Chapter 4 - Eligibility Requirements Specific to Orphans

A. Eligibility Requirements

To meet the specific orphan eligibility requirements and meet the definition of orphan under the Immigration and Nationality Act (INA), a child must either have:

• No legal parents because of the death or disappearance of, abandonment or desertion by, or separation from or loss of both parents; or

• A sole or surviving legal parent who is incapable of providing proper care.^[1]

The loss of each of the child’s parents must meet the definition of at least one of these terms under immigration law. The child is not required to have lost each parent in the same way. For example, one parent may have been separated from the child, while the other parent may have abandoned the child to an orphanage.

Generally, USCIS first evaluates whether the child has no legal parents because of abandonment, desertion, disappearance, loss, death, or separation. USCIS generally conducts a sole or surviving parent analysis only if a child does not meet any of those definitions and when:

• There has been a direct relinquishment of the child by the birth mother, or by the birth father as a surviving parent, to the prospective adoptive parent (PAP); or

• The child has been released or relinquished in anticipation of, or preparation for, adoption to a third party providing custodial care to the child who is not authorized to provide custodial care^[2] under the child welfare laws of the foreign-sending country.^[3] 

Definitions

Foreign official documents and laws may use different terms from those used in U.S. immigration law or use the same terms but with different meanings. A child must meet the definition of an orphan as defined by U.S. immigration law.^[4] To determine if the child meets one of the below definitions under U.S. immigration law, USCIS considers the laws of the child's country of origin and what actions the foreign competent authorities must take. USCIS also considers the actual facts and circumstances of the case as supported by the evidence of record.

B. No Legal Parent

1. Abandonment

Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrendering such rights, obligations, claims, control, and possession. Abandonment means that the child’s parent(s):

• Willfully forsake all parental rights, obligations, and claims to the child, as well as all control over and possession of the child; and

• Acted without intending to transfer or without transferring these rights to any specific person(s).

If the parent(s) released the child to a third party to provide custodial care prior to the adoption, the third party was authorized under the child welfare laws of the foreign-sending country.

Abandonment does not include a release or relinquishment by one or both parents: 

• Directly to the PAP;^[5]

• To an authorized third party for a specific adoption;

• To a third party that is not authorized under the child welfare laws of the foreign-sending country to accept released or relinquished children in anticipation of or preparation for adoption; or

• For temporary placement in an orphanage if the parent(s) express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child.

Release to an Orphanage

U.S. immigration law generally considers a child whose parent(s) have unconditionally released him or her to an authorized orphanage to be abandoned.

It is not uncommon for parents in some countries to entrust their children to the care of orphanages temporarily without intending to abandon the child or for the child to be adopted. USCIS does not consider such releases to be unconditional, and they do not meet the definition of abandoned under U.S. immigration law.

Ongoing Contact

A child can still meet the abandonment definition even if the birth parent(s) show an interest in ongoing contact or the adoption service provider and the PAP commits to ongoing contact with birth parents. However, USCIS may further investigate if:

• There is any indication that the birth parent(s) did not understand the finality of adoption; or

• The release was not unconditional.

2. Desertion

Desertion means:

• The parent(s) have willfully forsaken the child;

• The parent(s) have refused to carry out their parental rights and obligations; and

• As a result, the child has become a ward of a competent authority in accordance with the laws of the foreign-sending country.

Desertion does not mean that the parents have disappeared, but rather that they refuse to carry out their parental rights and obligations towards the child. Desertion differs from abandonment in that the parents have not taken steps to divest themselves of parental duties, but the parents' inaction has caused a local authority to step in to assume custody of the child. 

3. Disappearance

Disappearance means:

• The parent(s) have unaccountably or inexplicably passed out of the child's life;

• The parent(s)' whereabouts are unknown;

• There is no reasonable hope of the parent(s)’ reappearance; and

• A competent authority determined reasonable efforts were made to locate the parent(s) as required by the laws of the foreign-sending country. 

4. Loss

Loss means the involuntary severance or detachment of the child from the child’s parents:

• In a manner that is permanent;

• That is caused by a natural disaster, civil unrest, or other calamitous events beyond the control of the parents; and

• Is verified by a competent authority in accordance with the laws of the foreign-sending country.

5. Death

Death means one or both parents are legally deceased. A child meets orphan requirements if:

• The child’s parent(s) are legally deceased; and

• The child has not acquired another parent (such as a stepparent or legal adoptive parent) as defined by U.S. immigration law.

6. Separation

Separation (commonly known as termination of parental rights) means:

• The involuntary severance of the child from the child’s parents by action of a competent authority for good cause (such as child abuse or neglect) and in accordance with the laws of the foreign-sending country;

• The competent authority properly notified the parents and granted the opportunity to contest such action; and

• The termination of all parental rights and obligations is permanent and unconditional.

C. Sole or Surviving Parent

1. Sole Parent

Only a birth mother can be a sole parent. The birth mother may qualify as a sole parent if:

• The birth mother was unmarried at the time of the child’s birth (child was born out of wedlock);^[6]

• The child was not legitimated while in the legal custody of the birth father (as described in the legitimation section below);

• The birth father is unknown, or has disappeared, abandoned, or deserted the child, or irrevocably released the child for emigration and adoption (in writing), in accordance with the laws of the foreign-sending country;

• The child does not have any other legal parents within the meaning of U.S. immigration law;^[7]

• The birth mother is incapable of providing proper care (is unable to provide for the child’s basic needs, consistent with the local standards of the foreign-sending country);^[8]and

• The birth mother, in writing, irrevocably releases the child for emigration and adoption, in accordance with the laws of the foreign-sending country.

Legitimation

The birth mother cannot be a sole parent if the child was legitimated while in the legal custody of the birth father. Legitimation means “placing a child born out of wedlock in the same legal position as a child born in wedlock.”^[9] The law of the child’s residence or domicile, or the law of the father’s residence or domicile, is the relevant law to determine whether a child has been legitimated. It is not necessary to consider whether a child has been legitimated unless the birth father ever had sole or joint legal custody of the child. ^[10]

An officer must evaluate legitimation, paternity, and legal custody separately under the laws of the particular country. It is possible for a child’s paternity to be established, but for the child to not be legitimated. It is also possible for a child’s paternity to be established, but for the child’s father to never have had legal custody. Legitimation, however, cannot be established unless paternity has been established.^[11]      

2. Surviving Parent

Surviving parent means 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 U.S. immigration law.^[12]

Essential elements include:

• One living parent;

• One deceased parent;

• The child has not acquired a new legal parent;^[13]

• The living parent is incapable of providing proper care;^[14] and

• The living parent has, in writing, irrevocably released child for emigration and adoption in accordance with the laws of the foreign-sending country.

D. Other Legal Parents

USCIS considers a parent to include any person who is related to a child as the child’s legal parent, mother, or father as specified in the definition under U.S. immigration law.^[15] The officer must determine for each parent whether the person has legal rights to the child in accordance with the laws of the foreign-sending country. If the officer determines a parent is a legal parent, the officer must determine whether the child has lost the parent.

Stepparents

USCIS must consider the existence of a stepparent in determining whether a child is an orphan.^[16] The officer must determine whether the stepparent has legal rights to the child in accordance with the laws of the foreign-sending country.

If an officer determines that the child has a stepparent, the officer should request additional evidence from the PAP, including:

• A copy (with a certified English translation) of the relevant statutes, regulations, court judgments, or other legal authority from the foreign-sending country addressing whether a stepparent has a legal parent-child relationship to the stepchild; and

• A statement from the stepparent (with a certified English translation) indicating that the stepparent has neither adopted the stepchild nor obtained any other form of legal custody of the stepchild and has no interest in doing so.

USCIS considers a stepparent to be a parent for purposes of adjudication of an orphan petition if:

• The stepparent actually adopted the stepchild as specified in U.S. immigration law;^[17]

• Under the law of the foreign-sending country, the marriage between the parent and stepparent creates a legal parent-child relationship between the stepparent and stepchild; or

• The stepparent has obtained legal custody of the stepchild so that the stepparent does have a legal relationship to the stepchild.

In some jurisdictions, a stepparent does not have a legal parent-child relationship to a stepchild and would therefore not have any legal standing to perform any action terminating the non-existent rights and duties. USCIS does not consider a stepparent to be a child's parent for purposes of an orphan petition if the PAP establishes that, under the law of the foreign-sending country, the stepparent has no legal parent-child relationship to a stepchild.

The burden is on the PAP to establish that a stepparent has no legal parent-child relationship to the child. The PAP may not simply assert that the stepparent has no legal parental rights in relation to the child.

If the officer determines the stepparent is a legal parent, the officer must determine whether the child has lost the stepparent (in addition to the birth father and birth mother).

Footnotes

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[^ 1] See INA 101(b)(1)(F).

[^ 2] Custodial care prior to an adoption must be provided without transferring these rights to any specific person(s). USCIS considers placement of a child with a third party that is not authorized to provide custodial care in anticipation of, or preparation for, adoption, to be a direct relinquishment. Direct relinquishments are excluded from the definition of abandonment.

[^ 3] That is, the country of the child's citizenship, or if the child is not permanently residing in the country of citizenship, the country of the child's habitual residence. This excludes a country to which the child travels temporarily, or to which the child travels either as a prelude to, or in conjunction with, adoption or immigration to the United States. See 8 CFR 204.3(b).  

[^ 4] See INA 101(b)(1)(F). See 8 CFR 204.3(b).

[^ 5] To be considered abandonment, a direct relinquishment by a sole or surviving parent must meet the requirements for an irrevocable release by a sole or surviving parent, as well as that the parent is incapable of providing proper care. See Section C, Sole or Surviving Parent [5 USCIS-PM C.4(C)].

[^ 6] In November 1995, a statutory amendment changed references in INA 101(b)(1)(A), (1)(D), and INA 101(b)(2) from “legitimate” and “illegitimate” children to “children born in wedlock” and “children born out of wedlock,” respectively. See Pub. L. No. 104-51 (PDF) (Nov. 15, 1995). Guidance was issued concerning the adjudication of orphan petitions in Immigration and Naturalization Service (INS) Cable HQ 204.21-P, 204.22-P. This INS guidance remains in effect for USCIS. The definition in 8 CFR 204.3 has not yet been updated to reflect the statutory amendment. 

[^ 7] See INA 101(b)(2).

[^ 8] Incapable of providing proper care means that a sole or surviving parent is unable to provide for the child's basic needs, consistent with the local standards of the foreign-sending country. This determination is not limited to economic or financial concerns. A parent could be unable to provide proper care due to a number of reasons, including, but not limited to: extreme poverty; medical, psychological, or emotional difficulties; or long-term incarceration. See 8 CFR 204.3(b).

[^ 9] See Matter of Moraga (PDF), 23 I&N Dec. 195, 197 (BIA 2001).

[^ 10] The natural father of the child will be presumed to have had legal custody of that child at the time of legitimation, in the absence of affirmative evidence indicating otherwise. See Matter of Rivers (PDF), 17 I&N Dec. 419 (BIA 1980). However, it is possible for a child to have been legitimated by operation of law, but for the father to never have had legal custody.

[^ 11] However, the establishment of paternity may or may not result in the birth father having legal custody, depending on the laws where the child or birth father resides and any applicable court decisions.

[^ 12] See INA 101(b)(2).

[^ 13] See Section D, Other Legal Parents [5 USCIS-PM C.4(D)].

[^ 14] Incapable of providing proper care means that a sole or surviving parent is unable to provide for the child's basic needs, consistent with the local standards of the foreign-sending country. This determination is not limited to economic or financial concerns. A parent could be unable to provide proper care due to a number of reasons, including, but not limited to, extreme poverty; medical, psychological, or emotional difficulties; or long-term incarceration. See 8 CFR 204.3(b). 

[^ 15] See INA 101(b)(2).

[^ 16] Under the law of some jurisdictions, a stepparent may adopt the stepparent’s spouse's children without terminating the legal parent-child relationship between the children and their other parent. The adoptive stepparent may then qualify as a parent through INA 101(b)(1)(E), as well as 101(b)(1)(B).

[^ 17] See INA 101(b)(1)(E).