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Immigration and Adoption

What is Immigration Through Adoption or “Intercountry Adoption”? 

Immigration through adoption, otherwise known as intercountry adoption, occurs when a child born in one country is adopted by a citizen or resident of another country, including the United States. Intercountry adoption in the United States is regulated by the U.S. government, including the United States Citizenship and Immigration Services (USCIS) and the Department of State.

In addition to U.S. law, the U.S. government has committed to adhere to certain standards and protocols for intercountry adoptions when it joined the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which is an international agreement signed by the U.S. and many other countries.

When adoption occurs between two countries that have signed the agreement, certain standards are applied during the adoption process. There is a separate process for adoptions from countries not signed onto the convention. Among other requirements of the convention, it enables intercountry adoption to occur only when the child has been deemed eligible for adoption by the child’s country of origin and due consideration has been given to finding an adoption placement for the child in its country of origin.

What are the Adoption Eligibility Requirements? 

The requirements for both the prospective adoptive parents, and the child, are different depending on whether the child will be adopted using the Convention Process, the Non-Convention Process, or the Family-Based Petition Process

Convention Process Eligibility Requirements 

In order for a child to be adopted through the convention process, both the prospective parents and the child must meet certain eligibility criteria. 

Eligibility For the Prospective Parents

Prospective parents who seek to adopt a child from another country through the convention process must: 

  • Be a U.S. citizen
  • Be habitually resident in the United States; and
  • Be at least 24 years old when Form I-800A is filed, if the prospective parent is not married, and be 25 years old when the prospective parent files Form I-800.

Eligibility For the Child

In order for a child to be eligible to be adopted through the Convention Process, he or she must:

  • Be under the age of 16 at the time Form I-800 is filed (or under 18 if the sibling exception applies—see the Form I-800 instructions)
  • Be habitually resident in a Hague country; and
  • Be deemed eligible for intercountry adoption by the Central Authority of that country and have obtained all necessary consents for adoption.

Non-Convention Process Eligibility Requirements 

Eligibility For the Prospective Parents

Prospective parents who seek to adopt a child from another country through the non-convention process must: 

  • Be a U.S. citizen;
  • If married, the spouse must also sign Form I-600, Petition to Classify Orphan as an Immediate Relative and must also adopt the child;
  • If not married, the prospective parent must be at least 25 years old when Form I-600 is filed;
  • Establish that he or she will provide proper parental care to the child;
  • Establish that the adopted child is an “orphan” as defined in U.S. immigration law;
  • Establish either that:
    • The prospective parent and his or her spouse have adopted the child abroad, and that at least one of the prospective parents saw and observed the child before or during the adoption proceedings; OR
    • The prospective parent(s) adopt the child in the United States after the child arrives in the United States after receiving permission to bring the child out of their country and to the United States for adoption.

Eligibility For the Child

In order for a child to be eligible to be adopted through the Non-Convention Process, he or she must: 

  • Meet the definition of an “orphan” under U.S. immigration law.
    • An orphan is a foreign-born child who: 
      • Does not have any parents due to death, disappearance, abandonment, separation, or loss from both parents; OR
      • Has a sole or surviving parent who cannot care for the child in a manner consistent with the local standards of the foreign country, and the parent has irrevocably released the child for emigration and adoption in writing. 
  • Be younger than 16 years of age, or under the age of 18 if the child is a birth sibling of another child who has also been adopted and immigrated or will immigrate to the U.S. as: 
    • An orphan based on a Form I-600 petition filed before the sibling’s 16th birthday; OR 
    • An adopted child as defined in Section 101(b)(1)(E) of the INA, so long as the actual adoption took place before that sibling was 16 years of age. 

Family-Based Petition Eligibility Requirements 

The Family-Based petition process is available for parents of adopted children who have been in their parent(s) custody for at least two years before seeking entry into the United States under the Family-Based petition. This petition is generally not available for children adopted from Hague Convention countries. 

Eligibility For the Parents

Parent(s) are eligible to have their adopted child immigrate to the United States under the Family-Based petition process if:

  • The parent provides evidence of a full and final adoption; 
  • The parent had legal custody of and jointly resided with the child for at least 2 years, in aggregate, while the child was under age 21, including custody and residence that preceded the adoption; 
  • The parent has legal custody of the child due to a formal grant of custody from a court or other governmental entity; 

Eligibility For the Child

An adopted child is eligible to immigrate to the United States under the Family-Based petition process if: 

  • The child was adopted by their parent before the age of 16;
  • If the child was adopted after the age of 16, but before their 18th birthday, they still qualify if:
    • He or she is the birth sibling of another child who was adopted by the same parent(s) before the other child’s 16th birthday and immigrated through the family-based petition process; or
    • He or she is the birth sibling of another child who was adopted by the same parent(s) before the other child’s 16th birthday and who immigrated as an orphan based on an adoption by the same parent(s).

What are the Processes for Intercountry Adoption? 

Generally, there are two processes by which a U.S. citizen may adopt a child from another country, known as the Convention Process (also known as the Hague Process) and the Non-Convention Process (also known as the Non-Hague Process).

The main distinction between which of these processes apply is whether the child to be adopted habitually resides in a country that is a party to the Hague Intercountry Adoption Convention. If the child resides in such a country, then the Convention Process applies, while the Non-Convention Process applies if the child does not reside in such a country. 

There is a third process, known as the Family-Based Petition process, which is available for parents and their adopted children who are not eligible for the other two processes.

Convention Process 

The Convention Process for adoption applies to more than 100 countries that are currently members to the Hague Convention on adoption. Member countries include all of Europe, most of South and North America, as well as China, Russia, Australia, and New Zealand. 

In order to adopt a child from a Hague Convention country, the prospective parent must:

  • Select a U.S. accredited or approved adoption service provider (ASP) to act as the primary provider (in addition to an immigration attorney to help); 
  • Obtain a home study from an individual authorized to complete an intercountry adoption home study; 
  • File Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country with the USCIS, which will determine the parent(s) eligibility to adopt a child;
  • After filing Form I-800A, the prospective parent and ASP should apply to obtain a proposed adoptive placement with the Hague country’s Central Authority; 
  • Once the I-800A is approved, the prospective parent must file Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative with the USCIS before the adoptive child reaches age 16 so that they are provisionally eligible to immigrate to the United States based on the proposed adoption;
  • After Form I-800 is provisionally approved, the child can be adopted or placed in the legal custody of the parent for the purpose of emigration and adoption in the United States;
  • If the adopting parent resides in the U.S., they must obtain an immigrant visa for the child;
  • Bring the child to the United States for admission with the immigrant visa.

Non-Convention Process

The Non-Convention Process applies to children adopted from countries that are not members to the Hague Convention. 

In order to adopt a child from a Non-Convention country, the prospective parent must:

  • Select a U.S. accredited or approved adoption service provider (ASP) to act as the primary provider (in addition to an immigration attorney to help);
  • Prove their suitability to adopt a child by filing Form I-600A, Application for Advance Processing of an Orphan Petition along with: 
    • Proof of the prospective parent(s) United States citizenship;
    • Proof of the marriage of the prospective parent and spouse, if applicable;
    • Proof of termination of any prior marriages of the prospective parent and spouse or unmarried prospective parent, if applicable;
    • A “home study” completed by the appropriate State organization with a favorable recommendation; and
    • Filing fee of $720.00.
  • Adopt or obtain legal custody of the child in their country of origin; 
  • File Form I-600, Petition to Classify Orphan as an Immediate Relative in the U.S. or abroad to establish that the child qualifies as an orphan under the INA; 
  • Include the following documents when filing Form I-600: 
    • The child’s original birth certificate or a written explanation together with secondary evidence of identity and age, such as a re-issued birth certificate listing the adoptive parents, if the original birth certificate is unavailable;
    • Evidence that the child either has no parents or that the sole or surviving parent is unable to provide proper care, and has irrevocably released the child for emigration and adoption;
    • Evidence of adoption or intent to adopt.
  • Receive a notification from the National Visa Center that the case has been assigned to a U.S. Embassy or Consulate; 
  • Receive instructions from the U.S. Embassy or Consulate on the next steps; 
  • A USCIS or consular officer in the child’s country of residence completes Form I-604, Determination on Child for Adoption;
  • Schedule visa interview and submit visa application 
  • U.S. Consulate or Embassy issues visa. 

Family-Based Petition Process 

The Family-Based Petition Process generally applies to children adopted from countries that are not members to the Hague Convention and who have been in their adoptive parents custody for at least two years. 

In order to have an adoptive child immigrate to the United States under the Family-Based Petition Process, the adoptive parent must: 

  • Form I-130, Petition for Alien Relative to the USCIS along with all required supporting documentation; 
  • Attend an interview at a U.S. Consulate or Embassy;
  • Receive a sealed Visa Packet once an immigrant visa is approved; 
  • Bring the sealed Visa Packet to a United States port of entry when the individual seeks entry into the United States.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

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