TN 3 (03-06)

PR 01325.084 China, People's Republic of

A. PR 06-014 MOS-Illinois: Validity of Chinese Adoption by Parents Domiciled in Illinois—REPLY Your Ref: S2D5G6 (B~, Elizabeth) Our Ref: 05-0182

DATE: November 17, 2005

1. SYLLABUS

The issuance of an IR-2 or IR-3 visa to a child adopted in China is proof that the Department of Homeland Security-United States Citizenship and Immigration Services and the Department of State have determined that adoption to be valid according to the laws of that country. The DHS and State Department determinations are acceptable for SSA claims purposes in all foreign adoption cases regardless of the country involved.

Acceptance of the adoption by the domiciliary state is not an issue.

2. OPINION

Applications for surviving child's benefits were filed on behalf of Charity R~, Faith A~, and Joyeaux B~ on the account of deceased wage earner Elizabeth B~, who was domiciled in Illinois at the time of her death. You asked whether (1) the adoptions of the three children by Elizabeth and Richard B~ in China were valid, and (2) whether Illinois would recognize these adoptions. For the reasons discussed below, we conclude that there is sufficient evidence for SSA to assume that the adoptions of Charity R~, Faith A~, and Joyeaux were valid under Chinese law, and that SSA need not determine whether Illinois would also recognize the adoptions as valid.

Background

Elizabeth and Richard B~, both U.S. citizens, adopted three children in China. On August 30, 2000, they adopted twin girls, Charity R~ and Faith A~ (born February 6, 2000). On April 14, 2003, they adopted another girl, Joyeaux (born April 13, 2001). On both occasions, Elizabeth and Richard B~ traveled to China to finalize the adoptions. Notarized certificates of adoption in the original Chinese language have been submitted for all three children; notarized English translations have been provided only for Faith A~ and Joyeaux. The translations state that the legal guardians of the children, the presidents of the Institutes of Children's Welfare where the children were residing, consented to the adoptions.

All three children were lawfully admitted to the United States as permanent residents with an immigrant status of IR-3. Richard B~ indicated that the children also became U.S. citizens as a result of their adoptions, but he has not provided proof of citizenship.

Elizabeth B~ died domiciled in Illinois on September 4, 2004. On October 18, 2004, Richard B~ filed a disability after death claim for Elizabeth and claims for surviving child's benefits for their four children, including Charity R~, Faith A~, and Joyeaux.

Discussion

A child may be entitled to surviving child's benefits on the earnings record of an insured person who has died. See 20 C.F.R. § 404.350(a). A legally adopted child is considered the insured's child for purposes of entitlement to child's insurance benefits. See id. § 404.356. When a child is adopted in a foreign country, SSA applies the adoption laws of the foreign country where the adoption took place to determine whether the child is the insured's legally adopted child. See id; POMS GN 00306.135. Therefore, we must determine whether the adoptions of Charity R~, Faith A~, and Joyeaux were valid under the laws of China. We need not determine whether Illinois also would recognize the adoptions.

As we have previously opined, 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." Memorandum from Reg'l Chief Counsel, Chicago, to Assistant Reg'l Comm'r-MOS, Chicago, Foreign Adoption-Validity of Salvadoran adoption by parent domiciled in Michigan, at 2 (December 3, 2001). In that memorandum, we explained that before a child adopted abroad is issued an IR-3 visa, U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State must determine that "the adoption was conducted in full compliance with both the laws of the U.S. and the foreign country." Id. at 2-3. As such, we concluded that, absent evidence that raises a question about the validity of the adoption or immigrant visa, a child's IR-3 status can "be considered sufficient evidence to support a finding of childhood status under 20 C.F.R. § 404.356." Id. at 4. Moreover, in a similar previous legal opinion involving a foreign adoption of a child from China by Illinois residents, we concluded that the adoption was valid in China, based on the issuance of an IR-3 immigrant visa by INS (now USCIS). See Memorandum from Reg'l Chief Counsel, Chicago, to Assistant Reg'l Comm'r-MOS, Chicago, Foreign Adoption