For childless couples being able to adopt a child is a great option to the physical barrier of not being able to have children biologically. While there are children in foster care here in the United States, the appeal to adopt a foreign child may be overwhelming because of humanitarian reasons or to encourage connections of heritage. For others the reasons may be to support family or to take care of one’s own. Nevertheless the immigration process to get a child to the United States can be daunting. Obviously, there are concerns that children are not abducted or sold to childless American couples, and for that reason the Immigration process enforces policies and places conditions on the process to ensure the integrity of international adoptions.
The childless couple that wants to adopt a foreign child may find the process a bit easier than a person trying to assist extended family through adoption. An orphan is a child that either has no living parents or whose biological parents, one or both, have abandoned the child. The child must be processed for adoption overseas in his or her country of origin prior to attaining the age of sixteen (16). The adoptive parents must file the appropriate immigration forms (I-600 or I-600A) requesting that the child be designated an orphan. A study of the prospective home must be completed and an investigation into the adoptive parent’s criminal background must be done to determine that the child will receive proper care and supervision while in the United States. Additionally, US CIS may investigate to determine that the proper channels in the foreign country were used in obtaining the adoption order for the orphan. It should be noted that the process of orphan adoption is reserved for US citizens and primarily for couples, although single individuals above age twenty-five (25) can adopt as well provided that they pass scrutiny in the home study and criminal investigative stage of the process.
Identifying a child for adoption may be facilitated by using a reputable international adoption agency or traveling to the country and searching on one’s own. Once the child’s immigration petitions are approved, then the child will become a U.S. citizen upon lawful entry to the United States.
If the situation is different and the child that is being adopted is a part of the adoptive parent(s)’ extended family: a cousin, grandchild, niece, nephew, or younger brother or sister for example, the standards are different. Or, if the couple or individual wishing to adopt is only a Lawful Permanent Resident, then the adoptive parent(s) must overcome a variety of obstacles before obtaining Immigration status for the child. The child must be under sixteen (16) years of age prior to the adoption. The adoption must be legal by the laws of the country in which the adoption took place. A court order is required and the whereabouts of the biological parents may be investigated by the US Immigration service. At times, proof of voluntary consent of a surviving biological parent is required. Sometimes a notarized affidavit is not sufficient unless it states that the biological parent knows that s/he is severing all legal rights to this child. Once the child is adopted all legal rights for the biological parent(s) end, so that the adopted child who then becomes a Lawful Permanent U.S. Resident cannot ever sponsor his or her biological parents or biological siblings for a Green Card if any exist. The Immigration system, however, will allow a family to adopt two children who are siblings and one child can be over 16 years old but below 18 years of age.
The child must at some point be in the care and physical custody of the adoptive parent(s) for at least a two (2) year period prior to petitioning the child for Lawful Permanent Residency status. This means that the child cannot still be living with the biological parent(s) while the adoptive parent(s) sends money “back home” to care for the child or pay the child’s school fees for example. Receipts for money wires and transfers are insufficient to show care and custody. The Immigration service wants to see proof that the child lived with or is currently living with the adoptive sponsoring parent for a two year period prior to or after adoption but before the immigration papers are filed. The adoptive parent can do this by showing the child’s school records and/or medical records that state the legal guardian or parent, in addition to any other proof. If the adoptive parent is only a Lawful Permanent Resident of the United States prolonged absences of six months or more while s/he is living with the child overseas could cause serious problems for that person’s Immigration status. Thus, the requirement of having the child in one’s physical custody for at least two years creates a problem for the adoptive parent. Getting the child to the U.S. also becomes problematic if it is difficult to obtain a visa for the child at the US Embassy because the relationship to the US resident would cause the consular officer to deny the visa. However there are creative ways in which physical custody can be achieved legally. There are also ways in which a child who is a relative can achieve status through other means without adoption.
Thus, foreign adoptions require that certain conditions be met both for orphans and for extended family adoptions. Both cases involve a high degree of scrutiny from Immigration as to the authenticity of the adoption and, sometimes, as to the whereabouts of the biological parents to ensure no instances of baby selling or kidnapping occur. Also, each process requires submission of forms and fees and in the case of non-US citizen adoptions, supporting documents to show the two year residency requirement.
Attorney Nadine A. Brown practices Immigration Law in the Greater Orlando, Florida area. She has practiced Immigration Law for approximately 8 years, 3 of which was as the supervising attorney for the Catholic Charities Immigration & Refugee Services and the last 4 of which were in private practice. Her firm was established in 2002 and her cases involve issues relating to asylum, citizenship, consular affairs, deportation, residency petitions, student and business visas, and visa extensions or changes of
status. She handles all cases personally. Questions can be sent to [email protected]
Please visit her website at: www.nadinebrownpa.com
