Adoption of Foreign-born Children
Immigrant Visa Requirements for Adopted Children
An adopted child may qualify for immigration if:
- The adoption occurs prior to the child’s 16th birthday;
- The adoptive parent(s) have had legal custody of the child for at least two years (before or after the adoption); and
- The child had resided with the adoptive parent(s) for at least two years (before or after the adoption).
A sibling of an adopted child may also qualify for immigration if
- The sibling is under age 18;
- The original adopted child was adopted while under the age of 16; and
- The sibling has been in the custody of, and has resided with the adoptive parent(s) for at least two years.
A foreign-born child is an orphan if:
- Both of the child’s parents have died, disappeared or have been separated or abandoned the child; or
- If the child’s sole parent cannot care for the child and has, in writing, irrevocably released the child for emigration and adoption.
Process – An orphan petition must be filed before his or her 16th birthday. An orphan petition may be filed before the 18th birthday for a natural sibling of an orphan or adopted child if the sibling is adopted with or after that child by the same adoptive parents.
Who is eligible to file an orphan petition?
- A married U.S. citizen and his spouse (no age minimum) may file a petition for adoption of an orphan. The spouse does not need to be a US citizen but must legally live in the US. Also, an unmarried US citizen of at least 25 years of age may file an orphan petition.
Advance Processing of an Orphan Adoption
To expedite the immigration process, the eligible US citizen may apply for advance processing before he or she actually finds an orphan to adopt. An application for advance processing may be filed by anyone eligible to file an orphan petition. An unmarried US citizen may file an application for advance processing if the US citizen is at least 24 years of age and will be at least 25 when an orphan petition is filed on behalf of the actual child.
Before the applicant identifies a foreign-born child to adopt, he or she may file Form I-800A which allows the USCIS to first process the application that relates to the applicant’s ability to provide a proper home environment and his suitability as a parent. Then, once an orphan is identified, the applicant must file Form I-800 on behalf of the adopted child.
Exemption of the Two-year Residence and Legal Custody Requirements for Orphan Adoption
Orphan adoptions are exempt from the two-year residence and legal custody requirements for immigration. However, such adoptions must comply with local state adoption rules.
Adoption by US Permanent Residents (Green Card Holders)
Only children who were adopted before their parent became a Green Card holder and who satisfy the three requirements for adoption: (1) adoption before the age of 16; (2) two years custody by their adoptive parent; and (3) two years of residence with the parent) may immigrate into the U.S. together with their parent as a derivative.
There is no provision for newly adopted children of permanent residents to immigrate and join their parents in the United States. The only way for these newly adopted children to immigrate is to meet the definition of “adopted child” under immigration law: (1) adoption before the age of 16; (2) two years custody by their adoptive parent; and (3) two year of residence with the parent. Once an alien child satisfies these criteria, his adoptive parent, as a lawful permanent resident, may petition for the child in the family-based second preference category.
Taking into account the required two-years of custody and residence, as well as the lengthy waiting period for second preference category visas, by the time an adopted child qualifies for immigration, his/her parents may have already qualified for naturalization. Thus, at that time, the parent, as a U.S citizen, may petition for the child’s immigration as an immediate relative of Family-Based First Preference.
An alien with non-immigrant status may not petition for their adopted children. A newly adopted child by a non-immigrant alien would not qualify for a dependent visa unless they satisfy the three requirements for adopted children (i.e., adoption before the age of sixteen, two years custody, and two years of residence with the adoptive parent). However, a newly adopted child may apply for a tourist visa to visit his/her parents.
The Child Citizenship Act
1. The Child Citizenship Act (CCA)
CCA became effective on February 27, 2001. Under the CCA, most foreign-born children adopted by U.S. citizens will automatically acquire US citizenship on the date they immigrate to the United States.
2. Qualification of automatic citizenship of adopted children
Under the CCA, the adopted child will automatically acquire US citizenship on the date that all of the following requirements are satisfied:
- At least one adoptive parent is a U.S. citizen;
- The child is under 18 years of age;
- A full and final adoption of the child is completed; and
- The child is in the U.S. as a permanent resident.
Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under the CCA, even if they meet all other criteria. If they wish to become US citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.
If you are planning to adopt – or already have adopted a child to join your family in the US, please call an California Immigration Lawyer from The Law Office of Andy Miri. We have helped numerous clients grow their families here in the US.
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