PR 08610.028 Missouri
A. PR 07-115 Whether Missouri Requires a Foreign-Born Adopted Child to be Readopted Upon Arrival in the United States
DATE: January 19, 2007
A foreign-born child admitted to the U.S. under class of admission (COA) of IR-4 (child coming to the United States to be adopted) must be adopted after admission to the U.S. The child does not automatically acquire U.S. citizenship until a final adoption decree is issued to the child while under the age of 18. Once the adoption is completed in the U.S., the adoptive parents can obtain a Certificate of Citizenship from DHS USCIS, which is primary evidence of U.S. citizenship. In this instance, a birth certificate was issued for the child by the State of Missouri prior to the adoption in the U.S. As such, it does not prove U.S. citizenship and the certificate so states that on its face.
When the adoption has been completed in the foreign country, and the adopted child is granted entrance to the U.S. in COA of IR-3 (child adopted outside the United States), Missouri law does not require re-adoption.
You requested a legal opinion asking whether Missouri requires readoption of foreign-born adopted children upon arrival in the United States. The information you provided to us indicates that a Missouri resident presented to a Social Security field office to apply for a Social Security number for a child he reportedly adopted from South Korea. However, the gentleman did not have proof of U.S. Citizenship for the child. For the reasons explained below, we conclude that Missouri does not require readoption when the adoption has been completed in the foreign country. On the facts you presented, the adoption was not completed in South Korea. Therefore, the adoption must be finalized in Missouri in order for the child to be a U.S. citizen.
A Missouri resident presented to a Social Security field office to apply for a Social Security number for a child he stated that he had adopted from South Korea. The child, Jee S. L~, was born in South Korea on October 1, 2004. Her name has been changed to Rachel K~. The gentleman did not have proof of U.S Citizenship for the child, but produced other documentation including a birth certificate issued by the State of Missouri, and a Judgment for Transfer of Legal and Physical Custody for Purposes of Subsequent Adoption from the Circuit Court of Buchanan County, Missouri. He also produced a U.S. Immediate Relative-4 (IR-4) visa, a U.S. permanent resident card, and a South Korean travel certificate.
Missouri law states that "when an adoption occurs in a foreign country and the adopted child has migrated to the United States with the permission of the United States Department of Justice and the United States Department of Immigration and Naturalization Services, this state shall recognize the adoption." See MO. ANN. STAT. § 453.170.2 (2006). Accordingly, Missouri does not require readoption of a child when the adoption has been completed abroad and the child has properly come to the United States. As explained below, in this case, the adoption was not completed in South Korea.
The IR-4 visa is issued when the orphan will be adopted after arriving in the U.S., and the adoption will be finalized by the courts of the state in which the adoptive parents reside. See U.S. Dep't of State, Determining Orphan Classification, http://travel.state.gov/visa/laws/telegrams/telegrams_1408.html (last visited Jan. 18, 2007); see also U.S. Dep't of State, International Adoption: How Can Adopted Children Come to the United States?, http://travel.state.gov/family/adoption/info/info_449.html (last visited Jan. 18, 2007). In order to complete an adoption in Korea, both adopting parents are required to "have seen and lived with the child for more than three months either prior to or during the processing of the adoption papers." See Embassy of the United States of Seoul, Korea, Visas to the U.S.: Visa Categories: Adopting in Korea, http://seoul.usembassy.gov/adoptions-4.html (last visited Jan. 18, 2007). Accordingly, the IR-4 visa is commonly issued in conjunction with adoptions from Korea.
The Child Citizenship Act of 2000 (CCA) allows certain foreign-born children to acquire American citizenship automatically. The CCA states that foreign-born adopted children automatically acquire citizenship when the adoption is full and final. The other requirements for automatic citizenship are that the child: (1) has at least one parent who is an American citizen; (2) is under 18 years of age; (3) lives in the legal and physical custody of the American citizen parent; and (4) was lawfully admitted to the U.S. for permanent residence. See 8 U.S.C. § 1431. See also U.S. Dep't of State, Child Citizenship Act of 2000, http://travel.state.gov/family/adoption/info/info_457.html (last visited Jan. 18, 2007). Consequently, children entering the country on an IR-4 visa do not become U.S. citizens until their adoption is finalized. See id.
Based on the documentation provided in this case, the child entered the U.S. on an IR-4 visa. Accordingly, the adoption had not yet been finalized when the child entered the country, and she was not yet a U.S. citizen. The document submitted from the Circuit Court of Buchanan County, Missouri, indicates that, at least as of September 12, 2005, adoption proceedings had commenced, but were not yet complete. Once the adoption is complete, the adoptive parents can obtain a Certificate of Citizenship, which is primary evidence of U.S. Citizenship. See POMS RM 203.310.B.1.
You also asked whether there are instances when Missouri birth certificates cannot be accepted as secondary evidence of citizenship, as is the case in Louisiana, Nevada, New Jersey, and Wisconsin. See POMS RM 203.320.B.4.b. Birth certificates from these states cannot be accepted as secondary evidence of citizenship when the certificate contains a statement to the effect that it is not proof of citizenship. See id. This section is applicable only to states which require a child, whose adoption abroad was final, to be readopted in the U.S. See id. As discussed above, Missouri has no such requirement. However, because the birth certificate submitted in this case states that it is not proof of citizenship, it does not appear that it could be accepted as secondary evidence of U.S. citizenship.
Missouri does not require readoption of a foreign-born adopted child upon arrival in the U.S. The documentation submitted in this case indicates that the child had not yet been adopted upon her arrival in the U.S. Accordingly, she was not yet a U.S. citizen. The individual will need to finalize the adoption in order for the child to become a U.S. citizen and to obtain a Certificate of Citizenship. Finally, the Missouri birth certificate submitted in this case may not be used as secondary evidence of U.S. Citizenship.
Very truly yours,
Frank V. S~
Regional Chief Counsel
Kristin L. E~
Assistant Regional Counsel