Adoption refers to a legal process in which a person or couple assumes the parenting role of a child from others, thereby acquiring parenting rights and responsibilities over the child.
U.S. based adoption takes place within the borders of the U.S. and its territories. Adoption laws differ from one State to another vary according to the state of residence for the parents and the child. The prospective parents must abide to State’ s laws and regulations, which usually consider age, residence, marital status, and other criteria for those involved in the process. The complexities of adoption almost always require an attorney with experience in adoption as it related to adopting an immigrant child. Immigration Solutions LLC has helped many parents navigate this process.
U.S. Based Adoption
There are three main petitions through which the adoptive parents can file for the US immigration of an adopted child:
Hague Convention Petition
Hague Convention applies if the adoptive U.S. Citizen parent chooses to adopt from a country that is party to the Convention. In a Convention adoption, U.S. parents are unable to choose a particular child since the potential adoptees are provided by the central authorities of that- country. What’s more, the adoptive parents cannot contact the biological parents, orphanage or legal custodian of the intended adoptee. However, the child will gain U.S. citizenship once the adoption is completed. Moreover, there is an exception by which the U.S. Citizen parent can opt-out of the Hague Convention and proceed directly to an I-130 petition.
This applies to the immigration of an adopted child from a non-Hague Convention country and also qualifies as an orphan as defined by U.S. law.
Under several circumstances, an adoptive parent can file an I-130 F2A petition for the adopted child. This process is obviously different from the other two adoption processes because it requires adoptive parents to have a two-year legal custody of the child, as well, as a two-year joint residency with the adoptee. Once these two criteria are met the adoptive parents can apply for the child’s immigration benefits.
The following table summarizes some of the specifics described above:
|I-130 Petition||Orphan Petition||Hague Convention Adoption|
|INA Definition||INA $101(b)(1)(E)||INA $101(b)(1)(F)||INA $101(b)(1)(G)|
|I-800A and I-800|
|Cut-off age for child||Child must be under 16 at time of adoption, or under 18 if sibling under 16.||Child must be under 16 at time of filing, or under 18 if sibling under 16.||Child must be under 16 at time of filing.
(No sibling exception).
|Must the child be an orphan?||No, the child’s birth parents may still be alive and able to care for the child if they consent to the termination of their parental rights toward the child.||Yes, “orphan” is defined as a child who has suffered 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”||No, the child’s birth parents may still be alive, although they must be incapable of providing care and must give consent to the termination of their parental rights toward the child and to the emigration of the child.|
U.S. citizenship of petitioner?
|Not necessarily: a legal permanent resident may petition for the adopted child.||Yes, the petitioner must be a U.S. citizen, and the spouse must be in lawful permanent status.||Yes, the petitioner must be a U.S. citizen, and the spouse must be in lawful permanent status.|
|Can a single parent adopt?||Yes.
(No restriction on age).
|Yes, must be 25 years old or older.||Yes, must be 25 years old or older.|
|24 months legal custody of the child?||Required.||Not required.||Not required.|
|24 months joint residency with the child?||Required.||Not required.||Not required.|
|Entry without inspection of the child.||Possible.||Not possible.||Not possible.|
|Contact with biological parents, orphanage or legal custodian and adopted parents prior to the adoption.||Possible.||Possible.||Prohibited.|
|Involvement of the Central Authority||Not applicable.|
Please note this information is not a substitute for legal advice. Each case is unique thus to assess your best options please do not hesitate to contact Immigration Solutions LLC.