TN 9 (08-15)

PR 02805.052 Virginia

A. PR 15-160 Reply to Your Request for a Legal Opinion Regarding Reliance on United States Issued Document as Evidence of Date of Birth (DOB) Change for Foreign-Born Adopted Child

July 2, 2015

1. Syllabus

Accept a Virginia State-issued court order or Delayed Certificate of Birth that indicates documentary evidence was submitted that supports the new date of birth (such as medical records from the child’s physician) when prepared as acceptable evidence to either establish or change an individual’s date of birth on our Numident record if the individual is a foreign born adopted child. If the court order or delayed birth certificate does not indicate that documentary evidence supporting the new date of birth was used to prepare the court order or delayed birth certificate, then accept the court order or delayed birth certificate only if submitted with documentary evidence (such as medical records from the child’s physician) to support the new date of birth.

2. Opinion

QUESTION PRESENTED

This is in response to your request for an opinion as to whether the agency may rely on the Circuit Court of York County, Poquoson, Virginia “Final Order of Adoption” to establish a different date of birth for a foreign-born child adopted by United States parents. You have also requested that we address the questions set forth in the agency’s instructions for processing Social Security Number (SSN) applications for foreign-born adoptees who are adopted by United States citizens.

CONCLUSION

We have reviewed the information provided and have researched the relevant provisions of Virginia and federal law. Based on this information, it is our opinion that the agency may rely on the Circuit Court of York County, Poquoson, Virginia “Final Order of Adoption” to establish a different date of birth for a foreign-born child adopted by United States parents.

BACKGROUND

According to the information you provided, on February 15, 2012, the Circuit Court of Ghana, Central Division, Cape Coast, issued an “Adoption Order” stating that United States citizens J~ and D~ adopted SSN Applicant E~ (Applicant). On March 23, 2012, the Republic of Ghana issued a “Certified Copy of Entry in Register of Births” indicating that Applicant was born on October xx, 2004, in the District Hospital, Cape Coast Metropolitan, Central, Ghana. The document lists her parents as J~ and D~.

On an unknown date, the B~, residents of Virginia, filed an “Amended Petition for Adoption” in the Circuit Court of York County, Poquoson, Virginia, seeking to adopt Applicant. In their petition, the B~ requested to legally change Applicant’s name to E~ and to change her date of birth to October xx, 2003. With their petition, the B~ submitted a January xx, 2013, letter from G~, D.D.S., a doctor of dental surgery, stating his medical opinion that Applicant was between twelve and fourteen years old.

On May 14, 2013, a Circuit Court judge entered a “Final Order of Adoption” granting the petition and recognizing the B~ adoption of Applicant in the Commonwealth of Virginia. The court approved the B~ request to change Applicant’s name from E~ to E~. The court also ordered that Applicant’s date of birth be established as October xx, 2003.

Based on the May 14, 2013 “Final Order of Adoption,” on June 19, 2013, the Commonwealth of Virginia, Department of Health, Division of Vital Records issued a “Certificate of Foreign Birth” stating that E~ was born on October xx, 2003, in Ghana, and listing her parents as J~ and D~ (maiden name). The birth certificate provides that it is not evidence of United States citizenship for the child or the parents.

The Applicant’s SSN application presently is pending in the Hampton, Virginia field office.

DISCUSSION

Social Security regulations provide that an applicant for an original SSN card must submit documentary evidence that the Commissioner of Social Security regards as convincing evidence of, inter alia, age. See 20 C.F.R. § 422.107(a), (b) (2014); Program Operations Manual System (POMS) RM 10210.010. Examples of the types of evidence that an applicant may submit to establish age are 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 20 C.F.R. § 404.716 (stating the best evidence of age is a birth certificate); POMS RM 10210.265 (listing documents that establish age for an SSN card).

The Accuracy for Adoptees Act requires 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. Acceptable documents include a State court order, birth certificate, certificate of foreign birth, certificate of birth abroad, or similar State vital records document issued by the child’s State of residence in the United States after the child has been adopted. See id.

SSA has issued instructions for processing SSN applications affected by the Accuracy of Adoptees Act. See EM-14023 – Enumeration: Processing Name and Date of Birth Determinations for Foreign-Born Adopted Children under the Accuracy for Adoptees Act – One Time Only Instructions. These instructions provide that where a document issued by a State is presented as evidence to establish a date of birth different from what is shown on the child’s evidence of age document, as is the case here, the following determinations must be made:

whether the State has the authority under State law to change a foreign-born individual’s date of birth through a 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.

We looked to Virginia law to address the questions set forth in EM-14023 because the court order changing Applicant’s date of birth was issued by a Virginia circuit court. Virginia law permits the circuit court to correct or establish a date of birth as part of a proceeding for the adoption of a child born in a foreign country. Va. Code Ann. § 63.2-1220.01. The statute provides that the court may establish a corrected date of birth based on medical evidence of the child’s actual age. Id. The Virginia statute does not expressly state that the court order must list the supporting documentation for the date of birth change on the order itself. Id. When the circuit court establishes a date of birth, the State Registrar of Vital Records will issue a certificate of birth showing the date of birth established by the court. Id. The birth certificate shall (1) show the true or probable foreign country of birth and (2) state that the certificate is not evidence of United States citizenship for the child for whom it is issued or for the adoptive parents. VA Code Ann. § 32.1-261(E). Accordingly, the “Certificate of Foreign Birth” issued by the State Registrar is the document that provides proof of the date of birth change. Va. Code Ann. § 63.2-1220.01; VA Code Ann. § 32.1-261(E).

In this case, we believe that the circuit court’s “Final Order of Adoption” satisfies Virginia law and that the agency may rely on the court order to establish a date of birth change for Applicant.

As noted above, J~ and D~, residents of Virginia, filed a petition with the Circuit Court of Poquoson County, Virginia, to have their adoption of the Applicant recognized by the Commonwealth of Virginia. With their petition, the B~ requested a revision of Applicant’s date of birth from October xx, 2004, to October xx, 2003, based on a medical opinion of her true biological age. In support of their request, the B~ submitted a medical opinion from Applicant’s dentist stating, in January 2013, that based on a dental examination of Applicant, her biological age was between twelve and fourteen years old. The circuit court found the supporting documentation provided by the B~ to be satisfactory, and issued the “Final Order of Adoption,” which ordered that Applicant’s date of birth be established as October xx, 2003. Given the absence of an express statutory requirement to list the supporting documentation on the court order, we believe that the court order was based on sufficient documentation for the date of birth change.

Furthermore, a certificate of birth showing the date of birth established by the circuit court was properly issued in accordance with Virginia law. Va. Code Ann. § 63.2-1220.01; VA Code Ann. § 32.1-261(E). On June 19, 2013, the State Registrar issued a “Certificate of Foreign Birth” stating Applicant’s date of birth as October xx, 2003. The “Certificate of Foreign Birth” shows the country of Applicant’s birth and states it is not evidence of United States citizenship for Applicant or her adoptive parents, as required by Virginia law. VA Code Ann. § 32.1-261(E).

CONCLUSION

For the reasons stated above, it is our opinion that the agency may rely on the Circuit Court of York County, Poquoson, Virginia “Final Order of Adoption” to establish a different date of birth for a foreign-born child adopted by United States parents.

Nora Koch

Acting Regional Chief Counsel

By: ________________________

Maija DiDomenico

Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502805052
PR 02805.052 - Virginia - 08/24/2015
Batch run: 08/24/2015
Rev:08/24/2015