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establish that the beneficiary is the petitioner's natural father is the petitioner's birth certificate, issued by civil authorities and showing the father's name. If the father's name has been legally changed, evidence of the name change must accompany the petition. Evidence of a parent/child relationship should establish more than merely a biological relationship. Emotional and/or financial ties or a genuine concern and interest by the father for the child's support, instruction, and general welfare must be shown. There should be evidence that the father and child actually lived together or that the father held the child out as being his own, that he provided for some or all of the child's needs, or that in general the father's behavior evidenced a genuine concern for the child. The most persuasive evidence for establishing a bona fide parent/child relationship is documentary evidence which was contemporaneous with the events in question. Such evidence may include, but is not limited to: money order receipts cancelled checks showing the father's financial support of the beneficiary; the father's income tax returns; the father's medical or insurance records which include the petitioner as a dependent; school records for the petitioner; correspondence between the parties; or notarized affidavits of friends, neighbors, school officials, or other associates knowledgeable as to the relationship.

(iv) Primary evidence if petitioner is an adopted son or daughter. A petition may be submitted for an adoptive parent by a United States citizen who is twentyone years of age or older if the adoption took place before the petitioner's sixteenth birthday and if the two year legal custody and residence requirements have been met. A copy of the adoption decree, issued by the civil authorities, must accompany the petition.

(A) Legal custody means the assumption of responsibility for a minor by an adult under the laws of the state and under the order or approval of a court of law or other appropriate government entity. This provision requires that a legal process involving the courts or other recognized government entity take place. If the adopting parent was

granted legal custody by the court or recognized governmental entity prior to the adoption, that period may be counted toward fulfillment of the twoyear legal custody requirement. However, if custody was not granted prior to the adoption, the adoption decree shall be deemed to mark the commencement of legal custody. An informal custodial or guardianship document, such as a sworn affidavit signed before a notary public, is insufficient for this purpose.

(B) Evidence must also be submitted to show that the beneficiary resided with the petitioner for at least two years. Generally, such documentation must establish that the petitioner and the beneficiary resided together in a parental relationship. The evidence must clearly indicate the physical living arrangements of the adopted child, the adoptive parent(s), and the natural parent(s) for the period of time during which the adoptive parent claims to have met the residence requirement.

(C) Legal custody and residence occurring prior to or after the adoption will satisfy both requirements. Legal custody, like residence, is accounted for in the aggregate. Therefore, a break in legal custody or residence will not affect the time already fulfilled. To meet the definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of the Act, the child must have been under 16 years of age when the adoption is finalized.

(v) Name change. When the petition is filed by a child for the child's parent, and the parent's name is not on the child's birth certificate, evidence of the name change (such as the parent's marriage certificate, a legal document showing the parent's name change, or other similar evidence) must accompany the petition. If the petitioner's name has been legally changed, evidence of the name change must also accompany the petition.

(3) Decision on and disposition of petition. The approved petition will be forwarded to the Department of State's Processing Center. If the beneficiary is in the United States and is eligible for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service. If the petition is denied, the petitioner will be

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notified of the reasons for the denial and of the right to appeal in accordance with the provisions of 8 CFR 3.3.

(4) Derivative beneficiaries. A child or a spouse of a principal alien who is approved for classification as an immediate relative is not eligible for derivative classification and must have a separate petition approved on his or her behalf.

(g) Petition for a brother or sister-(1) Eligibility. Only a United States citizen who is twenty-one years of age or older may file a petition of a brother or sister for classification under section 203(a)(4) of the Act.

(2) Evidence to support a petition for brother or sister. In addition to evidence of United States citizenship, the petitioner must also provide evidence of the claimed relationship.

(i) Primary evidence if the siblings share a common mother or are both legitimate children of a common father. If a sibling relationship is claimed through a common mother, the petition must be supported by a birth certificate of the petitioner and a birth certificate of the beneficiary showing a common mother. If the mother's name on one birth certificate is different from her name as reflected on the other birth certificate or in the petition, evidence of the name change must also be submitted. If a sibling relationship is claimed through a common father, the birth certificates of the beneficiary and petitioner, a marriage certificate of the parents' and proof of legal termination of the parents, prior marriage(s), if any, issued by civil authorities must accompany the petition. If the father's name has been legally changed, evidence of the name change must also accompany the petition.

(ii) Primary evidence if either or both siblings are legitimated. A child can be legitimated through the marriage of his or her natural parents, by the laws of the country or state of the child's residence or domicile, or by the laws of the country or state of the father's residence or domicile. If the legitimation is based on the natural parents' marriage, such marriage must have taken place while the child was under the age of eighteen. If the legitimation is based on the laws of the country or state of the child's residence or domicile, the

law must have taken effect before the child's eighteenth birthday. If based on the laws of the country or state of the father's residence or domicile, the father must have resided—while the child was under eighteen years of age in the country or state under whose laws the child has been legitimated. Primary evidence of the relationship should consist of the petitioner's birth certificate, the beneficiary's birth certificate, and the parents' marriage certificate

other evidence of legitimation issued by civil authorities.

(iii) Primary evidence if either sibling is illegitimate. If one or both of the siblings is (are) the illegitimate child(ren)

common father, the petitioner must show that they are the natural children of the father and that a bona fide parent-child relationship was established when the illegitimate child(ren) was (were) unmarried and under twenty-one years of age. Such a relationship will be deemed to exist or to have existed where the father demonstrates or has demonstrated an active concern for the child's support, instruction, and general welfare. Primary evidence is the petitioner's and beneficiary's birth certificates, issued by civil authorities and showing the father's name, and evidence that the siblings have or had a bona fide parent/ child relationship with the natural father. If the father's name has been legally changed, evidence of the name change must accompany the petition. Evidence of a parent/child relationship should establish more than merely a biological relationship. Emotional and or financial ties or a genuine concern and interest by the father for the child's support, instruction, and general welfare must be shown. There should be evidence that the father and child actually lived together or that the father held the child out as being his own, that he provided for some or all of the child's needs, or that in general the father's behavior evidenced a genuine concern for the child. The most persuasive evidence for establishing a bona fide parent/child relationship is documentary evidence which was contemporaneous with the events in question. Such evidence may include, but is not limited to: money order receipts or canceled checks showing the father's financial support of the beneficiary; the father's income tax returns; the father's medical or insurance records which include the beneficiary as a dependent; school records for the beneficiary; correspondence between the parties; or notarized affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

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(iv) Primary evidence for stepsiblings. If the petition is submitted on behalf of a brother or sister having a common father, the relationship of both the petitioner and the beneficiary to the father must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii) of this section. If the petitioner and beneficiary are stepsiblings through the marriages of their common father to different mothers, the marriage certificates of the parents and evidence of the termination of any prior marriages of the parents must be submitted.

(3) Decision on and disposition of petition. The approved petition will be forwarded to the Department of State's Processing Center. If the beneficiary is in the United States and is eligible for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service. If the petition is denied, the petitioner will be notified of the reasons for the denial and of the right to appeal in accordance with the provisions of 8 CFR 3.3.

(4) Derivative beneficiaries. A spouse or a child accompanying or following to join a principal alien beneficiary under this section may be accorded the same preference and priority date as the principal alien without the necessity of a separate petition.

(5) Name change. If the name of the petitioner, the beneficiary, or both has been legally changed, evidence showing the name change (such as a marriage certificate, a legal document showing the name change, or other similar evidence) must accompany the petition.

(h) Validity of approved petitions—(1) General. Unless terminated pursuant to section 203(g) of the Act or revoked pursuant to part 205 of this chapter, the approval of a petition to classify an alien as a preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4) of section 203 of the Act, or as an im

mediate relative under section 201(b) of the Act, shall remain valid for the duration of the relationship to the petitioner and of the petitioner's status as established in the petition.

(2) Subsequent petition by same petitioner for same beneficiary. When a visa petition has been approved, and subsequently a new petition by the same petitioner is approved for the same preference classification on behalf of the same beneficiary, the latter approval shall be regarded as a reaffirmation or reinstatement of the validity of the original petition, except when the original petition has been terminated pursuant to section 203(g) of the Act or revoked pursuant to part 205 of this chapter, or when an immigrant visa has been issued to the beneficiary as a result of the petition approval. A selfpetition filed under section 204(a)(1)(A)(iii),

204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based on the relationship to an abusive citizen or lawful permanent resident of the United States will not be regarded as a reaffirmation or reinstatement of a petition previously filed by the abuser. A self-petitioner who has been the beneficiary of a visa petition filed by the abuser to accord the self-petitioner immigrant classification as his or her spouse or child, however, will be allowed to transfer the visa petition's priority date to the selfpetition. The visa petition's priority date may be assigned to the self-petition without regard to the current validity of the visa petition. The burden of proof to establish the existence of and the filing date of the visa petition lies with the self-petitioner, although the Service will attempt to verify a claimed filing through a search of the Service's computerized records or other records deemed appropriate by the adjudicating officer. A new self-petition filed under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act will not be regarded as a reaffirmation or reinstatement of the original self-petition unless the prior and the subsequent self-petitions are based on the relationship to the same abusive citizen or lawful permanent resident of the United States.

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(i) Automatic conversion of preference (3) By the petitioner's naturalization. classification—(1) By change in bene- Effective upon the date of naturalizaficiary's marital status. (i) A currently tion of a petitioner who had been lawvalid petition previously approved to fully admitted for permanent resiclassify the beneficiary as the unmar- dence, a currently valid petition acried son or daughter of a United States cording preference status under section citizen under section 203(a)(1) of the 203(a)(2) of the Act to the petitioner's Act shall be regarded as having been spouse and unmarried children under approved for preference status under twenty-one years of age shall be resection 203(a)(3) of the Act as of the garded as having been approved for imdate the beneficiary marries. The bene- mediate relative status under section ficiary's priority date is the same as 201(b) of the Act. Similarly, a currently the date the petition for classification valid petition according preference staunder section 203(a)(1) of the Act was tus under section 203(a)(2) of the Act properly filed.

for the unmarried son or daughter over (ii) A currently valid petition pre- twenty-one years of age shall be reviously approved to classify a child of a

garded as having been approved under United States citizen as an immediate

section 203(a)(1) of the Act. In any case relative under section 201(b) of the Act of conversion to classification under shall be regarded as having been ap- section 203(a)(1) of the Act, the beneproved for preference status under sec

ficiary's priority date is the same as tion 203(a)(3) of the Act as of the date

the date the petition for classification the beneficiary marries. The bene- under section 203(a)(2) of the Act was ficiary's priority date is the same as properly filed. A self-petition filed the date the petition for 201(b) classi

under section 204(a)(1)(B)(ii) fication was properly filed.

204(a)(1)(B)(iii) of the Act based on the (iii) A currently valid petition

relationship to an abusive lawful perclassifying the married son or married

manent resident of the United States daughter of a United States citizen for

for classification under section 203(a)(2) preference status under section

of the Act will not be affected by the 203(a)(3) of the Act shall, upon legal

abuser's naturalization and will not be termination of the beneficiary's mar

automatically converted to a petition riage, be regarded as having been ap

for immediate relative classification. proved under section 203(a)(1) of the Act if the beneficiary is over twenty- (57 FR 41057, Sept. 9, 1992, as amended at 60 one years of age. The beneficiary's pri- FR 34090, June 30, 1995; 60 FR 38948, July 31, ority date is the same as the date the

1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 petition for classification under sec

FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13,

1997) tion 203(a)(3) of the Act was properly filed. If the beneficiary is under twen

8 204.3 Orphans. ty-one years of age, the petition shall be regarded as having been approved

(a) General—(1) Background. This secfor classification as an immediate rel

tion addresses a number of issues that ative under section 201(b) of the Act as have arisen in the recent past because of the date the petition for classifica

of the increased interest by United tion under section 203(a)(3) of the Act States citizens in the adoption of forwas properly filed.

eign-born orphans and is based on ap(2) By the beneficiary's attainment of plicable provisions of the Act. It should the age of twenty-one years. A currently

be noted that this section was not valid petition classifying the child of a drafted in connection with possible United States citizen as an immediate United States ratification and implerelative under section 201(b) of the Act mentation of the Hague Convention on shall be regarded as having been ap- Protection of Children and Cooperation proved for preference status under sec- in Respect of Inter-country Adoption. tion 203(a)(1) of the Act as of the bene- (2) Overview. The processing and adjuficiary's twenty-first birthday. The dication of orphan cases is a Service beneficiary's priority date is the same priority. A child who meets the definias the date the petition for section tion of orphan contained in section 201(b) classification was filed.

101(b)(1)(F) of the Act is eligible for classification as the immediate rel- (such as a governmental agency, a ative of a United States citizen. Peti- court of competent jurisdiction, an tioning for an orphan involves two dis- adoption agency, or an orphanage) is tinct determinations. The first deter- authorized under the child welfare laws mination concerns the advanced proc- of the foreign-sending country to act in essing application which focuses on the such a capacity. A child who is placed ability of the prospective adoptive par- temporarily in an orphanage shall not ents to provide a proper home environ- be considered to be abandoned if the ment and on their suitability as par- parents express an intention to reents. This determination, based pri- trieve the child, are contributing or atmarily on a home study and fingerprint tempting to contribute to the support checks, is essential for the protection of the child, or otherwise exhibit ongoof the orphan. The second determina- ing parental interest in the child. A tion concerns the orphan petition child who has been given unconditionwhich focuses on whether the child is ally to an orphanage shall be considan orphan under section 101(b)(1)(F) of ered to be abandoned. the Act. The prospective adoptive par- Adult member of the prospective adopents may submit the documentation tive parents' household means an indinecessary for each of these determina- vidual, other than a prospective adoptions separately or at one time, de- tive parent, over the age of 18 whose pending on when the orphan is identi- principal or only residence is the home fied. An orphan petition cannot be ap- of the prospective adoptive parents. proved unless there is a favorable de- This definition excludes any child of termination on the advanced proc- the prospective adoptive parents, essing application. However, a favor- whose principal or only residence is the able determination on the advanced home of the prospective adoptive parprocessing application does not guar- ents, who reaches his or her eighteenth antee that the orphan petition will be birthday after the prospective adoptive approved. Prospective adoptive parents parents have filed the advanced procmay consult with the local Service of- essing application (or the advanced fice on matters relating to an advanced processing application concurrently processing application and/or orphan with the orphan petition) unless the dipetition.

rector has an articulable and sub(b) Definitions. As used in this sec- stantive reason for requiring an evaltion, the term:

uation by a home study preparer and/or Abandonment by both parents means fingerprint check. that the parents have willfully for- Advanced processing application means saken all parental rights, obligations, Form 1-600A (Application for Advanced and claims to the child, as well as all Processing of Orphan Petition) comcontrol over and possession of the pleted in accordance with the form's child, without intending to transfer, or instructions and submitted with the rewithout transferring, these rights to quired supporting documentation and any specific person(s). Abandonment the fee as required in 8 CFR 103.7(b)(1). must include not only the intention to The application must be signed in acsurrender all parental rights, obliga- cordance with the form's instructions tions, and claims to the child, and con- by the married petitioner and spouse, trol over and possession of the child, or by the unmarried petitioner. but also the actual act of surrending Application is synonymous with adsuch rights, obligations, claims, con- vanced processing application. trol, and possession. A relinquishment Competent authority means a court or or release by the parents to the pro- governmental agency of a foreign-sendspective adoptive parents or for a spe- ing country having jurisdiction and aucific adoption does not constitute thority to make decisions in matters of abandonment. Similarly, the relin- child welfare, including adoption. quishment or release of the child by Desertion by both parents means that the parents to a third party for custo- the parents have willfully forsaken dial care in anticipation of, or prepara- their child and have refused to carry tion for, adoption does not constitute out their parental rights and obligaabandonment unless the third party tions and that, as a result, the child

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