By: Attorneys Robert L. Reeves and Armineh Ebrahimian
For various reasons, Americans opt to adopt children from a foreign country rather than within the U.S. Adopting a child from abroad is a rewarding experience, but the process is difficult and complex. Many who try spend years pursuing an immigrant visa only to be broken-hearted when the case is ultimately denied with no way to repair the damage done. This article presents a cursory overview of this process, including a general discussion of some of the obstacles in obtaining a visa for adopted children.
U.S. immigration laws and regulations offer two different paths to adopting a child from outside the U.S. One method is adopting a child in their home country and immigrating him or her as an immediate relative. The other method is petitioning a child as an orphan and adopting him or her after their arrival to the U.S.
ADOPTING A CHILD ABROAD:
A child eligible to be adopted must be under the age of 16 and have resided with the adoptive parent for a two-year period. This two-year residency requirement may occur before or after the adoption. The adoptive parent must also have legal custody of the child for a two-year period, including exercising primary control over the child. The residency and custody requirements may take place prior to adopting the child, and need not occur simultaneously. Once the child is adopted and these requirements are met, the child may then immigrate to the U.S. as an immediate relative of his or her U.S. citizen adoptive parent. If the child resided with the natural parents along with the adopted parents during the requisite residency and custody period, the adoptive parents will likely have difficulty establishing that they exercised primary control over the child.
ADOPTING AN ORPHAN:
For parents who cannot meet the two-year residency and custody requirement, or have not yet identified a child that they want to adopt, the other method to adopting a child from abroad is through filing an orphan petition. Although the two-year residency and custody requirement is not required, it is necessary for the child to be classified as an orphan under U.S. immigration law. According to the Immigration and Nationality Act, a child is classified as an “orphan” when his or her parents have died, disappeared, separated, or abandoned the child. If there is a surviving parent, this parent must be incapable of providing to the child proper care, and irrevocably release the child for immigration and adoption in writing.
The U.S. Citizenship and Immigration Services (CIS) will approve an orphan petition where the adoptive parents can show the child will receive proper care upon his or her arrival. Among numerous requirements, the adoptive parents must submit a “home study” evaluation, which is issued by an accredited agency that evaluates the adoptive parents’ capabilities and living conditions.
Once the child arrives pursuant to an orphan petition, the petitioner will adopt the child in the U.S. There are no limitations to the number of orphans a parent can adopt.
Petitioning an adopted child or orphan to the United States is very complicated. Make no mistake, immigrating a child from abroad requires the advice and counsel from an expert in this area of immigration law.