Maggio+Kattar

The immigration process for adopted children and orphans is as rewarding as it is complicated. As a point of departure, there are now three different immigration processes for parents seeking immigration status for their adopted or prospective adopted children.  One process is specific to children already in the legal custody of their adoptive parents for over two years, the second process is required for orphan children residing in Hague Convention countries, and the third is for orphan children residing in non-Hague Convention countries.   The immigration process for adopted children or prospective adopted children is different than the actual adoption process, which is state or country specific.  An appropriate social service agency or an adoption service provider should be consulted concerning state specific and country specific adoption requirements and procedures.  

First, you must determine if you will be seeking immigration processing for an “adopted child” or for an “orphan.”   Next, identify whether the country of origin is party to the Hague Convention.  And, finally, prepare and file the appropriate paperwork with the assistance of an experienced practitioner. 

Step One:  “Orphan” or “Adopted Child”

The Immigration and Nationality Act (INA) criteria for obtaining immigration status for adopted children distinguish between an “adopted child” and an “orphan.” See INA §§101(b)(1)(E), 101(b)(1)(F); 8 C.F.R. §§204.2, 204.3.  An adopted child may qualify as an immediate relative if she or he meets the definition of an orphan as defined in the INA (“orphan”), or if the child has lived with the sponsoring parent for a minimum two-year period in the parent’s legal custody (“adopted child”).  

An “adopted child” is defined under the INA as:

•          a child adopted while under the age of sixteen years; and who

•          has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years (the two year requirement is waived for children who have been “battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household”);

An “orphan” is defined under then INA as:

•          a child under the age of sixteen at the time petition is filed;

•          who is an orphan due to the “death or disappearance of, abandonment or desertion by, or separation or loss from, both parents,” or “for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption”;

•          “who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings;”

•          “or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child's proposed residence;” and for whom

•          the USCIS is satisfied that proper care will be furnished if the child is admitted to the United States (pursuant to home study conducted by agencies designated by USCIS).

Special provisions exist as well for siblings of adopted children (must be under age 18 in lieu of age 16).

Step Two: For “Orphan” Children Determine if the Country of Origin of the Child is Party to the Hague Convention

The Hague Adoption Convention entered into force in the United States on April 1, 2008, bringing with it a specific process that must be followed for adoptive children immigrating to the United States.  Children who reside on countries subject to the Hague Convention, must follow the new procedures set forth in the Hague Convention.  Non-Hague Convention countries continue to follow the pre-existing orphan procedures.

Among other requirements, the Hague Convention mandates background and criminal checks on prospective adoptive parents, in addition to a home study. 

Step Three:  File Immigrant Petition for Adopted Child or Advanced Processing for Orphan

Throughout the application process the U.S. Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) have procedures set in place to safeguard the welfare of the children, to minimize fraud, to protect the rights of birth parents, and prevent child abuse and trafficking.  As a result, at times, adoptions from certain countries are either heavily scrutinized or prohibited.  Check the DOS and USCIS websites for important country specific updates.  

Immigrant Petitions for Adopted Children:  Follow regular procedures for immediate relative petitions, including filing I-130 Immediate Relative Petition to classify the adoptive relationship and either concurrently or separately, depending on the status of the parents, an application for adjustment of status or an immigrant visa.   The criteria listed above for adopted children must be proven by extensive evidence.  The forms are submitted to USCIS after the legal custody requirement has been met and the child has been formally adopted.  The two year legal custody requirement, however, does not need to take place post-adoption.  Depending on whether the child is in the United States or abroad, an application for adjustment of status or an immigrant visa is filed with USCIS or the U.S. Consulate abroad, respectively. 

Orphan Processing:  The filing process is more complicated for orphan processing and most often is conducted through an authorized adoption service provider.  For Hague Convention Countries, two new forms must be filed with USCIS, the I-800A (Application for Determination of Suitability to Adopt a Child from a Convention Country) and I-800 (Petition to Classify Convention Adoptee as an Immediate Relative).  These forms must be submitted and approved by USCIS before the adoption can take place.

Non-Hague Convention Countries will use forms I-600A and I-600.  Forms I-600A (for non-Hague countries) and I-800A (for Hague Convention countries) are the first step in the process and can be completed before a specific adoptive child has been identified.  These forms, however, are only one part of the immigration processing and do not serve to classify an orphan as an immediate relative – that is the purpose of the I-600 or I-800.  Approved I-600A and I-800A petitions only remain valid for fifteen months (this was recently increased from six months) – the exact period of validity is indicated on the USCIS approval notice.  After the I-600A is approved, an I-600 may be filed either with the U.S. Consulate abroad or with USCIS in the United States that approved the I600A petition.  As of today, form I-800 may only be filed in the United States with the National Benefits Center.  After approval of USCIS form I-600 or I-800, an immigrant visa is applied for at the appropriate U.S. Consulate abroad.