DOS Cable Discusses Orphan Classifications

UNCLASSIFIED TELEGRAM

June 16, 2001

To: ALL DIPLOMATIC AND CONSULAR POSTS - ROUTINE

Origin: VO

From: SECSTATE WASHDC (STATE 105804 - ROUTINE)

TAGS: CVIS

Captions: VISAS

Subject: DETERMINING ORPHAN VISA CLASSIFICATION

Ref: A) STATE 33548; B) STATE 9319

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1. Summary. The correct classification of immigrant visas issued to orphans is imperative due to the recent passage of the Child Citizenship Act of 2000 (Public Law No. 106-395). That Act confers automatic U.S. citizenship upon IR-3 orphans upon their admittance to the United States as legal permanent residents, but not to those orphans admitted as IR-4s. VO would like to remind IV issuing posts, therefore, to take particular care to correctly classify orphan visas and to inform adoptive parents of the significance of the immigrant visa classification their child receives. End Summary.

2. Section 101(b)(1)(F) of the INA defines a child as an orphan either adopted abroad or to be adopted in the United States. The approval of an I-600 "Petition to Classify Orphan as Immediate Relative" is considered prima facie evidence that a particular child satisfies the requirements of that subsection. An orphan who satisfies the requirements of subsection F, however, may qualify for either an IR-3 or an IR-4 immigrant visa. The I-600 Petition does not determine which of these two immigrant visa classifications (IR-3 or IR-4) is appropriate for the beneficiary. Although the INS may indicate on an approved I-600 (or through use of a Visas 38 or 39 cable) which of the two classifications will likely relate to the beneficiary, the final determination rests with the adjudicating consular officer.

IR-3 Visas

3. The IR-3 visa classification signifies that the orphan has been adopted abroad prior to the issuance of the immigrant visa. In order to issue an IR-3 visa, the adjudicating officer must be satisfied that the adoption was both legal in the country where it occurred and valid for U.S. immigration purposes. It is possible for an adoption to be considered legal -- even in the United States -- but not valid for U.S. immigration purposes. There are two particular concerns that illustrate this and of which consular officers need to be aware.

4. Proxy adoptions. A foreign adoption is not valid for U.S. immigration purposes unless the adoptive parent(s) actually saw the child at some point prior to or during the foreign adoption procedures. If the petitioner is married, the spouse must also have been a party to the adoption and must also have seen the child prior to or during the adoption proceedings. If neither or only one of two parents actually saw the child, the foreign adoption is not considered a valid adoption for U.S. immigration purposes (although the adoption may allow the child to obtain an IR-4 visa; see para seven.)

5. Simple or limited adoptions. Anything less than a full and final adoption is not considered a valid adoption for U.S. immigration purposes. The Board of Immigration Appeals has determined that in order to be valid for immigration purposes an adoption must accord to the adopted child the same rights and privileges which are accorded to a natural legitimate child (such as inheritance, etc.) Simple, conditional or limited adoptions -- such as those conducted under Islamic Family Law in some countries -- are more accurately described as guardianship and are not/not considered valid adoptions for immigration purposes. (As with proxy adoptions, the child may still qualify for an IR-4 visa; see paragraph seven below.)

IR-4 Visas

6. The IR-4 visa classification signifies that the orphan will be adopted by the petitioner after being admitted to the United States. In order to issue an IR-4 visa, the consular officer must be satisfied that the petitioner both intends to adopt the beneficiary in the U.S. and is legally able to do so. The petitioner (or someone working on his/her behalf) must have secured permanent legal custody of the orphan under the laws of the orphan's home country. That custody must be sufficient to allow the child to be taken from the country and adopted abroad. In addition, the petitioner must have fulfilled any applicable pre-adoption requirements of their home state.

7. A foreign adoption that is not valid as an adoption for U.S. immigration purposes may still serve as legal guardianship for IR-4 issuance. If the foreign adoption is less than a full adoption (ie. simple, conditional, or limited), however, the consular officer must verify that the petitioner's custody is permanent and the rights of any living natural parent have been irrevocably terminated.

8. When issuing an IR-4 visa, the consular officer should remind the petitioner(s) of their obligation to adopt (or re-adopt) the child in the U.S. Posts should also inform the parents that their child will not automaticall acquire U.S. citizenship under section 320 until/unless they obtain a final adoption decree in the U.S. while the child is still under age 18.

9. Minimize considered.

POWELL