Guatemala Adoption Factsheet, Page 9
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B. DETERMINING ABILITY OF THE CHILD TO IMMIGRATE
1. DEFINITIONS OF CHILD AND ORPHAN:
The overwhelming majority of Guatemalan children adopted by U.S. citizens meet the definition of legal orphans. Parents who have adopted overseas children before they reach age 16 and who have had the child residing with them in their legal custody for at least two years may be eligible to petition for their children to enter the United States based on their status as the “child of an American citizen,” rather than as “orphans.” Parents should contact DHS/ICE at Embassy Guatemala for further information on such “child” cases, as their processing is considerably different than that of “orphans,” the subject of this information sheet.
Immigrant visa issuance to orphans depends on a DHS determination that the adopted child meets the legal definition of orphan contained in Section 101(b)(1)(F) of the Immigration and Nationality Act (INA). To be an orphan, a child must be "an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption …." Two of the most common scenarios for meeting this definition in Guatemala are described in more detail below:
a. Irrevocable Release by the sole or surviving parent
A sole or surviving parent must be unable to care for the child they are giving up, and must in writing irrevocably release the child for adoption and emigration to the United States. (“Sole parents” are mothers of children born out of wedlock where the child does not have a natural or step-father; “surviving parents” are child’s living parent when the other parent is dead and the child has no step-parent.) The DHS Board of Immigration Appeals has ruled that an inability to care for the child would be demonstrated when the parent is destitute by Guatemalan standards and cannot provide the child with the nourishment and shelter necessary for subsistence consistent with the local standards of the child's place of residence.
b. Abandonment by both parents
A child with two living parents can meet the definition of an orphan only through the disappearance of, abandonment, desertion by, or separation or loss from both parents. Abandonment, desertion, separation and loss all have very exact definitions that must be satisfied for the child to be considered an orphan. The most common situation in Guatemala involves abandonment, where parents have willfully given up all parental rights, obligations, and claims to the child, as well as all control over and possession of the child. Abandonment requires that the release of the child be unconditional, and not with the intent to transfer the child to any specific person(s). Cases involving abandonment are significantly different from the single parent relinquishment situation described above, and usually take considerably longer to finalize.
Credits: U.S. Department of State
