TN 17 (02-20)

PR 02805.040 Pennsylvania

PR 19-218 Authority of the State of Pennsylvania to Change a Foreign-born Child’s Date of Birth based on U.S. Issued Documents

Date: November 7, 2019

SYLLABUS:

Accept a date of birth determination shown on a U.S. State-issued court order or Certificate of Birth issued by the State of Pennsylvania as evidence to either establish or change an individual’s date of birth in our Numident record if the individual is a foreign born adopted child.

OPINION:

You asked us for a legal opinion regarding reliance on the U.S. State Issued Documents as evidence of date of birth change or a foreign-born adopted child.

This is in response to your request for an opinion as to 1) whether the Commonwealth of Pennsylvania has the authority under state law to change the date of birth on the Numident record of foreign-born child M, based on U.S. issued documents, including a state court order and a Certification of Birth; 2) whether the court needs to list the supporting documentation of the change of date of birth on the state court order; and 3) if the Commonwealth has the authority to change a date of birth, what are the documents that the Commonwealth issues as proof of the change of date of birth?

We have reviewed the information provided and have researched the relevant provisions of Pennsylvania and federal law. Based on this information, it is our opinion that the agency may rely on a Court of Common Pleas of Centre County, Pennsylvania, Orphans’ Court Division Order to change the date of birth of NH, a foreign-born child adopted by a United States citizen, on the child’s Numident record. It is also our opinion that although there is no specific requirement that the court list supporting documents in its order, the court here listed the documents that it considered. Finally, there is no specific authority that details the documents that the Commonwealth must issue as proof of the change of date of birth.

BACKGROUND:

According to the information provided, NH was born in Ethiopia and issued a Certificate of Citizenship (N-560/M-561) dated March XX, 20XX, listing her date of birth as November XX, 19XX. Subsequently, a Petition to Change Year of Birth for Minor Adoptee was filed in the Court of Common Pleas of Centre County, Pennsylvania, Orphans’ Court Division.

On July 16, 2019, the Court of Common Pleas of Centre County entered an order changing the date of birth for the NH to November XX, 20XX. The order specifically indicated that it was based on a hearing and correspondence submitted by J~., M.D1

On July 31, 2019, the NH’s mother filed an application on behalf of the NH for a replacement SSN card and requested to change the NH’s date of birth to November XX, 20XX in accordance with Public Law No. 113-74, the Accuracy for Adoptees Act. In support of her request, the NH’s mother provided the NH’s Certificate of Citizenship and the order from the Court of Common Pleas of Centre County.

On October 11, 2019, the NH’s mother provided the agency with a Certification of Birth that was issued on October XX, 20XX by the Commonwealth of Pennsylvania Department of Health, listing the NH’s birthdate as November XX, 20XX.

DISCUSSION:

Social Security regulations provide that an applicant may request a change in the personal identifying information previously submitted in connection with an application for a SSN. See 20 C.F.R. § 422.110 (2019). An applicant requesting a change in her date of birth must submit “convincing evidence of your true identity.” 20 C.F.R. § 422.107(a), (b). Examples of the types of evidence that an applicant may submit to establish age include a birth certificate, a religious record showing age or date of birth, or a passport. See 20 C.F.R § 422.107(b). See also POMS RM 12010.295(A) (establishing procedures to change DOB on the Numident record), POMSRM 10210.265(A)-(D) (listing documents that establish age for an SSN card, including a certification of birth).

Effective January 16, 2014, the Accuracy for Adoptees Actrequires federal agencies to accept United States issued documents as evidence of date of birth for foreign-born adoptees who are adopted by a United States citizen parent. See Pub. L. No. 113-74, 127 Stat. 1212 (amending section 320 of the Immigration and Nationality Act, 8 U.S.C. § 1431(c)). Acceptable documents include a state court order, U.S. birth certificate, certificate of foreign birth, or other state vital records document issued by the child’s state of residence in the United States after the child has been adopted. Id.

In 2014, the agency issued EM-14023, which provides final instructions for processing SSN card applications affected by the Accuracy for Adoptees Act and specifically notes that the purpose of the Accuracy for Adoptees Act was to make it easier for families of foreign-born adopted children to correct their records. See EM-14023. Accordingly, where an individual presents a document issued by a State—including a U.S. State court order or a U.S. birth certificate—as evidence to change the date of birth on the Numident record based on one of these U.S. documents, SSA adjudicators will determine:

  • whether the State has the authority under state law to change a foreign-born individual’s date of birth through a state court order;

  • the State legal requirements to change a date of birth;

  • whether the court order needs to list the supporting documentation of the change of date of birth on the state court order;

  • if the State has the authority to change a date of birth, the documents the State issues as proof of the change of date of birth; and

  • whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics (BVS) document as proof of change of date of birth. If the State issues the document under a different title, identify the name of the document.

See EM-14023.F.1. Because the court order changing the NH’s DOB was issued by a Pennsylvania court and because the resulting Certification of Birth was issued by the Commonwealth of Pennsylvania Department of Health, we looked to Pennsylvania’s adoption laws to address the below questions. See Pennsylvania Adoption Act, 23 Pa.C.S. §§ 2101 et seq.

  1. 1. 

    Whether the Commonwealth of Pennsylvania has the authority under state law to change a foreign-born individual’s date of birth through a U. S. issued court order?

    Although there is no specific Pennsylvania statute, regulation, or court decision that authorizes a Pennsylvania court to change a foreign-born individual’s date of birth, Pennsylvania law gives original jurisdiction of adoption proceedings to its courts of common pleas. 23 Pa.C.S.A. § 2301; see also id. § 2302 (parents who are residents of the Commonwealth may petition the court of common pleas in the county where the parents reside to proceed with an adoption); Pa. O.C. R. 15.9 (Petition for Adoption of a Foreign Born Child). Pennsylvania law also grants its courts of common pleas the authority to take testimony and investigate as deemed necessary to inform the court as to the proposed adoption. 23 Pa.C.S.A. § 2724. Notably, Pennsylvania law also provides that the court can establish a date and place of birth at an adoption hearing on the basis of the evidence presented, if no birth certificate can be obtained. 23 Pa.C.S. § 2701 (“If no birth certificate or certification of registration of birth can be obtained, a statement of the reason therefor and an allegation of the efforts made to obtain the certificate with a request that the court establish a date and place of birth at the adoption hearing on the basis of the evidence presented.”) (emphasis added).

    Additionally, Pennsylvania law explicitly provides for the correction of records including corrections of the date of birth on a birth certificate, 28 Pa. Code § 1.33 (corrections in the date of birth on a birth certificate will be made based on documents “which shall conclusively prove the correct date.”) , as well as corrections on other unenumerated “[c]ertificates.” 28 Pa. Code § 1.31 (“Certificates [of birth] without a court order shall be marked ‘corrected’”) (emphasis added). Thus, Pa. Code § 1.31 Code implicitly provides for changes made through a court order.

    In sum, while Pennsylvania law does not specifically provide that a Pennsylvania court may change a foreign-born child’s date of birth, there is ample authority that 1) Pennsylvania courts have jurisdiction over adoptions, including the power to establish a date of birth in certain circumstances, and 2) the Commonwealth has the power to administratively change and correct birth certificates. Thus, it would appear that the Commonwealth of Pennsylvania has the authority to change a foreign-born child’s date of birth through a state court order.

    Accordingly, we believe that the Commonwealth of Pennsylvania had the authority to change the NH’s date of birth through the July 16, 2019 Order from the Court of Common Pleas of Centre County .

    Because there is no specific authority granting the Pennsylvania courts authority to change the date of birth for a foreign-born child, there is no specific authority in Pennsylvania regarding what supporting documentation would be adequate for a court to issue an order changing a date of birth. For the same reason, there is no authority in Pennsylvania regarding whether a court must list supporting documentation in an order changing a date of birth. Rather, 23 Pa.C.S. § 2701 provides that the court can establish an unknown date of birth at the adoption hearing “on the basis of the evidence presented.”

    Here, as set forth in the July XX, 2019 Order, the Court of Common Pleas indicated that it held a hearing and considered correspondence submitted by Dr. Powell. See, e.g.,23 Pa.C.S. § 2701 (court can establish unknown date of birth at the adoption hearing “on the basis of the evidence presented”); 28 Pa. Code § 1.33 (corrections in the date of birth can be made based on documents “which shall conclusively prove the correct date.”) . Although there is no specific requirement that the court list supporting documents, the Orphans’ Court did list what it considered, and, as set forth above, it had the authority to determine the NH’s change of date of birth.

  2. 2. 

    Does the court need to list the supporting documentation of the change of date of birth on the state court order?

  3. 3. 

    If the State has the authority to change a date of birth, what are the documents that the State issues as proof of the change of date of birth?

As noted above, there is no specific authority that details the documents that the Commonwealth must issue as proof of the change of date of birth.

That said, as discussed above, Pennsylvania law provides that certificates corrected without a court order are marked “corrected” within the Division of Vital Records, 28 Pa. Code § 1.31. Here, however, the NH received a state court order changing her date of birth; thus, no “corrected” certificate would have been issued. Instead, on October 1, 2019, the NH was issued a Commonwealth of Pennsylvania Department of Health Certification of Birth, documenting her date of birth as November XX, 20XX, the corrected date pursuant to the July XX, 20XX court Order.

CONCLUSION:

In sum, Pennsylvania’s adoption statute gives its courts of common pleas jurisdiction over adoptions, including foreign-born adoptions, and explicitly permits the courts to determine a date of birth in certain situations. Pennsylvania law also permits corrections to vital records including birth certificates upon presentation of evidence absent a court order. Accordingly, we believe the Commonwealth of Pennsylvania has the authority to change the date of birth through a state court order. It is our opinion that the state court order and the state issued Certification of Birth are both sufficient and acceptable to change the NH’s date of birth on the Numident record.

Brian O~

Acting Regional Chief Counsel

By:Annie K. K~

Assistant Regional Counsel

Footnote:

1 The underlying evidence was not submitted to the agency; however, based on correspondence from the NH’s mother to the agency, we understand that the Center County Court of Common Pleas Order was based on both a letter from Dr. P~ and a bone density test.


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PR 02805.040 - Pennsylvania - 02/11/2020
Batch run: 02/11/2020
Rev:02/11/2020