As an attorney that has handled my share of immigration related adoptions it becomes clear to me, even with detailed explanation, that most adopting parents are completely confused about the process, especially when adopting a child who already or previously resides in the foreign country. This specific issue can be quite confusing, somewhat tricky and extremely frustrating at times.
When an adopted parent(s) is seeking to bring that adopted child from another country to the United States, one should be aware of (1) exactly what type of permanent resident / green card filing is necessary; and furthermore, (2) what sort of supporting evidence will be required and (3) whether the country is a signatory to the Hague Convention.
Many involved in the adoption process have asked: “What exactly is this Hague Convention” and “why is it necessary to know which countries are signatories to the Hague Convention”? The answer, The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention) is an international treaty that provides important safeguards to protect the best interests of children, birth parents, and adoptive parents who are involved in inter-country adoptions. If the country your adopted child resides is a non-convention country, then different requirements and forms will be required, i.e. I-800A/I-800 versus I-600A/I-600 forms, etc. Especially with regard to Orphan forms how and when the latter forms are required should be discussed with your attorney, should you choose to utilize the services of an immigration adoption attorney.
The adoption process, pursuant to the INA (Immigration and Naturalization Act)combined with the Hague Convention; provides three different processes whereby an alien child may immigrate on the basis of an inter-country adoption. The first two processes apply only to children adopted by U.S. citizens. Respectively, the child may (a)immigrate immediately after the adoption or (b) may immigrate to the U.S. to be adopted in the United States. The third process is an immediate relative.
- The Hague Process: if the child resides in a country that is a party to the Hague Inter-country Adoption Convention.
- The Orphan Process: (non-Hague): if the Hague Inter-country Adoption Convention does not apply;
- The third process is the immediate relative process. This process requires the adopted parent to have completed a “full and final” adoption along with having satisfied the necessary residency requirements with the subject child. Under the latter process, an adopted child is considered, for immigration purposes, to be the child (or adult son or daughter) of the adopting parent if:
- The parent adopted the child before his or her 16th birthday (or before the 18th birthday under certain circumstances that will be described below). You submit evidence of a full and final adoption AND
- The parent had legal and physical custody of the child for at least two years while the child was a minor
If you, as an adopted parent, are having issues understanding what terms like “legal custody” “residency” or “domicile” are referring to please ensure that you speak with an immigration attorney specializing in adoptions so that your time, efforts and money are not wasted pursuing a particular route. I stress the importance of a proper consultation with an immigration attorney specializing in adoptions because there are also a few circumstances and exceptions to the rules whereby a child may still be able to qualify (a) for the adoption and (b) to migrate as a permanent resident under one of the processes, even if the prospective parent initially is of the belief that all is lost as it pertains to her ability to adopt the child she may have erred. One example is the piggy-backing of one child upon another sibling that was adopted under the age of sixteen (16) by the same adopting parent. In this instance, a child that would otherwise be deemed ineligible for purposes of immigration laws because he/she was adopted after their 16th birthday can have the benefit of the tolling provision extending the adoptive age and; therefore, can receive the benefits of the immigration adoption by virtue of the sibling relationship to his/her younger siblings, despite being over the normal qualifying age.
Honestly, I can probably go on and on; but I am sure our readers would surely become bored with my rantings about the adoption process which must take place locally in the United States or in the foreign country. However, I can’t stress with enough importance how critical it is for adopting parent(s) to understand how to navigate through this document intensive process.
Although, I have given the “nutshell explanation” regarding the foreign adoption, a process that could be viewed as a nightmare of paperwork and procedure, it is being aware of exactly where to begin and what is required. These two items are the keys to successfully obtaining your desired goal.
If there are any further questions or inquiries concerning inter-country adoptions feel free to call us at BLACKMAN & MELVILLE, P.C., where achieving your desired objective is our main goal.
Denise A. Melville-Blackman, Esq.
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