Identifying a Child
Foreign Service personnel can be confronted with a situation where a child needs a home and their hearts go out to rescue a child in dire need of a family. The domestic employee of a Foreign Service family says: Please, take my child and give her a better life. The poor family living on the street pleads: „Rescue my child. We cannot feed him.” To determine whether this child might be adoptable by U.S. Citizenship and Immigration Services (USCIS) standards is quite another story.
The fact that the mother says I give you my child does not necessarily make that child eligible under U.S. immigration law to be brought to the U.S. as an „orphan.”
Determining if the child is eligible for an immigrant visa to the States in accordance with U.S. Citizenship and Immigration Services (USCIS) regulations
USCIS rules are very clear on this point. A person considering adoption must understand these criteria. Misunderstanding the definition of „orphan is the problem that most often accounts for delays or denials when adopting children. Local country laws may be less stringent than the USCIS regulations. The local laws might allow you to proceed with the adoption of a child. You take the child into your home and become emotionally attached with that child becoming very much a member of your family. Then you receive the devastating news that you are unable to get USCIS clearance to have that child receive an immigrant visa to the States. To prevent this traumatic situation you must understand the USCIS definition of “orphan” as stated in the amended Immigration Act of 1952. In order to obtain an immigrant visa, the child must qualify as an orphan under U.S. law, not under the law of the foreign country in which you are adopting.
The definition of „orphan” is:
„…a child under the age of sixteen who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole surviving parent is incapable of providing the proper care (according to the standards of adoptee’s country) and has, in writing, irrevocably released the child for immigration and adoption.”
Note: Siblings can be adopted provided the sibling is an orphan under the age of 18 and is adopted at the same time or later, and by the same adoptive parents as a natural sibling who is/was an orphan under the age of 16.
- A child is not normally considered „abandoned or deserted” if he or she lives with his or her birth parent(s) prior to the adoption, or if the birth parent(s) has any control over who will adopt their child. This is a crucial point. You might have a very difficult time convincing USCIS that the child was truly abandoned. Abandoned to you may mean that the parent has chosen to give up the child. Giving that child up to you does not meet the criteria of the USCIS regulations. In order to protect children, and protect children from being sold to an adopting parent, the rules stringently state that the child be irrevocably released. That means they are released without condition. If someone hands you a child and says „take this child” you will have a tough road ahead of you to prove the child is abandoned. Local law may support your efforts if they have a method for determining abandonment. In some countries, there is a system for seeking a parent of the child and if no one claims the child after a certain period of time they can then be considered abandoned, by the laws of that country. This might be what USCIS will accept. Be sure you check with the USCIS office that covers your region to be sure you understand this part of the process.
- A release by the birth parent(s) to a prospective adoptive parent(s) for adoption does not constitute abandonment. Also note that a birth parent(s) releasing a child to a third party for custodial care in preparation for adoption does not constitute abandonment.
- Release by one birth parent does not mean that in the laws of that country the other birth parent has no rights. There may be occasion where the other parent can reclaim that child at any point.
- A child is not considered abandoned if he or she is placed in an orphanage for a temporary period where the parent(s) has expressed the intention to retrieve the child or is contributing or attempting to contribute to the support of the child or who shows ongoing interest in the child.
- The child is considered abandoned if given unconditionally by the birth parent(s) to a governmental agency, a court, an adoption agency or orphanage which is authorized under child welfare laws of that country to act in such a capacity.
If your identified child is not an orphan
If you cannot meet the standards of the USCIS abandonment rule, but have the adoptive child in your legal and physical custody for at least two years and can meet the requirements of the local authorities, there is another way to proceed.
There is a provision that allows a child to enter the U.S. under an IR-2 visa. The requirements are that the child must be under the age of 16 years and has been in the legal custody of, and has lived with (physical custody of) the U.S. parent(s) for at least two years, outside of the United States. This „two year provision” applies to prospective parents who are temporarily residing abroad. The parent(s) must have followed the custody or adoption procedures of the foreign country of the child. After that two year period outside of the U.S. (and that can be in more than one country), the child can enter the United States on an IR-2 visa. The U.S. adoption procedures will then have to be completed in the United States.
This method, though it is perfectly legal and can work, leaves the family vulnerable to time constraints and travel inconveniences until the process is completed. The child could visit the United States on a visitor’s visa before those two years of overseas residency had accumulated but would have to be able to aquire a local country passport and a U.S. visa. Parents would be required to cover all the travel expenses until the child could be included on the parent’s orders – which could not occur until the child’s adoption was completed in the United States. The child would also not be covered by the Department of State medical program. Insurance companies might cover the child from the time the child lives with the parent, but that would need to be clarified with the individual insurance provider.
Information provided by the Family Liaison Office
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