By Anda C. Kwong & Nancy E. Miller
When it comes to minors, the judicial system takes cautious steps to ensure that any decision made is in the best interests of the children involved. For immigration purposes, the United States Citizenship & Immigration Services (USCIS) provides three routes for internationally-adopted children to be petitioned as children in the United States. Once the requirements to be considered a child have been met, the process to petition the children is exactly the same as any other family-based parent-child petition. After the immediate relative petition is approved, the children may apply to adjust their status and obtain their green cards.
The first way is where an adopting parent adopts a non-orphan. In order for an adopted non-orphan child to qualify as a child for immigration purposes, the adoptive parent must adopt the child “while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.” The two-year residency with the child may occur before or after legal custody or adoption. Where the adopted child continues to reside with the biological parent(s) and adoptive parent, the burden is on the adoptive parent to establish that she exercised primary parental control. Evidence of parental control may include ownership or maintenance of the property where the child resides; financial support and day-to-day supervision of the child; passport entry and exit stamps to show physical presence; medical, school, religious, tax, or insurance documents that establish relationship; and affidavits from knowledgeable individuals attesting to Petitioner’s relationship to the child. However, the mere fact of ongoing contact with the birth parents (as in ‘open adoptions’) does not mean that the legal parent-child relationship with the prior legal parents was not terminated.
Another way for adopted children to be considered children is through Hague Convention adoptions. The Hague Adoption Convention is an international agreement that establishes safeguards to ensure that intercountry adoptions take place in the best interests of the child. It was designed to wealthy or powerful persons from using undue influence in order to facilitate an adoption. However, it has resulted in making adoptions under Hague extremely difficult and, thus, rare. Only when both countries involved have signed and entered the Convention is the adoption governed by these procedures. Generally, only a married US citizen whose spouse also adopts the child or an unmarried US citizen who is over 25 years old may adopt. The adoption must occur abroad. The visa petition must be filed before the child turns 16. The two year legal custody and joint residency requirements do not apply in non-orphan cases.Finally, the adopting parents must habitually reside in the US, and the child must be a habitual resident of the Convention country.
Finally, where the parent has adopted an orphan from a country that has not ratified the Hague Convention, the parent must have adopted the child abroad before the age of 16, and show that the child is an orphan by reason of death, disappearance, abandonment and/or desertion, separation, or loss of both parents. With limited exception, the parent must follow the non-orphan adoption rules if the orphan is in the US either illegally or already present as a nonimmigrant. If the orphan has one natural parent, that parent must be incapable of providing proper care and irrevocably release the child in writing. The release also means that the natural parent is precluded from immigration benefits through the child that was adopted. There is no minimum or maximum number of orphans one can adopt.
The adoption-means of immigrating a child should not be confused with the procedure form Special Immigrant Juvenile Status (SIJS). Under SIJS, an unmarried and parentless minor under the age of 21 who is inside the US petitions herself. She can only self-petition after obtaining an official judicial decree establishing that she is a dependent of the state juvenile or probate court, that it is not in her best interests to return to her home country, and that she cannot be reunited with a parent due to abuse, abandonment, neglect, or similar reason under state law.
An adoption that complies with individual state or country requirements but not with immigration law requirements, including Hague where necessary, may end the possibility of immigrating that child. For that reason, anyone interested in bringing a foreign-national minor to the United States should contact an experienced and knowledgeable immigration lawyer before taking any steps in that direction.