DOS Cable on Technical Correction of Orphan Definition

Routine ALDAC, Special Embassy Program

Routine HQINS WASHDC

AFSI

VISAS

E.O. 12958: N/A

TAGS: CVIS, KOCI

SUBJECT: Immigrant Visas: Technical Correction on Orphan Definition

REF: State 281038

Note: This ALDAC is being issued during the partial government shutdown because State 293186 authorized posts to continue issuing orphan immigrant visas, and guidance herein is essential to the adjudication of some pending cases.

1. Summary: Legislation changing the way the INA refers to children born out of wedlock has been signed into law. It changes the effects of local legitimacy laws on children qualifying as orphans under the sole parent provisions of INA 101(B)(1)(F). End summary.

2. INS has just issued interim procedures for the implementation of public law 104-51, which was signed by the President on November 15, 1995, and became effective immediatley. In brief, the law amends the INA to allow children born out of wedlock to be considered to have a “sole parent” within the meaning of INA 101(B)(1)(F) if the father has disappeared or abandoned or deserted the child, or if the father has in writing irrevocably released the child for emigration and adoption. Local laws considering an out-of-wedlock child to be legitimate no longer preclude the mother from being regarded as a “sole parent.”

3. This ALDAC explains the effect of the changes, and provides interim guidance concerning the determination of “orphan” and adjudication of pending and new I-600 orphan petitions. Post may immediately use this guidance to process I-600 petitions and IV applications and to advise parents of INS procedures. Septel will discuss the effect of this legislation on other requests for benefits based on parent-child relationships.

Background

4. Public Law 104-51 updates the definitions of “child”, “Parent”, and “Father” as used in titles I and II of the Immigration and Nationality Act. It replaces the words “legitimate child” with the words “child born in wedlock” and replaces “illegitimate child” with the words “child born out of wedlock” in Sections 101(b)(1)(A), 101(b)(1)(D), and 101(b)(2) of the ACT.

5. For posts in countries where all children have been considered legitimate as birth, the former INA references to “legitimate,” and the INS definitions of orphan derived from them, were problematic (see Reftel for explanation of problems). This no longer the case, as public law 104-51 changes the wording in INA. The legislation changes the terms “legitimate” and “illegitimate” to “born in wedlock” and “born out of wedlock” in INA 101(B)(1) and (2). INS has issued interim guidance on the adjudication of I-600 petitions in light of the new language. Guidance contained in this cable parallels in this interim guidance.

Part I. Orphan Petitions

6. A. Effect of statutory change on eligibility for orphan classification under section 101(b)(1)(F) of the ACT:

7. This change allows a child to be considered as having a “sole parent” (the birth mother if:

1) The child was born out of wedlock; and

2) The child has not been legitimated under the law of the child’s residence or domicile or under the law of the natural (birth) father’s residence or domicile while the child was in the legal custody of the legitimating parent or parents; and

3) The child has not acquired a stepparent; and

4) The natural (birth) father has disappeared or abandoned or deserted the child or if the natural (birth) father has in writing irrevocably released the child for emigration and adoption.

8. Because of the is statutory change, it will no longer be necessary to determine whether a child born out of wedlock is regarded as legitimate or illegitimate under the laws of the foreign-sending country. However, if the natural (birth) father has ever had sole or joint legal custody of the child, it will still be necessary to determine whether the child may have been legitimated under the laws of the child’s or the father’s residence or domicile. The subsequent marriage of the child’s birth parents will legitimate a child born out of wedlock in most countries. Countries may also have established other procedures for legitimation. In countries where all children are regarded as legitimate at birth, a child who has been acknowledged or recognized by the natural (birth) father while the child was under 18 and in the legal custody of the father or the natural (birth) parents, may be regarded as having been legitimated.

9. The changes in the INA do not affect the other requirements for orphan classification. A child who has been determined to have a “sole parent” will be eligible for orphan classification based on the birth mother’s release of the child directly to the prospective adoptive parent(s) only if the birth mother is unable to provide the proper care for the child and has in writing irrevocably released the child for emigration and adoption. The child and the prospective or adoptive parents must also meet the other requirements of Section 101(b)(1)(F) of the ACT relating to age, assurances of proper care, etc.

Part II: Adjudication of Orphan Petitions Pending Issuance of New Regulations:

10. INS will issue a rule amending 8 CFR 204.3 as soon as possible. In the interim period, new and pending orphan petitions should be adjudicated under the new statutory provisions, in accordance with the following procedural guidelines:

(1) Notice of intent to deny or revoke approval or orphan petition sent, but no final decision issued:

All pending orphan petitions, including those for which INS has not yet issued a final decision but has sent the petitioner a notice of intent to deny or a notice of intent to revoke the approval of the petition, must be adjudicated under the new statutory provisions. If the orphan petition was properly filed during the validity period of the petitioner’s advanced processing application, no new advanced processing application will be required.

(2) Previous I-600 petition denied or approval revoked because the “sole parent” definition was not applicable to a legitimate child born out of wedlock:

If the United States citizen petitioner believes that the child will qualify for classification as an eligible orphan under the new statutory provisions, he or she may file a new orphan petition on the child’s behalf. The child must meet all the requirements of the statute at the time the new petition is filed.

The new law does not extend the validity of an expired advanced processing application. In addition to providing evidence of the child’s eligibility for orphan classification, the petitioner must file the new orphan petition:

(A) Concurrently with an advanced processing application;

(B) At the INS office currently processing the petitioner’s pending advanced processing application; or

(C) With evidence that INS has approved an advanced processing application for the petitioner (and his or her spouse, if married) and that the approval has not expired.

3) Denial of revocation issued on or after November 15, 1995:

Any case in which a denial was issued or the approval of an orphan petition has revoked on or after November 15, 1995, should be reopened on an INS motion if the orphan petition was denied or the approval revoked solely because a legitimate child who was born out of wedlock could not be considered to have a sole parent under the former statutory and regulatory provisions. No fee will be required.

4) Motion to Reopen or Reconsider:

A petition may file a motion to reopen or reconsider the denial of an orphan petition in accordance with the provisions of 8 CFR 103.3 under 8 CFR 103.3, such motions must be filed within 30 days of the date the denial was issued.

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