Orphan Status When 1 Parent Still Alive?

I am sorry to hear of this tragic situation. The "orphan definition" in the U.S. Immigration and Nationality Act does not require that both parents be dead. You can read the definition on the USCIS website. The child cannot be living with married parents, or, if a country recognizes common-law marriage, with cohabiting unmarried parents. The child may be living with a single parent if that parent cannot support the child at the normal standard acceptable in the foreign country. NOTE: this does NOT mean that you can adopt the child just because the single parent doesn't have the amenities that a person living in the U.S. would have. At this time, you have a situation where the father has been providing support to the children. If the USCIS were to hold that he could support them at a level normal for the country, there might be a problem with having them considered orphans, even though they haven't been living with him. But do consider what is happening with the children at this time. Where are they now, since their mother has died? If they are in an orphanage, and if the father stops paying support, doesn't visit, etc., the children could be considered abandoned or relinquished after some period of time. If you were to adopt the children overseas, you would not be able to get visas for the children unless you lived abroad with them for two years, if the USCIS considered that you adopted children who were not eligible for immigration under the Immigration and Nationality Act. Consult a reputable immigration attorney. Sharon

Hi Sharon,Thank you for your reply.Unfortunately, since we're not going to move to Japan for 2 years, the only option for adopting the children is via orphan status. At present, they are living with my wife's brother (their uncle) and mother (their grandmother). Since the father's location and/or financial situation is not known by anyone, it's difficult to judge whether--in theory--he could afford to maintain them at "local standards". His current monthly contributions certainly don't indicate that.However, this would seem to be a moot point, because he has refused to assume any parental duties/responsibilities to date. Does it matter if the surviving parent has the financial means to support the children, but has legally separated from them and refused to take any parental role?

Especially if the father, after the mother's desk, discontinues the [minimal] financial contributions he's been making, it seems we could argue for their orphan status under:"The child has no parents due to the death or disappearance of, abandonment or desertion by, or separation from or loss of both parents"(http://travel.state.gov/family/adoption/info/info_449.html)Obviously, this is going to take time/$$$ and a lot of legal work, but it seems doable? That is, in the end, the children have lost their mother due to death, and they have lost their father due to his intentional, longstanding separation from them and refusal of parental rights.

Thanks again for any tips or comments!

Have you tried talking with the Social Welfare office that has jurisdiction over the child to find out what alterntives are available? Johnny

I'll be meeting with immigration attorneys in two weeks to get more answers about:1. How/whether the children can meet the legal requirements to be declared orphans?2. If not, is there any steps we can take to meet that requirement?3. If not, how could we immigrate the children to the US without orphan status?It's really the immigration front that is the most challenging, in my case. I'll post the answers I get from the attorney after I hear them.As for the adoption front, my wife and I spoke briefly with the Family Court in Japan, and there don't seem to be any major hurdles for the adoption process there. We'll have to do 2 or 3 interviews/hearings at the court, which will require time and $$$ to fly over, but otherwise, there don't seem to be any reasons why we couldn't adopt them (in Japan).The problem is that adopting overseas doesn't guarantee that you can immigrate the child back home with you.

Non-Orphan Status If a child is adopted overseas and is not classified as an orphan then you must meet the two custody requirements for immigration. There is a Physical Custody requirement as well as a Legal Custody Requirement. The two years physical custody requirement is the most difficult to attain for most going through the non-orphan route. A friend of mine and his wife went the I-600 route with and completed the process about 6 months ahead of us. (2.5 to 3.5 years.) The Philippine system is very slow. Japan may be more efficient. Orphan Status. First understand that both Japan and the US are signed up to the Hague rules. So the only way for the child can immigrate under orphan status is the I-600 process. The Central Authority has to recommend that the child be qualified for this process to the courts. The Philippines has written in their rules a waiver for residency so that relatives can adopt through the Intercountry process. I'm sure that some children are qualified as orphans and some that aren't meaning they must also meet the two years custody requirement for immigration. I don't know what Japans rules are. For the Philippines, the US Embassy was difficult to deal with and they stated "the only way a child can qualify as an orphan is if the parents are dead." This is a Legal determination and they shouldnt make this statement but it is what they have preached to us in the past. I don't know if it's true today because I think there is an unwritten policy change toward discouragement of domestic (overseas) adoptions. Being an overseas resident in the Philippines my wife and I decided to take the non-orphan route rather than the orphan because we thought the home study for the I-600 was difficult it ended up being the same. I want to emphasize that the local social worker is your "best" source of information. They are on the front lines and have the most experience with the system. They deal with every lawyer, every government office and the process. Their motivation is the child. Not the rules, and not money, simply the Childs best interest. The only thing you have to be aware of (have caution) with Intercountry adoption is the Central Authority is a branch of government and has an entity which is also a social worker. In other words the Central Authority has a conflict of interest between the rules and the child. Just as your Lawyer has a conflict of interest between money and you. My wife and I struggled for two years working through Lawyers lack of dissemination. When we finally went to the social workers (ignoring the advise of counsel) that the information opened up for us. What you want to do is get the clock ticking for the two years custody requirement. If you can get temporary custody awarded by a government office especially if Japans rules haven't addressed this issue in their laws. My wife and I included it in our adoption petition so the courts would address it in the final decision. The court will not approve the petition if the child cannot live with you. You will not be excluded if you have to meet the two year custody rule. If Japan has written into thier rules, qualifing a child for the Intercountry program. (They should have because these are basic Hague rules) The surving parent can sign a release allowing the child to immigrate. I would think this will be the approach of your lawyer using the I-600 process. HTH, Johnny

Hi Johnny,Thank you for sharing your experience.The good news is that, so far, the Japanese family court system seems pretty efficient and organized. From the times we've spoken to them, the process for legally adopting the children there does not seem to present any major hurdles, besides the inconvenience of having to appear [in Japan] for a few court hearings/interviews.I have dealt with the US Embassy in Tokyo for my wife's immigrant visa, and have spoken to them [briefly] about the adoption issues, and both times they've been helpful and straightforward.One of the plusses and minuses of our case is that we aren't dealing with any orphanage and/or social work agency in Japan, since the children are relatives (niece & nephew) and living with relatives (their uncle and grandmother)....My first meeting with US immigration attorneys is this Wednesday, and I'll be sure to post the pertinent info I learn. Thanks to all who've shared their experiences! :)

If you get a chance, please post the outcome of this situation. I hope it is moving forward--for the sake of all involved. Teranga