The Basics on International Adoption and Immigration
How can I bring my adopted child to the U.S.?
Children born to American citizens are often automatically granted U.S. citizenship at birth. Circumstances change when children are born overseas to parents who aren’t U.S. citizens or permanent residents. Unfortunately, things aren’t that simple.
We frequently have to dispel the myth that if you are a U.S. citizen who adopts a child from a foreign country, the child automatically becomes a U.S. citizen, and they are free to bring the child to the United States.
Adoptive parents have to satisfy a long list of requirements before they can bring the newest member of their family home to stay.
What Happens When a U.S. Citizen Adopts a Child With Foreign Citizenship?
International adoption by a U.S. citizen does not guarantee U.S. immigration benefits. Parents must satisfy legal requirements to help their child become a citizen of the United States.
Depending on the circumstances, parents must utilize one of three processes to bring an adoptive child to the U.S.
Adopted children can obtain U.S. immigration status through one of three methods:
- The Hague Adoption Convention
- The Orphan Process
- The Family-Based Petition Process
Each process has its specific requirements. An adopted child can only immigrate to the U.S. if the adoption meets all the requirements for at least one process.
What Is the Hague Process?
The Hague Process was created by an international treaty to provide essential safeguards that protect the best interests of children, birth parents, and adoptive parents going through intercountry adoption.
U.S. citizens who reside in the United States must usually follow the Hague Process if the child they’re adopting resides in a country that is a party to the Hague Convention.
What Are the Basic Requirements To Start the Hague Process?
Adoptive parents must meet all of the following requirements to begin the Hague Process:
- You must be a U.S. citizen
- You must reside in the U.S.
- If not married, you must be at least 24 years old when you file a Form I-800A and at least 25 years old when you file a Form I-800
- If married, your spouse must have lawful immigration status in the U.S. if you live together in the U.S.; and
- You and your spouse must go through the immigration and adoption process together on behalf of an adopted child.
The child you’re adopting must meet these requirements:
- Be under the age of 16 at the time of filing the Form I-800 (or under 18 if the sibling exception applies)
- Reside in a Hague country
- Be found eligible for intercountry adoption by the appropriate authority in the child’s country of residence.
- Have obtained all the necessary consents for adoption (i.e., legally required paperwork signed by biological parents and/or the adoption agency responsible for helping the child find a guardian).
How Does the Hague Process Work?
The Hague Process is a multi-step process that verifies the eligibility of parents and children for safe intercountry adoption.
After confirming eligibility, you’ll work with your immigration lawyer and/or adoption attorney to complete and file the necessary paperwork.
Step One: Choose an Adoption Service Provider
Adoption Service Providers are knowledgeable about the legal and emotional implications of adoption. They advocate for adoptive parents, adoptive children, and biological parents throughout the adoption process.
An accredited Adoption Service Provider (ASP) can answer specific questions about your circumstances.
You may also want to consider consulting an experienced immigration attorney as well.
Step Two: Complete a Home Study
You will have to undergo a home study by someone authorized to complete intercountry adoption home studies. This home study aims to assess your suitability to adopt a child.
The professional performing the study wants to ensure that your home environment is safe and that you can easily meet the child’s basic needs.
Step Three: File Form I-800A
If you’re eligible to adopt, you must file a Form I-800A with U.S. Citizenship and Immigration Services (USCIS). This form focuses on your suitability and eligibility as an adoptive parent(s) to adopt a child from a Hague Convention country.
Each member of your household, age 18 or older, must be fingerprinted and submit to a background check.
You must submit your home study with Form I-800A unless your state of residence requires them to approve the home study and then forward it to USCIS.
After Form I-800A is approved and you are matched with a child for adoption, you are ready to begin the next step.
Step Four: File Form I-800
In the Hague Process, you must always file Form I-800A first and then file Form I-800. If you do not submit filings in this order, your child may be unable to immigrate to the U.S.
You may not accept any adoption placement before USCIS approves Form I-800A.
When your Form I-800A is approved, you can move forward. Before adopting the child, you must file Form I-800 with USCIS. Form I-800 focuses on the child’s eligibility as a Hague Convention adoptee.
If the child qualifies as a Hague Convention adoptee after being adopted abroad, USCIS will provisionally approve Form I-800 and notify the U.S. Embassy or Consulate.
The Embassy or Consulate will then communicate to the appropriate authorities in the child’s country of origin to inform them that the adoption may proceed.
Step Five: Completing the Adoption
You may not adopt or take legal custody of the child until you have an approved Form I-800A and a provisionally approved Form I-800.
The Department of State will notify the appropriate authorities in the child’s home country that the adoption or legal custody proceeding may proceed.
You can travel abroad and complete the adoption or obtain legal custody to bring the child to the U.S. to complete the final adoption.
Regardless of whether or not you complete the adoption overseas or obtain legal custody, the U.S. Embassy or Consulate will issue the final approval of the Form I-800, the Hague Adoption or Custody Certificate, and the proper visa for the child to become a resident of the United States.
Once the documents are in order, you can bring your child home.
What Are the Paths to U.S. Citizenship for Hague Adoptees?
There are several visas for children who arrive in the United States as Hague Process adoptees.
IH-3 visas are for children who have had their adoption finalized before coming to the U.S.
Generally, the adopted child will automatically become a U.S. citizen when admitted to the U.S. with an IH-3 immigrant visa, provided that the child will reside in the U.S. in legal and physical custody before age 18.
If eligible, the child should automatically receive a Certificate of Citizenship in the mail.
IH-4 visas are for children coming into the U.S. to be adopted.
A child admitted with an IH-4 visa will acquire U.S. citizenship once the adoptive parent(s) complete the adoption in the U.S., provided that the child resides in the U.S. under the legal and physical custody of the adoptive parent(s) before turning 18 years old.
When admitted to the United States, the child will be mailed a Permanent Resident Card, also known as a green card. You can apply for a Certificate of Citizenship as proof of citizenship for your child once the adoption is finalized.
If the child is over 18 when admitted to the U.S. (or is otherwise not eligible for automatic U.S. citizenship), they may apply for U.S. citizenship by applying for naturalization when they meet the eligibility requirements.
What Is the Orphan Process?
If the adopted child lives in a non-Hague country, you may file for adoption under the Orphan Process. U.S. immigration law defines an “orphan” as a foreign-born child in two ways:
- The child does not have any parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents, or
- The child has a sole or surviving parent who cannot care for the child, consistent with the local standards of their country, and who has formally permanently released the child for emigration and adoption.
Children who meet these requirements can be adopted under the Orphan Process.
What Are the Basic Requirements To Start the Orphan Process?
- You must be a U.S. citizen.
- If you are married, your spouse must sign Form I-600 and adopt the child.
- If you are not married, you must be at least 25 years of age when you file the Form I-600
- You need to be able to prove you can provide for the child
- You must prove that the child you wish to adopt or have adopted fits the criteria for the Orphan Process
- You must show that either you (or your spouse, if married) have adopted the child abroad
- You must prove that you or your spouse personally saw the child before or during the adoption proceedings, or
- You will adopt the child in the U.S. after the child arrives in the United States through the proper legal process
How Does the Orphan Process Work?
This process requires adoptive parents to complete and file necessary forms with USCIS.
Step One: File Form I-600A
Filing Form I-600A is optional but helpful. Filing Form I-600A can give you a head start on the process. This Form focuses on your suitability and eligibility as an adoptive parent(s).
Each member of your household 18 years or older will need to be fingerprinted and undergo a background check.
You must have a home study prepared by someone authorized to complete intercountry adoption home studies. Home studies are used to verify that your home is a safe and suitable place to raise a child.
Step Two: Adopt or Obtain Legal Custody of the Child
You (and your spouse, if married) will need to adopt or obtain legal custody of the child in the child’s birth country.
The process for obtaining custody will vary from country to country, and your adoption specialist can help you through the process.
Step Three: File Form I-600
After you have adopted the child (or obtained legal custody of the child), you must file Form I-600. For Form I-600, you must submit evidence that you are working with a “primary provider,” i.e., an accredited Adoption Service Provider (ASP) authorized by the Department of State.
You must file Form I-600 before the child’s 16th birthday (or under 18 if the sibling exception applies). You usually cannot file a Form I-600 for a child already in the U.S.
After the Form I-600 petition is approved and the determination is completed, you can apply for your child’s immigrant visa.
If eligible, the Department of State will issue the proper visa for your child to travel to the United States.
What Are the Paths to U.S. Citizenship for Orphan Process Adoptees?
IR-3 or IR-4 visas are issued for children adopted under the Orphan Process.
IR-3 visas are issued when at least one of the adoptive parents personally saw the children before or during the adoption proceedings abroad, and the child was adopted abroad.
Your child will automatically become a U.S. citizen when admitted to the U.S. with an IR-3 visa, provided that the child will reside in the U.S. in your legal and physical custody before reaching the age of 18.
IR-4 visas are issued under the following circumstances:
- If neither parent has seen or observed the child before or during the adoption proceedings.
- If you will complete the final adoption in the United States rather than abroad.
- If only one parent of a married couple adopted the child.
- If the child is admitted to the U.S. on or after their 18th birthday.
The child will be mailed a Permanent Resident Card when admitted to the United States.
A child admitted with an IR-4 visa will usually acquire U.S. citizenship once the adoptive parents complete the adoption in the U.S., provided that the child resides in the U.S. in the legal and physical custody of the adoptive parent(s) before age 18.
If the child is over 18 when admitted to the U.S. or is otherwise not eligible for automatic U.S. citizenship, they may apply for U.S. citizenship by applying for naturalization when they meet all other eligibility requirements.
What Is a Family-Based Immigration Petition?
If you adopted a child but did not go through the Hague Process or Orphan Process, the child may still be able to immigrate if you file Form I-130, Petition for Alien Relative, and you satisfy the following requirements before filing the Petition.
An adopted child qualifies as an immediate relative.
What Are the Requirements for Filing an Immigrant Visa Petition on Behalf of an Adopted Child?
- The adoption was finalized before the child’s 16th birthday (or under 18 if the sibling exception applies).
- The child has been in your legal custody for at least two years before or after the adoption.
- The child has lived with you or your spouse (if you are married and the child was jointly adopted) for two years before or after the adoption.
This generally means that you and the child share the same home. You do not need to have lived together with the child for two continuous years. You can add up multiple periods to meet the 2-year requirement.
Additionally, if both spouses of a married couple adopt the child, either parent can meet the 2-year joint residence requirement (but you cannot split the requirement between both parents).
How Does the Family-Based Immigration Petition Process Work?
Filing an immigrant visa petition on behalf of an adopted child is similar to applying for a green card for any family member with foreign citizenship.
Step One: File Form I-130
You must file Form I-130 with USCIS to establish your parent-child relationship.
Once Form I-130 is approved, you may apply for an immigrant visa or lawful permanent residence for your adopted child.
Step Two: Consular Processing or Adjustment of Status
If your adopted child is already in the U.S., they may be eligible to file Form I-485 with USCIS to adjust their status to lawful permanent resident (i.e., green card holder). The child may be able to file Form I-485 concurrently with your Form I-130.
If your adopted child is living overseas, the process is slightly different. Once USCIS approves your Form I-130, they will forward the case to the National Visa Center (NVC). You must then file a DS-260 application and submit supporting documents through the NVC website.
The NVC will then schedule a visa interview at the U.S. Embassy or Consulate closest to your adopted child’s home.
If the child’s visa is granted, the consular office will issue a visa and provide a “visa packet,” which your child will use to become a resident of the U.S. Upon entry.,your child will be a lawful permanent resident.
What Are the Paths to U.S. Citizenship for Family-Based Immigration Adoptees?
Becoming a U.S. citizen is reasonably straightforward for children who arrive in the U.S. as adoptees of citizens.
If you are a U.S. citizen and have filed Form I-130, the Department of State will issue an IR-2 immigrant visa to your child.
In most cases, if your adopted child is admitted to the U.S. with an IR-2 immigrant visa and is residing in the U.S. in your legal and physical custody before their 18th birthday, your child will automatically become a U.S. citizen.
Your child will receive a Permanent Resident Card by mail and can apply for a Certificate of Citizenship.
If your adopted child did not automatically become a U.S. citizen (usually because they turned 18 before becoming a permanent resident), they may seek U.S. citizenship by applying for naturalization when eligible.
Do You Need Legal Advice for Your International Adoption Case?
An experienced immigration attorney can help prospective adoptive parents bring their child home from a foreign country.
The Cohen, Tucker + Ades team can assist adoptive parents with immigration concerns relating to overseas orphan adoption. Our law firm boasts over 40 years of immigration law experience, and we’re always here to help families live the American dream together.
Contact us for a consultation on your international adoption immigration case.