Definitions From the Immigration and Nationality Act Relating to Section 204(c)
An Adopted Child is defined in section 101(b)(1)(E) of the Act as “a child adopted while under the age of sixteen years who has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.”
Public Law 106-139, signed by the President on December 7, 1999, amended section 101(b)(1)(E) of the Act which added that a child who is a natural sibling of an adopted child described above and was adopted by the adoptive parent or parents of the sibling while the child was under the age of eighteen is also a “child” as defined by the Act. The child must otherwise fall under the definition of a child under paragraph (E) except that the child was adopted while under the age of eighteen.
An Orphan is defined in section 101(b)(1)(F) of the Act as “a child, under the age of sixteen at the time a petition is filed in his/her behalf to accord a classification as an immediate relative under section 201(b), who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence: Provided, that the Attorney General is satisfied that proper care will be furnished if the child is admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
Public Law 106-139, signed by the President on December 7, 1999, amended section 101(b)(1)(F) of the Act to include that when a natural sibling of a previously adopted child has been adopted abroad or is coming to the United States for adoption by the same United States citizen parent(s) or prospective parent(s) and the child is under the age of 18 when the petition was filed on his or her behalf to accord a classification as an immediate relative under section 201(b) of the Act .
Title 8 CFR 204.2 Definitions
Legal custody as defined in 8 CFR 204.2(d)(2)(vii)(A) means the assumption of responsibility for a minor by an adult under the laws of the state and under the order or approval of a court of law or an other appropriate government entity. This provision requires that a legal process involving the courts or an other recognized government entity take place. If the adopting parent was granted legal custody by the court or recognized government entity prior to the adoption, that period may be counted toward the fulfillment of the two-year legal custody requirement. However, if custody was not granted prior to the adoption, the adoption decree shall be deemed to mark the commencement of legal custody. An informal custodial or guardianship document, such as a sworn affidavit signed before a notary public, is insufficient for this purpose.
Resided with information can be found in 8 CFR 204.2(d)(2)(vii)(B). This section of the regulations says evidence must also be submitted to show that the beneficiary resided with the petitioner for at least two years. Generally, such documentation must establish that the petitioner and the beneficiary resided together in a familial relationship. Evidence of parental control may include, but is not limited to, evidence that the adoptive parent owns or maintains the property where the child resides and provides financial support and day-to-day supervision. The evidence must clearly indicate the physical living arrangements of the adopted child, adoptive parent(s), and natural parent(s) for the period of time during which the adoptive parent claims to have met the residence requirement. When the adopted child continues to reside in the same household as the natural parent(s) during the period in which the adoptive parent petitioner seeks to establish his or her compliance with this requirement, the petitioner has the burden of establishing that he or she exercised primary parental control during that period of residence.
Title 8 CFR 204.3(b) Definitions
Abandonment by both parents means that the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as have willingly forsaken all control over and possession of the child without intending to transfer or without transferring these rights to any specific person(s). Abandonment must also include the actual act of surrendering such rights, obligations, claims, control, and possession. A relinquishment or release by the parents to the prospective adoptive parents or for a specific adoption does not constitute abandonment. Similarly, the relinquishment or release of the child by the parents to a third party for custodial care in anticipation of, or in preparation for, adoption does not constitute abandonment unless the third party (such as a governmental agency, court of competent jurisdiction, adoption agency, or an orphanage) is authorized under the child welfare laws of the foreign-sending country to act in such a capacity. A child who is placed temporarily in an orphanage shall not be considered to be abandoned if the parents express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child. A child who has been given unconditionally to an orphanage shall be considered to be abandoned.
An adult member of the prospective adoptive parents’ household means an individual, other than the prospective adoptive parent, over the age of 18, whose principal or only residence is the home of the prospective adoptive parents. This definition excludes any child of the prospective adoptive parents, whose principal or only residence is the home of the prospective adoptive parents, who reaches their 18th birthday after the prospective adoptive parents have filed the advance processing application (or the advance processing application concurrently with the orphan petition) unless the INS director has an articulable and substantive reason for requiring an evaluation by a home study preparer and/or a fingerprint check.
An advance processing application means a Form I-600A, Application for Advance Processing of Orphan Petition, completed in accordance with the form’s instructions and submitted with the required supporting documentation and fee as required in 8 CFR 103.7(b)(1). The application must be signed in accordance with the form’s instructions by the married petitioner and spouse or unmarried petitioner.
An Application is synonymous with an advance processing application.
A competent authority means a court or governmental agency of a foreign-sending country has the jurisdiction and authority to make decisions in matters of child welfare, including adoption.
Desertion by both parents means that the parents have willfully forsaken their child, have refused to carry out their parental rights and obligations, and that, as a result, the child has become a ward of a competent authority in accordance with the laws of the foreign-sending country.
Disappearance of both parents means that both parents have unaccountably or inexplicably passed out of the child’s life, their whereabouts are unknown, there is no reasonable hope of their reappearance, and there has been a reasonable effort to locate them as determined by a competent authority in accordance with the laws of the foreign-sending country.
A foreign-sending country means the country of the orphan’s citizenship, or if he or she is not permanently residing in the country of citizenship, the country of the orphan’s habitual residence. This excludes a country to which the orphan travels temporarily or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.
A home study preparer means any party licensed or otherwise authorized under the law of the state of the orphan’s proposed residence to conduct the research and preparation for a home study, including the required personal interview(s). This term includes a public agency with authority under that state’s law in adoption matters, public or private adoption agencies licensed or otherwise authorized by the laws of that state to place children for adoption, and organizations or individuals licensed or otherwise authorized to conduct research and prepare for a home study, including the required personal interview(s), under the laws of the state of the orphan’s proposed residence. In the case of an orphan whose adoption has been finalized abroad and adoptive parents reside abroad, the home study preparer includes any party licensed or otherwise authorized to conduct home studies under the law of any state of the United States or the laws of the foreign country.
Incapable of providing proper care means that a sole or surviving parent is unable to provide for the child’s basic needs, consistent with the local standards of the foreign-sending country.
Loss from both parents means the involuntary severance or detachment of the child from the parents in a permanent manner caused by a natural disaster, civil unrest, or other calamitous events beyond the control of the parents as verified by a competent authority in accordance with the laws of the foreign-sending country.
An orphan petition means a Form I-600, Petition to Classify Orphan as an Immediate Relative. The petition must be completed in accordance with the form’s instructions and submitted with the required supporting documents, and if there is not an advance processing application approved within the previous 18 months or pending, the fee must be paid as required in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the form’s instructions by the married petitioner and spouse or the unmarried petitioner.
An overseas site means the Department of State’s immigrant visa-issuing post has jurisdiction over the orphan’s residence, or in foreign countries in which the USCIS has an office or offices, the USCIS office has jurisdiction over the orphan’s residence.
A petition is synonymous with an orphan petition.
A petitioner means a married U.S. citizen of any age or an unmarried U.S. citizen who is at least 24 years old at the time he or she files the advance processing application and at least 25 years old at the time he or she files the orphan petition. In the case of a married couple, in which both are U.S. citizens, either party may be the petitioner.
Prospective adoptive parents means a married U.S. citizen of any age and his or her spouse of any age or an unmarried U.S. citizen who is at least 24 years old at the time he or she files the advance processing application and at least 25 years old at the time he or she files the orphan petition. The spouse of the U.S. citizen may be a citizen or an alien. An alien spouse must have lawful status if residing in the United States.
Separation from both parents means the involuntary severance of the child from his or her parent by action of a competent authority for good cause and in accordance with the laws of the foreign-sending country. The parents must have been properly notified and granted the opportunity to contest such action. The termination of all parental rights and obligations must be permanent and unconditional.
A surviving parent means the child’s living parent when the child’s other parent is dead, and the child has not acquired another parent within the meaning of section 101(b)(2) of the INA. In all cases, a surviving parent must be incapable of providing proper care as defined in the law.
