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A. What is an Orphan?
B. Who Can File an Orphan Petition?
C. How is the Immigration Benefit Gained?
D. What if the Child is in the United States?
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. An orphan is also a foreign child with only one parent who is not able to take care of the orphan properly and has in writing forever or irrevocably released the orphan 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 term "orphan" is defined in section 101 (b)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1 101(b)(a)(F).
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A married United States citizen and spouse (no special age) or an unmarried United States citizen at least 25 years of age. The spouse does not need to be a United States citizen. The adoptive or prospective adoptive parent who signs the "certification of petitioner" on the orphan petition is called the petitioner.
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If an orphan petition is approved, the beneficiary of the petition (the child) is considered to be an immediate relative of a United States citizen. This means that he or she can get an immigrant visa right away without being put on a visa waiting list with other applicants.
The orphan still must qualify for an immigrant visa just like any other foreign person. For example, the orphan cannot get a visa if he or she is excludable from the United States. One reason an orphan could be excludable is if he or she had a contagious disease. If an orphan petition is approved, then an application is made at an American consulate or embassy in the foreign country for an immigrant visa.
When an orphan enters the United States with an immigrant visa, the orphan is considered to be a lawful permanent resident of the United States, not a United States citizen. (Some general information about United States citizenship for a foreign adopted child is in Section VII of this publication.)
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An orphan petition may not be filed in behalf of a child in the United States unless that child is in parole status and has not been adopted in the United States. 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 which is in some ways similar to applying for an immigrant visa in a foreign country.
For information on how a child in the United States can become a permanent resident if the child is not eligible to benefit from an orphan petition, please see Section VI of this publication.
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