Immigration of children adopted by US citizens from abroad
A lot of people have heard of celebrities adopting babies from abroad. US citizens can adopt foreign born children and bring them to the US as immigrants. However, the process is complex, and the procedures are strict. For instance, not all children may be adopted from abroad by US citizens. Only children who are “orphans” may be adopted from abroad.
Who is considered an “orphan” under US immigration laws?
Minor children who are suitable for adoption and immigration as “orphans” when:
- They have not yet reached their 16th birthday;
- Their parents have died; or
- Their parents have disappeared; or
- Their parents abandoned or deserted them; or
- They have been separated from their parents; or
- Their surviving parent is unable to care for the child and has irrevocably released the child both for adoption and for emigration.
- The country of origin of the child must permit adoptions by foreign nationals
How can orphans adopted by US citizens from abroad immigrate to the United States?
US citizens can petition for their adopted orphan children to immigrate as lawful permanent residents by filing a Petition to Classify an Orphan as an Immediate Relative (Form I-600). This is often referred to as the Orphan Process. While this process is still available, it is reserved for orphan children from countries that are not signatories to the Hague Adoption Convention which has been in force since 2008.
The Hague Adoption Convention is an international treaty that safeguards adopted children, birth parents and adoptive parents undergoing intercountry adoptions. The Hague Adoption Convention also seeks to stem human trafficking of minor children in the guise of adoption. If the adoptive child comes from a country that is a party to the Hague Adoption Convention, the adoptive parents will need to go through the Intercountry Adoption Process instead of the Orphan Process.
What is the Orphan Process?
The Orphan Process is only for children who will be adopted from countries that have not signed the Hague Adoption Convention into law. The USCIS will investigate and verify that the adopted child is indeed an orphan; that the child was validly adopted in accordance with the legal processes of the country; the child does not have an illness or disability that is not described in the orphan petition; that the child has no special needs that have not been fully addressed in a home study; that the child is not disqualified for immigration as an adopted child.
How different is the Intecountry Adoption Process under the Hague Adoption Convention?
- A Hague Convention Accredited Adoption Service Providers (ASP) will conduct a complete Hague adoption home study.
- After the home study, the parents will file an application to determine the suitability to adopt a child from a Hague Convention Country (Form I-800A). The USCIS will conduct a determination that the child is suitable for intercountry adoption.
- Once the USCIS has approved the Form I-800A, USCIS will work with the ASP to obtain a proposed adoption placement.
- The adoptive parents will then be free to file a petition to classify the orphan child as an immediate relative (Form I-800).
- The parents can then obtain a certificate of adoption for the child in the foreign country or obtain custody of the child to finish the adoption process in the US.
- The USCIS can then approve the petition and issue an immigrant visa for the child.
- The parents can bring the child to a US port of entry to gain admission for the child with the visa as a lawful permanent resident.
What is the home study?
The home study is a comprehensive evaluation of the physical, emotional, psychological health and well-being of the adoptive child. It is also an evaluation of the emotional, psychological, physical and financial suitability of the adoptive parents to care for the adoptive child. Most of all, the home study seeks to discover if there are any red flags such as a history of domestic violence, sexual abuse, child neglect, child abuse or substance abuse in the home of the adoptive parents.
What do US citizens need to prove in the petition?
In both the Form 600 and Form 800, US citizens need to prove their US citizenship and that they are at least 25 years of age. They also need to prove the validity of their legal or adoptive relationship to the child. They need to prove that the child is suitable for immigration (that the child does not suffer from any of the grounds for inadmissibility) or that they have filed an application to waive the child’s inadmissibility. They need to prove the child’s age, the child’s residency in a Hague Convention country, that the child is free to be adopted as the birth parents have freely given consent, if able. The US citizens must prove that they have the financial means to care for the child.
Can a US citizen adopt their niece or nephew and apply for them to immigrate as an immediate relative?
It depends. The processes and requirements of the Hague Adoption Convention must be met. The death, abandonment or the inability of the birth parents (siblings of the US citizen) to care for the adoptive child must be proved. Most of all, the USCIS must be convinced that the adoption was not made simply for the express purpose of immigration as the adoptive child is not free or willing to be adopted or the US citizens are not qualified as adoptive parents to support and nurture the child. There must be proof that the adoption is genuine, arising from a family bond or a family relationship.
The risk of adopting a child from abroad and not being able to bring them with you to the US on an immigrant visa is real enough. It would be traumatic for both the child and the parents. It is best to obtain a legal evaluation or a legal opinion on your chances of success at petitioning for an orphan child. The immigration lawyers at Lluis Law are willing and able to sit with you and discuss your options. Call us today.