The US Immigration and Naturalization Act, unlike similar laws for other countries such as Canada, sets a restrictive definition for the children who qualify for orphan status:

(From State Department web site at http://travel.state.gov/int'ladoption.html. This link will open in a new browser window. To return to NAIC's Web site, close the new window.)

Guidelines on International Adoption

To complete an international adoption and bring a child to the United States, prospective adoptive parent(s) must fulfill the requirements set by the United States Immigration and Naturalization Service (INS), the foreign country in which the child resides and sometimes the state of residence of the adoptive parent(s). Although procedures and documentary requirements may seem repetitive, obtaining several copies of the same document is advisable to meet documentary requirements. The process is designed to protect the child, the adoptive parent(s) and the birth parent(s).

The U.S. Immigration and Nationality Act (INA) is the U.S. immigration law regarding the issuance of visas to nationals of other countries, including children adopted abroad or coming to the United States for adoption. The basic statutory provision concerning adopted children is in INA Section 101(b)(1)(E), which provides immigrant classification for "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." This so-called "two-year provision" is for individuals who are temporarily residing abroad and wish to adopt a child in accordance with the laws of the foreign state where they reside. Most adoptive parents, however, are not able to spend two years abroad living with the child. Therefore, they seek benefits under another provision of the INA, Section 101(b)(1)(F), which grants immigrant classification to orphans who have been adopted or will be adopted by U.S. citizens. Under this section of the law, both the child and the adoptive parents must satisfy a number of requirements established by the INA and the related regulations, but the two-year residency requirement is eliminated. Only after it is demonstrated that both the parents and the child qualify, can the child be issued a visa to travel to the United States.

NOTE: On December 7, the President signed Public Law 106-139, allowing children aged 16 or 17 to qualify as an immediate relative for the purpose of adoption if the US adoptive parents have adopted the child's sibling, who is under the age of 16.

For specific information about INS requirements, see the U.S. Department of Justice, Immigration and Naturalization Service, brochure M-249Y, The Immigration of Adopted and Prospective Adoptive Children. The INS also has a toll-free information number, from which you can obtain form M-249 booklets and the telephone numbers of local INS offices in the United States. The toll-free number is 1-800-755-0777.

The Orphan Definition

It is important to note that a foreign country's determination that the child is an orphan does not guarantee that the child will be considered an orphan under the U.S. Immigration and Nationality Act, since the foreign country may use different standards.

(From INS book M-249Y booklet)
Under immigration law, an orphan is a foreign child who has:
--no parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents;
--a foreign child with only one parent and this sole surviving parent is impoverished by local standards and unable to care properly for the child and who has irrevocably released the orphan for emigration and adoption;
--a foreign child who has been abandoned to an orphanage with no parental contact for a minimum of six months.

It may be possible for the child to be adopted by residents of a country other than the United States which does not have the narrow orphan definition found in US immigration law - possibly in Canada or Europe. Several countries allow the adoption of children with two living parents.

This material has been taken from the National Adoption Information Clearinghouse Web site as reviewed and approved for addition to this site on January 15, 2004.

The National Adoption Information Clearinghouse http://naic.acf.hhs.gov, can be reached toll free at 1-888-251-0075,or by e-mail at: naic@calib.com.