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Is it legal to adopt from another country?

New York Immigration Lawyer adoption

The international adoption process is governed by three different sets of laws:

  1. the U.S. federal adoption laws;
  2. the adoption laws of the country from which you are adopting; and
  3. the laws of where you live (U.S. state, territory, or country).

What is the difference between Hague adoption and non-Hague adoption?

The Hague Adoption Convention

A Hague adoption follows the process according to The Hague Adoption Convention. This is an international treaty used to ensure the best interests of the children, birth parents, and adoptive parents who are involved in the international adoption process. The Hague Adoption Convention was only enacted in April of 2008; so, as long as you filed Form I-600A, Application for Advance Processing of Orphan Petition, or Form 1-600, Petition to Classify Orphan as an Immediate Relative, before April 1, 2008, you may continue your process under the current orphan regulations. Otherwise, you must follow the new Hague rules. For a child to be classified as a Hague Convention Adoptee, the child must meet the following criteria:

  • be under age 16 at the time you file Form I-800,
  • habitually reside in a country that is part of the Hague Convention,
  • be determined to be eligible for intercountry adoption by her country of residence, and
  • have obtained all necessary consents for adoption from her country of residence.

The Non-Hague Adoption (Orphan Adoption)

According to U.S. immigration law, an orphan is a child who is not born in the U.S., and either, both of her parents have died, disappeared, abandoned, or deserted the child by separation or loss; or she has a sole surviving parent who is not able to care for her, according to local standards of her country, and that parent has, in writing, irrevocably released the child for emigration from her country and for adoption.

You may also qualify to adopt under the orphan process if you adopted your child before April 1, 2008, or if you filed a Form I-600A or Form I-600 before April 1, 2008.

What are the special requirements for the international adoption process?

The requirements depend on whether you are adopting under the Hague convention or the Orphan adoption process.

For a Hague adoption, to be an eligible adoptive parent, you must

  • be a S. citizen,
  • reside in the USA,
  • if married, your spouse must also sign your Form I-800A and must also intend to adopt any child you adopt,
  • if unmarried, you must be at least 24 years old at the time you file your Form I-800A, and you must be at least 25 years old at the time you file your Form I-800.

Be sure that your adoption agency has the authorization to provide services under the Hague adoption. Do not hire or give any money to an agency without such accreditation or authorization. Remember that your agency cannot provide legal advice or services to you or represent you before USCIS. Only a lawyer can do this. Some people hire an immigration lawyer in addition to their adoption agency. After you have chosen a Hague accredited adoption agency, and perhaps a lawyer, follow these steps:

  • Have your home study conducted by someone authorized to conduct Hague adoption home studies and submit your home study document.
  • Apply to USCIS before adopting your child.
  • Once USCIS approves your application, work with your adoption agency for proposed adoption placement.
  • Before adopting your child, file a petition with USCIS to have the child found eligible to immigrate based on the proposed adoption.
  • Submit Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country in order to establish your eligibility and suitability.
  • Once USCIS approves your Form I-800A, submit Form I-800 (Petition to Classify Convention Adoptee as an Immediate Relative) to determine the child’s eligibility as a Hague Convention adoptee.
  • Once these forms are approved, adopt the child, or obtain custody of the child in order to adopt the child in the U.S.
  • Obtain the child’s immigrant visa.
  • Bring the child to the USA for admission with his or her visa.

For an Orphan adoption, to be an eligible adoptive parent, you must

  • be a U.S. citizen,
  • if married, your spouse must also sign I-600, Petition to Classify Orphan as an Immediate Relative and your spouse must also adopt the child,
  • if unmarried, you must be at least 25 years old when you file the Form I-600 petition,
  • establish that you will provide proper care for the child,
  • establish that the child is an orphan according to U.S. immigration law, and
  • establish either:
    • that you and your spouse have adopted that child abroad, and that you each saw the child in person before the adoption, or
    • that you will adopt the child in the U.S. after the child’s arrival, so long as you have permission to take the child from her country of residence to the U.S.

If you and your child both qualify under the Orphan adoption process then follow these steps:

  • Have the overseas investigation conducted by USCIS or the U.S. Department of State.
  • Submit your home study document, filled out by someone authorized to complete an adoption home study.
  • File an orphan petition before the child’s 16th birthday, or before her 18th birthday if she is the sibling (by birth) of another child immigrant you have adopted.
  • After your Orphan Petition is approved, apply for your child’s visa.
  • Bring your child to the USA along with his or her visa.

Do I need to have a home study conducted?

Yes. One of the documents required by USCIS is a home study document. This must be submitted for both Orphan and Hague adoption cases. USCIS just wants to ensure that your home is suitable for the adoptive child, based on the applicable laws. USCIS does not send someone to conduct the home study for you. You actually are responsible for setting this up yourself. Someone who is licensed or authorized to conduct adoption home studies must come visit your home and fill out the home study document in accordance with the Department of Homeland Security regulations. For more information about home studies, visit the USCIS website’s “Hague Home Study Guidelines” or “Orphan Home Study Guidelines.

Is my adopted child automatically a citizen?

No, children are not automatically citizens without a previously obtained visa. However, there are steps to take both to provide your child with a visa upon her entrance to her new home, and to obtain his or her U.S. citizenship. If child lives abroad now, you must get him or her an immigrant visa in order for the child to enter the United States. These visas are issues by the United States Department of State at the embassy or consulate in the foreign country where child now lives. The type of visa your child needs determines what steps need to be taken in order for her to obtain U.S. citizenship. Use the following outline provided by the USCIS website to determine which visa your child needs:

Visa types for Hague Adoptions

  • IH-3 visa: Issued for children with full and final adoptions from a Hague Convention country.
  • IH-4 visa: Issued when a child is coming to the United States from a Hague Convention country to be adopted.

Visa types for Orphan (Non-Hague) Adoptions

  • IR-3 visa: Issued when a full and final adoption is completed abroad.
    • Requires that the parent(s) physically see the child prior to or during the adoption proceedings.
  • IR-4 visa: Issued to a child that
    • is coming to the United States to be adopted
    • was adopted abroad by only one parent (if married)
    • was not seen by the parent(s) prior to or during the adoption

Visa types for Other Adopted Children

  • IR-2 visa: Issued to a child
    • adopted by a citizen if the child immigrates to the U.S. while unmarried and before his or her 21st birthday
    • after the child’s 21st birthday, if he or she is treated under the Child Status Protection Act as if he or she were still under 21)

Once you have determined which type of visa your child needs, then you can determine what steps are necessary to obtain citizenship for your child:

Children with IR-3 and IH-3 visas automatically acquire citizenship if

  • they enter the United States prior to their 18th birthday
  • they are under 18 years old, they are automatically S. citizens upon admission to the United States
  • they reside in the United States with their parents (U.S. government or military personnel assigned overseas may qualify as residing in the United States)

For IR-3 and IH-3 cases, your child’s Certificate of Citizenship will automatically be sent to your U.S. address without requiring additional forms or fees.

Children with IR-4 and IH-4 visas

Children with IR-2 visas that are

  • under 18 automatically acquire U.S. citizenship upon entry to the United States if they reside in the United States with their parents (U.S. government or military personnel residing overseas may qualify as residing in the U.S.)
  • over 18 become permanent residents and receive a green card

Children with IR-2 visas who did not automatically acquire U.S. citizenship can apply for naturalization when eligible.

Adopting From Abroad? Make Sure it Goes Smoothly and Hire a Lawyer

Potential family and immigration law issues mean that international adoptions can be quite complicated. A lawyer’s assistance can help ensure that you prepare to meet the challenges of both systems successfully. Before you shell out your hard-earned cash and fly halfway around the world, make sure you’re doing it right by speaking with a family law attorney.

Contributed by Svetlana Prizant, Esq., an Award Winning New York Immigration Lawyer

Call or visit Prizant Law at:

Prizant Law
118-21 Queens Blvd Suite 507
Forest Hills, NY 11375
(718) 407 0871

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