[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.

____________________