Immigration Laws on International Adoption by U.S. Residents

Learn about the U.S. immigration issues prospective parents will need to consider when adopting a child from abroad.

Parents in the United States who wish to adopt a child from abroad need to understand how to secure immigration benefits for that child. This includes knowing in advance which process they need to comply with based on the circumstances of the adoption.

There are currently three processes available to secure immigrant benefits for an adopted child. All three processes involve cooperation with and applications made to U.S. Citizenship and Immigration Services (USCIS). These processes are:

  • the Hague Process
  • the Orphan Process; and
  • filing an immediate relative petition.

Hague Process

The  Hague Process  will apply only to parents who have not yet adopted a child and who want to adopt from a Hague Adoption Convention Country. The Hague process came into full effect in April 2008 as a result of the United States’s membership in the Hague Adoption Convention. This Convention set forth specific guidelines for adopting children who “habitually reside” in a Hague Adoption Convention Country.

Orphan Process

The  Orphan Process  will apply if you adopt from a non-Hague Adoption Convention Country, or you have already adopted a child who can be classified as an orphan. An orphan is a child who does not have parents or has a sole surviving parent who is unable to care for the child consistent with the local standards of the home country and has irrevocably released the child for emigration and adoption, in writing.

Immediate Relative Petition

Filing an immediate relative petition is an option for parents who have already formalized the adoption of a child from abroad but who have not yet secured immigrant benefits for that child. This option is most common when the child has been in the United States in the legal and physical custody of the adopting parents. The child must also meet certain requirements in order to qualify as an immediate relative.

If You Have Not Yet Adopted: Issues For Parents to Consider

If you have not yet adopted a child, the first thing you will want to do is decide which country you want to adopt from. This will determine whether or not you will follow the Hague Process or the Orphan Process.  

Next, you need to find out whether that country is a Hague Adoption Convention Country. You can do this by visiting the U.S. Department of State’s  Intercountry Adoption page. This page includes an active  directory  of adoption information by country. The directory will tell you whether a country is a Hague Adoption Convention Country and will also indicate whether or not intercountry adoptions are currently being permitted at all. It is important to regularly check in with this site for your country of choice, as it includes alerts and notices, as well as detailed information about the adoption process.

What does it mean to “habitually reside” in a Hague Adoption Convention Country?

If you find out that you are adopting from a Hague Adoption Convention Country, you will next have to determine whether the child habitually resides there. The regulations provide that a child is a habitual resident of the country from which he or she is a citizen. If the child resides in the Hague Adoption Convention Country but is not a citizen, he or she can be deemed a habitual resident if the Central Authority of that country determines that the child’s status is sufficiently stable to exercise jurisdiction over the adoption or custody.

Filing an Immediate Relative Petition

If you have already adopted a child from another country, you can secure immigrant benefits for the child by submitting an  I-130 Petition for Alien Relative  with USCIS. If the child is physically present in the United States, an application for the child’s green card can be submitted with the I-130 visa petition on  Form I-485 Application to Register Permanent Residence or Adjust Status. Before moving forward with this process though, you need to make sure you can satisfy the following requirements:

  • the child was formally adopted before his or her 16th birthday
  • you and your spouse have had joint legal custody of the child for at least two years, and
  • the child has resided with you for at least two years.

Legal custody commences when you assume responsibility for the child under the laws of the state and under the approval of a court of law or other appropriate government entity. If you never received a grant of legal custody before the adoption was finalized, the date of the adoption decree will mark the beginning of the two-year requirement. It is possible for the child to reside with you before you secure legal custody or finalize the adoption. The time a child resides with you before you secure legal custody or the adoption decree will count towards the two-year residency requirement.

The Importance of Seeking Legal Help

Once you have determined what adoption process applies to you, you will want to consider hiring an immigration attorney to help guide you through the process. While you will likely be working with an adoption agency and/or attorney during this process, an immigration attorney will be in the best position to handle the complex and paperwork-intensive immigration piece of the process, and make sure your adopted child becomes a U.S. citizen.

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