Chapter 1 - Purpose and Background

A. Purpose

In enacting legislation regarding orphans, Congress was primarily concerned with the welfare of the children. The orphan process is one of three different ways for a child to immigrate to the United States based on adoption.^[1] The prospective adoptive parent (PAP) generally may pursue the orphan process^[2] if:

• The child is not habitually resident in a Hague Adoption Convention Country;^[3] and
• At least one of the PAPs is a U.S. citizen.

The orphan process involves a USCIS determination of the PAP’s suitability^[4] and eligibility to adopt and a determination of the child’s eligibility to immigrate as an orphan.

B. Background

The Displaced Persons Act of 1948 contained the first laws relating to the immigration of orphans. Since then, Congress has enacted several acts and amendments related to orphans and intercountry adoption. Significant recent changes include the:

• Intercountry Adoption Universal Accreditation Act of 2012 (UAA),^[5] which requires that adoption service providers (ASPs) providing adoption services in orphan cases follow the same accreditation or approval process required of ASPs providing such services in Hague Adoption Convention cases; and
• Consolidated Appropriations Act of 2014 (CAA),^[6] which changed the Immigration and Nationality Act (INA) definition of an orphan so that only one adoptive parent in a married couple has to personally see and observe the orphan before or during the adoption proceedings in order for the adoption to be considered “full and final” for immigration purposes.^[7]

C. Legal Authorities

• INA 101(b)(1)(F) – Definition of an orphan child
• INA 101(b)(2) – Definition of parent, father, or mother
• INA 201(b)(2)(A)(i) – Immediate relatives
• INA 204(d) – Recommendation of valid home study
• 8 CFR 204.1 – General information about immediate relative and family-sponsored petitions
• 8 CFR 204.3 – Orphan cases under section 101(b)(1)(F) of the Act
• 8 CFR 204.301 – Definitions
• 8 CFR 204.311 – Convention adoption home study requirements
• 8 CFR 205.1 – Automatic revocation
• 8 CFR 205.2 – Revocation on notice

Footnotes

[^ 1] See Part A, Adoptions Overview [5 USCIS-PM A] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) a prospective adoptive parent (PAP) should follow.

[^ 2] See the Application for Advance Processing of an Orphan Petition (Form I-600A) or a Petition to Classify Orphan as an Immediate Relative (Form I-600).

[^ 3] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage.

[^ 4] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].

[^ 5] See Pub. L. 112-276 (PDF) (January 14, 2013).

[^ 6] See Section 7083 of the CAA, Pub. L. 113-76 (PDF), 128 Stat. 5, 567 (January 17, 2014).

[^ 7] For more information, see 9 FAM 502.3-3(B)(3)(U)(1), Adoption or Intent to Adopt. See 9 FAM 502.3-3(B)(7)(U)(c), Immediate Relative (IR-3 vs. IR4) Orphan Classifications and the Child Citizenship Act.