• What is International Adoption?
  • September 9, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • What is International Adoption?

    When a U.S. citizen or lawful permanent resident (LPR) decides to adopt a child from overseas, one of the most important legal considerations is following the proper set of international adoption procedures to lawfully adopt the child and in order to confer U.S. citizenship or LPR status to the newest member of his or her family. In this article, I will provide a brief overview of the main international adoption programs to give readers a general picture of how the international adoption laws and procedures work. Due to the complicated nature of the process, it is important to consult with an experienced immigration attorney who has experience working as an international adoption attorney.

    Hague Convention Process

    The Hague Convention Process for international adoption is available to U.S. citizens only. If a certain U.S. citizens seek to adopt a child after the effective date of the Hague Convention, April 1, 2008, from a Hague Convention country, he or she must follow the Hague Process.

    The Hague Process is required if all of the following are true:

    • The child is under the age of 16;
    • The child habitually resides in a Hague Country;
    • The parents are married and U.S. citizens who habitually reside in the United States, both of whom sign the application; or
    • The parent is an unmarried U.S. citizen who is at least 25 years of age and who habitually resides in the United States.

    Under section 101(b)(1)(G) of the Immigration and Nationality Act (INA), the birth sibling of a Hague Convention adoptee may qualify to be adopted if he or she is over the age of 16, but under the age of 18.

    In order to complete an adoption through the Hague Process, the applicants must work with a Hague Accredited Adoption Service Provider (ASP) and must complete a Hague adoption home study. The applicant(s) must have approved a Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, to move forward with adopting the child. After the provisional approval of the Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, the applicants may work with the Department of State (DOS) to obtain a visa for the child and complete the adoption. It is important to note that it is illegal to adopt a child from a Hague Convention country without undergoing the proper Hague Convention international adoption process. If the adoption will be completed overseas, the child may receive an IH3 visa, whereas if the adoption will be completed in the United States, the child will be classified as an IH4.

    If the child is inadmissible for any reason (most commonly for health grounds), the applicant or applicants may file a Form I-601, Application for Waiver of Ground of Inadmissibility.

    Orphan Process

    The Orphan Process is used in cases where the Hague Process would be used, but in cases where the adoption is from a non-Convention country. Like the Hague Process, the Orphan Process may only be used by married U.S. citizen parents who habitually reside in the United States or by an unmarried U.S. citizen parent who habitually resides in the United States and is over the age of 25.

    To begin the process, the applicants must undergo a home study completed by an person authorized to conduct a home study in the applicant’s state. If the identity of the intended adopted child is known, the applicant or applicants must file the Form I-600, Petition to Classify Orphan as an Immediate Relative. If the applicant or applicants do not know the identity of the child, the correct form is the Form I-600A, Application for Advance Processing of Orphan Petition. The Form I-600A may also be used if the country from which a child will be adopted is not yet known, although this will not allow the applicant or applicants to adopt a child from a Hague Convention country.

    The age requirements for a child to be defined as an “adopted child” are the same in Orphan cases as in Convention cases. The application must be filed before the child turns 16 years of age, except in the case of the natural born sibling of an Orphan Process adoptee, in which case the application may be filed after the child turns 16 years of age but before the child turns 18 years of age. The USCIS is required to investigate whether the intended adoptee is actually an orphan as defined by U.S. law and that the applicant or applicants obtained a valid adoption or grant of custody in the child’s home country.

    After completing these requirements, the applicant or applicants may work to complete the process by obtaining a visa for the child with DHS. The child will receive an IR3 visa if the adoption is being completed overseas or an IR4 visa if the adoption child is being admitted for the adoption to be completed in the United States.

    If the child is inadmissible for any reason (most commonly for health grounds), the applicant or applicants may file a Form I-601, Application for Waiver of Ground of Inadmissibility.

    Immediate Relative Petition

    Finally, if a legal adoption has taken place, if the child has resided with the legal adoptive parent(s) for at least two years, and if the child qualifies as an adoptive child under the immigration laws, the parent(s) may file an immediate relative petition to confer status to the child. Unlike the Hague Convention and Orphan international adoption processes, this process is open to LPR parents as well as to U.S. citizens. The child must meet the following requirements to qualify as an adoptive child under the immigration laws:

    • Have been adopted before his or her 16th birthday (or 18th birthday in the case of the natural sibling of an adopted child);
    • Have resided with the adoptive parent(s) for at least two years (unless the child is subjected to battery or extreme cruelty by an adoptive parent or by a family member of the adoptive parent residing in the same household).

    An adopted child entering the United States through the immediate relative petition process may be granted an IR2 visa.

    Conclusion: International Adoption

    It is important for parents seeking to obtain an international adoption to carefully consider whether they are ready to provide a child from overseas a loving home in the United States. Provided that the answer is yes, parents should carefully consider how they want to adopt a child and obtain good counsel for guidance through the immigration components of the international adoption processes.