TN 3 (03-06)
PR 01325.238 Mexico
A. PR 04-007 OPINION: Claim for Child's Insurance Benefits (Auxiliary) on Account of Wage Earner Frank M~, SSN: ~
DATE: December 21, 2001
The issuance of an IR-2 or IR-3 visa to a child adopted in Mexico 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. This determination is acceptable for SSA claims purposes and is applicable regardless of the country of adoption.
You asked whether Jesus M. M~ M~ qualifies for child's insurance benefits as the adopted child of the wage earner, Frank M~, based on an adoption in Sinaloa, Mexico in 1996.
Yes. Based on the determination of the Immigration and Naturalization Service and the Department of State that the adoption was valid under Mexican law, Jesus would be considered the adopted child of the wage earner and thus is entitled to child's insurance benefits on his account.
SUMMARY OF EVIDENCE
The claimant was born on December 3, 1984, in Sinaloa, Mexico. An adoption certificate from that state indicates that the claimant was adopted by the wage earner and his wife on August 26, 1996. In addition, an apparently amended Mexican birth certificate issued on August 26, 1996 indicates that the wage earner and his wife are the parents of the claimant. The claimant was admitted to the United States as a permanent resident on December 12, 1997 pursuant to an "IR-2 (immediate relative)" visa.
On July 24, 1997, a claim for child's insurance benefits was filed on behalf of the claimant on the account of the wage earner, who was receiving retirement insurance benefits.
The Social Security Act provides child's insurance benefits to an otherwise qualified "legally adopted child" of a deceased wage earner or wage earner entitled to disability or retirement benefits. 42 U.S.C. §§ 402(d) and 416(e). The regulations provide that SSA "appl[ies] the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355, to determine whether [a claimant is] the insured's legally adopted child." 20 C.F.R. § 404.356 (2001).
Accordingly, SSA normally would look to the adoption law of the State of Sinaloa, Mexico, to determine if the claimant was "legally adopted." In the past, a claim involving a foreign adoption would be sent to the foreign law branch of the Library of Congress for a legal opinion assessing the validity of the adoption under the law of the foreign country. We recently determined, however, that where the Immigration and Naturalization (INS) has issued an "immediate relative" visa that is necessarily based on a determination that the subject adoption was valid under the law of the foreign country, SSA should accept the adoption as valid (absent any evidence to otherwise question the validity of the adoption). Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-MOS, Chicago, Foreign Adoption-Validity of Salvadoran adoption by parent domiciled in Michigan (December 3, 2001) (copy attached).
As set out in that OGC memorandum, the issuance of an "IR-3" visa indicates that the INS and the Department of State already have determined that a foreign adoption was valid after an exhaustive examination of the process. Id. at 3-4. While an "IR-2" visa was issued to the claimant here, that visa classification only is available to a "[c]hild of U.S. [c]itizen." See 22 C.F.R. § 42.11 (2001). The INS and Department of State will only issue an immediate relative visa to an adopted child of a U.S. citizen after an exhaustive examination of the validity of the relationship. See Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-MOS, Chicago, Foreign Adoption-Validity of Salvadoran adoption by parent domiciled in Michigan, at 3-4 (December 3, 2001). For example, the parties must be interviewed by a consular official in regard to the existence of the family relationship and provide all necessary official documentation of the relationship. 8 C.F.R. § 204.2(d)(2)(vii); 22 C.F.R. §§ 42.21, 42.62, and 42.65 (2001).
Accordingly, the issuance of the IR-2 visa to the claimant here necessarily was based on a determination by the INS and the Department of State that the Mexican adoption is valid. There is no evidence to otherwise call into question the validity of the adoption. Thus, the claimant should be considered the adopted child of the wage earner for purposes of his claim for child's insurance benefits on the wage earner's account. 20 C.F.R. §§ 404.354 (2001).
Jesus is entitled to child's insurance benefits as the adopted child of the wage earner.
Janice L. W~
Regional Chief Counsel
Dennis J. M~
Assistant Regional Counsel
An IR-3 visa is for an "[o]rphan [a]dopted [a]broad by a U.S. [c]itizen." 22 C.F.R. § 42.11 (2001).