What is an Orphan Child for Immigration Purposes?

There is a strict interpretation of what is an “Orphan” when it comes to adoption of a foreign national. Under immigration laws, INA §101(b)(1)(F), a child is determined to be an “orphan” due to (1) the death or disappearance of, abandonment or desertion of, or separation or loss from both parents, OR (2) the sole or surviving parent is incapable of providing proper care for the child and has in WRITING irrevocably released parental rights to the child for emigration and adoption.

When both biological parents are alive, the child may be considered to be an orphan if both biological parents abandoned the child to a child-placement entity, like an an orphanage. The child will not qualify as an orphan if the biological parents have directed the placement by specifying who will adopt the child.

“Separation from both parents” is the involuntary severance of a child from the birth parents by action of a competent authority for good cause and in accordance with the laws of the local country. The termination of all parental rights and obligations must be permanent and unconditional. The term “loss from both parents,” on the other hand, means the involuntary severance or detachment of the child from the parents in a permanent manner, such as that caused by a natural disaster, civil unrest, or other event beyond the control of the parents.

For a sole or surviving parent, the petitioner must prove that the biological parent is “incapable of providing proper care” to the child.” A parent that is impoverished and unemployed is insufficient to show that the biological parent is incapable of providing care unless a showing can be made that the poverty level in child's country falls below the national average. Examples of inability to support a child include a parent with a terminal illness, who is incarcerated, or experiencing an overwhelming financial burden.