Adoptions of Foreign-Born Children

Adoptions outside the U.S. of foreign-born children are discussed in the U.S. State Department's excellent advisories. Click here.

Adoptions inside the U.S. of foreign-born children and their ensuing greencard and citizenship status are the focus of Part I of this article. The laws in this area are written to discourage nonimmigrant entries of foreign children for adoption, immigration and naturalization purposes. Nonetheless, in appropriate circumstances, this can be an excellent strategy for permanently settling foreign-born children in this country.

The Child Citizenship Act of 2000 (CCA), which took effect on February 27, 2001, is also covered in this article.

Adopted Children and the Child Citizenship Act of 2000

On October 30, 2000, President Clinton signed H.R. 2883, the “Child Citizenship Act of 2000” (CCA). Effective February 27, 2001, the CCA:

• Repeals Immigration and Nationality Act (INA) §321;
• Amends and re-titles INA §§320 and 322;
• Ends expeditious naturalization of foreign-born children adopted inside this country;
• Enables such children to become citizens automatically, provided they adjust status before age 18 (new INA §320);
• Confers automatic citizenship on orphans and other children under age 18 who are born to or adopted by qualifying U.S. citizens abroad (new INA §320);
• Protects children of U.S. Citizens (USC's) permanently in the U.S. before age 16 from IIIRA’s false-citizenship-claim penalties;
• Opens expeditious naturalization to non-LPR children residing abroad who are lawfully admitted into the U.S. (new INA §322).

This advisory explains these changes as they affect foreign children adopted both domestically (Part I) and abroad (Part II).

I. FOREIGN CHILDREN ADOPTED INSIDE THE U.S.

-- One-Step Citizenship Under §322 Ends with the CCA’s Effective Date

Far fewer foreign children are adopted inside the U.S. than abroad. Children adopted inside the U.S. typically enter the U.S. as nonimmigrant visitors or students. They are typically adopted by USC relatives with the blessing of the natural parents abroad. For this minority, a 1994 amendment to INA §322 permitted one-step naturalization by changing the former requirement for an immigrant admission to a simple lawful admission. See former INA §322(a)(3).

On February 27, 2001, the CCA ended this benefit. It did so by confining new INA §322 to foreign-born children, including adopted children, who (1) reside outside the U.S. in the legal and physical custody of the citizen parent; (2) are temporarily present in the U.S. pursuant to a lawful admission; and (3) are maintaining such lawful status. See new INA §§322(a)(4),(b) and CCA Section 102.

-- Advice to Families of U.S. Adoptees After the CCA

Of course, foreign parents bent on settling their children permanently in the U.S. will continue to do so after the CCA. For these and other foreign-born children adopted in the U.S., the adoptive U.S. parents need to be aware of: (1) the desirability of maintaining valid nonimmigrant status for the alien child even though unlawful presence does not accrue against minors under age 18; (2) the requirement to adopt the child before age 16 and to accrue two years in the physical and legal custody of the adoptive USC parents before applying for adjustment of status (green card); (3) the one-year limit on public secondary school attendance and the payback requirement for that year; (4) the consequent desirability of stable private-school enrollment; (5) the need for early adjustment to secure Social Security Numbers, Employment Authorization Documents (EAD’s or “work cards”), higher-education scholarships, and in-state tuition benefits; and (6) the absolute bars at ages 16, 18 and 21 for adoption, automatic citizenship and immediate-relative-based adjustment, respectively.

-- Adjustment Before Age 18 Results In Automatic Citizenship Under New INA §320; Pitfalls

With the CCA’s February 27, 2001 effective date, the law now requires children adopted in the U.S. who entered on nonimmigrant visas (NIV’s) to undergo adjustment of status as a precondition for citizenship. This also applies to children adopted and residing abroad who entered the U.S. in NIV status that has lapsed. The good news is that, once these children secure LPR status, they thereby become citizens automatically under new INA §320, with no requirements respecting either foreign residency or time spent in LPR status -- but subject to the same age 18 adjustment deadline. See especially new INA §320(a)(3) and INA §101(a)(20).

The implementing regulations clarify this benefit. In comments to these regulations, the legacy INS explicitly acknowledges the existence in the United States of children who enter this country as lawful nonimmigrants or humanitarian parolees. Better still, the comments state that "[s]uch children will acquire automatic citizenship only after they immigrate to the United States or adjust status in the United States to that of a lawful permanent resident. Once the child becomes a lawful permanent resident and all other requirements of the CCA are met, the child will be a citizen of the United States automatically by operation of law."

But adjustment must still occur before age 18. Miss that age 18 adjustment deadline, and the child will qualify for neither automatic nor expeditious citizenship. Instead, he or she will have to undergo lengthy N-400 naturalization under INA §316. Miss the age 21 immediate-relative adjustment deadline, and the child will have to undergo both first-preference adjustment (with a §212(a)(9)(B) waiver of any NIV overstay after age 18) and N-400 naturalization.

II. ORPHANS AND CHILDREN ADOPTED ABROAD: BENEFICIAL CHANGES IN THE NEW ACT

-- Orphans Adopted Abroad and Now in the U.S.: Automatic Citizenship Procedures

The largest group who benefit from new INA §320 is the 10,000-plus families per year who adopt orphans abroad. Their children enter as LPRs after extensive paperwork and delays in their state's home study, the foreign country’s legal adoption, and the U.S. consulate’s I-600 processing. After their new children are admitted to the U.S., most families re-adopt them in state court. Under the CCA, these children become citizens automatically without filing N-643 forms.

After February 27, 2001, these adopted orphans can document their automatic citizenship status either by filing an N-600 for a Certificate of Citizenship with the INS or by applying for a U.S. passport. The latter is certainly faster and easier.

-- Orphans: Protection From Penalties For False Citizenship Claims

The CCA also helps those orphans adopted previously who may have mistakenly thought they were USCs. They are now protected from the penalties for falsely claiming U.S. citizenship. Making such a false claim is one of the few nonwaivable grounds of inadmissibility, precludes a finding of good moral character for naturalization purposes, and is a felony if the alien votes in a federal election without being a citizen. Section 201 of the CCA amends INA §101(f) (good moral character), §212(a)(1)(D) (inadmissibility), §237(a)(6) (grounds of deportability), and 18 U.S.C. § 611 (unlawful voting in federal election) to exempt adopted orphans if they had a "reasonable belief" that they were citizens at the time of the false claim. Most of these new provisions take effect retroactively.

-- Children Living Abroad and Lawfully Admitted Into the U.S.: Expeditious Naturalization Procedures

The second large group of families who fare well under the CCA is those USCs still living abroad (primarily military personnel) who adopt a child. Under new §322, those families can file an N-643 from abroad at the CIS office near their U.S. home of record, await an interview date, and then obtain a B-2 visa for the child to attend the citizenship interview in the U.S. While §322 has been dramatically limited, those families are still eligible for the N-643 path without first obtaining LPR status for their children.

Note that most of the children who received automatic citizenship under §321, which is repealed by the new Act, are still covered by the new §320. The most common group is children born abroad of alien parents, where the parents subsequently naturalize.

III. CONCLUSION

The Child Citizenship Act of 2000 confers automatic citizenship on qualifying orphans adopted abroad. It opens expeditious naturalization to adopted children of USC’s still residing abroad, closes it for foreign children adopted domestically, but replaces it with automatic citizenship for those adjusting status before age 18.

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From an article by Everett P. Anderson and Dan H. Berger, published in the February, 2001 issue of Immigration Law Today. While oriented towards immigration lawyers, this article also contains useful information for all prospective U.S. parents of adopted foreign children. Copyright (c) 2001, Everet P. Anderson and Dan H. Berger. All rights reserved.

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.