Questions and answers about US citizenship for intercountry adoptees, including how the Adoptee Citizenship Act of 2021 may fix current issues.
Provisions that would provide US citizenship to many intercountry adoptees have been included in the COMPETES Act, a bill that has passed the US House. The provisions are different from the Adoptee Citizenship Act discussed below. For more current information about the issue of intercountry adoptees who lack US citizenship, consult this post here. Some of the information below is now considered outdated.
What is the Adoptee Citizenship Act of 2021?
The Adoptee Citizenship Act of 2021—sometimes called ACA or ACA21 for short—are two identical bills pending in the U.S. Congress: HR1593 and S967. These bills would amend U.S. immigration law to repeal a loophole that has operated to deny automatic U.S. citizenship to thousands of intercountry adoptees who were adopted by U.S. citizen parents, some more than sixty years ago. While most people presume that children adopted by U.S. citizen parents receive automatic U.S. citizenship when they are adopted, this is not true for many intercountry adoptees. Many are now adults and do not have U.S. citizenship.
What’s the current law and what’s wrong with it?
The Child Citizenship Act of 2000 (the CCA) generally controls whether or not an intercountry adoptee to the United State automatically acquires U.S. citizenship. The CCA went into effect on February 27, 2001, and it ensured automatic citizenship to intercountry adoptees who were fully and finally adopted—but only if they were younger than 18 years of age at the time of the law’s effective date. That is, an intercountry adoptee who was 18 years of age on February 27, 2001, is excluded from the law and has not been eligible for automatic U.S. citizenship under current law. Thousands of intercountry adoptees—most of whom were born before 1983—did not then and still do not qualify today for automatic U.S. citizenship. Many may still lack U.S. citizenship today, and some intercountry adoptees may not even know they lack citizenship. Worse, dozens of adoptees have been deported to their countries of origin and others live in the U.S. under removal orders, subject to deportation at anytime.
How does the Adoptee Citizenship Act address the current problems?
While the ACA addresses several issues in current immigration law, the primary issue relates to the date of birth of intercountry adoptees. The bill, as currently drafted, would provide automatic citizenship to intercountry adoptees no matter their age of birth, provided they meet the other requirements of the law. The provision in the ACA that eliminates the age requirement states that automatic citizenship would apply to intercountry adoptees “regardless of the date on which the adoption was finalized.” Other issues, however, may still prevent acquisition of US citizenship.
Does the Adoptee Citizenship Act resolve all the issues intercountry adoptees have with securing U.S. citizenship?
No. Even if the ACA is enacted in its current form, there are generally two groups of people that the bill will not completely address:
- People who were not fully and finally adopted in either the country of origin or in the United States. In other words, the person’s adoption was never legally finalized. The vast majority of these adoptees are those who entered the United States on an IR-4 visa and were not adopted in the United States before the age of 16. This loophole will remain in effect even if the ACA, as currently drafted, is enacted.
- Adoptees who have been deported. While the ACA addresses situations where an adoptee has already been deported, the path to citizenship for these adoptees is more difficult.
There are a few other exceptions that relate more to general immigration law and not specifically to the Adoptee Citizenship Act or to the Child Citizenship Act. The most prominent of those issues relates to adoptees who cannot prove that they were lawfully admitted into the United States. That is a very complex issue and difficult to resolve with or without the proposed bill.
Hold on. Intercountry adoptees have been deported? How did that happen?
Though the exact number of intercountry adoptees who have been deported from the United States is not known, it is presumed to be at least fifty, and we learn of new deportations each year. Generally, adoptees have been deported because: 1) they were never provided U.S. citizenship and thus did not obtain the benefits and privileges of citizenship; and 2) they committed a crime that led to their deportation. In at least one case, the U.S. government has begun efforts to remove an intercountry adoptee not because of criminal activity but because the adoptee could not prove that she entered the country legally, despite having been adopted by U.S. citizen parents.
I’m an intercountry adoptee who has been deported. Will the Adoptee Citizenship Act help me?
Yes, though additional hurdles are involved in returning to the U.S. and acquiring U.S. citizenship upon that return. Under the current language of the Adoptee Citizenship Act, intercountry adoptees who have been removed from the United States (i.e., deported) will have a path to return to the United States to secure citizenship and remain in the country as U.S. citizens. Returning to the U.S. under the ACA would require applying for and being issued an immigrant visa. The ACA would make deportees eligible to apply for and receive a visa, despite prior criminal convictions that led to their deportation. Nevertheless, to obtain a visa, the person must:
- undergo a criminal background check;
- “resolve” any prior criminal activity that may be disclosed in the criminal background check. What is meant by “resolved” in the bill is not clear but it would likely involve discretion on the part of the government to determine the appropriateness of issuing a visa for a deported adoptee.
If the deported intercountry adoptee obtains a visa and enters the United States on that visa, he or she would become a U.S. citizen automatically upon admission to the country, at least under the current draft of the ACA.
I’m an intercountry adoptee without citizenship in the United States, and I also have a criminal record. Will that prevent me from becoming a citizen under the ACA?
Under the current version of the ACA of 2021, you would become a citizen even though you have a criminal record, so long as you meet the requirements of the law. I have represented intercountry adoptees who have criminal records but are citizens under the current Child Citizenship Act. The criminal record had no bearing on securing a Certificate of Citizenship, though a criminal record in some instances may be used to deny issuance of a U.S. passport.
I’m an intercountry adoptee and I came to the country on a tourist visa when I was a child. Will the ACA help me?
Generally, and without knowing more specific information about the entry and other circumstances of your adoption, the answer is likely yes, the ACA will help you—unless it is amended or interpreted differently than how most people are interpreting it right now. The current bill does not specifically require the adoptee to be a legal permanent resident, as is currently required under the Child Citizenship Act (legal permanent resident, or LPR, is the status a person obtains when they are admitted to the U.S. on an immigrant visa, such as an IR-3 or IR-4 visa, discussed below). Rather, the ACA requires that the adoptee be residing in the U.S. “pursuant to a lawful admission” at the time of the enactment of the ACA—so long as they meet any other requirements of the ACA, such as a final adoption. The term “lawful admission,” as used in the ACA, would include those who entered lawfully but who may not currently be legal permanent residents. That is, it should include those who entered lawfully on both immigrant or non-immigrant visas, such as visitor/tourist visas.
I’m an intercountry adoptee without citizenship. If the ACA is enacted, what happens next?
Good question. Though the ACA will confer “automatic” citizenship to intercountry adoptees, it doesn’t mean you’ll automatically receive a Certificate of Citizenship or U.S. passport in the mail. Unless some other approach is taken as a result of the ACA being enacted (and assuming it is enacted), it is likely that anyone who qualifies for citizenship under the ACA will need to apply for and receive proof of that citizenship, typically in the form of a Certificate of Citizenship.
Obtaining a Certificate of Citizenship requires submitting a form N-600 and supporting documentation, plus paying the filing fee, which is currently $1,170.00. Obtaining a passport is faster, far cheaper, and may be easier, depending on the documentation you have. A U.S. passport, however, can be revoked or denied for reasons unrelated to citizenship status (e.g., failure to pay child support, significant tax debts, outstanding felony warrants). Generally, whether you are applying for a U.S. passport or a Certificate of Citizenship, you will need to have the following documents available:
- Final decree or judgment of adoption, including a certified translation if a foreign decree is not in English;
- Evidence of physical presence in the United States (often satisfied with school enrollment records);
- Proof of lawful permanent residence in the United States (e.g., a green card)
Additional General Questions
I have a dumb question that I’m afraid to ask. Who are intercountry adoptees and how many live in the United States?
An intercountry adopted person (or adoptee) is a person who is born in one country and legally adopted by a citizen or citizens of another country. Some people also use the term transnational adoptee. Within the intercountry adoptee community, there may be many other terms of self-identification, including transracial, transcultural, and country-specific identifiers. FWIW, since the mid-1950s, considered the beginning of sustained intercountry adoption to the United States, hundreds of thousands of children have come to the United States as intercountry adoptees, with more than 200,000 children arriving in the United States in the last twenty years.
Are intercountry adoptees considered immigrants?
Yes. Under United States law, intercountry adoptees are treated as immigrants for citizenship purposes and must “immigrate” to the United States by entering the country with an immigrant visa. Those visas, which relate to adoption, are known by the following visa codes: IR-3, IH-3, IR-4, and IH-4 visas. The most common visas today are IR-3/IH-3, and IR-4/IH-4, and adoptions from many years ago may have been assigned a visa category that is no longer in use. The prefix IH in the visa codes refers to the fact that the adoption was under the auspices of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (usually called “the Hague Convention” in the context of adoption).
What’s the difference between an IR-3 and an IR-4 visa?
The difference is generally where the adoption occurs. An IR-3 visa generally means that the person has been adopted fully and finally in the adoptee’s country of origin. That is, a judgment or decree of adoption was issued by a court or tribunal in the country where the child was born. An IR-4 means that there was no full and final adoption in the country of origin and that the child immigrated to the United States “for the purpose of adoption.” With IR-4 visas, the prospective adoptive parent or parents are generally appointed as the child’s legal guardian until the adoption is finalized in the United States.
Unfortunately, some prospective adoptive parents never finalize the adoption in the United States and the child does not acquire citizenship. They remain permanent legal residents and cannot vote, cannot obtain certain benefits, and are subject to deportation or removal from the country if they commit a removable offense. Once an adult, the only option to become a citizen is to naturalize, provided that they have the documentation and do not have anything on their record that would prevent securing citizenship. Even today, intercountry adoptee children admitted on an IR-4 visa and who have not yet been adopted in a state court, may become an adult without acquiring U.S. citizenship. They would then need to naturalize.
Is anyone monitoring IR-4 visas to make sure the child’s adoption is finalized in the United States?
No. I am not aware of any formal oversight by the U.S. government, adoption agencies, or state child welfare departments in monitoring IR-4 visas to assure that the child who immigrates to the U.S. is ultimately adopted in a state court, nor are there current laws in place to compel a parent (who is not yet legally the adoptive parent) to finalize the adoption in state court. Since 2002, more than 50,000 children have entered the United States on IR-4/IH-4 visas, and it is unknown how many of them have ultimately been adopted in state court.
The use of IR-4 immigrant visas “for the purpose of adoption” does not assure the child will ever be adopted. The use of such visas—in conjunction with the failure to finalize the adoption—will remain a major loophole in current law even if the ACA is enacted. It also has significant legal and social ramifications, such as:
- illegal or unregulated “rehoming” of children. In addition to increasing the chances of a non-citizen child being trafficked, when a child is “rehomed” or placed illegally or informally with another family, the child essentially loses the ability gain automatic citizenship through adoption. The child, as an adult, will likely face problems with citizenship status later in life and could be subject to deportation, something that would not be possible had the child’s adoption been finalized.
- legal exemptions that relate to voting and false claims of citizenship. Normally, if a person who is not a US citizen votes or obtains a benefit through a false claim of U.S. citizenship, that person can be denied U.S. citizenship later. A specific exemption exists, however, for people who reasonably believe they were citizens when they voted or claimed U.S. citizenship. This exemption applies only if they are the children of US citizens, whether natural born or adoptive children. Such an exemption would generally not apply if the adoption was never finalized.
I’m not sure I am a U.S. citizen. How do I find out?
Knowing you are a citizen and proving you are a citizen are two different things. Let’s take the second one, which is fairly easy to explain: proof of citizenship. There are generally four documents you can use to prove U.S. citizenship:
- A government-issued certificate of birth showing you were born in the United States;
- A U.S. passport;
- A Certificate of Naturalization;
- A Certificate of Citizenship.
If you have one of these documents, then you have proof (and also knowledge) that you are a U.S. citizen.
If you do not have any of these documents and do not even have a copy of one, then you will need to determine what documents exist to help prove citizenship. To do that you will need to either find one of these documents or find the documents you need through a request to the Department of State or the U.S Citizenship and Immigration Services (USCIS). My suggestion would be to contact an attorney to help. Solutions may be as easy as making a request for your records to the USCIS, but the solution could be far more complicated if you discover issues or documentation problems with your adoption or arrival to the U.S.