TN 5 (03-06)

PR 01325.112 El Salvador

A. PR 05-028 REPLY, MOS--Foreign Adoption--Validity of Salvadoran Adoption by Parent Domiciled in Michigan, SSN ~ Numberholder: Mary E. J~ Claimant: Edwin D. J~

DATE: December 3, 2001

1. SYLLABUS

The issuance of an IR-2 or IR-3 visa to a child adopted in El Salvador 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

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 the adoption.

Here, Edwin D~ was issued an immigrant visa which classified him as an Immediate Relative-3 (IR3) 1 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 took place.

2 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 law.

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.3

FACTS

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;4 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.

DISCUSSION

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) <<<http://travel.state.gov/ safeguards.html

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 5 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.6 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. 7 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.8 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.

9 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 Edwin D~'s case, we are not aware of any evidence that would suggest that either his adoption or his visa was invalid.

CONCLUSION

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


Footnotes:

[1]

An IR3 classification is given to an orphan who was adopted abroad.

[2]

INS (a component within the Department of Justice) and the State Department work together concerning the immigration of foreign adopted children.

[3]

In the past, the Office of the General Counsel has referred cases involving foreign adoptions to the Library of Congress to obtain a legal opinion regarding the validity of the foreign adoption under the law in effect in the applicable foreign country at the time of the adoption. However, we believe that this may be unnecessary where the child was lawfully admitted to the United States with an IR3 immigrant visa, since these visas are issued only after INS and the State Department determine that there has been a valid foreign adoption.

[4]

We address the validity of Olga M~s adoption in response to a separate request for a legal opinion.

[5]

Within the State Department, U.S. consulates and consular sections of U.S. embassies overseas assist American citizens traveling or living abroad and issue visas to foreign nationals who wish to visit or reside in the U.S.

[6]

In some cases, the overseas orphan investigation is conducted by an overseas INS officer.

[7]

We contacted by telephone an officer from the Adoption Unit of the Office of Children's Issues for the State Department and an employee from the INS Orphan Unit in Chicago. These officials confirmed that INS will investigate a foreign adoption when there is suspicion of fraud. In addition, we note that the State Department's internet site provides that the Department "consistently takes a strong stand against fraudulent adoption procedures" and has "unfailingly expressed its support for measures taken by foreign states to reduce adoption abuses." See State Department, International Adoptions, supra; International Adoption Safeguards, supra. As well, INS declares that it "makes every effort to ensure that an orphan petition does not involve fraudulent adoption practices." See INS, M249, supra, at 26.

[8]

This is to be distinguished from an IR4 classification, which requires that the child be adopted in the U.S. in order to meet U.S. immigration requirements. See 22 C.F.R. § 42.11 (defining IR4 classification as "Orphan to be Adopted in the United States by U.S. Citizen"); see also State Department, International Adoptions, supra ("Other orphan children, who are eligible for immigration, receive IR4 visas and must be readopted after they enter the United States, in accordance with applicable state laws."). A child must be adopted in the U.S. when there was no adoption abroad, or when there was an adoption abroad but either it was not full and final or the adopting parent(s) did not see the child prior to the adoption. See 8 C.F.R. § 204.3(d)(1)(iv)(B), (f)(2). However, even if the child was admitted to the United States with IR4 status and there has been no adoption in the United States, the claimant still maybe able to show by other means that a valid adoption occurred in compliance with the laws of the foreign country. Under such circumstances, SSA may consider the child validly adopted for purposes of eligibility for child's benefits, even if INS might require additional proceedings for immigration or citizenship purposes.

[9]

In the past, when an orphan was lawfully admitted to the U.S. with an immigrant visa, he or she became a lawful permanent resident of the U.S., not a U.S. citizen. However, the Child Citizenship Act of 2000, which went into effect on February 27, 2001, provides for automatic citizenship of some foreign born children, including adopted children, who