Intercountry Adoption and Immigration

The process of adopting a child can be difficult, especially if it is intercountry adoption. The reason is that intercountry adoptions are governed by three different sets of laws: U.S. federal law, the laws of the country of the prospective adoptive child, and the laws of your state of residence in the U.S.

There are three different ways to emigrate a prospective adoptive child from a foreign country and obtain permanent legal residency or U.S. citizenship status to a child.

The first method is through The Hague Adoption Convention program. Since 2008, there is a new process for immigrating adoptive children from countries party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The requirements are:

  1. To file Form I-800A Application for Determination of Suitability to Adopt a Child from a Convention Country
  2. To file Form I-800Petition to Classify Convention Adoptee as an Immediate Relative

In order to be eligible under the Convention adoptee classification:

  1. The child must be under the age of 16 at the time the Form I-800 is filed; or under 18 and is a sibling of a child who is under the age of 16 who has been / will be adopted by the same parents.
  2. The prospective parents must be a U.S. citizen and, if unmarried, be at least 25 years old prior to filing Form I-800.
  3. The Central Authority of the child’s country of origin should have determined that the child is eligible for this type of adoption and their proposal for an adoption placement must be accepted, also the child should have not yet been adopted or been placed in the custody of the prospective adoptive parents.
  4. The birth parents of a child or other legal custodian should freely give their written, irrevocable consent to the termination of their legal relationship with the child and the child’s emigration and adoption.
  5. Moreover, if the child’s last legal custodians were two living birth parents who signed the irrevocable consent to adoption, those parents must be incapable of providing proper care for the child.

Considering that the above requirements are met USCIS will provisionally approve the Form I-800 petition. Thereafter, a consular officer at the U.S. Embassy or Consulate in the child’s country of origin will complete the final adjudication of the petition.

 The second method is the orphan adoption program. The requirements are:

  1. To file Form I-600AApplication for Advance Processing of Orphan Petition
  2. To file Form I-600Petition to Classify Orphan as an Immediate Relative

This program is not available if the adoptive child is a habitual resident of a Hague Adoption Convention member country.

In order for a child to be eligible under the orphan status program under U.S. immigration law:

  1. The child must be under the age of 16 at the time the Form I-600 petition is filed, or be under the age of 18 and a sibling of a child (under the age of 16) who has been or will be adopted (by the same adoptive parents);
  2. The child must either have no parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents; or have a sole or surviving parent who is incapable of providing proper care for the child and has, in writing, irrevocably released the child for emigration and adoption;
  3. The adopting parents must have completed a final adoption in the child’s country of origin or obtained legal custody of the child for purposes of emigration and adoption in the United States; and
  4. The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship.

The third method is through immediate relative processing by filing Form I-130Petition for an Alien Relative. If you adopt a child, but did not go through the orphan or Hague adoption process, then the child is considered to be your child for immigration purposes when you meet the appropriate requirements provided by the USCIS.

In general, an adopted child will automatically become a U.S. citizen if the child becomes a permanent resident before the age of 18. A Form N-600 may then be filed to obtain a Certificate of Citizenship.

Prospective Adoptive Child is an Immigrant in the U.S.

There’s an importance aspect that needs to be mentioned. If the prospective adoptive child is already in the U.S., and is planned to be adopted in the U.S., then there is not as many requirements. The prospective parents just have to finalize the adoption before the child turns 16 years of age (legal custody) and then live with the adopting parents for two years (physical custody). After that what happens next depends on whether the child entered the U.S. with or without inspection.

If the child entered the U.S. without inspection, an adopting parent has to file a visa petition with USCIS, and upon approval, take a child to the U.S. consulate for the visa interview, which completes the application process for permanent residency. It is important to note that a child under 18 does not accrue “unlawful presence”, therefore there is no need to worry about 3 or 10 years bars.

If the child entered the U.S. legally, but overstayed, an adopting parent can file a visa petition and an adjustment of status application at the same time.

Adopting a child and immigration is a complicated process, please consult with an immigration attorney.

 Source: USCIS, Travel.gov

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Posted in Blog, Blog, Immigration.