Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I want to petition an orphan. What must I do?

Answer: A USC can petition for an orphan under age 16. In order to be an orphan, both parents must have died, disappeared, or abandoned the child. If there is a sole or surviving parent, he or she must be incapable of providing for the child and irrevocably release the child for emigration or adoption. The child must be under 16 and unmarried at the time the petition is filed on his or her behalf to classify as an immediate relative. The petitioner must be a USC. Natural siblings of the orphan are also eligible to immigrate if adopted abroad while under 18 by the same adoptive parent.

Question: Where must I adopt the child and can I adopt the child in the U.S.?

Answer: That will depend on what country you want to bring in the child as to whether it is a part of the Hague Convention. It would be necessary to understand some parts of the Hague Convention to answer this. Here are some basic rules:

Only USCs—not LPRs—may adopt and immigrate children subject to the Hague rules; The Department of State coordinates with the equivalent “Central Authority” or designee in the child’s home country and this foreign entity is heavily involved in the process; Adoption cannot serve as the basis for the child’s immigration unless they follow certain prescribed steps and sequences; The USC parents are prohibited from contacting the birth parents unless they fall within narrow exceptions; The adopted child must be under 16 when the decree is finalized or the I-800 is filed; there is no exception for children between ages 16 and 18 whose siblings have been adopted while under 16; and the definition of “adoptable” child is broader than orphan and includes those children whose: (1) single birth parent has relinquished control; (2) two living birth parents are incapable of providing care and have released the child for adoption; or (3) unmarried birth father, who can qualify as a “sole parent,” releases the child for adoption after the birth mother has abandoned the child.

Question: What countries are Hague Convention Countries?

Answer: Hague Convention rules apply to children who are “habitual residents” of one of the approximately 80 countries that have signed on to the international treaty. Some of the countries that have not ratified the convention include Kazakhstan, Russia, Guatemala, Ethiopia, and South Korea. Some of the ones that have ratified it include China, India, Mexico, and the Philippines.

Question: What are the procedures for applying, assuming that the child comes from a Hague Country.

Answer: Assuming the Hague rules apply, the following steps must be adhered to in this precise order. First, the prospective adoptive parent(s) obtain(s) an approved home study from an accredited provider, licensed in the state of the adoptive parent(s), and authorized to conduct such studies. The adoptive parent(s) then file(s) Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, with USCIS, along with the home study. USCIS may need to communicate with the designated adoption service provider.

After approval of the I-800A and home study, USCIS forwards these to the adoption service provider and the NVC, which in turn forwards to the Central Authority of the designated foreign country. That Central Authority then identifies a child and refers him or her to the prospective parent(s) along with a report on his or her medical and social background. If the family accepts the referral, they file Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, with USCIS. USCIS then provisionally approves the petition and forwards it to the appropriate U.S. Consulate.

The consular officer screens the child for admissibility and annotates the visa application with the child’s ability to immigrate following adoption. The officer also transmits the “Article Five Letter” to the Central Authority, which basically affirms that the adoptive parents may proceed with the adoption. The family then completes the adoption or guardianship process and submits the official decree to the consulate, which approves the I-800 and issues the immigrant visa (IH-3 or IH-4).

Beginning on September 25, 2008, USCIS expanded its direct mail program to include the forms I-800A and I-800. Applicants must now submit them to the USCIS Chicago Lockbox facility for initial processing using the following address: USCIS, P.O. Box 805695, Chicago, IL 60680-4118. These forms will then be forwarded to the National Benefits Center in Lee’s Summit, MO, which has assumed processing of these petitions.

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