New Law Changes Definition of Child and Parent/Father
All OIC's (including foreign)
All Regional Directors
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OCTEF Glynco & Artesia
Director Administrative Appeal Office
Subject: HQ 204.21-P
HQ 204.22-P
Subject: Changes to Definition of "CHILD" under Section 101(b)(1) and to Definition of "PARENT" or "FATHER" under Section 101(b)(2).
Public Law 104-51 was signed by the President on November 15, 1995, and became effective immediately upon enactment. This new law updates the definitions of "child", "Parent", and "Father" as used in titles I and II of the Immigration and Nationality Act (The 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.
This wire explains the effect of the new law and provides interim guidance concerning the adjudication of orphan petitions.
A second wire will discuss the effect of the new law on other petitions, applications, and requests for benefits based on parent-child relationships.
A. Effect of statutory change on eligibility for orphan classification under section 101(b)(1)(F) of the Act:
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.
Because of this 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.
This new law does not change 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.
B. Adjudication of orphan petitions pending issuance of new regulations:
The Service 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 of orphan petition sent, but no final decision issued:
All pending orphan petitions, including those for which the Service 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 Service Office currently processing the petitioner's pending advanced processing application; or
(C) With evidence that the Service 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 or revocation issued on or after November 15, 1995:
Any case in which a denial was issued or the approval of an orphan petition was revoked on or after November 15, 1995, should be reopened on a Service 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) Motions to reopen or reconsider:
A petitioner 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.
(5) Child in the United States:
Some legitimate children who were born out of wedlock have been paroled into the United States or otherwise came into this country after having been found to be ineligible for orphan classification.
Some of these children may now be eligible for orphan classification under the updated statute. The procedures in Part I, Section B, Paragraphs (1), (2), (3), or (4) of this wire may be followed, as appropriate to the individual case.
The provisions of Section 101(b)(1)(F) of the Act and 8 CFR 204.3 (k)(3), however, may preclude the approval of an orphan petition if the child has been adopted in the United States, or if the child is in the United States in a nonimmigrant status or unlawfully.
Section 101(b)(1)(F) restricts the benefits of the orphan immigrant classification to a child who has been adopted abroad or who is coming to the United States for adoption. It does not provide benefits based on a U.S. Adoption. See Matter of Handley, 17 I&N Dec. 269 (BIA 1978) for more information.
8 CFR 204.3 (k)(3) provides:
"A child who is in parole status and who has not been adopted in the United States is eligible for the benefits of an orphan petition when all the requirements of sections 101(b)(1)(F), 204(d) and (e) of the Act have been met. A child in the United States either illegally or as a nonimmigrant, however, is ineligible for the benefits of an orphan petition."
A child who is in the United States and who appears to be eligible for orphan classification may file an application for adjustment of status concurrently with the orphan petition. The child also has the option of filing the adjustment of status application after a decision has been issued on the orphan petition. (A parent or legal guardian may sign the adjustment of status application for a child who is less than 14 years old or for a person who is mentally incompetent.)
C. The HQADN orphan petition contact is: Rita Arthur (202) 514-5014.
D. This wire has the concurrence of HQ field operations.
T. Alexander AleinikoffExecutive Associate Commissioner
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