A. 3. Forms Used for Advance Processing

A. 4. Necessary Documents

A. 5. Decision

A. 6. Filing an Orphan Petition After an Advance Processing Application Has Been Filed

A. 7. Where to File an Orphan Petition After an Advance Procesing Application Has Been Filed

A. 8. Abandonment of Advance Processing

B. Orphan Petition

B. 1. What is an Orphan Petition?

B. 2. Two Types of Processing

B. 3. Forms Used for an Orphan Petition

B. 4. Necessary Documents

B. 5. Filing an Orphan Petition for a Known Child Without All Proof About the Child or the Home Study

B. 6. Decision

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A. Advance Processing

1. A Faster Procedure

A United States citizen who plans to adopt a foreign orphan but does not yet have a specific child in mind can have the immigration paperwork done much faster by using a procedure called advance processing. That means that this Service will do the part of the procedure on the prospective adoptive parent(s) first so that later only the part of the procedure on the child is necessary.

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. In such a case the petitioner may file an orphan petition at an overseas Service office or at an American consulate or embassy if there is no Service office in the country. There are Service offices in Austria, England, Germany, Greece, India, Italy, Kenya, Korea, Panama, the Philippines, Hong Kong, Mexico, Singapore, and Thailand.

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2. Eligibility for Advance Processing

An application for advance processing may be filed by anyone who is eligible to file an orphan petition. It may also be filed by an unmarried United States citizen at least 24 years of age as long as he or she will be at least 25 when an orphan petition is filed in 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 called the prospective petitioner.

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3. Forms Used for Advance Processing

a. Form I-600A, Application for Advance Processing of Orphan Petition, with the filing fee shown in the instructions to the form. This form is salmon or peach-colored. The instructions to this form contain important information and should be read carefully.

b. The fingerprints of each prospective adoptive parent on Form FD-258. It is a good idea to submit two Forms FD-258. for each prospective adoptive parent in case the first set of fingerprints turns out to be illegible. See Section III, E of this publication for more information about fingerprints.

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4. Necessary Documents

a. Proof of the prospective petitioner's United States citizenship. The types of proof are explained in detail on Form I-600A.

b. Proof of the marriage of the prospective petitioner and spouse, if married.

c. Proof of termination of any prior marriages of the prospective petitioner and spouse or unmarried prospective petitioner, if applicable.

d. A favorably recommended home study. This is a report on the ability of the adoptive or prospective adoptive parent(s) to care for a child or children. If the home study is not yet 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 of this publication for details about the home study.

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5. Decision

The Service 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) and the Service concludes that proper care could not be given to a child or children in that case, the Service makes an unfavorable decision. The prospective petitioner is notified about the reasons for the unfavorable decision. The prospective petitioner may appeal the decision.

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6. 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 the documents on the child. An orphan petition or petitions can be filed either when an advance processing application is pending or within one year of the date of completion of all advance processing in a case with a favorable decision. This date is shown on Form I-171H, Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petition.

No 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 one year of a favorable decision on an advance processing application. A filing fee is required, however, for any additional orphan petition.

If there has been an unfavorable decision in an advance processing case and the prospective adoptive parent(s) file an orphan petition anyway, a filing fee is necessary. Furthermore, 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.

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7. Where to File an Orphan Petition After an Advance Processing Application Has Been Filed

Normally an orphan petition is filed at the same Service 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 the prospective adoptive parent(s) travel abroad, the orphan petition may be filed abroad. In that case, the decision to file the petition abroad, instead of in the United States, is up to the petitioner, but all advance processing must be completed first with a favorable decision.

If the child lives in a country where there is a Service office in a case where the petitioner wants to file the petition abroad, the petition is filed at the Service office. Otherwise, the petition is filed at the closest American consulate or embassy. As mentioned in Section II, A of this publication, there are Service offices in Austria, England, Germany, Greece, India, Italy, Kenya, Korea, Panama, the Philippines, Hong Kong, Mexico, Singapore, and Thailand.

The prospective petitioner must state on the advance processing application where he or she wants to file the orphan petition. Accordingly, the application can be sent to the correct overseas Service office or American consulate or embassy when all advance processing is completed, if there is a favorable decision and if the orphan petition is to be filed in a foreign country.

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8. Abandonment of Advance Processing

If an orphan petition is not filed within one year from the date of completion of an advance processing application in a case with a favorable decision, 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 a new advance processing application or an orphan petition if he or she later decides that he or she wants to petition for an orphan. In that case, a new fee is necessary.

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B. Orphan Petition

1. What Is an Orphan Petition?

An orphan petition is a form which is filed for immigration benefits in behalf of an actual child. The child's name, date of birth, and other information about the child must be known in order for such a petition to be filed.

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2. Two Types of Processing

An orphan petition can be filed when:

a. an advance processing application is p e n d i n g or it is within one year of a favorable decision in a completed advance processing case, or

b. no advance processing application has been filed.

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3. Forms Used for an Orphan Petition

a. Form I-600, Petition to Classify Orphan as an Immediate Relative. This form is blue. The instructions to this form contain important information and should be read carefully.

The filing fee, which is shown in the instructions to the form, must always be paid except when an advance processing application is pending or when it is within one year of a favorable decision in an advance processing case. When more than one petition is submitted at the same time by the same petitioner in behalf of orphans who are brothers or sisters, however, only one fee is necessary.

b. The fingerprints of each adoptive or prospective adoptive parent on Form FD-258, unless an advance processing application is pending or unless it is within one year of a favorable decision in a completed advance processing case. It is a good idea to submit two Forms FD-258 for each adoptive or prospective adoptive parent in case the first set of fingerprints turns out to be illegible. See Section III, E of this publication for more information about the fingerprints.

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4. Necessary Documents

a. Proof of the orphan's age. The petitioner should submit a certificate of the orphan's birth if it can be obtained. If it cannot be obtained, the petitioner should submit an explanation along with he best available evidence of birth.

b. Death certificate(s) of the orphan's Parent(s) if applicable.

c. Proof that the orphan's sole or surviving parent cannot give the orphan proper care and has in writing forever or irrevocably released the orphan for emigration and adoption, if the orphan has only one parent.

d. A final decree of adoption, if the orphan has been adopted abroad.

e. Proof that the orphan has been unconditionally abandoned to an orphanage, if the orphan is in an orphanage.

f. Proof that the preadoption requirements, if any, of the state of the orphan's proposed residence have been met, if the child is to be adopted in the United States. These requirements are the conditions under state law and/or regulations that have to be met before a child is placed for adoption in a home. If it is not possible, under the laws of the state of the child's proposed residence, to submit this proof when the petition is first filed, it may be submitted later. The petition, however, will not be approved without it. See Section III, C of this publication for more information about preadoption requirements.

g. All proof relating to the petitioner which is described in Section II A of this publication unless this proof was submitted with a pending advance processing application or unless it is within one year of a favorable decision in a completed advance processing case.

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5. Filing an Orphan Petition for a Known Child Without All Proof About the Child or the Home Study

If any proof about the child or the home study is not yet available, the orphan petition may be filed without that proof or the home study. The fingerprints on Form(s) FD-258 and all other proof must be submitted with the petition.

If the necessary proof about the child or the home study is not submitted within one year from the date of submission of the petition, the petition is considered abandoned, and the fee is not refunded. If the petitioner later decides that he or she wants to petition for the same child or a different child, he or she must file a new advance processing application or orphan petition and pay a new fee.

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6. Decision

The Service must decide whether the adoptive or prospective adoptive parent(s) are able to care for the child properly, whether the child is an orphan as defined in immigration law, and whether all other requirements in the law and regulations have been met. If the petition is approved, Form I-171, Notice of Approval of Relative Immigration Visa Petition, is sent to the Petitioner.

If the petition is denied, the petitioner is notified about the reasons for the denial. The petitioner may appeal that decision.

 

III. Basic Orphan Petition Requirements

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A. Adoption Abroad

B. Adoption Abroad Which Does Not Meet All Requirements

C. Preadoption Requirements

D. Home Study

E. Fingerprints

A. Adoption Abroad

If the orphan was adopted abroad, the petitioner must prove that both the married petitioner and spouse or the unmarried petitioner personally saw the child prior to or during the adoption proceedings. The married petitioner and spouse must adopt the child jointly, or the unmarried petitioner must be at least 25 years of age at the time of the adoption.

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B. Adoption Abroad Which Does Not Meet All Requirements

If both the petitioner and spouse or the unmarried petitioner did not personally see the child prior to or during the adoption proceedings abroad or the adoption does not meet other requirements described in Section III, A above, the petitioner (and spouse if married) must submit a statement showing the petitioner's (and, if married, the spouse's) willingness and intent to readopt the child in the United States. If requested, the petitioner must submit a statement by an official of the state in which the child will reside that readoption is permitted in that state. In addition, proof of compliance with the preadoption requirements, if any, of that state must be submitted.

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C. Preadoption Requirements

If the orphan has not been adopted abroad, the petitioner and spouse or the unmarried petitioner must establish that the child will be adopted in the United States by the petitioner and spouse jointly or by the unmarried petitioner. The petitioner must check the block on the orphan petition, Form I-600, which shows the intention to adopt the child in the United States.

The petitioner and spouse or the unmarried petitioner must also prove that the preadoption requirements, if any, of the state of the orphan's proposed residence have been met. Preadoption requirements, if any, vary from state to state. Information on how to prove that these requirements have been met may be obtained from state and local officials who have jurisdiction in adoption matters, licensed public and private adoption agencies, or the Service office which has jurisdiction over the prospective adoptive parent(s)' place of residence.

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D. Home Study

A home study is required by section 204(d) of the Immigration and Nationality Act (8 U.S.C. 1154(d)), and must be submitted in support of an advance processing application or orphan petition. In the case of a child to be adopted in the United Stales, it must have a statement or attachment recommending the proposed adoption signed by an official of the responsible state agency in the state of the child's proposed residence or of an agency licensed by that state. In the case of a child adopted abroad, it must have a statement or attachment recommending the adoption signed by an official of the responsible state agency of any state or of an agency licensed in any state, in the United States. The licensed agency need not be located in the United States.

Both individuals and organizations may qualify as agencies. If the recommending agency is a licensed agency, the recommendation must set forth that it is licensed, the state in which it is licensed, its license number, if any, and the period of validity of its license.

The research for a home study, including interviewing, and the preparation of the home study may be done by an individual or group in the United States or abroad satisfactory to the recommending agency. A responsible state agency or licensed agency can accept a home study done by an unlicensed or foreign agency and use that home study as a basis for a favorable recommendation.

This is especially useful in a case where the petitioner lives outside the United States.

The home study, at a minimum, must cover the following:

1. The financial ability of the adoptive or prospective parent(s) to rear and educate the child.

2. A detailed description of the living accommodations where the adoptive or prospective parent(s) currently reside.

3. A detailed description of the living accommodations where the child will reside.

4. A factual evaluation of the physical, mental, and moral ability of the adoptive or prospective parent(s) to rear and educate the child.

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E. Fingerprints

The purpose of the fingerprint check conducted as part of an advance processing or orphan petition proceeding is to find out whether or not the adoptive or prospective adoptive parent(s) have ever been arrested. Whether a person has been convicted, the number of convictions, the nature of the offense(s), and whether the individual is considered to be rehabilitated are all factors in a decision on whether he or she is able to care for a child or children properly.

It is Service policy to expedite all orphan cases for humanitarian reasons. Nevertheless, it does take a certain amount of time for the Service to conduct fingerprint checks even though procedures are used to ensure that they will be done as quickly as possible. That is why prospective adoptive parents are encouraged to use the advance processing procedures described in Section II, A of this publication well in advance of locating a child for adoption. It is the responsibility of adoptive and prospective adoptive parents to make sure that they use the correct fingerprint forms. If the wrong forms are used, the Service will not receive a response to the fingerprint checks and the case will not be completed.

The forms must meet the following requirements:

1. Applicant Forms FD-258 must be used. (Personnel officer Forms FD-258 and Forms AR-4 may not be used.)

2. The form must be properly coded for use at the Service office where an advance processing application or orphan petition is filed. Adoptive and prospective adoptive parents must therefore get the forms from that office.

 

IV. Overseas Orphan Investigation

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A. Purpose

B. Question About the Child's Being an Orphan

C. Illness or Disability

D. Fraudulent Practices

A. Purpose

When an orphan petition is sent to an American consular or embassy for possible issuance of an immigrant visa to the child or when an orphan petition is filed at an American consulate or embassy, a consular officer does an overseas orphan investigation as part of the normal processing. This is usually done very quickly. However, the investigation and visa processing can sometimes be lengthy. Adoptive parents going abroad for processing should contact the appropriate American consulate or embassy or overseas Service office for details on processing times. The purpose of the investigation is to confirm that:

1. the child is an orphan as defined in immigration law, and

2. the child does not have an illness or disability which is not described in the orphan petition.

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B. Question About the Child's Being an Orphan

If it appears that the child is not eligible for classification as an orphan under immigration law, the Service notifies the petitioner and spouse, if married, and gives them the choice of withdrawing the petition or having the question considered in revocation proceedings. When there are revocation proceedings, the petitioner is given a chance to submit proof to overcome the stated grounds for revoking the approval of the petition.

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C. Illness or Disability

If it is found that the child has an illness or disability which is not described in the petition, the petitioner and spouse, if married, are given all the details about it either by the Service or the American consulate or embassy, depending on where the orphan petition was filed. The petitioner and spouse, if married, may then choose whether they still want to bring the child to the United States as an immigrant.

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D. Fraudulent Practices

Prospective adoptive parents are cautioned to avoid fraudulent adoption practices and agencies or individuals who engage in them. They should deal only with reputable sources of children for adoption and make sure that all proceedings which they engage in are legal. The Service has found that there is a potential for foreign children to be stolen from their parents for adoption in the United States by unscrupulous individuals and there is a market for fraudulent documents for children who are beneficiaries of orphan petitions. Arrangers entice clients by boasting that theirs is a faster, cheaper, and easier way to adopt children. Adoptive parents have been exploited by paying exorbitant fees and never getting the children or getting unhealthy children, or have been made parties to fraudulent acts.

When the Service has reason to believe that an orphan petition may involve fraudulent adoption practices, the overseas orphan investigation is done before the petition is approved. This, of course, may delay the completion of the case, but the investigation is always done as quickly as possible. Not only is it the responsibility of the Service to make every effort to ensure that an orphan petition does not involve fraudulent adoption practices, but the investigation is also done as a service to the adoptive parent(s) because it protects them from a potentially heartbreaking situation which may occur when an adoption is not legal.

 

V. More Difficult Issues in Orphan Cases

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A. Countries Where There Are No Legal Distinctions Between Legitimate and Illegitimate Children

B. Legitimated Children

C. Abandonment

D. Some Problems Adoptive and Prospective Adoptive Parents of Foreign Children May Face

A. Countries Where There Are No Legal Distinctions Between Legitimate and Illegitimate Children

Under immigration law, the child of a sole or surviving parent may be considered an orphan if that parent is unable to care for the child properly and has forever or irrevocably released him or her for emigration and adoption. Under some circumstances the child of an unwed mother may be considered to be an orphan as long as the mother does not marry (which would result in the child's having a stepfather under immigration law.) Prospective adoptive parents should work with their local Service office in such cases. The child of a surviving parent may also be considered to be an orphan if it is proven that one of the child's parents died and the surviving parent has not since married (which would result in the child's having a stepfather or stepmother under immigration law).

The term "parent" does not include the natural father of the child if the natural father has disappeared or abandoned or deserted the child or if the natural father has in writing irrevocably released the child for emigration and adoption. In cases where the documentation submitted indicates that the natural father has disappeared, or abandoned or deserted the child, the only release required will be the release from the mother. This procedure is not applicable in the case of a child from a country where there is no distinction between legitimate and illegitimate children. Documentation to support I-600 petitions will differ under this procedure. In some cases the I-600 will be accompanied by releases from both the mother and the natural father. In other cases there will be a release from the mother and evidence that the natural father has disappeared or abandoned or deserted the child. In all cases it must be evident that the mother is incapable of providing proper care to the child (according to the standards in the country of residence) .

Prospective adoptive parents should be aware that certain countries have passed laws which eliminate all legal distinctions between legitimate and illegitimate children. In those countries all children are considered to be legitimate or legitimated children of their natural fathers as of the effective date of the law in question. Of course, paternity must be established. A child born out of wedlock and living in a country that has such a law and whose paternity has been legally established has two parents even though the parents never married and may not be living together. Such a child cannot qualify as an orphan.

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 are born and live. If a child born out of wedlock is from a country which has eliminated all legal distinctions between legitimate and illegitimate children, he or she could still qualify for classification as an orphan under immigration law as long as there is proof that paternity has not been acknowledged before the civil authorities in that country.

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B. Legitimated Children

Most countries have legal procedures for the acknowledgement of children by their natural fathers. Therefore, adoptive and prospective adoptive parents of children who were born out of wedlock in any country should find out whether the children have been legitimated. 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. (See Section V, C below for information on abandonment.)

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C. Abandonment

A child who is abandoned by both parents may qualify for classification as an orphan under immigration law, but immigration law does not define the term "abandonment", and the subject is only discussed once in Service regulations .

According to the regulations, a child who has been unconditionally abandoned to an orphanage is considered to have no parents. A child is not considered to be abandoned, however, when he or she has been placed temporarily in an orphanage, if 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. (8 CFR 204.2(d)(1)).

A precedent decision of this Service, Matter of Del Conte, 10 I&N Dec. 761, deals with the issue of abandonment. In that decision, it was found that the children of an adulterous relationship who were cast from their home were abandoned. For information about Service precedent decisions, please see Appendix Cof this publication.

In the absence of other guidelines, it is extremely difficult to find abandonment when the child has not been unconditionally abandoned to an orphanage or when the child was not born of an adulterous relationship and cast from his or her home. The issue is very complicated. Each case must be decided, on its individual merits at the discretion of the adjudicating officer.

In deciding a case, an officer would use the definition of the word "abandon" which means to desert or give up with the intention of never again taking back one's rights. The intention to abandon is very important. So is the act which carries out the intention. Officers also use a definition of the word "abandonment" which means "neglect and refusal to perform the natural and legal obligations of care and support or conduct which (shows) a settled purpose to (give up) all parental duties and all parental claims to the child" (2 C.J.S. Adoption of Persons S61 (1972)).

While a finding of abandonment normally may 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 should get legal documentation to prove the claimed abandonment from a competent authority in the country where the child lives.

For example, in a case where a child is a ward of the court, the parents must have shown a refusal to meet the natural and legal obligations for care and support of the child and a determination to give up all parental claims to the child. On the other hand, if the parents have been deprived of custody only temporarily, and they are being given a chance to care for the child properly, the child would not be considered an orphan.

Sometimes people try to make a child who was not really abandoned appear to have been abandoned in order to be able to come to the United States. If a child has been made 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 which would establish that he or she is an orphan, other proof of abandonment must be submitted in support of the petition.

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D. Some Problems Adoptive and Prospective Adoptive Parents of Foreign Children May Face

Adoptive and prospective adoptive parents of foreign-born orphans face very complex requirements which appear in the law itself. The Service has kept the documentary, regulatory, and procedura1 requirements at a minimum while conforming with the intent of the law. In addition to the Service requirements, orphan petitioners must also comply with foreign and often state adoption laws.

The laws of some countries do not permit adoption. The laws of other countries limit who may adopt. There are also those children who are legally adopted abroad but who do not qualify as orphans because of their age or the fact that they have two living parents who have not disappeared or deserted or abandoned them. Adoptive and prospective adoptive parents should be aware that not all children adopted abroad are orphans and that what appears to be a foreign adoption may not really comply with the laws of the foreign state.

It is the responsibility of the petitioner to prove to the satisfaction of the Service that a child is eligible for classification as an orphan. The proof must be in the form of documents. This proof may vary, depending on the facts in the case. Therefore, it is sometimes necessary to submit documents in addition to those described in Section II, B, 4 of this publication.

 

VI. Other Procedures Concerning Adoptive Relationships

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A. Children Who Live for Two Years With the People Who Adopt Them

B. Nonpreference

Although most adoptive and prospective adoptive children gain immigration benefits through the section of law on orphan petitions, there are two other sections of law under which immigration benefits may be gained through adoptive relationships. All three sections say specifically that natural parents may not get any immigration benefits through their previous relationship to the child.

At the present time, there is no limit on the number of petitions for adopted and prospective adoptive children which may be approved for any one petitioner.

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A. Children Who Live for Two Years With the People Who Adopt Them

Immigration benefits may be gained under section 101(b)(1)(E) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(E)) based on an adoptive relationship if the child was adopted before the age of 16 and if the child has been in the legal custody of , and has resided with, the adopting parent or parents for at least two years. The two year legal custody and residence period requirement may take place either before or after the adoption.

This section was revised by the Immigration and Nationality Act Amendments of 1986 to allow the two-year legal custody requirement to take place either before or after the adoption is final. The legal custody begins when it is awarded to the prospective adoptive parent or parents by a legal process via the courts or other recognized government entity and evidenced by either a Final Adoption Decree or an official document in the form of a written award of custody. Legal custody and residence is accounted for in the aggregate; therefore, a break will not affect the time already fulfilled. Informal custodial/guardianship affidavits signed before a notary public are insufficient evidence for this purpose.

In addition, the legal custody and residence requirements may be satisfied when they have been met by only one of the adopting parent rather than both. In other words, a petition may be granted when only the petitioners spouse has met the requirements, as long as the spouse has also adopted the child. No home study is required by this section of the law. Furthermore, a person petitioning for a child under this section does not have to be a United States citizen, but may be a lawful permanent resident of the United States. In order to gain immigration benefits under this section, Form I-130, Petition for Alien Relative, must be filed and approved.

This section might be used, for example, by a United States military family stationed in a foreign country where the child was not an orphan because he or she had two married, living parents who had not abandoned him or her but the child lived with the military family for at least two years. This section could also be used in a case where the child was adopted before the age of 16, but is now older than 16. This section should not be confused with the section on orphan petitions which has completely different requirements.

Children are not the only people who can gain immigration benefits under this section. An adult adopted son or daughter or adoptive parent, sister, or brother can also gain immigration benefits through an adoptive relationship as the beneficiary of an I-130 petition as long as all the requirements of the law have been met and the legal adoption occurred before the person's 16th birthday. This section simply gives one of the definitions of "child" in immigration law.

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B. Nonpreference

Section 203(a)(7) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(7)) relates to nonpreference classification. Under nonpreference, there must be a favorably recommended home study and an irrevocable release for emigration and adoption in the case of an adopted or prospective adoptive child of a United States citizen or lawful permanent resident. The way a child could get nonpreference classification is by applying for an immigrant visa at an American consulate or embassy or applying for adjustment of status in the United States.

The issuance of an immigrant visa or adjustment of status under nonpreference requires that a visa number be available. That means that the child has to be put on a long visa waiting list with many other applicants. In fact, at this writing, nonpreference visa numbers have not been available in years. It therefore may not be possible for a child to become an immigrant under nonpreference, depending on visa number availability at the time of application. As explained in Section 1, D of this publication, adjustment of status is a procedure for becoming a lawful permanent resident of the United States which is in some ways similar to applying for an immigrant visa in a foreign country .

 

VII. United States Citizenship For a Foreign Adopted Child

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A. What is the First Step?

B. Ways of Becoming a United States Citizen

C. The Meaning of "Foreign Parent"

D. Forms Which Have to Be Filed

E. More Information

A. What Is the First Step?

Before a foreign adopted child can become a United States citizen, that child must first become a lawful permanent resident of the United States. The child can become a permanent resident by entering the United States with an immigrant visa or by using a procedure called adjustment of status in the United States. The ways a child can qualify to do this based on an adoptive relationship have been explained in this publication.

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B. Ways of Becoming a United States Citizen

A foreign child who is adopted by United States citizen(s) does not automatically become a United States citizen. A foreign child who is adopted by foreign parent(s) and who has become a permanent resident does automatically become a United States citizen if the parent(s) are naturalized before the child is 18. The child, however, must be unmarried and living with them when they are naturalized. (If both parents are foreign, both must be naturalized.)

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C. The Meaning of " Foreign Parent"

For purposes of automatic United States citizenship for an adopted child, "foreign parent" includes the following:

1. The surviving parent when the other parent has died.

2. The parent who has legal custody of the child when the parents are legally separated.

3. The foreign parent when the other parent is a United States citizen.

4. The mother when the child is illegitimate.

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D. Forms Which Have to Be Filed

An adopted child who becomes a citizen automatically through the naturalization of his or her adoptive alien parent(s) may apply for proof of citizenship with the INS. The adoptive parent(s) may file a Form N-600, Application for Certificate of Citizenship, with the nearest Service office. The adopted child must be unmarried, under 18 years of age, and residing with the adopted parent(s) in the United States as a lawfully admitted permanent resident alien.

A child who is adopted by a United States citizen parent or parents does not automatically become a United States citizen. The citizen parent(s) of an unmarried adopted child who does not automatically become a citizen of the United States may choose to apply for United States citizenship on behalf of the child by either an INS administrative process or by a naturalization process through the court .

The administrative process requires that a Form N-643, Application for Certificate of Citizenship in behalf of an Adopted Child, be filed with the INS before the child is 18 years of age. The child must be unmarried, adopted while under 16 years of age, and a lawful permanent resident of the United States. The child is not a citizen until the Form N-643 is approved and the certificate of citizenship is issued.

This administrative procedure is an alternative to and does not replace the procedure by which the United States citizen parent(s) may petition for the naturalization of an adopted child.

Under the naturalization by court procedure, the United States citizen parent(s) must file a Form N- 402, Application to File Petition for Naturalization in Behalf of Child, with INS. There is no waiting period necessary. Form N-402 can be filed as soon as the child is both adopted and a lawful permanent resident as long as he or she is unmarried and under 18 years. If the child is fourteen years of age or older, a Form FD-258, Fingerprint Card, and Form C-325, Biographic Information sheet must also be submitted with the Form N-402 application. The child's naturalization (admission to citizenship by the court) must bc completed before the child reaches 18 years.

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E. More Information

There is another Service publication (Form N- 17, Naturalization Requirements and General Information) with more information about naturalization and citizenship. It is available at Service offices.

 

VIII. Appendix

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A. Section of Law and Regulation Relating to Orphan Petitions

B. Forms Used in Orphan Cases

C. Precedent Decisions

D. 1. US District INS Offices

D. 2. Other US INS Offices

D. 3. Foreign INS Offices

A. Section of Law and Regulation Relating to Orphan Petitions

The following citations may be of interest to adoptive and prospective adoptive parents who want an in-depth knowledge of orphan petitions, adoption agencies, or voluntary agencies and attorneys who represent adoptive and prospective adoptive parents.

1. Sections of the Immigration and Nationality Act

101(b)(1)(F) (8 U.S.C. 1101(b)(1)(F); 204(a), (b), and (d) (8 U.S.C. 1154(a), (b), and (d); and 205 (8 U.S.C. 1155).

2. Sections of Regulation

8 CFR 204.1 (b); 204.2(a), (d), (e), (f), and (j); and 205.

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B. Forms Used in Orphan Cases

FORM FD-258 (Applicant) - For Fingerprints of Adoptive or Prospective Adoptive Parent(s)

FORM I-171 - Notice of Approval of Relative Immigrant Visa Petition (sent to petitioning parent when I-600 orphan petition is approved)

FORM I-171H - Notice of Favorable Concerning Determination Application for Advanced Processing of Orphan Petition

FORM I-600 - Petition to Classify Orphan as an Immediate Relative

FORM I-600A- Application for Advance Processing of Orphan Petition

FORM I-604 - Request for and Report on Overseas Orphan Investigation (internal form used by INS and consular officers)

Other Forms Used

FORM N-402 - Application to File Petition for Naturalization in Behalf of Child

FORM N-600 - Application for Certificate of Citizenship

FORM N-643 - Application for Certificate of Citizenship in Behalf of an Adopted Child

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C. Precedent Decisions

Precedent decisions are published decisions which are binding on Service officers.That means that the officers' decisions must be consistent with them.

The following are summaries of important precedent decisions about orphan petitions which may be of interest to adoptive and prospective adoptive parents. The complete decisions are available in public reading rooms of Service offices.

The decisions are published in Administrative Decisions Under Immigration and Nationality Laws of the United States. The first number in the citation "10 I&N Dec. 761" refers to the volume number. The second number refers to the page number.

Matter of Suh, 10 I&N Dec. 624

The employment record, financial status, military record, and arrest and conviction record of the petitioner are items properly considered about ability to care for an orphan.

Matter of T-E-C, 10 I&N Dec. 691

All preadoption requirements of the state of intended residence of the orphan must be met. The petitioner's financial status, work record, receipt of welfare, and current number of dependents are items properly considered about ability to care for an orphan.

Matter of Del Conte, 10 I&N Dec. 761

Although children born of an adulterous relationship of the mother may be considered to have two legal parents, where the husband has refused to acknowledge paternity or accept responsibility for their care, the mother is unable to care for them, and the children have been cast from the family and placed with a social agency, the children are considered to have been abandoned.

Matter of Kussell, et al., 11 I&N Dec. 302

The results of the guidance, supervision, and care of another child raised by the petitioner and spouse are properly considered about ability to care for an orphan.

Matter of Handley, 17 I&N Dec. 269

A foreign orphan who is in the United States and has been adopted in the United States is not eligible to benefit from an orphan petition.

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D. INS Offices

1. District Offices in the United States

ANCHORIDGE, AK 99513
New Federal Building
701 C. St, Room D229
ATLANTA, GA 30303
Fed. Annex Bldg
77 Forsyth St. SW
BALTIMORE, MD 21201
E.A. Garmatz Bldg
101 W. Lombard

BOSTON, MA 02203
J.F.K. Fed Bldg.
Government Center

BUFFALO, NY 14202
68 Court St.

CHICAGO, IL 60604
Dirksen Fed. Ofc. Bldg.
219 S. Dearborn St.

CLEVELAND, OH 44199
Anthony J. Celebreeze
Fed Bldg, Rm 1917
1240 E. 9th St.

DALLAS, TX 75242
Rm 6A21, Fed. Bldg
1100 Commerce St

DENVER, CO 80294-1799
1787 Federal Bldg
333 Mt. Elliot St

EL PASO, TX 79984
511 E. San Antonio
Rm 151

HARLINGEN, TX 78550
2102 Teege Ave

HELENA, MT 59626-()()36
Fed Bldg, Rm 512
301 S. Park
Drawer 10036

HONOLULU, HI 96809
P.O. Box 461
SQS Ala Moana Blvd.

HOUSTON, TX 77060
509 No. Belt

KANSAS CITY, MO 64153
9747 No Conant Ave.

LOS ANGELES, CA 90012
300 N. Los Angeles St.

MIAMI, FL 33138
7880 Biscayne Blvd.

NEWARK, NJ 07102
Federal Bldg.
970 Broad Street

NEW ORLEANS, LA 70113
Postal Service Bldg.
701 Loyola Avenue

NEW YORK, NY 10278
26 Federal Plaza

PHILADELPHIA, PA 19103
1600 Callowhill Street

PHOENIX, AZ 85025
Federal Building
230 N First Avenue

PORTLAND, ME 04103
739 Warren Avenue

PORTLAND, OR 92709
Federal Office. Bldg.
511 N.W. Broadway

ST. PAUL, MN 55101
923 New P.O. Bldg.
180 E. Kellogg Blvd.

SAN ANTONIO, TX 78206
Federal Building
727 E. Durango
Suite A301

SAN DIEGO, CA 92188
880 Front Street

SAN FRANCISCO, CA 94111
Appraisers Building
630 Sansome Street

SAN JUAN, PR 00936
GPO Box 5068

SEATTLE, WA 98134
815 Airport Way, So.

WASHINGTON, DC
4420 N. Fairfax Dr.
Arlington, VA 22203

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2. Other Service Offices in the United States Jurisdiction

AGANA, GU 96910
801 Pacific News Bldg.
238 O'Hara Street

ALBANY, NY 12207
U.S. Post Office & Courthouse
Rm. 220, 445 Broadway

ALBUQUERQUE, NM 87103
Federal Building
Rm. 1114, Box 567
517 Gold Avenue, S.W.

CHARLESTON, SC 28210
Federal Building
RM 110, 334 Meeting Street

CHARLOTTE, NC 29403
6 Woodlawn Green
Suite 138

CHARLOTTE AMALIE,
ST. THOMAS, VI 00801
Federal Building
P. O. Box 629

CHRISTIANSTED
ST. CROIX, VI 00850
P. O. Box 1270 Kingshill

CINCINNATI, OH 45201
U. S. Post Office and Courthouse
100 East 5th Street
P.O. Box 537

FRESNO, CA 93721
U.S. Courthouse
Federal Building, Rm 1308
1130 O Street

HARTFORD, CT 06103-3060
Ribicoff Federal Building
450 Main Street

INDIANAPOLIS, IN 46204
Rm. 148
46 East Ohio Street

JACKSONVILLE, FL 32201
400 W. Bay St., Room G-18
P.O. Box 35029

LAS VEGAS, NV 89101
Federal Building
U.S. Courthouse
300 S. Las Vegas Blvd.
Rm 104

LOUISVILLE, KY 40202
RM. 601, U. S. Courthouse Bldg.
West 6th & Broadway

MEMPHIS, TN 38103
814 Federal Bldg.
167 North Main Street

MILWAUKEE, WI 53202
RM. 186, Federal Building
517 East Wisconsin Avenue

NORFOLK, VA 23510
Norfolk Federal Building
RM. 439, 200 Granby Mall

OKLAHOMA CITY, OK 73102
4149 Rloh Line Blvd.
Suite 300

PITTSBURGH, PA 15222
2130 Federal Building
1000 Liberty Avenue

PROVIDENCE, RI 02903
Federal Building
U.S. Post Office
Exchange Terrace

RENO, NV 89502- 1321
712 Mill Street

ST. ALBANS, VT 05478
Federal Building
P.O. Box 328

ST. LOUIS, MO 63101
Rm . 100
210 North Tucker Blvd.

SALT LAKE CITY, UT 84101
210 West 4OO South Street

SAN JOSE, CA 95113
RM. 1150
280 South First Street

SPOKANE, WA 99201
691 U. S. Courthouse Building

TAMPA, FL 33609
5509 Gray Street
Suite 113

TUCSON, AZ 85701-1386
Federal Building
300 W. Congress, FB-37

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3. Service Offices in Foreign Countries

ATHENS, GREECE
U.S. Immigralion and Naturalization Scrvice
c/o American Embassy
APO 09253

BANGKOK, THAILAND
U.S. Immigration and Naturalization Service
c/o Amorican Embassy, Box 12
APO San Francisco. CA 96346-0001

CIUDAD JUAREZ, MEXICO
U.S. Immigration and Naturalization Service
c/o American Consulate General
P.O. Box 10545
El Paso, TX 79995-0545

FRANKFURT, GERMANY
U.S. Immigration and Naturalization Service
c/o American Consulate General
Box 12
APO NY 09213

GUADALAJARA, JAL, MEXICO
U.S. Immigration and Naturalization Service
Box 3088-Guadalajara
Laredo, TX 78044

HONG KONG, BR1TISH CROWN COLONY
U.S. Immigration and Naturalization Service
c/o American Consulate General
Box 30
FPO San Francisco, CA 96659-0002

KENYA
c/o American Embassy
Narobi
Box 12
APO NY 09675

LONDON, ENGLAND
U.S. Immigration and Naturalization Service
c/o American Embassy
Box 6
FPO NY 09509

MANILA, PHILIPPINES
U.S. Immigration and Naturalization Service
c/o American Embassy
APO San Francisco, CA 96528

MEXICO ClTY, MEXICO
U.S. Immigration and Naturalization Service
c/o American Embassy
P.O. Box 3087, Rm. 118
Laredo, TX 78044

MONTERREY, N..L, MEXICO
U.S. Immigration and Naturalization Service
c/o American Consulate General
P.O. Box 3098
Laredo, TX 78041

NEW DELHI, INDIA
U.S. Immigration and Naturalization Service
c/o American Embassy
Washington, D.C. 20520-9000

PANAMA CITY, REPUBLIC OF PANAMA
U.S. Immigration and Naturalization Service
c/o American Embassy
APO Miami. FL 34002

ROME, ITALY
U.S. Immigration and Naturalization Service
c/o American Embassy
APO NY 09794-0007

SEOUL, KOREA
U.S. Immigration and Naturalization Service
c/o American Embassy
APO San Francisco, CA 96301

SINGAPORE, REPUBLIC OF SINGAPORE
U.S. Immigration and Naturalization Service
c/o American Embassy
FPO San Francisco. CA 96699-001

TIJUANA, MEXICO
U.S. Immigration and Naturalization Service
c/o American Consulate General
P. O. Box 1358
San Ysidro, CA 92073-1358

VIENNA, AUSTRIA
U.S. Immigration and Naturalization Service
c/o American Consulate General
APO NY 09108

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