An application for surviving child's benefits was filed on behalf of Edwin D~ J~ on
the account of deceased wage earner Mary J~, who was domiciled in Michigan at the
time of her death. You asked (1) whether Mary J~'s adoption of Edwin D~ in El Salvador
would be valid in El Salvador, (2) whether Michigan would recognize such an adoption,
and (3) whether there are guidelines for recognition of similar Salvadoran adoptions
by Michigan residents.
Under federal regulations, the Social Security Administration (SSA) applies the adoption
laws of the state or country where the child was adopted, not the intestate succession
laws of the state in which the deceased wage earner was domiciled at death. Since
Edwin D~ was adopted in El Salvador, we need only determine whether the adoption was
valid under Salvadoran law. We need not determine whether Michigan also would recognize
Here, Edwin D~ was issued an immigrant visa which classified him as an Immediate Relative-3
(IR3)  and was subsequently admitted to the United States with IR3 status.
Before an IR3 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
 We conclude, therefore, that in the absence of information that would cast doubt
on the validity of his adoption or his immigrant visa, SSA may consider Edwin D~'s
IR3 status as sufficient evidence that a valid adoption took place under Salvadoran
We further conclude that SSA generally may consider that a child who was lawfully
admitted to the United States with IR3 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.
Mary J~, an unmarried United States citizen, died on September 26, 2000, while domiciled
in Michigan. An application for surviving child's benefits was filed on behalf of
her three adopted children: Edwin C. J~, who was born in Texas and adopted in the
United States; Olga M~ J~, who was born and adopted in Guatemala; and Edwin D~ J~, who was born and adopted in El Salvador.
Edwin D~ (whose original surname was M~), was born on January 20, 1986, in El Salvador.
He was adopted by Mary J~ in San Salvador, El Salvador, on April 12, 1989.
On July 22, 1989, Edwin D~ was lawfully admitted to the United States as a permanent
resident pursuant to an IR3 immigrant visa issued by the State Department.
20 C.F.R. § 404.356 governs the determination of whether an adopted child is the deceased
wage earner's 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, not the intestate succession laws of the state in which the
deceased wage earner was domiciled at death. Therefore, we must determine whether
Edwin D~'s adoption was valid under Salvadoran law.
The information you sent shows that Edwin D~ was admitted to the United States with
IR3 status. Our research indicates that before an IR3 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. 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 http://www.ins.gov/graphics/services/ index2.htm#adoptand Prospective Adoptive Children (M-249) 2 (2000), available at
<reinafter 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 Adoption Safeguards (visited Oct. 9, 2001)
Therefore, SSA should be able to rely on Edwin D~'s IR3 status as evidence that a
full and final adoption occurred under Salvadoran 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 IR3 classification. See 22 C.F.R. § 42.11 (defining IR3 classification as "Orphan Adopted Abroad by U.S.
Citizen"); State Department, International Adoptions (visited Aug. 27, 2001) <http://travel.state.gov/int'ladoption.htmhildren fully adopted overseas receive IR-3 visas.").
Therefore, as a general rule, SSA may find that a foreign adoption was full and final
when an IR3 immigrant visa was issued and when there is no reason to question the
validity of the adoption or visa. Accordingly, a child's IR3 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
In Edwin D~'s case, we are not aware of any evidence that would suggest that either
his adoption or his visa was invalid.
We conclude that SSA may consider Edwin D~'s IR3 status as sufficient evidence that
his adoption was final and valid according to Salvadoran 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 IR3 status,unless other available
information raises questions regarding the validity of the adoption or immigrant visa.
Cristine H. K~
Assistant Regional Counsel