EACH - Equality for Adopted Children

Frequently Asked Questions

1. How is a child adopted internationally by an American citizen treated differently from a child born abroad to an American citizen?

When an American citizen gives birth to a child overseas, under Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) that child is considered a “citizen from birth” and is immediately granted citizenship rights. The American parent/s take proof of their citizenship and their child’s birth certificate to the U.S. Embassy and apply for and are given an American passport for their child and a Consular Report of Birth that states where the child was born and to whom and is treated the same as a birth certificate. Both the passport and the Consular Report of Birth are prima facie evidence of U.S. citizenship. When the American parents are ready to return to the United States, they bring home their child with a U.S. passport.

In contrast, when an American citizen adopts a child internationally, their child is treated as an immigrant and the adoptive parents have to apply for an immigration visa to bring their fully adopted child home to the United States. In order to be granted an immigration visa, the parents have to pay a hefty fee, provide numerous documents (many of which have already been provided the U.S. government during the adoption process) and the child has to undergo a medical exam. Besides the time, paperwork and money required to get an immigrant visa, it is inequitable to treat an adopted child of an American citizen differently from a child born to an American citizen. Under adoption law, once a child is legally adopted, they are to be treated the same as if born to the adoptive parents. Unfortunately, that principal of law is not true for internationally adopted children.

How do the amendments to the Child Citizenship Act, included in this legislation, benefit the adopted child and the adoptive parents?

If enacted, this bill would eliminate the need for an immigrant visa for a child adopted internationally by an American citizen. Under current law, an internationally adopted child must apply for and receive an immigrant visa to enter the United States and for most of these children (with some exceptions) once their plane sets down on American soil, citizenship attaches. Under the language in this bill, the child would become an American citizen upon completion of the adoption and upon a determination by the U.S. government that the child meets the eligibility criteria for adoption.

For the majority of international adoptions, these criteria are met in the adopted child’s country of origin. Therefore, citizenship would attach earlier than under current law and the adoptive parents can apply for a U.S. passport and a Consular Report of Birth and the child would enter the U.S. as an American citizen instead of as an immigrant. Applying for and receiving a U.S. passport and Consular Report of Birth is less costly, less time consuming and less paperwork for the adoptive parents and can be accomplished in the same amount of time (or less) as it currently takes to apply for and receive an immigrant visa. Moving the time back for when citizenship attaches eliminates the effort needed to receive an immigrant visa simply for a plane ride home.

An additional and another important benefit is that the adopted child would have proof of citizenship immediately instead of waiting several months for a Certificate of Citizenship to arrive in the mail. Therefore, parents could immediately apply for and receive a social security number for their child. They would have immediate proof of citizenship for the purposes of enrolling their child in school if they are of school age. They would have a social security number for tax purposes which would help them apply for the adoption tax credit in a timely fashion. Also, should the passport or Consular Report of Birth be lost or stolen, a replacement could be acquired much quicker and at considerably less cost in time and money than if a Certificate of Citizenship is lost or stolen.

Another time saver that would occur is the elimination of a medical exam for immigration purposes. Since the adopted child would be considered a “citizen from birth” once the criteria were met for citizenship, there would be no requirement for a medical exam. Currently, this exam is required of all persons seeking an immigration visa in order to determine if the applicant has a contagious disease making them ineligible for an immigrant visa. For example, Americans are now adopting HIV+ children who have been orphaned by the AIDS crisis. Because the children are HIV+, their application for an immigrant visa is initially denied and they have to apply for a waiver and have the waiver request granted before they can receive an immigrant visa. The waiver request costs another $400 plus and more time and more paperwork. However, an HIV+ child born to an American citizen abroad is not required to under go a medical exam and apply for and receive a waiver to enter the U.S. In fact, no child born to an American citizen abroad has to undergo a medical exam. There is no reason for a child adopted by an American citizen, who is just as much a child of an American citizen as one born to an American citizen, to undergo a medical exam designed for immigrants.

These are just some of the immediate benefits of the changes this legislation would provide for adoptive families.

3. Does this legislation allow the actions of a foreign government to result in the granting of U.S. citizenship?

The simple answer is “no.” In order to become a citizen under the language of this bill, several criteria have to be met. First, the child has to be adopted by an American citizen. Second, the child has to be under the age of 18. Third, the adopting parent/s have to have been found eligible and suitable to adopt a child by the U.S. government. And finally, the U.S. government must determine that the child is eligible for adoption under the eligibility criteria provided in the bill. Citizenship would not attach until ALL these criteria were met with the final criteria being a determination by the United States government that the child is eligible for adoption. If the child is determined to have been fraudulently adopted or ineligible for adoption under the criteria provided in this bill, citizenship would not attach. It wouldn’t matter if the first three criteria were met, including an adoption decree being issued by the child’s country of origin, the child still would not be considered an American citizen until and unless, the U.S. government found that the child’s paperwork was in order and therefore was eligible for adoption by an American citizen. Once all four of these criteria are met, the adoptive parents would apply for proof of citizenship in the form of a passport and Consular Report of Birth at the American Embassy, just like any American parent of a foreign born biological child has to do.

4. This bill provides that once the adopted child is granted U.S. citizenship, that the
child will be considered a “citizen from birth.” Would granting U.S. citizenship from birth deprive an internationally adopted child his or her cultural heritage?

Absolutely not! Instead of depriving an internationally adopted child of their country of origin’s heritage, their heritage is enhanced by adding all the additional benefits of having been “born” an American. For example, under this bill, if an American citizen adopted a Chinese orphan, that child would always be recognized by China as “Chinese” and will always have a rich heritage from such birth. However, this adopted child would have the added benefit of being considered an American from birth under the same statute that provides that children born to American citizens overseas are considered Americans from birth. One major benefit of being considered an American from birth is the opportunity to run for President of the United States just like children born to Americans overseas. This opportunity would remove one of the few remaining inequalities that exist at a federal level for internationally adopted children of American citizens. This bill would provide adoptive parents the opportunity to tell all their children, whether adopted internationally or not, that “in America, you can grow up to be anything you want to be, including President of the United States.”

5. This bill allows children up to the age of 18 to be adopted by American citizens. How is this different from current law and are there security risks in allowing adoption of older teenagers?

Under current law, children can be adopted up until the age of 16. However, if a younger sibling is adopted, an older sibling can be adopted who is over the age of 16 but is under the age of 18. The language in this bill would eliminate the need to adopt a younger sibling in order to adopt a child under the age of 18. Teenagers are as much in need of families as younger children. Many older teens in our foster care system still dream of being adopted by a family. Those who are, fare much better than those who go through life unconnected to the love of a family. The current age restriction on adoption is arbitrary. Since we already allow for adoption for siblings up to age 18, the eligibility age for adoption should be raised to 18 regardless of whether a younger sibling is adopted or not.

Some have argued that children, who are 17, or almost 18, are more of a security risk and could be “terrorists.” Even if this assumption were true, which it is not, the bill provides that the Secretary of Homeland Security be consulted and “is satisfied that the individual is not a security risk.”

6. This bill allows for adult adoptees, whose parents failed to naturalize them prior to their 18th birthday (as was required for citizenship to attach prior to the passage of the Child Citizenship Act of 2000) to apply for and receive citizenship from birth just as is provided by this bill for a child adopted internationally by an American citizen. Why is this provision necessary?

Prior to the passage of the Child Citizenship Act of 2000 (CCA), all internationally adopted children had to go through a naturalization process prior to their 18th birthday in order to become an American citizen. Unfortunately, some adoptive parents, either through ignorance or neglect, failed to naturalize their internationally adopted children. Therefore when the adopted child reached age 18, they became ineligible for citizenship accorded adopted children. Many of these adult adoptees did not find out that they were not citizens until they applied to college, applied for a passport or undertook some activity that required proof of citizenship. In some cases, where the adult adoptee violated the law, they have been deported back to their country of origin with no ability to return to the United States. This has happened to adult adoptees that were adopted as infants and have no knowledge of the language or the culture of their country of origin.

In 2000, Congress sought to rectify this problem by providing automatic U.S. citizenship for the first time to internationally adopted children of American citizens once they enter the country to reside permanently. Therefore, most internationally adopted children receive citizenship once their plane lands in the United States. However, the CCA only applied to children who were under the age of 18 when the bill went into effect on February 27, 2001. Thus, it did not cover adoptees that were already over the age of 18 and had not been naturalized by their parents.

In addition, when the bill was implemented, the Department of State made a distinction between adopted children who arrive in the U.S. on an IR-3 visa and a child who arrives on an IR-4 visa. If both adoptive parents or parent in the case of a single parent have seen the child during the adoption process, the child is given an IR-3 visa and citizenship attaches when the plane lands on American soil. However if the child is given an IR-4 visa, which means both parents or parent in the case of a single parent did not see the child during the adoption process, then citizenship does not attach when the plane lands. Instead, the Department of State requires that the parent/s readopt the child in a U.S. court first, then citizenship attaches. IF the parent/s fail to readopt the child before age 18, then the child is without a means to attain citizenship. This was not the intent of Congress when the CCA was passed.

These gaps in the law need to be closed so that all children who have been or will be adopted by American citizens and meet the criteria in this bill, are eligible to apply for and receive proof of American citizenship.


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