International Adoption and U.S. Immigration Law

Each year thousands of U.S. citizens adopt children from abroad through a process known as intercountry adoption. Like domestic adoptions, intercountry adoptions require a transfer of parental rights and responsibilities. However, unlike domestic adoptions, children adopted from other countries must first obtain a U.S. visa before they can travel to the United States. This can be arranged for at the U.S. Embassy or Consulate in the foreign country where the child is being adopted. Since a child being adopted abroad will usually be brought to live in the United States, that child will need an immigrant visa.

Under U.S. law, there are two distinct methods of obtaining a visa for a child adopted abroad: the Hague Convention process and the non-Hague Convention process. Which process is to be followed will depend upon whether or not the other country involved is also a party to the Hague Convention.

Hague Convention Countries

The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption (the Convention) is an agreement arising out of a 1993 Convention held in The Hague, Netherlands to establish international standards and practices for intercountry adoption. The United States signed the Convention in 1994 and it entered into forced for the United States in April 2008. The Hague Adoption Convention applies to all adoptions between the United States and other member countries it.

The Hague Convention requires the following standards to be met before an individual can be deemed eligible to pursue an intercountry adoption from a Convention country:

  • The child to be adopted must be either (1) under the age of 16 at the time the immigrant visa petition (Form I-800) is filed on his or her behalf; (2) aged 16-17 if the biological sibling of the child was already adopted by the same prospective adoptive parents; or (3) 18on or after April 1, 2008, the biological sibling of a child already adopted or to be adopted by the same prospective adoptive parents, and with a Form I-800 filed with USCIS by November 30, 2012 on his or her behalf;
  • The child must be unmarried and live in a Convention country;
  • The child must be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, habitually resident in the United States, whom USCIS has found suitable and eligible to adopt (through a process including background checks, homes inspection, etc.), and have the intent to create a legal parent-child relationship; and
  • The child’s birth parents or other legal guardian must freely give their consent for the termination of their legal relationship with the child and to the child’s emigration and adoption.

Children adopted from Hague Convention Countries will receive one of two visas, depending on if their adoption is to be made official in the United States or abroad.

  • IH-3 Visas are for children who are adopted in a Hague Convention country. Children who are under 18 generally acquire U.S. citizenship automatically upon entry to the United States on an IH-3 visa.
  • IH-4 Visas are for children coming from a Convention country who will be adopted in the United States. IH-4 recipients do not automatically acquire U.S. citizenship, but are lawful permanent residents until the adoption is full and final. Under the Child Citizenship Act of 2000, these children will automatically become U.S. citizens once the adoption is finalized.

Non-Hague Convention Countries

The primary difference between adoptions from Hague Convention countries and non-Hague Convention countries is that children from non-Hague Convention countries must qualify as orphans, as defined by the Immigration and Nationality Act (INA), before they can be considered for U.S. permanent residence or citizenship.

USCIS determines whether a child qualifies as an orphan according to U.S. law, not the law of a child’s country of residence. The INA definition includes three key elements:

  • The child must either have no parents, or a sole parent who is unable to care for the child who has consented in writing to the child’s adoption and emigration.
  • The child must be under the age of 16 at the time a petition is filed with USCIS or a consular officer on his or her behalf. A child adopted at age 16 or 17 will also qualify, provided he or she is a birth sibling of a child adopted by the same adopting parents.
  • The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship.

Children adopted in non-Convention countries receive IR-3 or IR-4 immigrant visas.

    • IR-3 visas are issued after an adoption is completed abroad by both adopting parents. Both parents must physically see the child prior to or during the local adoption proceedings. The country in which the child resides must also not require re-adoption in the United States. Children who are under 18 automatically acquire U.S. citizenship upon entry to the United States on IR-3 visas.
    • IR-4 visas are issued to children for whom a final adoption will be completed in the United States. This classification is used when a foreign country only permits prospective adoptive parents to obtain guardianship of a child, rather than allowing a full and final adoption, and/or the prospective adoptive parent(s) have not seen and observed the child prior to the adoption process. Orphans admitted to the United States on IR-4 visas become lawful permanent residents and are automatically processed to receive a Green Card.

Murray Osorio PLLC are Fairfax Immigration Attorneys dedicated to their clients and to their clients’ families. If you have an immigration matter, it’s important that you contact us as soon as possible. An experienced Fairfax Immigration Lawyer could make all the difference- call us at (800) 929-7142, or fill out our contact form.

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