The topic of adoption in the immigration context divides into two groups – adopted children and orphans. There are significant differences that determine who is eligible to petition for a child, which children are eligible, and the process involved.
First, lawful permanent residents and citizens of the United States can adopt a child the law classifies as an adoptee. The law regarding the adoptions requires that one parent is a citizen of the United States. If unmarried, the minimum age is twenty-five.
The term “child” includes a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent for at least two years before the filing of an immigrant visa petition. This was the original definition in the Act, before the implementation of the Hague Convention through the Inter-country Adoption Act (“IAA”) on April 1, 2008. The Hague Convention and Inter-country Adoption Act govern the adoption of children between two signatory countries and require preapproval before any adoption occurs. The government therefore recognizes an adopted child if the adoption occurred before the child reaches the age of 16 and the child has been in the legal custody of, and resided with, one or both of the adopting parents for at least two years before the filing of any immigration petition. The two-year residency period can occur before or after the adoption.
A child can be an adoptee and an orphan at the same time. A child is an orphan “because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption.”
The parents of an orphan do not have to fulfill the two-year requirement or adopt the child abroad. However, the parents must initiate the process of adopting an orphan before the child’s sixteenth birthday and must establish their capacity to care for the child through an initial application process that includes a detailed home study. The adoption can occur in the United States or abroad. An adoption that occurs abroad, however, requires the parents to meet and observe the child as prerequisite and the parents must satisfy the law of the foreign country.
Adopting international children – whether they are in the United States or abroad – requires a careful assessment before any prospective parent invests emotionally or financially in the process. Wilson Law Group has represented families in the United States adopt international children living abroad and within the United States. We are happy to schedule a time to discuss this option to expanding your family with you.
