INS Memo on Adopted Child Definition

December 28, 1999

Memorandum For:

All Regional Directors
All Service Center Directors
All District Directors
All Officers in Charge

From:

Michael Cronin
Acting Associate
Office of Programs

Subject:

Adopted alien children less than 18 years of age considered a "child" under the Immigration and Nationality Act per legislative action.

This memorandum is to inform field offices of recent action by Congress, Public Law 106-139, signed by the President on December 7, 1999, affecting the age of an adopted alien "child" as defined in the Immigration and Nationality Act (Act). Further information regarding the implementation of this legislation will be forthcoming.

Definitions

The legislation amends the Act to provide that an adopted alien child who is under the age of eighteen may be considered a "child" as defined in the Act, if the child is adopted with or after a sibling who is also considered a "child" under the Act. This change in law is only applicable when the sibling has been or will be adopted by the same adoptive or prospective adoptive parents. The legislation addresses the two definitions of an adopted alien child under section 101(b)(1) of the Act. Section 101(b)(1)(E) defines a “child” as including "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act." Public Law 106-139 amends section 101(b)(1)(E) of the Act to add that a child who is a natural sibling of an adopted child described above, and who was adopted by the adoptive parent or parents of the sibling while the child was under the age of eighteen, is also a "child” as defined by the Act. The child must otherwise fall under the definition of a child under paragraph (E) except that the child was adopted while under the age of eighteen.

Section 101(b)(1)(F) defines an adopted alien child as a "child under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b), 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 or surviving parent is incapable of providing proper care and has in writing irrevocably released the child for emigration and adoption” to a United States citizen parent. Public Law 106-139 amends this definition to include the natural sibling of a previously adopted child, when the sibling has been adopted abroad or is coming to the United States for adoption by the same United States citizen parent(s) or prospective parent(s), if the child is under the age of 18 when the petition to accord a classification as an immediate relative under section 201(b) of the Act is filed on his or her behalf.

These exceptions relating to the sibling of an adopted alien child apply whether the children have been adopted through legal custodianship or as an orphan, as defined in the Act. The exceptions apply equally if either the adopted alien child or sibling has been adopted after being in the guardianship of the U.S. citizen parent(s) for more than two years as defined in paragraph (E) or falls under the definition of an orphaned child under paragraph (F).

Amendments relating to naturalization

This legislation also amends the sections 101(c)(1) and 322(a)(4) of the Act relating to naturalization to conform with the changes explained above. The legislation amends these sections by changing only the permitted age of adoption for the sibling of an adopted alien child under the Act.