U.S. Department of State

U.S. Department of State
 
 

INTERNATIONAL ADOPTION

SOUTH AFRICA

October 2001

DISCLAIMER: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.

PLEASE NOTE:
Under South African laws, inter-country adoptions are governed under the Child Care Act, No. 74 of 1983. Under this Act, inter-country adoption was not allowed and a section in the Act prohibited foreigners from adopting South African-born children, unless one of the adoptive parents was a South African citizen resident in South Africa or otherwise had residential qualifications and had applied for naturalization. However, with the inception of the new government in May 1994 and passage of the new Constitution, along with a specific Constitutional Court decision in the year 2000, drastic changes have been made to the Act and American citizens are now able to adopt South African-born children.

Prospective adoptive parents are advised to fully research any adoption agency or facilitator they plan to use for adoption services. For U.S. based agencies, it is suggested that prospective adoptive parents contact the Better Business Bureau and licensing office of the Department of Health and Family Services in the state where the agency is located.

GENERAL: The following is a guide for U.S. citizens who are interested in adopting a child in South Africa and applying for an immigrant visa for the child to come to the United States. This process involves complex foreign and U.S. legal requirements. U.S. consular officers give each petition careful consideration on a case-by-case basis to ensure that the legal requirements of both countries have been met, for the protection of the prospective adoptive parent(s), the biological parents(s) and the child. Interested U.S. citizens are strongly encouraged to contact U.S. consular officials in South Africa before formalizing an adoption agreement to ensure that appropriate procedures have been followed which will make it possible for the Embassy to issue a U.S. immigrant visa for the child.

AVAILABILITY OF CHILDREN FOR ADOPTION: Recent U.S. immigrant visa statistics reflect the following pattern for visa issuance to orphans:

FY-1997 IR-3 immigrant visas issued to South Africa orphans adopted abroad - 0
IR-4 immigrant visas issued to South Africa orphans adopted in the U.S. - 2
FY-1998 IR-3 Visas - 1 IR-4 Visas - 1
FY-1999 IR-3 Visas - 1 IR-4 Visas - 1
FY-2000 IR-3 Visas - 0 IR-4 Visas - 3
FY-2001 IR-3 Visas - 12 IR-4 Visas - 2

SOUTH AFRICAN ADOPTION AUTHORITY:
The Government offices responsible for adoptions in South Africa are the following:

Commissioner of Child Welfare
Private Bag X61
Pretoria 0001, South Africa
Tel: 012-328-4026

Department of Social Development
Registrar of Adoptions
Private Bag X901
Pretoria 0001, South Africa
Tel: 012-312-7592
Fax: 012-312-7837

Adoption Procedures/Age/Residential and Civil Status Requirements:
South African law requires in adoption cases that one of the parents be a South African citizen. Previously, inter-country adoption was not allowed and a section in the Act prohibited foreigners from adopting South African-born children. In a recent constitutional court ruling that section of the Act was declared unconstitutional. The Act itself has not yet formally been changed.

Generally, the adoption procedure is initiated by identifying the orphan child through a welfare organization. After a home study has been completed, the case is referred to a children's court for the final hearing. An order of adoption terminates all the rights and obligations existing between the child and any legally-recognized parent. The adopted child is thereafter deemed by law to be the legitimate child of the adoptive parent(s). The order of adoption confers the surname of the adoptive parent on the adopted child.

Unmarried fathers have the right of apply for access, custody or guardianship in terms of the Natural Fathers of Children Born Out of Wedlock Act. In an earlier constitutional ruling (February 1999), the consent of the child's biological father was determined to be required before a child could be adopted. The Adoption Matters Amendment Act (December 1999) requires that the consent of the biological father, excluding rapists and incestuous fathers, be obtained before a child born out of wedlock is placed for adoption. Previously, only the consent of the biological mother was required. However, married or biological divorced fathers can prevent their wives or former wives from having their children adopted.

According to South African law, a child born to parents who are not married to each other at the time of birth is illegitimate. A child born to unmarried parents becomes legitimate as soon as they marry. Normally, the mother of an illegitimate child is not only the legal guardian of her child, but also has custody even if she is still a minor. Only if it is proven that she is unfit to have custody can the child be taken from her and placed in alternative custody. Under current laws, the birth of an illegitimate child must normally be registered in the surname of the mother; the illegitimate child may take the surname of its father only if the father has formally acknowledged this in the birth register. The mother alone has the right to decide what the child's first name or names should be.

Adoption Agencies and Attorneys:
There are no host-government-approved agencies or attorneys. Applicants usually complete the adoption process through a U.S. adoption agency or directly through the South African government.

Doctors:
The U.S. Consulate in Johannesburg (as well the other consulates in South Africa) maintains current lists of doctors and sources for medicines, should either you or your child experience health problems while in South Africa.

Documentary Requirements:
If an orphan has been identified for adoption, the prospective adoptive parent(s) may file the Form I-600 orphan petition at the Consulate. Generally, the following additional supporting documents are required:

i. The orphan's long-form birth certificate showing the biological mother's name; also, a new full birth certificate is required showing the new adoptive parents' names;
ii. Evidence that the child is an orphan, e.g. death certificate(s) of the orphan's parent(s), if applicable; or evidence that the orphan's sole or surviving parent cannot provide for the orphan's care and has, in writing, forever, and irrevocably released the orphan for emigration and adoption; or evidence that the orphan has been abandoned or deserted by, separated, or lost from both parents; or evidence that the orphan has been unconditionally abandoned to an orphanage.
iii. A final decree of adoption which must reflect that both spouses were parties to the adoption;
iv. Evidence of compliance with the foreign government regulations; and
v. Report of the child's medical condition.

AUTHENTICATION PROCESS:
All documents above must be authenticated. Generally, U.S. civil records, such as birth, death, and marriage certificates must bear the seal of the issuing office. Then it must be authenticated by the state's Secretary of State in your state capital, then by the U.S. Department of State Authentication's office and then by the South African Embassy or Consulate in the United States. Check with the South African Consulate in the U.S. with jurisdiction over your state to see what seals and signatures the Consulate can authenticate. It may be possible to eliminate some of the steps if the Consulate has the seal of the local issuing authority on file.

Tax returns, medical reports and police clearances should likewise be authenticated, beginning with the seal of notary public in the United States or some appropriate issuing office. The county clerk where the notary is licensed or some similar authority should authenticate the notary's seal. The document should then be authenticated by the state Secretary of State; (in your state capital) the U.S. Department of State Authentication's Office, and the South African Embassy or Consulate.

Advance Processing

  • Approved Form I-600A (Application for Advance Processing of Orphan Petition),
  • Fingerprints of each prospective adoptive parent on Form FD-258,
  • Proof of the prospective petitioner's United States citizenship,
  • Proof of the marriage of the prospective petitioner and spouse, if applicable,
  • Proof of termination of any prior marriages of the prospective petitioner and spouse or unmarried prospective petitioner, if applicable,
  • A "home study" completed by the appropriate State organization with a favorable
    recommendation
  • Filing fee of U.S. $460.00

Orphan Petition

  • Form I-600, Petition to Classify Orphan as an Immediate Relative,
  • Proof of the orphan's age,
  • Death certificate(s) of the orphan's parent(s), if applicable,
  • Proof that the orphan's sole or surviving parent cannot give the orphan proper care and has, in writing, forever or irrevocably released the orphan for emigration and adoption, if the orphan only has one parent,
  • A final decree of adoption, if the orphan has been adopted abroad,
  • Proof that the orphan has been unconditionally abandoned to an orphanage, if the orphan is in an orphanage,
  • Proof that the pre-adoption requirements, if any, of the state of the orphan's proposed residence have been met, if the orphan is to be adopted in the United States.

U.S. IMMIGRATION REQUIREMENTS

A South African child adopted by an U.S. citizen must obtain an immigrant visa before he or she can enter the U.S. as a lawful permanent resident. There are two distinct categories of immigrant visas available to children adopted by U.S. citizens.

A Previously Adopted Child. Section 101(b)(1)(E) of the U.S. Immigration and Nationality Act defines an "adopted child" as one who was adopted under the age of 16 and who has already resided with, and in the legal custody of, the adoptive parent for at least two years. Parents who can demonstrate that their adopted child meets this requirement may file an I-130 petition with the U.S. Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS) having jurisdiction over their place of residence in the United States. Upon approval of the I-130 petition, the parents may apply for an immigrant visa for the child at the U.S. Embassy in South Africa. U.S. citizens who believe this category may apply to their adopted child should contact the U.S. Embassy in South Africa for more information.

An Orphan. If an adopted child has not resided with the adoptive parent for two years (or if the child has not yet even been adopted) the child must qualify under section 101(b)(1)(F) of the U.S. Immigration and Nationality Act in order to apply for an immigrant visa. The main requirements of this section are as follows:

  • The adoptive or prospective adoptive parent must be an U.S. citizen;
  • The child must be under the age of 16 at the time an I-600 Petition is filed with the BCIS on his or her behalf;
  • If the adoptive or prospective adoptive parent is married, his or her spouse must also be a party to the adoption;
  • If the adoptive or prospective adoptive parent is single, he or she must be at least 25 years of age;
  • The child must be an orphan, as defined by U.S. regulations. Although the definition of an orphan found in many dictionaries is "A child whose parents are dead," U.S. immigration law and regulations provide for a somewhat broader definition. Children who do not qualify under this definition, however, may not immigrate to the U.S. as an orphan even if legally adopted by an U.S. Citizen. The Department of State encourages U.S. to consider if a particular child is an orphan according to U.S. immigration law and regulations before proceeding with an adoption. A detailed description of the orphan definition used by BCIS can be found on BCIS's web site at http://www.uscis.gov.

U.S. IMMIGRATION PROCEDURES FOR ORPHANS

I. The Petition.

Adoptive and prospective adoptive parents must obtain approval of a Petition to Classify Orphan as an Immediate Relative (Form I-600) from the U.S. Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS) before they can apply for an immigrant visa on behalf of an orphan. The adjudication of such petitions can be very time-consuming and parents are encouraged to begin the process well in advance.

A prospective adoptive parent may file Form I-600A Application for Advance Processing of Orphan Petition with the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS) office having jurisdiction over their place of residence. This form allows the most time-consuming part of the process to be completed in advance, even before the parent has located a child to adopt. In addition, a parent who has an approved I-600A may file an I-600 in person at the U.S. Embassy in South Africa .

Detailed information about filing these forms can be found on BCIS's web site at http://www.uscis.gov. U.S. who have adopted or hope to adopt a child from South Africa should request, at the time they file these forms, that BCIS notify the U.S. Embassy in South Africa as soon as the form is approved. Upon receipt of such notification, the Embassy will contact the parents and provide additional instructions on the immigration process. U.S. consular officers may not begin processing an orphan adoption case until they have received formal notification of approval from an BCIS office in the US.

II. The Orphan Investigation

One part of the petition process that BCIS cannot complete in advance is the "orphan investigation". An orphan investigation Form I-604 Report on Overseas Orphan Investigation) is required in all orphan adoption cases - even if an I-600 has already been approved - and serves to verify that the child is an orphan as defined by US immigration law. A consular officer performs this investigation at the time of the child's immigrant visa interview.

Visa Information & What to Expect Information:
South Africa has tightened its visa requirements for certain categories of visitors. Only visitors on tourism, short business consultations, or in-transit do not require visas; others need visas or will be refused admission and returned to their point of origin. Visitors who intend to work in South Africa must apply for work permits abroad at the appropriate South African Embassy or Consulate. Travelers entering South Africa from countries where yellow fever is endemic are often required to present their yellow World Health Organization (WHO) vaccination record or other proof of inoculation or must be inoculated at the airport in order to be permitted entry. Travelers may obtain further information from the Embassy of South Africa, 3051 Massachusetts Avenue, NW., Washington, D.C. 20008, telephone 202-232-4400, or the South African Consulates in Los Angeles, Chicago, or New York.

South African Embassy in the United States:

South African Embassy
3051 Massachusetts Avenue, NW., Washington, D.C. 20008
Tel: 202-232-4400
Fax: 202-265-1607/202-244-9417

South African Consulate General
333 East 38th Street, 9th Floor, New York, N.Y. 10016
Tel: 212-213-4880
Fax: 212-213-0102

U.S. Embassy in South Africa:

U.S. Embassy
877 Pretorius Street, Arcadia 0083
Tel: 012-342-1048
Fax: 012-342-2244 & 342-2299
(The Consulate in Johannesburg handles all consular matters for Pretoria)

U.S. Consulate General
River Street, Killarney, Johannesburg 2193
Tel: 011-644-8000
Fax: 011-646-6916

U.S. Consulate General
Broadway Center, Hertzog Boulevard
Heerengracht, Foreshore, Cape Town 8001
Tel: 021-421-4280
Fax: 021-425-3014

U.S. Consulate General
2901 Durban Bay House
333 Smith Street
Durban 4001
Tel: 031-304-4737
Fax: 031- 301-8206

Additional Information:
Prospective adoptive parents are strongly encouraged to consult BCIS publication M-249, "The Immigration of Adopted and Prospective Adoptive Children", as well as the Department of State publication, "International Adoptions".

Questions: Specific questions regarding adoption in South Africa may be addressed to the Consular Section of the U.S. Consulate in Johannesburg. You may also contact the Office of Children's Issues, SA-29, 2201 C Street, NW, U.S. Department of State, Washington, DC 20520-2818, Tel: 1-888-407-4747 with specific questions.

Information is also available 24 hours a day from several sources:

Telephone - Office of Children's Issues - recorded information regarding changes in adoption procedures and general information, 1-888-407-4747.- State Department Visa Office - recorded information concerning immigrant visas for adoptive children, (202) 663-1225.- Bureau of Citizenship and Immigration Services in the Department of Homeland Security - recorded information for requesting immigrant visa application forms, 1-800-870-FORM (3676).

Internet - the Consular Affairs web site, at: http://travel.state.gov contains international adoption information flyers and the International Adoptions brochure.

BCIS web site - http://www.uscis.gov

Other information:
Consular Information Sheets - published by the State Department and available for every country in the world, providing information such as the location of the U.S. Embassy, health conditions, political situations, and crime reports.