The decision to adopt a child is an exciting and life-changing event. You may have been thinking about giving a child in need a loving home, but are unsure of where to begin. We’re here to help guide you through the basic process and provide you with some information that may help put your mind at ease.
According to §101(b) of the INA, there are two types of adoptions: (1) “Orphan”; and (2) “Non-Orphan.” For the definition of “Orphan,” please see: http://www.uscis.gov/tools/glossary/orphan. An orphan adoption situation typically arises when the child meets the definition of “orphan,” is under the age of sixteen years old, and is currently residing in another country. In a “Non-Orphan” adoption situation, the child has been residing with you for at least two years, and you must have legal custody or guardianship of the child. “Legal custody” means either an official adoption decree or an official document in the form of a custody award by a court or recognized government entity.
If you are thinking of adopting a child from another country, keep in mind that inter-country adoptions are governed by U.S. federal law, the laws of the child’s country of residence, and the laws of the U.S. state that you live in. This means that, in addition to U.S. immigration rules, each country may have its own criteria for prospective adoptive parents such as age, marital status, and others that you must follow. Each State also has its own requirements.
The Hague Adoption Convention is an international treaty among over 75 countries (including the United States) that serves to protect the best interests of children, birth parents and adoptive parents who are involved in inter-country adoption. It offers protections that are not necessarily available when adopting outside the scope of the Convention. Anyone who resides in any country outside of the United States that is a party to the Convention must follow the Hague process.
USCIS, which must approve all inter-country adoptions, has two basic eligibility requirements for prospective adoptive parents: If unmarried, petitioners must be U.S. citizens and at least 25 years old when they file the petition to adopt. For married couples, only one spouse must be a U.S. citizen, and there is no age requirement. Please keep in mind that in all adoption cases, the visa petition must be filed before the child’s sixteenth birthday.
The adoption of orphans, as well as non-orphans, can be a very complicated process. The Department of Homeland Security has outlined specific rules pertaining to these two types of adoptions. It is very important that you consult an experienced immigration attorney to help you decide which rule should apply to your specific case.
If you would like to find out more information about the international adoption process, please contact our office for a consultation.