San Diego Adoptions Green Card Lawyer
Adoptions and U.S. Immigration
United States citizens who desire to adopt a child from another country must understand the legal process not only in the United States but also in the country of which the child is a current citizen.
Immigration adoption is also referred to as “intercountry adoption.” It is the adoption by parents living in one country of a child who was born and lives in another country. The U.S. Citizenship and Immigration Service (“USCIS”) is a key player in the adoption process for intercountry adoptions.
Under U.S. immigration law, there are two processes or methods whereby children adopted by U.S. citizens may immigrate via intercountry adoption, as long as they meet the necessary requirements.
The child may first immigrate to the United States and complete the adoption process here, or a child may immediately immigrate after the adoption process has been completed in their country.
The Hague Process and the Orphan Process
Typically, intercountry adoption or immigration adoption may be accomplished by one of two processes. These two processes are The Hague Process and the Orphan Process. Both processes have requirements with similar aspects.
The Hague Process
To qualify for The Hague Process, a child must reside in a country that is part of The Hague Intercountry Adoption Convention. This Convention is an international treaty providing safeguards to protect the interests of children, their birth parents, and their adoptive parents during intercountry adoptions.
Under this Convention, there must be an officially designated Central Authority to safeguard the adoption process. The Central Authority in the U.S. is the Department of State (“DOS”).
The Adoption Service Provider (“ASP”) must be authorized and/or accredited to provide the necessary services to assist prospective adoptive parent(s) during a Hague adoption. The ASP cannot provide either legal advice or services or represent prospective adoptive parent(s) before the USCIS.
Steps of the Hague Process
- Select Hague Accredited ASP, and an immigration attorney.
- Obtain a home study from somebody who is authorized to complete a home study for a Hague adoption.
- Apply to USCIS prior to adopting a child or accepting the placement for one suitable for intercountry adoption.
- Once USCIS approves the application, work with the ASP to secure a proposed adoption placement.
- “Petition” the USCIS, before adopting, to have the child be found eligible to immigrate to the U.S.
- Adopt, or obtain custody to adopt, the child so you can adopt the child in the U.S.
- Obtain the child’s immigrant visa.
- With the immigration visa, bring the child to the U.S.
Establishing Suitability and Eligibility
In order to establish suitability and eligibility, prospective adoptive parents must file Form I-800A with the USCIS. If approved, Form I-800 must be submitted to determine the child’s eligibility under the Hague Convention before adopting or getting legal custody.
Before filing Form I-800A with the USCIS, you must meet the following qualifications:
- Be a U.S. citizen.
- Habitually reside in the U.S.
- If married, the spouse must also sign Form I-800A and intend to adopt the same child as you.
- If unmarried, you must be 24 years of age or older at the time you file Form I-800A, and be 25 years of age or older when filing Form I-800.
After the USCIS approves Form I-800A, you may then apply to the other country’s Central Authority for a specific adoption placement. Before the actual adoption, Form I-800 must be filed on behalf of the child you wish to adopt. In order to be classified as a Hague Convention Adoptee, the following criteria must be met by the child:
- Be under 16 when Form I-800 is filed.
- Habitually reside in a Convention Country.
- Be eligible for intercountry adoption by the country’s Central Authority and have all necessary adoption consents obtained.
- If married, your spouse must sign Form I-800 to adopt the child.
- If unmarried, you must be 25 or older when filing Form I-800.
After the USCIS provisionally approves Form I-800, you may apply for the child’s visa and complete the adoption or obtain custody to bring them to the U.S. for adoption, once the Department of States advises that you may do so.
An adoption cannot take place without filing Form I-800A and Form I-800 as it will contradict The Hague Convention agreement.
The Orphan Process
When The Hague Intercountry Adoption Convention doesn’t apply, you can use this process. Under this process the following requirements must be met:
- The child has no parents due to death, disappearance, abandonment or desertion, or separation or loss, of both parents
- The child has a sole or surviving parent unable to care for them and has irrevocably released the child in writing for emigration and adoption
An orphan petition must be filed before the child’s 16th birthday or before their 18th birthday if they are a birth sibling of another child you have adopted or will be adopting, as follows:
- An “adopted child” defined in Section 101(b)(1)(F) of Immigration and Nationality Act (“INA”) providing the adoption took place before the child’s 16th birthday
As part of the Orphan Process, the USCIS or DOS will investigate to confirm the child is an orphan, verify you obtained a valid adoption, the child is free of illness or disability, determine any special needs the child may have, and determine if there are any facts disqualifying the child from being adopted.
If you already have a child you want to adopt, you may file Form I-600, which is “Petition to Classify an Orphan as an Immediate Relative.”
Submit your home study with your Form I-600 and any other relevant evidence that you are suitable as an adoptive parent. Submit evidence that the child is an orphan and that you have adopted or intend to adopt the child.
Once the adoption has been approved, a visa for your child must be applied for. A DOS officer must decide if your child is “inadmissible” for medical reasons, certain diseases, lack of required vaccinations, etc. If found inadmissible, an “Application for Waiver of Ground of Inadmissibility,” Form I-601, may be filed.
Adoption can be a long and complicated process. An immigration attorney such as Sevens Immigration can assist you to ensure every step has been completed properly for your adoption.
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