By Daniela A. Hoegerle

What are the ways to bring my adopted child to the U.S.?

The first way to bring an adopted child born abroad to the United States is through the Orphan process, which generally requires the adopting parent to file Form I-600A, Application for Advance Processing of an Orphan Petition, and Form I-600, Petition to Classify Orphan as an Immediate Relative.

The second way to bring an adopted child born abroad to the U.S. is through the Hague process. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption is an international treaty that provides important safeguards to protect the best interests of children, birth parents, and adoptive parents in intercountry adoptions. Under this process, the adopting parent must file Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, and Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative. Unless an exception applies, if the adopting parent is adopting a child from a country that is party to the Hague Adoption Convention, he or she should use the Hague process. A full list of countries that are parties to the Hague Adoption Convention can be found here: https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/understanding-the-hague-convention/convention-countries.html. 

The third way to bring an adopted child born abroad to the U.S. is through the family-based immigrant petition process, which requires the adopting parent to file Form I-130, Petition for Alien Relative. Generally, the adopting parent should not file a Form I-130 Petition for a child from a Hague Convention country unless he or she is able to show the Hague Convention does not apply to his or her adoption.

In addition to legal requirements for each process under U.S. law, each country has its own specific adoption requirements that the adopting parent must follow. Whether the adopted child's country of origin is a Hague Adoption Convention country or not will typically determine which process the adopting parent should use.

The Orphan Process: Who qualifies as an orphan?

To be considered an orphan under U.S. immigration law, a child must be a foreign-born child who has:

• No legal parents because each parent has died or disappeared or has abandoned or deserted the child, or because of separation from or loss of each parent; or
• A sole or surviving parent who is incapable of providing proper care, specifically the inability to provide for the child's basic needs, consistent with local standards  of the foreign sending country, and who has irrevocably released the child (in writing) for emigration and adoption.

The Orphan Process: Who can file an application or petition?

The adopting parent must be a U.S. citizen. If he or she is not married, he or she must be at least 24 years old when he or she files a Form I-600A and at least 25 years old when he or she files a Form I-600. If he or she is married and his or her spouse lives with him or her in the U.S., the spouse must have lawful immigration status in the U.S. If he or she is married, he or she and his or her spouse must go through the immigration and adoption process on behalf of an adopted child together.

The Orphan Process: How do I apply?

There are two ways to apply under the Orphan process.

• Option 1: File Form I-600A and Form I-600 separately. Each adult member of the parent's household will need to be fingerprinted, and USCIS will conduct background and criminal checks on each one. Unless an exception applies, the parent must have a home study prepared by someone who is authorized under DOS regulations and local law to conduct home studies.
  • The first step is to file Form I-600A, which focuses on the suitability and eligibility as adoptive parent(s). USCIS cannot approve the Form I-600A until the home study is submitted. Once USCIS approves the Form I-600A and a child for adoption is identified, the applicant can begin the next step.
  • The second step is to file Form I-600, which focuses on whether the child qualifies as an orphan under U.S. immigration law. Unless an exception applies, the applicant must submit evidence with the Form I-600 that he or she is working with a primary provider. Once the Form I-600 petition is approved and orphan determination is completed, the applicant can apply for an immigrant visa with DOS to permit the child to travel to the U.S.
• Option 2: File Form I-600 together with evidence for Form I-600A. If an applicant has identified the child he or she wishes to adopt but has not filed a Form I-600A yet, he or she may request that USCIS make both determinations---the suitability and eligibility as an adoptive parent and whether the child qualifies as an orphan---at the same time. If USCIS approves the "combo" filed Form I-600, it means the applicant has been found suitable and eligible to adopt an orphan and it has been determined that the child qualifies as an orphan.

The Orphan Process: How old can a child be?

The applicant generally must file Form I-600 before the child's 16th birthday. The adoption can occur after the child's 16th birthday, but only if the applicant filed the Form I-600 before that day. 

The applicant may file a Form I-600 after the child's 16th birthday, but before the child's 18th birthday, only if the orphan is the birth sibling of another foreign born child who has immigrated or will immigrate based on an adoption by the same adoptive parent(s).

If the applicant filed the Form I-600A after the child's 15th birthday, but before the child's 16th birthday, USCIS will deem the Form I-600A filing date to be the Form I-600 filing date provided both of the following requirements were met:

• Form I-600A was filed after the child's 15th birthday, but before the child's 16th birthday (or, if applicable, after the child's 17th birthday, but before the child's 18th birthday); and
• Form I-600 is filed not more than 180 days after initial approval of Form I-600A.

The Orphan Process: What happens after the Form I-600 is approved?

After the Form I-600 petition is approved by either USCIS or the U.S. Embassy or Consulate and a favorable orphan determination is completed, the petitioner can apply for his or her child's immigrant visa. The Embassy or Consulate will schedule the child's visa interview. If eligible, DOS will issue the proper visa to enable the child to travel to the U.S.

Generally, the child will automatically become a U.S. citizen when admitted to the U.S. with an IR-3 immigrant visa, provided that the child will reside in the U.S. in the legal and physical custody of the adoptive parent(s) before reaching the age of 18. An IR-3 immigrant visa is generally issued if: at least one of the adoptive parents personally saw or observed the orphan before or during the adoption proceedings abroad and he or she (and his or her spouse, if married) obtained a final adoption abroad.

Generally, a child admitted with an IR-4 visa will acquire U.S. citizenship once the adoptive parents complete the adoption in the U.S., provided that the child resides in the U.S. in the legal and physical custody of the adoptive parent(s) before reaching the age of 18. An IR-4 immigrant visa is generally issued if: neither parent has seen or observed the child before or during the adoption proceedings, he or she will complete the final adoption in the U.S., only one parent of a married couple adopted the child, or the child is admitted to the U.S. on or after his or her 18th birthday.

The Hague Process: Who qualifies as an adoptee?

To be considered a Hague Convention adoptee under U.S. immigration law, the child must be a foreign born child who:

• Is habitually resident in a Hague Convention country;
• Will be adopted by a U.S. citizen who is habitually resident in the U.S.; and
• Has his or her last legal custodian(s) freely give written irrevocable consent to the termination of their legal relationship with the child, and to the child's emigration and adoption. The last legal custodian(s) may be:
  
  • Two living natural parents who are incapable of providing proper care for the child;
  • One natural parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, or abandonment or desertion by, the other parent; or
  • Other persons or institutions that retain legal custody of the child.

The Hague Process: Who can file an application or petition?

The petitioner must be a U.S. citizen. If the petitioner is not married, he or she must be at least 24 years old when he or she files a Form I-800A, and at least 25 years old when he or she files a Form I-800. If the petitioner is married and his or her spouse lives with him or her in the U.S., the spouse must have lawful immigration status in the U.S. If the petitioner is married, the couple must go through the immigration and adoption process on behalf of an adopted child together.

The Hague Process: How do I apply?

Each adult member of the petitioner's household will need to be fingerprinted, and USCIS will conduct background and criminal checks on each one. The petitioner must have a home study prepared by someone who is authorized under DOS regulations and local law to conduct home studies.

Step one is to file Form I-800A, which focuses on the petitioner's suitability and eligibility as adoptive parent(s) to adopt a child from a Hague Convention country. The petitioner must submit the home study with the Form I-800A unless his or her state of residence must first approve the home study and then forward it to USCIS. After a Form I-800A application is approved and the petitioner is matched with a child for adoption by the Central Authority in the child's country of origin, he or she is ready to begin the next step.

The second step is to file Form I-800, which focuses on the child's eligibility as a Hague Convention adoptee. If it appears that the child will qualify as a Hague Convention adoptee after being adopted abroad, USCIS will provisionally approve the Form I-800 and notify the U.S. Embassy or consulate.

The third step is to complete the adoption. After the adoption or custody is granted, the U.S. Embassy or Consulate will issue final approval of the Form I-800, the Hague Adoption or Custody Certificate, and a visa to come to the U.S. if the child is eligible.

The Hague Process: How old can a child be?

If the petitioner adopts though the Hague process, he or she must file Form I-800 before the child's 16th birthday. A Form I-800 may be filed after the Convention adoptee's 16th birthday, but before the Convention adoptee's 18th birthday, only if the Convention adoptee is the birth sibling of another foreign born child who has immigrated or will immigrate based on an adoption by the same adoptive parent(s). 

If the petitioner filed the Form I-800A after the child's 15th birthday, but before the child's 16th birthday, USCIS will deem the Form I-800A filing date to be the Form I-800 filing date provided both of the following requirements were met:

• Form I-800A was filed after the child's 15th birthday, but before the child's 16th birthday (or after the child's 17th birthday, but before the child's 18th birthday); and
• Form I-800 is filed not more than 180 days after initial approval of Form I-800A.

The Hague Process: What happens after the Form I-800 is approved?

After the Form I-800 is provisionally approved by USCIS and the U.S. Embassy or Consulate has contacted the Central Authority of the Hague Convention country, the petitioner can travel abroad and complete the adoption or obtain legal custody and bring the child to the U.S. to complete the final adoption there. Regardless of whether or not the petitioner completes the adoption abroad or obtains legal custody, the U.S. Embassy or Consulate will issue the final approval of the Form I-800, the Hague Adoption or Custody Certificate, and the proper visa for the child to enter the U.S.

Generally, the child will automatically become a U.S. citizen when admitted to the U.S. with an IH-3 immigrant visa, provided that the child will reside in the U.S. in the legal and physical custody of the adoptive parent(s) before reaching the age of 18. An IH-3 immigrant visa is generally issued if the petitioner and his or her spouse (if married) complete the final adoption before the child enters the U.S. 

Generally, a child admitted with an IH-4 visa will acquire U.S. citizenship once the adoptive parent(s) complete the adoption in the U.S., provided that the child resides in the U.S. in the legal and physical custody of the adoptive parent(s) before reaching the age of 18. The petitioner can then apply for a Certificate of Citizenship as proof of citizenship for his or her child using Form N-600. If the child is over 18 years of age when he or she is admitted to the U.S. or is otherwise not eligible for automatic U.S. citizenship, the child may apply for U.S. citizenship by filing Form N-400, when he or she is eligible.

Family-Based Petition Process: Who qualifies as an adopted child?

If the petitioner adopted a child but did not go through the Orphan or Hague process, the child may be able to immigrate if the petitioner files Form I-130, Petition for Alien Relative, and he or she satisfies the following requirements before filing Form I-130:

• The adoption was finalized before the child's 16th birthday (or the child's 18th birthday if the petitioner also adopted a birth sibling of the child and the birth sibling is immigrating either as an adopted child or orphan);
• The child has been in the legal custody of the petitioner for at least two years, either before or after the adoption. Legal custody means the petitioner assumed responsibility for the child under the laws of the state and under the order or approval of a court of law or other appropriate government entity; and
• The child must have lived with the petitioner or his or her spouse (if the petitioner is married and the child was jointly adopted) for two years, either before or after the adoption. 

Family-Based Petition Process: Who can file a Form I-130?

Unlike the Orphan and Hague adoption process, U.S. citizens and LPRs may file Form I-130 to petition for an adopted child.

Generally, a U.S. citizen parent who adopts a child from a Hague Convention country may not file a Form I-130 if the Hague Convention applies to the adoption. A U.S. citizen parent may file a Form I-130 for an adopted child from a Hague Convention country by showing the Hague Convention does not apply to an adoption in the following ways:

• For adoptions that take place in a Hague Convention country, the parent may jointly reside with the child outside the U.S. for two years while having legal custody; or
• For adoptions that take place in the U.S., the parent must show that the child is not habitually resident in the Hague Convention country of origin.

Family-Based Petition Process: How do I apply?

After meeting all the requirements listed above, the petitioner may file Form I-130 for the child. Form I-130 can be filed with a USCIS Lockbox or with USCIS abroad based on the petitioner's place of residence.

Family-Based Petition Process: How can my adopted child become a U.S. citizen?

If the parent is a U.S. citizen and the Form I-130 is approved, the Department of State will generally issue an IR-2 immigrant visa to the child. In general, if the adopted child is admitted to the U.S. with an IR-2 immigrant visa and is residing in the U.S. in the U.S. citizen parent's legal and physical custody before the child's 18th birthday, the child will automatically become a U.S. citizen. The child will receive a Permanent Resident Card by mail and can then apply for a Certificate of Citizenship by filing a Form N-600. However, if the adopted child did not automatically become a U.S. citizen, then he or she may apply for naturalization, when eligible, using Form N-400. 

If the child is already in the U.S., he or she may need to adjust his or her status to lawful permanent resident.

Contact the Law Offices of James D. Eiss for more information on adopting a foreign-born child.