This overview of adoption gives the main requirements for the process. There may be other requirements depending an the facts of the case.
With one exception, in order for the adopted child to receive immigration benefits from the adoption, the adoption must take place before the adopted child is sixteen years old. The exception to this rule, allows siblings up to 18 years old to receive immigration benefits from the adoption if they have a sibling under 16 years old that is also adopted by the same family.
In addition to the age requirement, adoptions must meet many other requirements in order for them to be recognized for immigration purposes. These requirement differ depending on whether the adopted child is an orphan or not, and on whether the adopted child is from a country that has signed or ratified the Hague Convention.
For a child that is not an orphan, the child must have been in the legal and physical custody of the adopting parent or parents for at least two years. The two-year requirement can be met after adoption, but must be met before the petition is filed with USCIS. Legal custody must either be based on the adoption decree, or on a custody award by a court or other governmental body.
Orphans are not subject to the two-year requirement, but must be adopted abroad. The child is considered an orphan if the child’s parents have died, disappeared, or abandoned the child, or if the child has only one parent, that parent is incapable of providing proper care and has irrevocably released the child for adoption.
If the adoption is subject to the Hague Convention, the requirements differ from those listed above. For adoptions subject to the Hague Convention:
- at least one of the adopting parents must be a US citizen,
- the visa petition must be filed before the child’s 16th birthday,
- the two-year requirement does not apply
- the adoption must take place abroad
- the adopting parents must be habitually residing in the US and the child must be habitually residing in the Hague Convention country
- the child’s parents, or institution having legal custody must freely and irrevocably consent in writing to the termination of their relationship to the child, and to the child’s adoption and emigration
- there must not be an exchange of funds for the adoption
Adoptions have many requirements, which vary depending on whether the child is an orphan or whether the Hague Convention applies. If the requirements are not met and documented, USCIS will not approve a petition filed for an adopted child. It is therefore important that one have an experienced immigration attorney handle the case.
Our attorneys are available to assist you with your adoption matter. Please call our firm to get started.