An application for child's insurance benefits was filed on behalf of Elizabeth R.
G~ on the account of wage earner Charles E. G~, a resident of Ohio. You asked (1)
whether Charles G~'s adoption of Elizabeth in Bulgaria would be valid in Bulgaria,
and (2) whether Ohio would recognize such an adoption.
Under federal regulations, the Social Security Administration (SSA) applies the adoption
laws of the state or country where the child was adopted to determine whether the
individual was the insured's legally adopted child. Since Elizabeth was adopted in
Bulgaria, we need only determine whether the adoption was valid under Bulgarian law.
We need not determine whether Ohio also would recognize the adoption.
Here, Elizabeth was issued an immigrant visa that classified her as an Immediate Relative-3
(IR-3) and was subsequently admitted to the United States with IR-3 status. Before
an IR-3 immigrant visa is issued, the Immigration and Naturalization Service (INS)
and the Department of State must first determine that the child has been fully and
finally adopted abroad in compliance with the laws of the country where the adoption
took place. We conclude, therefore, that in the absence of information that would
cast doubt on the validity of her adoption or her immigrant visa, SSA may consider
Elizabeth's IR-3 status as sufficient evidence that a valid adoption took place under
Bulgarian law.
We further conclude that SSA generally may consider that a child who was lawfully
admitted to the United States with IR-3 status was fully and finally adopted in compliance
with the laws of the country where the adoption took place, unless there is information
or evidence indicating that the foreign adoption or visa may be invalid.
FACTS
Charles G~, a United States citizen, married his wife, Ljobomira, in Bulgaria, in
1982. They settled in Columbus, Ohio, where Mr. G~ was a university professor. On
December 26, 1990, they adopted their daughter, Elizabeth, in Bulgaria. Elizabeth
was born on January 19, 1990 in Bulgaria. After her adoption, she was admitted to
the United States as a permanent resident pursuant to an IR-3 immigrant visa issued
by the State Department on January 5, 1991. Elizabeth became a United States citizen
on January 16, 1992.
Mr. G~ filed an application for retirement benefits in August 2001. At the same time,
he filed an application for child's benefits on behalf of Elizabeth.
DISCUSSION
20 C.F.R. § 404.356 governs the determination of whether an adopted child is the wage
earner's legally adopted child for purposes of entitlement to child's insurance benefits.
Under this regulation, SSA applies the adoption laws of the state or country where
the child was adopted. Therefore, we must determine whether Elizabeth G~'s adoption
was valid under Bulgarian law.
The information you sent shows that Elizabeth G~ was admitted to the United States
with IR-3 status. We have previously advised that, before an IR-3 immigrant visa is
issued, INS and the State Department must first determine that the adoption was conducted
in full compliance with both the laws of the U.S. and the foreign country. Therefore,
you may rely on the child's IR-3 visa status as sufficient evidence of a valid foreign
adoption, absent evidence that casts doubt on the validity of the visa or foreign
adoption. See Memorandum, from Reg. Chief Counsel, Chicago, to Ass't. Reg. Comm. -
MOS, Chicago, Foreign Adoption -- Validity of Guatemalan Adoption by Parent Domiciled
in Michigan, SSN ~ (Dec. 3, 2001).
INS states that its "regulations require that all foreign adoptions undergo an investigation
to guarantee compliance with the laws of both the United States and foreign sending
country." INS, The Immigration of Adopted and Prospective Adoptive Children (M-249)
2 (2000), available at <http://www.ins.gov/graphics/services/
index2.htm#adopt> [hereinafter M-249]. The State Department also specifies that "adoptive parent(s)
must fulfill the requirements set by…the foreign country in which the child resides,"
and "[q]uestions concerning legal custody or proper documentation for the child must
be resolved in accordance with the law of the country of the child's nationality or
residence." State Department, International Adoptions (visited May 29, 2002) <http://travel.state.gov/
int'ladoption.html> [hereinafter International Adoptions]. Therefore, SSA should be able to rely on
Elizabeth G~'s IR-3 status as evidence that a full and final adoption occurred under
Bulgarian law.
Adoptive parent(s) must file a petition with INS to have an immigrant visa issued
to a child who has been adopted in a foreign country. As part of the process, the
adoptive parent(s) must provide a certified copy of the adoption decree, if the child
has been the subject of a full and final adoption abroad. See 8 C.F.R. § 204.3(d)(1)(iv)(A).
This requirement has been in place since the regulations implementing the Immigration
and Nationality Act became effective in 1965. Once INS determines that these and other
requirements have been satisfied, INS approves the petition, grants immediate relative
classification to the child, and notifies the U.S. embassy or consulate in the foreign
country where the child is located for visa processing. See 8 U.S.C. § 1151(b)(2)(A)(i);
8 C.F.R. §§ 204.3(h)(8)-(10).
The adoptive parent(s) must also attend a visa interview with a consular officer,
who conducts an overseas orphan investigation. See 22 C.F.R. § 42.62; 8 C.F.R. § 204.3(k)(1);
see also International Adoptions, supra. This consists of a review of the facts and
documents provided concerning the child, including the final adoption decree. If the
officer comes across any information which casts doubt on the validity of the adoption,
the officer will refer the petition back to INS for further investigation. Once a
case has been referred to INS for additional investigation, INS will either (1) review
the documentation and reaffirm approval of the orphan petition, (2) review the documents
and request that the consular officer conduct a field investigation to ensure that
no fraud or illegal activity was involved, or (3) deny the petition. See International
Adoptions, supra. Otherwise, if the investigation is satisfactory, the consular officer
will proceed with final visa processing. A child who has been fully adopted abroad
is issued an immigrant visa with an IR-3 classification. See 22 C.F.R. § 42.11 (defining
IR-3 classification as "Orphan Adopted Abroad by U.S. Citizen"); International Adoptions,
supra, at 6 ("An orphan fully adopted overseas may receive an IR-3 visa.").
Therefore, as a general rule, SSA may find that a foreign adoption was full and final
when an IR-3 immigrant visa was issued and when there is no reason to question the
validity of the adoption or visa. Accordingly, a child's IR-3 status can generally
be considered sufficient evidence to support a finding of childhood status under 20
C.F.R. § 404.356. However, if any evidence raises a question about the validity of
the adoption or visa, SSA may need to determine, on a case-by-case basis, whether
the foreign adoption, in fact, complied with the adoption laws of the foreign country
where the adoption occurred. In Elizabeth G~'s case, we are not aware of any evidence
that would suggest that either her adoption or her visa was invalid.
CONCLUSION
We conclude that SSA may consider Elizabeth G~'s IR-3 status as sufficient evidence
that her adoption was final and valid according to Bulgarian law. We also conclude
that, as a general rule, SSA may find that a foreign adoption was valid upon evidence
that the adopted child was admitted to the U.S. with IR-3 status, unless other available
information raises questions regarding the validity of the adoption or immigrant visa.
Sincerely yours,
Thomas W. C~
Regional Chief Counsel
By: ________________________
Anne Kenny K~
Assistant Regional Counsel