An orphan generally is a person without living parents to care for them. The legal definition of an orphan is important for various legal issues, such as adoption and immigration, child welfare, and others.
The Immigration and Nationality Act provides the following definition of an orphan for the purposes of immigration to the United States.
A child may be considered an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. The child of an unwed mother or surviving parent may be considered an orphan if that parent is unable to care for the child properly and has, in writing, irrevocably released the child for emigration and adoption. The child of an unwed mother may be considered an orphan, as long as the mother does not marry (which would result in the child’s having a stepfather) and as long as the child’s biological father has not legitimated the child. If the father legitimates the child or the mother marries, the mother is no longer considered a sole parent. The child of a surviving parent may also be an orphan if the surviving parent has not married since the death of the other parent (which would result in the child’s having a stepfather or stepmother).
Under U.S. immigration law, 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. The child must still qualify for an immigrant visa just like any other immigrant. 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.
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.
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.”