A child adopted by a U.S. citizen and who will reside in the US must obtain an immigrant visa before he or she can enter the U.S. Issuance of visas is governed by the Immigration and Nationality Act (INA), which currently provides for two categories of adopted children to immigrate to the United States. The first category 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 allows an “orphan,” as defined by U.S. law and regulations, to immigrate. Since most parents adopting overseas do not meet the custody and residence requirements, the adopting through the orphnage procedure is much more common. Parents who believe that their situation may fall into the first category should contact their nearest CIS office or Embassy or Consulate for additional information. The Department of State strongly advises U.S. citizens to verify that a particular child will fit into one of these two categories per U.S. immigration law 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 one of the two legal definitions stated above.
WHAT IS AN ORPHAN?
If an adopted child has not resided with and been in the legal custody of the adopting parent for at least two years (or if the child has not yet even been adopted) the child must qualify as an orphan under the U.S. Immigration and Nationality Act in order to apply for an immigrant visa. The main requirements of this section are as follows:
The child must be under the age of 16* at the time an I-600 Petition is filed with the CIS or a consular officer on his or her behalf;
*A child adopted at age 16 or 17 will also qualify, provided he or she is a natural sibling of a child adopted, or who 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 the U.S. regulatory definitions and not by any local (foreign) law designations that may be used to identify a child as orphaned. In some countries it is possible to adopt a child who is not an “orphan” as defined by U.S. immigration law. 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 serious concern.
U.S. IMMIGRATION PROCEDURES FOR ORPHANS
Adjudicating an orphan case requires the following steps:
Additional details on this process are provided below.
Step 1 – Demonstrating eligibility/suitability for an international adoption (I-600A)
In order to bring an orphan to the U.S. with an immigrant visa, adopting parents must demonstrate to CIS that they can and will provide proper care to the child if admitted to the United States. The I-600A application allows adopting parents to demonstrate that they are financially, logistically and otherwise prepared to adopt a child internationally. The I-600A also identifies any U.S. state requirements that must be met prior to or after the adoption.
Adopting parents are often encouraged to begin the overseas adoption process early by filing the I-600A before identifying a particular child to adopt. Parents who already have identified or even adopted a child may demonstrate their suitability to adopt by filing the same documentation with the I-600 petition (described below), but parents choosing this route should be aware that it may take longer and that they must file such I-600 petitions with a CIS office (not the consular officer at a U.S. Embassy or Consulate.)
If used, the I-600A Application for Advance Processing of Orphan Petition should be filed with the U.S. Citizenship and Immigration Services (CIS) office having jurisdiction over the adopting parents’ place of residence. The following documents must be submitted with the I-600A:
If you need help with your foreign adoption, please do not hesitate to call. Adoption law frequently changes both here and abroad. Not only must a prospective adoptive parent comply with US law, but the home country of the proposed adoptive child will also have it’s own laws on who may adopt a child residing in that country and under what circumstances that adoption may occur.
Contact Dave Hawkins today for a consultation.