III. ELIGIBILITY FOR IMMIGRATION BENEFITS AS AN ORPHAN
What is an Orphan?
Under U.S. immigration law, an orphan is a foreign child who does not have any parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. An orphan can also be a foreign-born child with a sole or surviving parent who is unable to provide for the child’s basic needs, consistent with the local standards of the foreign sending country, and has, in writing, irrevocably released the child for emigration and adoption.
For such a child to gain immigration benefits, an orphan petition must be filed before his or her 16th birthday. The only exception to this is when a child is adopted with or after a sibling who is considered a "child" under the Act who has been or will be adopted by the same adoptive or prospective adoptive parent(s). In this type of case, the petition must be filed before the child reaches age 18.
Who Can File an Orphan Petition?
A married U.S. citizen and spouse (no special age) or an unmarried U.S. citizen at least 25 years of age may file an orphan petition. The spouse does not need to be a U.S. citizen; however, if living in the United States, the spouse must have a legal immigration status. The adoptive or prospective adoptive parent who signs the “certification of petitioner” on the orphan petition is the petitioner.
Who is Not Eligible to File an Orphan Petition?
The following persons are not eligible to file an orphan petition:
- an individual residing lawfully in the United States who is not a U.S. citizen.
- a married couple residing lawfully in the United States, neither of whom is a U.S. citizen
- an individual or couple who do not have lawful immigration status in the United States
- a U.S. citizen who is still legally married but separated from his or her spouse, unless the spouse joins in the petition
An Orphan Petition May be Denied if:
- USCIS determines that the prospective adoptive parent(s) do not have the physical, mental and/or emotional capabilities to properly parent a child;
- USCIS finds that the prospective adoptive parent(s) do not have the financial capabilities to care for a child;
- a USCIS investigation or the home study reveals a history of abuse and/or violence and/or a criminal history;
- a USCIS investigation reveals unsuitable living conditions; and/or
- USCIS determines that the child does not fit the legal definition of “orphan.”
How is the Immigration Benefit Gained?
If an orphan petition is approved, the beneficiary (the child) of the petition is considered to be an immediate relative of a U.S. citizen. This means the child can get an immigrant visa right away without being placed on a visa waiting list.
However, the child must still qualify for an immigrant visa just like any other immigrant. For example, the orphan cannot get a visa if he or she is considered to be inadmissible to the United States. One reason an orphan could be inadmissible to the United States is if he or she has a contagious disease of public health significance. Waivers for certain grounds of inadmissibility may be sought. If an orphan petition is approved, an application for an immigrant visa may be made at the American embassy or consulate having jurisdiction over the child’s residence.
When an orphan enters the United States with an immigrant visa, the child is considered to be a lawful permanent resident of the United States, not a U.S. citizen. General information about U.S. citizenship for foreign-born adopted children can be found in Section VII of this publication.
What if the Child is Already in the United States?
An orphan petition may not be filed in behalf of a child who is in the United States unless that child is in “parole” status and has not been adopted. If an orphan petition is approved for a child in the United States, the child can become a lawful permanent resident through a procedure called adjustment of status. In some ways, adjustment of status is similar to applying for an immigrant visa in a foreign country.
For information on how a child can become a permanent resident if the child is not eligible to benefit from an orphan petition, see Section VI.
