[Congressional Record Volume 141, Number 169 (Monday, October 30, 1995)]
[House]
[Pages H11386-H11387]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 AMENDING IMMIGRATION AND NATIONALITY ACT TO UPDATE CLASSIFICATION OF 
                   CHILDREN IN U.S. IMMIGRATION LAWS

  Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that the 
Committee on the Judiciary be discharged from further consideration of 
the Senate bill (S. 457) to amend the Immigration and Nationality Act 
to update references in the classification of children for purposes of 
U.S. immigration laws, and ask for its immediate consideration.
  The Clerk read the title of the Senate bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  Mr. GEKAS. Reserving the right to object, Mr. Speaker, I would ask 
the gentleman from Texas if he would mind explaining the contents of 
the legislation briefly or lengthily.
  Mr. SMITH of Texas. Mr. Speaker, will the gentleman yield?
  Mr. GEKAS. I yield to the gentleman from Texas.
  (Mr. SMITH of Texas asked and was given permission to revise and 
extend his remarks.)
  Mr. SMITH of Texas. Mr. Speaker, S. 457 amends the immigration laws 
to change the term ``legitimate child'' to a ``child born in wedlock,'' 
as well as change the term ``illegitimate child'' to ``a child born out 
of wedlock.'' This change in terminology does not provide a substantive 
change in the immigration laws. However, while technical, the change 
will help to facilitate the adoptions of foreign national children by 
American couples.
  (Mr. GEKAS asked and was given permission to revise and extend his 
remarks.)
  Mr. GEKAS. Continuing my reservation of objection, Mr. Speaker, I 
thank the gentleman from Texas [Mr. Smith] for explaining the content 
of the bill, and for a brief expansion of his remarks I want him to 
know, and our colleagues, as he would know, the history of this 
legislation.
  Mr. Speaker, the Senate had already passed something, actually had 
been in contact with us earlier on it, and that was the consequences 
then of what happened over in the Senate. We here in the House would 
have to go through a lengthier procedure in order to arrive at the same 
final tunnel, so we are simply acceding to the Senate version at this 
time.
  Mr. Speaker, the measure we are here considering changes language 
dealing with children in the Immigration and Nationality Act and has 
enormous impact in the area of international child adoption. Passage of 
this legislation is one of those small but incredibly important 
successes in improving government for the citizens of the United States 
in which we must take pride. Its effect will be felt nationwide.
  As noted, S. 457, sponsored in the other body by our former House 
colleague, Senator Paul Simon of Illinois, is a carbon copy of a bill, 
H.R. 1204, which I sponsored here in the 104th Congress. The language 
of H.R. 1204 has been considered and approved in the House by the 
Judiciary Subcommittee on Immigration and Claims, chaired by Mr. Lamar 
Smith of Texas, and by the full Committee on the Judiciary, Chaired by 
Mr. Hyde of Illinois, as part of H.R. 2202, the ``Immigration in the 
National Interest Act of 1995'' and is awaiting floor action. However, 
because the Senate acted first on their measure we are obliged to take 
up S. 457 as the most expeditious route to getting the measure signed 
into law by the President. This member has no pride of authorship 
problem, no concerns about credit. My main concern is that we make the 
changes embodied in the bill as quickly as possible so that families 
involved in international adoptions will have some relief from the 
problems they have heretofore encountered. Consideration of the House 
bill at this time would require referral back to the Senate, possibly 
adding months of required parliamentary action before achieving the 
language changes needed, months of unnecessary agony for the families 
and children we seek to help.
  Let me explain to my colleagues in the House just what the language 
of S. 457/H.R. 1204 does. International adoption has become a very 
popular method for those individuals who must use the adoption route. 
However, for the thousands of Americans who pursue them every year 
(about 15 percent of total U.S. adoptions) international adoptions can 
be very complicated.
  Current U.S. law regarding international adoptions is in a state of 
some confusion. Our law requires that a child be certified as an 
``orphan'' in order to be eligible for adoption by an American and for 
an immigrant visa to the United States. This orphan certification can 
be accomplished in one of two ways: proof that both parents are dead or 
an irrevocable release for adoption and emigration by a ``sole 
parent''. Under U.S. law, a sole parent is defined as the mother of an 
``illegitimate child''. But many countries have stopped using the term 
``illegitimate'' and ``legitimate'' and instead use ``born out of 
wedlock'' and ``born in wedlock''. Since children born out of wedlock 
are regarded as legitimate in many countries, and under U.S. law a 
legitimate child is not eligible for orphan classification based solely 
on the mother's release (unless the father has died), a problem of 
definitions occurs which has ground to a halt international adoptions 
by U.S. families.
  The simple solution to this problem is to substitute in the section 
of the INS Act that defines ``child'' for immigration purposes the 
terms ``legitimate child'' and ``illegitimate child'' with ``child born 
in wedlock'' and ``child born out of wedlock''. With this change, we 
can ensure that Americans will be able to proceed with international 
adoptions that meet the legal definitions of both the host country and 
the United States.
  I have attached a May 31, 1995 letter from the Department of State 
and the Immigration and Naturalization Service--DOJ--which indicates 
their strong support for this change. And, in a June 8, 1995, letter to 
Ms. Mary Thomas, Romanian Children's Connection, Alexandria, Virginia, 
from Maura Harty, Managing Director, Office of Overseas Citizens 
Services, U.S. Department of State, Ms. Harty states.

       As you may also know, the Department of State has included 
     in its Consular efficiency legislation proposal of 1995 a 
     request for an amendment to section 101(b) of the Immigration 
     and Nationality Act. This change will prevent U.S. citizens 
     from being disadvantaged by the increasing worldwide trend to 
     declare all children legitimate, regardless of whether born 
     in or out of wedlock. We anticipate this change will relieve 
     the problem at its source.

  Additionally, the attached letter from Wendy R. Sherman, Assistant 
Secretary, Legislative Affairs, U.S. Department of State, to the 
Honorable Charles E. Grassley, United States Senator, illuminates 
further on the need for the changes made by S. 457/H.R. 1204 with 
specific mention that the amendment ``should not adversely affect the 
rights of natural fathers.''
  Mr. Speaker, I commend the House of Representatives and the other 
body for its passage of this measure and encourage the President to 
quickly sign this correction into law.


                                          Department of State,

                                     Washington, DC, May 31, 1995.
     Hon. George W. Gekas,
     House of Representatives,
     Washington, DC.
       Dear Mr. Gekas: We are pleased to learn of your sponsorship 
     through House Bill 1204 of a ``technical correction'' to the 
     Immigration and Nationality Act (INA).
       This bill would amend the INA by substituting ``a child 
     born out of wedlock'' for current language which describes a 
     child as ``legitimate'' or ``illegitimate'' under the Act. 
     The substituted terminology will permit a foreign child 
     released unequivocally for adoption to qualify for an 
     immigrant visa.
       We are writing to let you know that this legislation has 
     the unqualified support of both the Immigration and 
     Naturalization Service and the Department of State. We hope 
     that it is enacted in the very near future. Thank you for 
     your assistance.
     Doris Meissner,
       Commissioner Immigration and Naturalization Service, 
     Department of Justice.
     Mary A. Ryan,
       Assistant Secretary Bureau of Consular Affairs, Department 
     of State.
                                                                    ____



                                     U.S. Department of State,

                                                   Washington, DC.
     Hon. Charles E. Grassley,
     U.S. Senate,
     Washington, DC.
       Dear Senator Grassley: You have asked whether legislative 
     proposal S. 457 would adversely affect the rights of a 
     foreign child's natural father in the context of an adoption. 
     This proposal would amend Sections 101(b)(1) and (b)(2) of 
     the Immigration and Nationality Act (INA), 8 U.S.C. 
     1101(b)(1) and (b)(2), by replacing the words ``legitimate 
     child'' with ``child born in wedlock'' and ``Illegitimate 
     child'' with ``child born out of wedlock.''
       INA Sections 101(b)(1) and (b)(2) define the terms 
     ``child'' and ``parent'', thereby establishing the conditions 
     that must be met in order for an individual to qualify for 
     U.S. immigration benefits on the basis of a parent-child 
     relationship with a U.S. citizen. Specifically, subsections 
     101(b)(1)(E) and (F) set 

[[Page H 11387]]
     forth the three definitions of ``child'' that by virtue of which a 
     foreign child adopted by U.S. citizen parents may qualify for 
     an immigrant visa. One of these definitions, in subsection 
     101(b)(1)(F), requires that the child be irrevocably released 
     for adoption by the sole or surviving parent. The use of this 
     provision has been particularly important in the context of 
     private adoptions, where a child is released for adoption to 
     a specified family.
       As the statute is currently drafted, however, all parents 
     of legitimate children are considered to be a ``parent'' for 
     INA purposes. In recent years, many countries from which U.S. 
     citizens adopt children have eliminated the distinction 
     between legitimate and illegitimate children, making all 
     children born within that jurisdiction legitimate by action 
     of law. A child born in such a country cannot be considered 
     to have a ``sole parent,'' even if the child was born out of 
     wedlock and even if the child's father has disappeared 
     completely.
       A child's ability to qualify for an immigrant visa under 
     the ``sole parent'' provision has thus come to depend in many 
     instances on where the child happens to have been born rather 
     than on the nature of the child's relationship with his or 
     her natural parents. In countries where all children are 
     ``legitimate,'' a private placement adoption becomes 
     extremely difficult. The child may be issued an immigrant 
     visa only under one of the other two definitions in INA 
     section 101(b)(1): the child must either be abandoned 
     unconditionally by the mother, usually to an orphanage 
     (Subsection 101(b)(1)(F)), or the adopting U.S. parents must 
     complete the adoption in the foreign country and reside in 
     the country with the adopted child for two full years 
     (Subsection. 101(b)(1)(E)). It seems pointless to put 
     adopting parents through such protracted procedures simply 
     because under local law the child is considered 
     ``legitimate'' even though its parents were never married and 
     its father has played no role in its life. In a different 
     country where on the same facts the child would be 
     ``illegitimate,'' an immigrant visa could be issued 
     relatively easily under the ``sole parent'' provision of INA 
     Section 101(b)(1)(F).
       While the proposed amendment will, therefore, facilitate 
     private adoptions in countries where all children are 
     considered ``legitimate,'' it should not adversely affect the 
     rights of natural fathers. Rather it will restore flexibility 
     to the visa process and permit adoption and visa decisions to 
     be made on the basis of all relevant facts, rather than 
     predetermined by the happenstance of whether local law 
     regards the child as ``legitimate'' or ``illegitimate.'' The 
     interests of the natural father will be protected in a 
     variety of ways. First, as is already the case with 
     ``illegitimate'' children, the ``sole parent'' provision will 
     not be available in the case of a children born out of 
     wedlock unless the father has ``disappeared or abandoned or 
     deserted the child or . . . has in writing irrevocably 
     released the child for emigration and adoption.'' (INA 
     Section 101(b)(2).) The consular officer will have to apply 
     this standard in deciding whether the required visa can be 
     issued under the ``sole parent'' provision. In addition, the 
     INA contemplates that U.S. parents adopting a foreign child 
     will either adopt the child abroad or comply with preadoption 
     requirements and then adopt the child in the United States. 
     Under either scenario, the foreign country's adoption and/or 
     emigration procedures will presumably ensure that any rights 
     of the natural father under foreign law are respected.
       I hope this information is useful to you, and that you will 
     support early consideration of the legislation.
           Sincerely,

                                             Wendy R. Sherman,

                                              Assistant Secretary,
                                              Legislative Affairs.

  Mr. Speaker, I withdraw my reservation of objection.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  The Clerk read the Senate bill, as follows:

                                 S. 457

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. DEFINITION OF CHILD.

       Section 101(b) of the Immigration and Nationality Act (8 
     U.S.C. 1101(b)) is amended--
       (1) in paragraph (1)--
       (A) in subparagraph (A), by striking ``legitimate child'' 
     and inserting ``child born in wedlock''; and
       (B) in subparagraph (D), by striking ``an illegitimate 
     child'' and inserting ``a child born out of wedlock''; and
       (2) in paragraph (2), by striking ``an illegitimate child'' 
     and inserting ``a child born out of wedlock''.

  The Senate bill was ordered to be read a third time, was read the 
third time, and passed, and a motion to reconsider was laid on the 
table.

                          ____________________