Our law firm assists US citizen or lawful permanent resident parents in obtaining immigrant visas for either prospective adoptees or already adopted children. Under US immigration laws, adoptions are either “Hague” adoptions or “non-Hague” adoptions. Our expertise can help you navigate through the complexities of both processes and help you decide which is the best for you.

HAGUE Adoptions or Intercountry Adoptions

The United States is a signatory of the Hague Adoption Convention, and any person seeking to adopt a child from a country who is also a signatory of the Convention must follow certain rules before US Government will recognize such adoption. Two important rules are:

  1. Close coordination between you, the Adoption Service Provider, and the US Citizenship and Immigration Services (USCIS) — you must file what’s called the Form I-800A and I-800 before any legal adoption process takes place.
  2. The legal adoption SHOULD NOT be finalized before filing the I-800A and I-800; that is, a final adoption decree should not be issued by the court(s) before you apply to USCIS for the immigrant petition.

Let’s take the example of a hypothetical US citizen and resident of Illinois, John X, who wants to adopt a child from Thailand, which is a Convention country. John X must first choose an accredited Adoption Service Provider who will coordinate between him and Thailand’s intercountry adoption agency, and he must obtain a “home study” that will be submitted along with Form I-800A with the USCIS in order to determine his suitability to adopt. Once this is approved, John X can proceed with the adoption process, and he will have to comply with both the laws of Thailand and of Illinois regarding the placement of the child from Thailand to his home in Illinois. Once John X is happy with the terms of the child’s placement, he must then file the Form I-800 to petition for an immigrant visa for the child to be allowed to enter the US and stay with John X in Illinois. Throughout this process, however, the adoption should not yet be finalized. The adoption is typically finalized in the US after the child arrives.

The advantage of intercountry adoption is that it generally allows the adoptive parent to remain the US while the adoption process is ongoing, and an immigrant visa is issued to the child even before the adoption proceedings are finalized.

It is very important to note that the adoption rules among various Convention countries (and even within the States of the US) can differ a lot in their details, and it is crucial for the adoptive parent to obtain the services of a legitimate and competent Adoption Service Provider and immigration attorney that are familiar with the rules of the Convention country you wish to adopt from.

NON-HAGUE Adoptions

For all other adoptions, the US Government will recognize a parent-child relationship between the adopting parent and the adoptive child only if the following legal requirements are proven:

  1. The legal adoption was finalized (i.e., an adoption decree issued by a court) before the child turned 16 years old;
  2. The adoptive parent had legal custody over the child for at least two (2) years; and
  3. The adopted child resided with the adoptive parent for at least two (2) years.

Legal custody over the adopted child is usually granted once the adoption is finalized, so therefore the 2-year period is counted from the date when the adoption was finalized. But if the trial custody or temporary custody was granted before the adoption was finalized, then that additional time may be considered. Legal custody simply means legal authority over parental decisions concerning the child, such as education, health, food, and shelter. Authority may be temporarily delegated to a relative or other person acting in the place of the parent.

The same rule applies for residence. The adoptive parent and child must have shared a common address, lived in the same residence, etc. for at least 2 years after the adoption. The 2 years need not be continuous, but the parent must prove that he or she is actually residing in the same place as the child and not merely visiting.

Obviously, the drawback of this type of adoption is the 2-year requirement of both legal custody and residence with the child. The purpose of this rule is to ensure that the adoption process is not abused and to ensure that a genuine adopter-adoptee relationship existed, usually prior to when either the parent or child immigrated to the US. Take note that the same requirement applies in both directions — whether it is the parent petitioning for an adopted child, or the child petitioning for an adoptive parent.

Let’s take the hypothetical example of John X, a 19-year-old citizen of the Philippines. His sister and her husband died young and left behind Baby A. Out of kindness, John X took it upon himself to take care of Baby A. Suddenly, John X’s own parents were petitioned by a US employer, and they were able to obtain immigrant visas for themselves. However, since the petition is for John X’s mom, and derivatives cannot include grandchildren, Baby A wasn’t included. This means that John X must himself file a petition for Baby A, either when he gets his green card, or when he becomes a US citizen 5 years later. But before he can consider filing the petition for Baby A, he must legalize the adoption process in the Philippine courts. Once the adoption is finalized, John X must also make sure to reside with Baby A for at least 2 years total, make legal decisions involving her care, or make arrangements to do so. After the 2 year period is complete, and after keeping all of the documents, receipts, and all records in connection with Baby A, he can now file the petition for Baby A.