Can You Adopt an Undocumented Immigrant and Get Them a Green Card?

If you have become close friends with an undocumented immigrant (sometimes called an illegal alien) who is living in the United States, and that person doesn't seem to have any realistic hope of legalizing their immigration status, you would not be the first to ask whether adoption will help the person gain U.S. lawful permanent residence (a green card). Unfortunately, in order to make that work, all the following would have to be true:

• The person would have to be a minor child.
• The child would have to live with you, in your legal custody, for two years before you file the petition to sponsor them (on USCIS Form I-130).
• For practical reasons, you would most likely have to be a U.S. citizen.

We will discuss these provisions of U.S. immigration law below. Please note that this is a different area of law than would apply to someone adopting an orphan from another country.

To Adopt a Foreign-Born Person, They Must Be Under 16

The law is cut and dried on this point. For immigration purposes, only minor children can be adopted, not adults. In fact, the adoption must be finalized before the child turns 16 years of age. Because adoption itself can be a lengthy process, you would probably be better off starting when the child is age 15 or younger. (Learn more about how to adopt a child within the United States, including how home studies work and what to expect in court.)

Adopting someone older than age 16, perhaps an adult, might benefit them in ways unrelated to immigration. For example, it could simplify receiving an inheritance from your estate. But it will not likely help them get a U.S. green card.

To Adopt a Foreign-Born Person, the Parents Must Have Had Legal and Physical Custody for Two Years

In order for an adopted child to receive a U.S. green card, the parent must have had legal and physical custody for at least two years while the child was a minor (under 18), and the child must have lived with the adopting parents for at least 2 years before they file the required I-130 petition with U.S. Citizenship and Immigration Services (USCIS).

You can, in fact, petition a U.S. court for legal custody of a child regardless of legal immigration status, which would make you the rightful parent. Realize, however, that your legal custody won’t do anything to legalize the child’s U.S. residence for immigration purposes.

A child who is living in the United States without a visa or other permission from U.S. immigration authorities can still be arrested, placed into immigration court proceedings, and ultimately removed (deported). Realistically, U.S. immigration authorities would not ordinarily seek to deport an adopted child unless the child had committed a crime. Nevertheless, Immigration and Customs Enforcement (ICE) is not setting enforcement priorities in the way it used to (when its top priority was criminals).

Thus the safest way to go about this process would be to live with the child in another country for the two years. This is impractical for most U.S.-based parents.

To Adopt a Foreign-Born Child, You Will Probably Need to Be a U.S. Citizen Yourself

In theory, a U.S. lawful permanent resident has the right to petition for an adopted child to receive U.S. residence. In practice, however, the residency requirements make this virtually impossible (unless the were to adopt and live with the child in another country before coming to the United States).

The problem is the potential need to live overseas with the child at some point. Such a long absence can result in the permanent resident parents' green card being canceled as "abandoned." Green card holders are expected to make their home in the United States.

What Would Happen at the End of the Two Years' Legal Custody

Assuming you make it to this stage, including obtaining legal custody of the child and getting through two years of legal and physical custody, what happens next depends on whether the child entered the United States with or without inspection by U.S. authorities.

If the child entered the U.S. without inspection. If the child entered without being met and approved by a U.S. Customs and Border Protection (CBP) official, perhaps by crossing the border with the help of a coyote or smuggler, then at the end of the two years of legal custody and having the child live with you, you can file a visa petition with USCIS. Once that is approved, the case will be transferred first to the National Visa Center (NVC) then to a U.S. consulate abroad. You will have to take the child with you to the U.S. consulate for the visa interview (which completes the green card application process).

One bit of good news: A child under 18 can’t rack up "unlawful presence" in the United States, and therefore you probably won’t have to worry about the 3- and 10-year inadmissibility bars being used to block the child from returning to the United States.

If the child entered the United States legally but has overstayed the time allowed. If the child originally came to the United States on a nonimmigrant (temporary) visa, but stayed past the expiration date on their Form I-94 Arrival/Departure Record, you can file an I-130 petition and an adjustment of status application (at the same time) with USCIS.

See an Immigration Attorney

Adopting an undocumented immigrant is a complicated process, and you will probably want to get both a family lawyer and an immigration lawyer’s help with both analyzing the possibilities and preparing the government paperwork. If the child is an orphan, you might have another alternative that we didn’t discuss here, namely to process the immigration papers required for an orphan child.

Getting U.S. Citizenship for the Child

The adopted child, assuming the green card petition is successful, will be eligible for U.S. citizenship. Depending on the circumstances, they might become a citizen immediately upon entering the United States. For details, see How Foreign-Born Adopted Children Get U.S. Citizenship.