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