Adoptions are different, at least as far as US immigration and national law is concerned.
On the one hand, they present a core family value and humanitarian principle that has motivated US immigration laws since their inception; on the other, they have been beset by stories of orphanage scandals, theft, and unethical commercial practices. Sensitive to the former, but wary of the latter, US immigration authorities have consistently maintained that "Adoptions are a priority," yet a random sampling of families who have gone through the intercountry adoptions process will likely yield stories of agency delay, if not denial, and frustration.
Adoption creates a legal parent child relationship. For US immigration and nationality law purposes, an adopted child is a child and can benefit from that relationship just like a biological child. Thus, a child adopted by a US citizen can acquire US citizenship from that relationship, consistent with the rules of acquisition at birth (see the charts on the Am I a US citizen page), or can benefit from a petition for alien relative.
16 and 18
To become entitled to US immigration and nationality law benefits, the parent-child relationship must be established prior to the child's 16th birthday, unless the child is the older sibling (but under 18) of a child for whom the parent-child relationship is established before his/her 16th birthday. Example: Leo is 15. His older sister, Lila is 17. Lila cannot benefit from an adoption after her 16th birthday; however, if Leo is also adopted--while he is under 16--Lila can benefit (as long as she is under 18 at the time).
An adoption will not yield a benefit under the US Immigration and Nationality Act until the child has been in the custody of the US adoptive parent for at least two years--unless the child is adopted under the appropriate intercoutry adoption regime. The two-year period is supposed to establish the bona fides of the relationship.
Intercountry Adoptions--Orphan or Hague?
Intercountry Adoptions are adoptions that take place between two countries. Historically, US immigration and nationality law viewed intercountry adoptions as a humanitarian exception to the two-year rule, but only in special circumstances: specifically, if the adopted child met the US definition of an orphan. A child may be considered an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. The child of an unwed mother or surviving parent may be considered an orphan if that parent is unable to care for the child properly and has, in writing, irrevocably released the child for emigration and adoption. The orphan adoption regime places the US immigration authority (USCIS) at the heart of the process to confirm both the suitability of the adoptive parent (based on a home study by a state approved adoption service provider) and the orphan status of the child (based on USCIS and/or State Department investigation). The orphan process can proceed either with a preliminary determination on the suitability of the parent (Application for Advance Processing of Orphan Petition, I-600A) and then, upon identification of the orphan and initiation of the adoption process, the orphan petition (Petition to Classify Orphan as an Immediate Relative, I-600), or file the I-600 directly. Upon approval, the child will be eligible for a visa (IR-3 for an adopted child; IR-4 for a child to be adopted in the US).
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
Concern about financial inducements for intercountry adoptions and other abuses prompted the Hague Convention on Intercountry Adoptions. The Convention creates a framework by which member states provide a Central Authority responsible for certifying suitability of their national (i.e. the receiving state Central Authority certifies the suitability of the parent(s); the sending state certifies the child is a Convention Adoptee. The Convention entered into force for the US on April 1, 2008. The UK is also a member of the Hague Convention. Unlike the orphan regime, the Hague process does not require an orphan determination by USCIS. The Hague process is strictly a two-step process: first the suitability to adopt petition is filed with USCIS (I-800A); then after the initial petition is approved, the petition to classify a Convention Adoptee as an immediate relative (I-800) is filed and the child is eligible for an immigrant visa (IH-3 for adopted children and IH-4 for children to be adopted in the US).
Acquisition of Citizenship
Thanks to the Child Citizenship Act of 2000, an adopted child automatically acquires US citizenship, either upon entry (IR-3 or IH-3) or upon conclusion of a US adoption following IR-4 or IH-4 entry. Alternatively, an application for certificate of citizenship (N-600 for US residents; N-600K for US citizens residing outside the US) can be filed. As noted above, the US citizen parent (or grandparent) must satisfy the residence requirements (5 years, including at least 2 since the age of 14).
Quick Review: Available US Immigration and Nationality Benefits for Adopted Children
US Parent residing in the US or intending to move to the US
· Intercountry Adoption
· Immediate Relative Petition (for adopted children who have resided with the adoptive parent for 2 years)
US Parent residing outside the US
· Citizenship Certificate application (N-600K)
USCIS and the State Department provide helpful guidance on adoptions, as well as links to other helpful agencies.
US State Department http://travel.state.gov/content/adoptionsabroad/en.html
Steven D. Heller
US Immigration Lawyer in the UK
Heller Immigration Law, Ltd.
Lewes, East Sussex
+44 (0)1273 965717