Adoption Based Green Card

Overview

With a decrease in the number of children available for adoption in the United States, more and more U.S. citizens are turning to international adoption as another option. International adoption gives orphans the possibility of being adopted by U.S. citizens, which leads to more opportunities and a brighter future. However, U.S. authorities cannot intervene on behalf of prospective parents with the courts in the country where the adoption takes place; it is a private legal matter between an individual or couple and a foreign court, which operates under that country’s laws and regulations.

A child adopted by a U.S. citizen and who will reside in the U.S. must obtain an immigrant visa before he or she can enter the U.S. There are two categories of adopted children that can immigrate to the United States.

• The first category, as provided in INA 101(b)(1)(E), allows a child adopted by an American citizen before they reached the age of 16 who has already resided with the adoptive parent in their legal custody for two years to immigrate to the United States.
  
• The second category, as provided in INA 101(b)(1)(F), allows an “orphan”, as defined by U.S. laws and regulations, to immigrate.

Since most parents adopting overseas do not meet the custody and residence requirements of 101(b)(1)(E), the focus of this section is on 101(b)(1)(F) orphans. Parents who believe that their situation may fall into the first category should contact their nearest CIS office, embassy, or consulate for additional information. U.S. citizens are strongly advised to verify that a particular child will fit into one of these two categories per U.S. immigration laws and regulations before proceeding with an adoption. A consular officer cannot issue a visa to an adopted child if he or she does not meet the legal definitions of 101(b)(1)(E) or 101(b)(1)(F).

Unscrupulous adoption practices are common in many areas of the world. Moreover, adoption of a foreign-born child does not guarantee the child’s eligibility to immigrate to the United States. The adoptive parent must comply with US immigration laws and legal regulatory procedures. There is no way an orphan can legally immigrate to the U.S. without USCIS processing.

USCIS regulations require that all foreign adoptions undergo an investigation to guarantee compliance with the laws of both the US and the foreign sending country. When necessary, an overseas investigation is initiated. This investigation is conducted by a Department of State consular officer or a USCIS officer for posts where the USCIS has an office. The officer will make every effort to expedite the investigation; however, the process can sometimes be lengthy. This investigation can cause delays in adjudicating the case. Prospective adoptive parents are advised to retain a reputable agency with foreign adoption experience or competent legal representation in their efforts to bring foreign-born children to the United States. The purpose of the investigation is to confirm that the child is an orphan as defined in U.S. immigration laws, and the child does not have an illness or disability that is not described in the orphan petition.

There are two ways international adoption for orphans may take place.

A Form I-600A – Application for Advance Processing of Orphan Petition
This method is used by a U.S. citizen who plans to adopt a foreign-born orphan but does not have a specific child in mind. “Advance Processing” enables the USCIS to first adjudicate the application that relates to the qualifications of the applicant(s) as a prospective adoptive parent(s).

Additionally, this method may be used in cases where the child is known and the prospective adoptive parent(s) are traveling to the country to locate or adopt a child. However, it is important that prospective adoptive parent(s) be aware that the child must remain in the foreign country where he or she is located until processing is completed.

A Form I-600A must be filed with a USCIS office in the US. After the child or children are located and/or identified, a separate Form I-600 must be filed for each child.

This method is faster.

It is generally advisable for all prospective adoptive parents to do advance processing, even if you have already identified the child. Even if you are traveling to the country where the child is located and will file an orphan petition at an overseas immigration office (or at an American consulate or embassy if there is no immigration office in the country), you should do advance processing. By completing advance processing, it ensures that the USCIS has already processed the application that relates to your ability to provide a proper home environment and your suitability as a parent before you adopt a child in a foreign country. This is important because you will not be allowed to bring a child that you have adopted to the United States if you are found to be unable to provide that child with a proper home environment or you are found unsuitable as a parent.

A Form I-600 – Petition to Classify Orphan as an Immediate Relative
An orphan petition for a child who has been identified must be submitted on a completed Form I-600 with the certification of the petitioner executed and the required fee. The child’s name, date of birth, and other information must be known for such a petition to be filed. The child must fit the definition of “orphan” according to US immigration laws, as described below.

An orphan petition can be filed when a child is identified and:

an advance processing application is pending or it is within 18 months of a favorable decision in a completed advance processing case, no advance processing application was filed, or an advance processing application was filed and approved but no orphan petition was filed during the 18-month period.

The U.S. citizen should contact an adoption agency overseas through a U.S. agency. They will select a child for him/her according to his/her preferences. Once an orphan is selected, the foreign adoption agency will also apply for guardianship of the orphan on behalf of the U.S. citizen petitioner and act as the child’s attorney. When the final guardianship order has been obtained, the prospective parent may file an I-600 petition at the USCIS office.

When the petition is approved, the USCIS office cables the approval to the appropriate U.S. embassy/consulate. On receipt of the telegraphic approval, or the approved petition, the embassy/consulate notifies the concerned foreign adoption agency, which will start the visa application process for the child, with his/her foreign passport. A visa cannot be issued to the orphan without a passport.

Child Citizenship Act of 2000

The Child Citizenship Act of 2000 allows certain foreign-born, biological, and adopted children of U.S. citizens to acquire U.S. citizenship automatically. These children did not acquire U.S. citizenship at birth, but they are granted citizenship when they enter the U.S. as lawful permanent residents (LPRs).

Adoption Based Greencard Eligibility

1. Eligibility for an advance processing application (Form I-600A).
   An application for advance processing may be filed by a married U.S. citizen and spouse (no special age). The spouse of the applicant does not need to be a U.S. citizen; however, he or she must have lawful immigration status. An application for advance processing may also be filed by an unmarried U.S. citizen who is at least 24 years of age, provided that he or she will be at least 25 at the time of adoption and the filing of an orphan petition on behalf of the child.
   
   
2. Eligibility for orphan petition (Form I-600).
   In addition to the requirements concerning the citizenship and age of the applicant described above in bullet point A, when a child is located and identified, the following eligibility requirements apply:
   
   1. Child.
      Under U.S. immigration laws, an orphan is an alien child who has no parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents.
      
      An orphan is also a child who only has one parent that is not capable of taking care of the orphan and has, in writing, irrevocably released the orphan for emigration and adoption.
      
      A petition to classify an alien as an orphan (Form I-600) may not be filed on behalf of a child who is present in the United States, unless that child is in parole status and has not been adopted in the United States.
      
      The petition must be filed before the child’s 16^th birthday. A child adopted at age 16 or 17 will also qualify provided he or she is a natural sibling of a child adopted or will be adopted under the age of 16 by the same adopting parents.
      
      Prospective adopting parents should note that the terms “disappearance”, “abandonment”, “desertion”, “separation”, “loss”, and “sole” and “surviving” parent all have specific legal meanings, as defined in section 204.3(b) of Title 8 of the U.S. Code of Federal Regulations. Whether a child qualifies as an orphan is determined by reference to U.S. regulatory definitions and not by any local (foreign) law designations that may be used to identify a child as an orphan. In some countries, it is possible to adopt a child who is not an “orphan” as defined by U.S. immigration laws. Parents are urged to seek advice about the possibility that an adopted child would not be considered an orphan and therefore would not be able to accompany his or her adopting parents to the United States. Immigration attorneys, reputable adoption agencies involved in international adoption, DHS/CIS, and the Department of State officials all have information that will assist you in addressing this concern.
      
   2. Adoption abroad.
      If the orphan was adopted abroad, it must be established that both the married applicant and spouse or the unmarried applicant personally saw and observed the child prior to or during the adoption proceedings. Note that viewing a video or observing a photograph of the child does not constitute “personally seeing” the child. The adoption decree must show that a married prospective adoptive parent and spouse adopted the child jointly or that an unmarried prospective parent was at least 25 years of age at the time of the adoption and filing of the Form I-600.
      
   3. Proxy adoption abroad.
      If both the applicant and spouse or the unmarried applicant did not personally see and observe the child prior to or during the adoption proceedings abroad, the applicant (and spouse, if married) must submit a statement indicating the applicant’s (and, if married, the spouse’s) willingness and intent to readopt the child in the United States. If requested, the applicant must submit a statement to an official of the state in which the child will reside that re-adoption is permissible in that state. In addition, evidence must be submitted to show compliance with the pre-adoption requirements, if any, of that state.
      
   4. Pre-adoption requirements.
      If the orphan has not been adopted abroad, the applicant and spouse or the unmarried applicant must establish that the child will be adopted in the United States by the prospective applicant and spouse jointly or by the unmarried prospective applicant, and that the pre-adoption requirements, if any, of the orphan’s proposed state of residence have been met. If requested, the petitioner must submit a statement from an official of the state in which the child will reside that re-adoption is permitted in that state.

Not Eligible

The following persons are NOT eligible to file an orphan petition:

• An unmarried U.S. citizen under the age of 25.
  
• An individual residing lawfully in the U.S. who is not a U.S. citizen.
  
• A married couple residing lawfully in the US, neither of whom are U.S. citizens.
  
• An individual or couple who do not have lawful immigration status in the U.S.
  
• A U.S. citizen who is still legally married but separated from his or her spouse, unless the spouse joins the petition.

Child Already in the United States

An orphan petition may not be filed on behalf of a child who is in the United States unless that child is in “parole” status and has not been adopted. If an orphan petition is approved for a child in the United States, the child can become a lawful permanent resident through a procedure called an adjustment of status. In some ways, an adjustment of status is similar to applying for an immigrant visa in a foreign country.