QUESTION PRESENTED
This is in response to your request for an opinion as to whether the agency may rely
on the Court of Jefferson County, West Virginia “Order Granting Petition of Recognition
of Foreign Decree” 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 West Virginia and federal law. Based on this information, it is our opinion that
the agency may rely on the Court of Jefferson County, West Virginia “Order Granting
Petition of Recognition of Foreign Decree” to establish a different date of birth
for a foreign-born child adopted by United States parents.
BACKGROUND
According to the information you provided, the City Government of Addis Ababa, Ethiopia,
issued a birth certificate on November, indicating SSN Applicant A~ Charles B~ (Applicant),
then named A~, Charles B~ was born on July, in Tatema, Ethiopia. The Ethiopian birth
certificate shows Charles and T~, United States citizens, to be the adoptive parents.
On January 28, 2011, the United States Embassy in Ethiopia issued a visa to Applicant,
showing her date of birth to be July. Effective January 29, 2011, the United States
Government issued a Permanent Resident card to Applicant, showing her date of birth
to be July.
On an unknown date, Charles and T~, residents of West Virginia, filed a petition with
the Court of Jefferson County, West Virginia, seeking recognition of the foreign adoption
of Applicant. With their petition, the B~ submitted a March 17, 2011 letter from Richardz,
N. D~ D.D.S., a doctor of dental surgery, stating his medical opinion that Applicant
was nine years old.
On March 19, 2011, a Circuit Court judge entered an order granting the petition and
decreed that the foreign adoption of Applicant by Charles and T~ B~ in Ethiopia on
October 29, 2010, be recognized in West Virginia. The court approved the B~’ request
to change Applicant’s name from A~ Charles B~ to A~ T~ B~. The court found that it
was in the best interest of Applicant to change her date of birth from July (different),
to July (different). The court ordered the clerk of court to deliver to the State
Registry of Vital Statistics a certificate showing, among other information, the date
of birth of Applicant as July.
On April 11, 2011, the Vital Registration Office of the Department of Health and Human
Services, State of West Virginia, issued a Certificate of Foreign Birth for Applicant,
showing her date of birth as July.
On April 2, 2014, Charles and T~ B~ applied for an original SSN card for Applicant,
indicating her date of birth as July.
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 my 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-~~ – 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:
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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 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.
We looked to West Virginia law to address the questions set forth in EM-~~ because
the court order changing Applicant’s date of birth was issued by a West Virginia circuit
court. West Virginia law permits a date of birth change for a foreign-born child in
the context of a petition to recognize a foreign adoption. W. Va. Code § 48-22-902(b)
(2014). The state requires the adoptive parents or parent to file a petition with
the circuit court of their county of residence to have a foreign adoption decree recognized
by the state. W. Va. Code § 48-22-902(a). The petition must set forth the following:
(1) the name and address of the petitioner or petitioners; (2) the name of the child
adopted in a foreign country; (3) the name by which the child shall be known; (4)
the child’s country of origin and date of birth, if known; (5) that the child has
been issued a visa or other document authorizing entry into the United States and
the date of entry; (6) that a home study of the petitioner or petitioners was prepared;
and (7) the date on which the adoption was decreed in the foreign country. W. Va.
Code § 48-22-902(a)(1)-(7). The petitioner or petitioners must provide a copy of the
visa or other document authorizing entry into the United States, the home study, and
the foreign adoption decree or such other document or documents that evidence finalization
of the adoption in the foreign country, with an English translation. W. Va. Code § 48-22-902(a)(1)-(7).
To change a date of birth in an adoption proceeding, the state requires a physician
opinion recommending such a revision. See W. Va. Code § 48-22-902(b).
Here, Charles and T~ B~, residents of Jefferson County, West Virginia, filed a petition
with the Court of Jefferson County, West Virginia, to have the Ethiopian adoption
decree of Applicant recognized in West Virginia. With their petition, the B~s requested
a revision of Applicant’s date of birth from July (different year) to July (different
year), based on a medical opinion of her true biological age. In support of their
request, the B~s submitted a medical opinion from Applicant’s dentist stating, in
March 2011, that based on a dental examination of Applicant, her biological age was
nine years old rather four years old. The court found that it was in the best interest
of the parents and Applicant that the court change Applicant’s chronological age to
match her biological age. The court ordered that the adoption of Applicant by the
petitioners that was completed in Ethiopia on October 29, 2010, be recognized in West
Virginia and have the same force and effect as if the decree of adoption were granted
in accordance with West Virginia law. The court further ordered that the clerk of
court deliver to the State Registry of Vital Statistics a certificate showing, inter
alia, the date of birth of Applicant as July. We believe that the court order satisfies
West Virginia law and that the agency may rely on the court order recognizing the
foreign adoption to establish a date of birth change for Applicant.
The West 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. The
statute merely states that the petitioner or petitioners must provide a copy of the
visa or other document authorizing entry into the United States, the home study, and
the foreign adoption decree or such other document or documents that evidence finalization
of the adoption in the foreign country, with an English translation. W. Va. Code § 48-22-902(a)(1)-(7).
In the present case, however, the court referenced the supporting documentation on
which it relied. The court noted that the documentation included the Immigrant Visa
issued by the United States Embassy in Ethiopia, the home study prepared by a social
worker licensed by the State of West Virginia, and the foreign adoption decree issued
by The Federal Democratic Republic of Ethiopia. [1] The court found that all of the required documentation was in good order. The court
further found the petition to be satisfactory and that all the documentation required
had been submitted and was satisfactory. Given the absence of an express statutory
requirement to list the supporting documentation on the court order, and the court’s
discussion of the evidence, we believe that the court order was based on sufficient
documentation for the date of birth change.
In addition to a new state order of adoption, the state of West Virginia issues a
certificate for the state registrar of vital statistics, indicating, among other relevant
information, the date of birth of the child. W. Va. Code §§ 48-22-903, 48-22-702(d).
The state registrar of vital statistics then issues a birth certificate in the form
prescribed by law. W. Va. Code § 48-22-702(e). Here, the court order directed the
clerk of court to deliver to the State Registry of Vital Statistics a certificate
showing the date and place of birth of Applicant, the name and address of the adoptive
parents, and the name by which Applicant was to be known. On April 11, 2011, the Vital
Registration Office of the Department of Health and Human Services, State of West
Virginia, issued a Certificate of Foreign Birth for Applicant, showing her date of
birth as July.
Finally, for a foreign-born child who is not a citizen of the United States and who
was adopted through a court of competent jurisdiction in West Virginia, the state
issues a Certificate of Foreign Birth. W. Va. Code § 16-5-18(h). Here, as noted, on
April 11, 2011, the Vital Registration Office of the Department of Health and Human
Services, State of West Virginia, issued a Certificate of Foreign Birth for Applicant,
showing her date of birth as July.
CONCLUSION
For the reasons stated above, it is our opinion that the agency may rely on the Court
of Jefferson County, West Virginia “Order Granting Petition of Recognition of Foreign
Decree” to establish a different date of birth for a foreign-born child adopted by
United States parents.
Nora Koch Acting
Regional Chief Counsel
By: _______________
Anne von Scheven
Assistant Regional Counsel