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Following is the text of the legislative language of S.1359 and
H.R. 3110, the Foreign Adopted Children Equality Act (FACE Act).
This bill was introduced on June 25, 2009 by Senators Landrieu (D-LA)
and Inhofe (R-OK) and on June 26, 2009 by Congresswoman Watson (D-CA)
and Congressman Boozman (R-AR). Following each section of text,
is a detailed explanation of the purpose of each provision and the
resulting benefits to adopted children and their families should
this legislation become law.
111TH CONGRESS
1ST SESSION
S. 1359
To provide United States citizenship for children adopted from outside
the
United States, and for other purposes.
______________________________________
IN THE SENATE OF THE UNITED STATES
_________________
l
Ms. LANDRIEU (for herself and Mr. INHOFE) introduced the following
bill;
which was read twice and referred to the Committee on
__________________
A BILL
To provide United States citizenship for children
adopted
from outside the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Foreign Adopted Children
Equality Act" or the "FACE Act".
SEC. 2. CITIZENSHIP FOR CHILDREN ADOPTED FROM OUT
SIDE THE UNITED STATES.
(a) IN GENERAL.—Subsection (b) of section 320 of the Immigration
and Nationality Act (8 U.S.C. 1431) is amended to read as follows:
"(b) CITIZENSHIP FOR CHILDREN ADOPTED FROM OUTSIDE
THE UNITED STATES.—
"(1) IN GENERAL.—A child born outside the United
States automatically becomes a citizen of the United States if the
Secretary of State is satisfied that all of the following conditions
are met:
"(A) The child is adopted by a parent who is a citizen
of the United States.
"(B) The child is younger than 18 years of age.
"(C) It is determined that each adopting parent is
eligible and suitable to adopt the child, including determining
that the parent is able to support the child and has undergone an
appropriate criminal background check.
“(D) Prior to the adoption, the child was an unmarried individual
younger than 18 years of age—
"(i)(I) whose biological parents (or parent, in the
case of an individual who has one sole or surviving parent) or other
person or institution that retains legal custody of the individual—
"(aa) have freely given their written irrevocable
consent to the termination of their legal relationship with the
individual, and to the individual's emigration and adoption
and that such consent has not been induced by payment or compensation
of any kind and has not been given prior to the birth of the individual;
"(bb) are unable to provide proper care for the individual,
as determined by the competent authority of the individual's
residence; or
"(cc) have voluntarily relinquished the individual
to the competent authorities pursuant to the law of the individual's
residence; or
"(II) who, as determined by the competent authority
of the individual's residence—
"(aa) has been abandoned or deserted by the individual's
biological parents or legal guardian; or
"(bb) has been orphaned due to the death or disappearance
of the individual's biological parents or legal guardian;
and
"(ii) with respect to whom the Secretary of State—
"(I) is satisfied that the proper care will be furnished
the individual if admitted to the United States;
"(II) is satisfied that the purpose of the adoption
is to form a bona fide
parent-child relationship and that the parent-child relationship
of the individual and the biological parents has been terminated
(and in carrying out both obligations under this subparagraph, the
Secretary of State, in consultation with the Secretary of Homeland
Security, may consider whether there is a petition pending to confer
immigrant status on one or both of the biological parents);
"(III) is satisfied that there has been no inducement,
financial or otherwise, offered to obtain the consent nor was it
given before the birth of the individual; and
"(IV) in consultation with the Secretary of Homeland
Security, is satisfied that the individual is not a security risk.
The forgoing sections describe
the conditions that have to be met before an adopted child receives
automatic citizenship. The child has to be under the age of 18,
adopted by a U.S. citizen who has been approved as eligible to adopt
by the U.S. Government. The child must have been freely relinquished
for adoption by any living parents who have also consented to the
termination of their legal relationship to the child without any
inducement, payment or compensation of any kind. The child is also
eligible for adoption if the child has been abandoned or deserted
by the birth parents as determined by government authorities in
the child's country of residence. Prior to citizenship attaching,
the U.S. Secretary of State must determine that the child has met
the stated criteria, will be properly cared for in the United States
and that the adoption is a legitimate adoption intended to form
a parent-child relationship and that there has been no inducement,
financial or otherwise prior to the adoption or the birth of the
child. In addition, the Secretary of State must consult with the
Secretary of Homeland Security and determine that the child is not
a security risk.
The major benefit of this
new language is that once the U.S. Government makes a finding that
all of the above requirements have been met, a child is eligible
for automatic U.S. citizenship. Instead of applying and paying for
an immigrant visa for their adopted child, adoptive parents would
apply for a U.S. passport just as parents of biological children
born abroad do now. This eliminates the burden of the additional
costs and time associated with the visa process. In addition to
saving the money it costs to apply for an immigration visa, this
change would eliminate the costs of an immigrant medical exam and
the costs of any additional travel to the closest American Embassy
that issues immigrant visas.
Since under current law a
foreign born adopted child is treated as an immigrant, the child
has to have an immigration medical exam. Since the adopted child
will no longer be applying for an immigrant visa, the medical exam
will not be needed. Biological children of American citizens do
not have to undergo a medical exam before they can enter the U.S.
Neither should children adopted by American citizens. An additional
benefit of this provision is the elimination of the immigration
requirement that these adopted children be current on their vaccinations.
In many of the countries from which Americans adopt, the children
may have not been vaccinated and therefore are subjected to a large
number of vaccinations in a time frame that is generally not recommended.
Not only is this a cost issue, it is a safety issue. There is no
way to be certain that the dosage given is appropriate for the age
and size of the child or that the vaccine has been properly stored
and has not expired. It is much safer for the child to wait and
be vaccinated in the United States versus risking improper or ineffective
vaccination overseas. Again, a biological child born to an American
citizen abroad is not subjected to these vaccination requirements.
Neither should foreign born adopted children of American citizens
be treated differently.
Another cost that is eliminated
by taking away the immigration visa is the travel costs that some
families have to undertake to get an immigrant visa for their child.
Not all embassies are able to issue immigrant visas so many families
have to travel to another embassy, sometimes in another country,
to apply for an immigrant visa for their child. However, all embassies
are able to issue U.S. passports, so no additional travel time and
expense would be necessary.
Additionally, this section
of the bill raises the adoptable age from 16 to 18 years old. Current
law only allows a child to be adopted up until age 16. However,
if a child is under the age of 16 and has older siblings under the
age of 18, those older siblings can be adopted as well. The proposed
language in this legislation would eliminate the need to adopt a
younger sibling in order to adopt a child up to the age of 18. It
would make it possible to adopt teens up to age 18 without regard
to whether they had siblings who had been previously adopted and
the child could be adopted into the sibling's family or any
other family.
"(2) CITIZENSHIP FROM BIRTH.—An individual who
becomes a citizen of the United States pursuant to paragraph (1)
shall be deemed to have been a citizen of the United States at birth
and shall be issued a United States Consular Report of Birth.
When an American citizen gives
birth to a baby abroad, that child is considered a citizen from
birth (as long as the American parent is eligible to transmit their
citizenship to their birth child). The citizen parent simply goes
to the nearest embassy and shows the child's birth certificate,
their marriage license (if married), and proof of the parent's
American citizenship. Once these documents are verified, the baby
is issued a U.S. passport and a U.S. Consular Report of Birth. Both
the passport and Consular Report of Birth are deemed under the law
as proof of U.S. citizenship. The Consular Report of Birth also
acts as that baby's birth certificate for the rest of their
lives. The baby will not have a state issued birth certificate like
babies born in the United States.
Being deemed a “citizen
at birth” allows a foreign born adopted child to enjoy the
same right to a passport and Consular Report of birth as a biological
child. Under adoption law, once an adoption is finalized, adopted
children are entitled to the same legal rights, duties and responsibilities
as a “natural born” child.
This provision also provides
for immediate proof of citizenship so right away, the child has
documentary proof of citizenship and eliminates the need for a child
who enters the U.S. on an IR-3 visa to wait months for a Certificate
of Citizenship or for a child who enters on an IR-4 visa to wait
the many months it takes to re-adopt in their state of residence
before citizenship attaches. Then after the child has been re-adopted,
the parents have to incur additional cost to file for a Certificate
of Citizenship which can take six months to a year to arrive. In
the interim, the parents and child have no documentary proof that
the child is a citizen.
Under current law, if the
adoptive parent of a child who enters the U.S. on an IR-4 visa fails
to complete a re-adoption in their state of residence before the
child turns 18, the child is no longer eligible for automatic citizenship.
As a result, they can not get a U.S. passport, they can not serve
in the military, and they can not attend college and pay in-state
tuition or apply for scholarships. Even worse, if they get convicted
of a misdemeanor, they can be deported to their country of origin
and never allowed to re-enter the U.S. There are many cases of this
happening to foreign adopted children whose parents through ignorance
or neglect failed to take the necessary steps to acquire their child's
U.S. citizenship.
Nearly half of all foreign
adopted children enter the U.S. on IR-4 visas. If immigrant visas
are eliminated as proposed in this legislation, then the issues
surrounding IR-4 visas can be eliminated. In addition, the adoptive
parents will have in hand proof of their child's citizenship
when filing for a social security number and they will not have
to wait for proof of citizenship to arrive in the mail.
“(3) SPECIAL RULE FOR ADOPTEES OVER 18.—
"(A) IN GENERAL.—A person described in subparagraph
(B) shall be deemed to have been a citizen of the United States
at birth after the approval of an application filed within the United
States or with a United States Embassy.
"(B) PERSON DESCRIBED.—A person described in
this clause is a person who—
"(i) is older than 18 years of age;
"(ii) was born outside the United States and was adopted
by a parent who is a citizen of the United States before the date
on which the person reached 18 years of age; and
"(iii) was described in subparagraph (E), (F), or
(G) of section 101(b)(1).
This section is included to address the
problem of foreign adopted children whose adoptive parents failed
to acquire U.S. citizenship for them prior to their 18th birthday.
Before the Child Citizenship Act was passed, foreign adopted children
had to be naturalized prior to their 18th birthday. Even after the
CCA was passed, it only applied to adopted children who were under
the age of 18 on or after February 27, 2001. Therefore, it did not
grant automatic U.S. citizenship to any adopted child who had already
turned 18. And now, children who enter on an IR-4 visa are vulnerable
to their parents failing to take the necessary steps to ensure their
citizenship is attained prior to their 18th birthday.
Failure to acquire U.S. citizenship can be
very detrimental to the adopted child and can result in deportation
should they be convicted of a misdemeanor. In fact, in one case
a young man who was adopted as an infant from Brazil was deported
to Brazil for a misdemeanor and was subsequently murdered. He had
no knowledge of the language nor did he have any one to live with.
His is not a solitary case. There are many other such instances.
This provision would end these unintended consequences.
If a foreign adopted child has turned 18
without acquiring U.S. citizenship, this provision would allow that
person to prove that he or she met the qualifications for automatic
U.S. citizenship prior to their 18th birthday. It allows them to
file an application to qualify them as an American citizen. This
application, with accompanying proof, must be filed with the Department
of State. Because some foreign adopted children have been deported
and are barred from ever entering the U.S., this provision also
allows for an application to filed at a U.S. Embassy abroad.
"(4) NO LIABILITY FOR PRIOR TAXES.—An individual
who becomes a citizen of the United States pursuant to paragraph
(1) or (3) may not be liable for any taxes that the individual would
have paid to the United States as a citizen of the United States
prior to the date that the individual becomes such a citizen.".
This provision simply makes it clear that
if an older foreign child (under the age of 18) is adopted by American
citizens and becomes a “citizen at birth,” such child
is not liable for any taxes that he or she may have owed the U.S.
if he or she had been a citizen previous to actually acquiring citizenship.
(b) CONFORMING AMENDMENTS.—
(1) HEADING.—The heading of section 320 of the Immigration
and Nationality Act (8 U.S.C. 1431) is amended to read as follows:
"CHILDREN BORN OUTSIDE THE UNITED STATES; CONDITIONS
UNDER WHICH CITIZENSHIP IS ACQUIRED".
(2) SECTION 301 OF THE IMMIGRATION AND NATIONALITY ACT.—Section
301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended—
(A) in subsection (g), by striking "and"
at the end;
(B) in subsection (h), by striking the period at the end, inserting
a semicolon and "and"; and
(C) by adding at the end the following:
"(i) a person deemed a citizen at birth pursuant to
16 section 320(b).".
This conforming amendment is actually much
more substantive than it appears. Section 301 of the Immigration
and Nationality Act (INA) defines who is a citizen of the United
States at birth. This is the statutory provision that provides U.S.
citizenship from birth to children born abroad to American citizens
who are able to transmit their citizenship. Children born to Americans
living anywhere overseas or employed by the U.S. government or U.S.
military are considered citizens from birth because of this statutory
language. Because these children are considered citizens from birth,
they are given a U.S. passport and Consular Report of Birth and
enter the U.S. as U.S. citizens. They have the rights of citizens
from birth including being eligible to run for and be elected President
of the United States.
To be eligible to run for President of the
United States, the Constitution requires that a person must be a
“natural born” citizen, be 35 years old, and have lived
in the United States for 14 years. The term “natural born”
has never been defined. However, most Constitutional scholars believe
that a child born abroad to an American citizen who is deemed a
citizen from birth is qualified to run for President. A minority
of scholars argue that only a child born within the physical boundaries
of the United States qualifies as a “natural born” citizen.
This question has never been answered because no one has ever been
elected President who was born outside the physical boundaries of
the United States.
This question did arise during the last election
because Senator McCain was born in the Panama Canal Zone, an area
leased by the United States government. There is a special statutory
provision that provides citizenship from birth to children born
to employees of the Panama Canal Company or born to U.S. government
employees working in the Panama Canal Zone. Had Senator McCain been
elected President, the Constitutional question of whether any child
born outside the physical boundaries of the United States is eligible
to run for President would have had to been answered. So the question
still remains open for debate.
However, until this question is decided,
if foreign adopted children of American citizens are to be accorded
equal rights as children born abroad to American citizens, then
the proposed conforming amendment needs to be enacted. This amendment
adds foreign born adopted children of American citizens to the category
of children defined by the statute as an American citizen at birth.
Upon enactment of this amendment, these adopted children would have
the same legal right to run for President as a biological child.
(b) CLERICAL AMENDMENT.—The table of contents of the Immigration
and Nationality Act is amended by striking the item relating to
section 320 and inserting the following:
"Sec. 320. Children born outside the United States;
conditions under which citizenship acquired.".
SEC. 202. NONIMMIGRANT STATUS FOR CHILDREN BROUGHT TO THE UNITED
STATES TO BE ADOPTED.
NONIMMIGRANT STATUS.—Paragraph (15) of section 101(a) of
the immigration and Nationality Act (8 U.S.C. 1101(a)) is amended
(1) in subparagraph (U), by striking "or"
at the end; and
(2) in subparagraph (V), by striking the period at the end and
inserting a “; or”; and
(3) by adding at the end the following:
“(W) an individual brought to the United States as a child
to be adopted by a citizen of the United States.”.
This section adds a new nonimmigrant visa
category for foreign born children who are brought to the United
States to be adopted by an American family. Since these children
are not technically “immigrating” but are being brought
here for the sole purpose of becoming a child of an American citizen,
they should enter on a nonimmigrant visa versus an immigrant visa.
SEC. 4. APPEAL OF NOTICE OF INTENT TO DENY AN ADOPTION.
(a) REQUIREMENT TO PROVIDE OPPORTUNITY TO APPEAL.—If the
Secretary of State determines that a covered individual is not eligible
to be adopted by a citizen or national of the United States on the
basis that the conditions described in subsection (c) are not met,
the Secretary shall provide—
(1) a notice of intent to deny the adoption of the child to such
citizen or national of the United States; and
(2) an opportunity for such citizen or national to appeal the determination.
(b) COVERED INDIVIDUAL DEFINED.—In this section, the term
"covered individual" means an individual
who—
(1) is younger than 18 years of age;
(2) was born in a foreign country; and
(3) is seeking to be adopted by a parent who is a citizen or national
of the United States.
(c) CONDITIONS FOR ADOPTION.—The conditions described in
this subsection are met if—
(1) the covered individual's biological parents (or parent,
in the case of an individual who has 1 sole or surviving parent)
or other person or institution that retains legal custody of the
covered individual—
(A) have freely given their written irrevocable consent to the
termination of their legal relationship with the individual, and
to the individual's emigration and adoption and that such
consent has not been induced by payment or compensation of any kind
and has not been given prior to the birth of the individual;
(B) are unable to provide proper care for the individual, as determined
by the competent authority in the country of the individual's
residence; or
(C) have voluntarily relinquished the individual to the competent
authorities pursuant to the law of the country of the individual's
residence; or
(2) the covered individual, as determined by the competent authority
in the country of the individual's residence—
(A) has been abandoned or deserted by the individual's biological
parents or legal guardian; or
(B) has been orphaned due to the death or disappearance of the
individual's biological parents or legal guardian.
This section requires the Secretary of State
to provide a notice of intent to deny the adoption of a child by
a U.S. citizen to the adoptive parent/s and requires that the adoptive
parent/s be provided an opportunity to appeal such a determination.
This process already exists under current law. However, under current
law, the determination of whether the child is eligible for adoption
is made by U.S. Citizenship and Immigration Service (USCIS) instead
of the Department of State. The process allows the adoptive family
to counter any allegations that their adopted child does not meet
the eligibility criteria for adoption by a U.S. citizen and to provide
additional evidence that their child does meet the adoption criteria.
By moving the decision regarding the child's
eligibility for adoption by a U.S. citizen from USCIS to the Department
of State (DOS), it eliminates the disagreements that sometimes occur
between USCIS and DOS on the child's adoption eligibility.
Under the current process, USCIS determines if an adopted child
meets the criteria and forwards that determination to the DOS. In
some cases the DOS disagrees with this determination and refuses
to issue an immigrant visa to the child. When this occurs, DOS provides
USCIS with the reasons for their refusal to issue a visa to the
child and USCIS either agrees or disagrees. If they agree with DOS,
then USCIS issues a notice of intent to deny and the adoptive family
is given a chance to provide additional evidence that the child
is eligible for adoption. If USCIS agrees with the evidence provided,
then they notify DOS of this decision and DOS usually issues a visa.
This bill seeks to simplify the process for
adoptive families by having DOS make the determination of whether
the child is eligible for adoption instead of the decision being
made between two different government agencies. Also, under the
provisions of this bill, DOS will be issuing citizenship documentation
to the adopted child. Therefore, it is more practical for DOS to
make the final determination that bestows U.S. citizenship upon
that child than for USCIS to make that determination. The new process
will eliminate the disagreements that sometimes occur between DOS
and USCIS and will provide DOS with full confidence in the child's
eligibility for citizenship.
SEC. 203. RULE OF CONSTRUCTION.
Nothing in this Act or in any amendment made by this Act may be
construed to—
(1) abrogate any citizenship rights provided to an adoptee by the
adoptee's country of origin; or
(2) nullify the facts of the adoptee's birth history.
This is an extremely important rule of construction.
Because language earlier in this proposed bill provides U.S. citizenship
from birth to foreign adopted children, it needs to be made abundantly
clear that such language is not intended, nor does it legally change
any of the adopted child's citizenship rights provided by
their country of origin. Nor does it change any of the facts surrounding
the adopted child's birth.
The foreign born adopted child's place
of birth will always be recognized and any citizenship documents
will reflect their true place of birth. For example, a Consular
Report of Birth that is currently given to a child of an American
citizen born abroad states the actual city and country of the child's
birth. It does not state that the child was born in the United States.
The same would be true for a Consular Report of Birth issued under
this proposed legislation for a foreign born adopted child.
Some have expressed concern that providing
citizenship from birth to foreign born adopted children would in
some way nullify the adoptee's true birth history. The language
in this amendment makes it clear that nothing in this bill can be
construed to in any way deprive foreign adoptees of their original
birth information. Some foreign adoptees, who have sought to explore
their birth roots, have been dismayed at the lack of available information
regarding their birth family and place of birth. Some even lack
any documentation that reflects their country of origin. Nothing
in this bill would in any way encourage or result in any destruction
of documentation related to a foreign adoptee's birth records
or in any way diminish their birth heritage. In fact, the following
Sense of Congress is intended to encourage foreign governments to
provide as much birth information as permitted under law to the
adoptive family for the benefit of the adopted child.
SEC. 204. SENSE OF CONGRESS.
It is the sense of Congress that the government of each foreign
country from which children are adopted by citizens of the United
States should provide documentation of the adopted children's
original birth history to the adoptive family in accordance with
the laws of such country.
This provision is intended to encourage the
governments of foreign countries, from which Americans adopt children,
to provide the adoptive family with as much original birth documentation
as permitted under the laws of that country. Some countries may
not permit the release of birth parent information to adoptive families,
but where it is allowed, such documentation should be provided to
the adoptive parents.
Original documents should never be destroyed.
The U.S. government can not require foreign governments to provide
birth documentation if such provision would violate any laws of
that country. But the U.S. can encourage foreign governments to
retain original birth documents and provide them to the adoptive
family as long as it is allowed under that country's laws.
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