TN 17 (02-20)
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:
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•
whether the State has the authority under state law to change a foreign-born individual’s
date of birth through a state court order;
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the State legal requirements to change a date of birth;
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whether the court order needs to list the supporting documentation of the change of
date of birth on the state court order;
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•
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
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•
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.
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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.
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2.
Does the court need to list the supporting documentation of the change of
date of birth on the state court order?
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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.