Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

What must I do to bring in an adopted child?

Question: I have a child that I want to adopt, but do not know the immigration procedures. Can you help?
Answer: The U.S. is now a signatory to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, 29 May 1993, entered into force Apr. 1, 2008. The Hague Convention applies when both countries are signatories and have entered the Convention into force. As of July 1, 2012, there are 87 signatory countries, not including countries that have signed but not ratified the Convention Congress has authorized DOS to be the central authority for monitoring requests for overseas adoptions and preventing fraud. As the Central Authority the DOS must accredit or approve and list adoption agencies, and it is no longer a matter of state accreditation for purposes of the Convention.
Question: What is the acredited agency?
Answer: The “accredited agency,” “temporary accredited agency,” or an “approved person” acts as the primary provider, and is responsible for the home study and certifying other aspects of the process needed to approve the  I‑800 Convention adoptee petition.The primary provider prepares home study, provides statements regarding preplacement preparation, provides certification statement, provides plan for post-placement duties, statement summarizing the plan for monitoring the placement.
Question: When do the procedures for the Hague Convention apply?
Answer: The procedures under the Hague Convention apply to adoptions that occur after Apr. 1, 2008. As long as the adoption occurred before Apr. 1, 2008, the I-600A may be filed after Apr. 1, 2008.If a USC adopted a child after Apr. 1, 2008 from a Hague Convention Country, the former procedures would apply only if either the USC was not habitually resident in the U.S. or the child was not habitually resident in the other Hague Adoption Convention country.
Question: Who can adopt under the Hague Convention?
Answer: The following persons can adopt under the Hague Convention:
(1)   Only a married USC whose spouse also adopts the child or an unmarried USC who is 25 or older may adopt. Thus, for non–orphan adoptions, LPRs may not apply.
(2)   The visa petition must be filed before the child’s 16th birthday.
(3)   The 2-year legal-custody and joint-residence requirements do not apply as in non–orphan cases.
(4)   The child must be adopted abroad.
(5)   The adopting parents must habitually reside in the U.S. and the child must be an habitual resident of the Convention country.
Question: What does ‘habitual residence’ mean?
Answer: A USC who is living abroad but is returning to establish a domicile in the U.S. on or before the child’s admission with an IV will be considered to be habitually residing in the U.S. Similarly a USC who will be bringing the child back to the U.S. after the adoption and before the child’s 18th birthday so the child may be naturalized under  will be considered an habitual resident and subject to the Convention. USCs serving in the Armed Forces or working with the U.S. government are considered habitual U.S. residents. However, USCs who are living abroad, adopt the child abroad and are not returning are not subject to the Convention but can bring the child to the U.S. Also, USCs who complete the two year custody and joint residence with the child abroad will not be considered to be habitually residing in the U.S. and therefore can move forward with a non–Hague Convention adoption. Thus, post–Hague Convention, an LPR (unless married to a USC) who decides to adopt must, as a practical matter, reside with the child and have the two year custody requirement met by living with a child in a foreign country. The LPR would then not be habitually residing in the U.S. and could adopt under pre-Hague standards by filing an I-130.

Question: What does the child’s habitual residence mean?
Answer: If the child is habitually residing in the country of citizenship, the process must proceed through the Convention. If the child’s actual residence is outside his country of citizenship, the child will be deemed habitually resident in that other country rather than the country of citizenship, if the Central Authority (of that country) has determined that the child’s status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody. The child will not be considered to be habitually resident in any country to which “the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.” Thus, if the child is in the U.S. as a Nonimmigrant, parolee, or Entered Without Inspection, he or she will be treated as an habitual resident of the Convention country and an adoption can only proceed under the Convention. If the child is otherwise ineligible to adjust or if the Central Authority in the other country requires the child’s return to approve the adoption, the petition may be provisionally approved but the child must return to the country and obtain an immigrant visa. If it is determined that the child is habitually residing in the U.S., the Convention does not preclude the adoption of the child in the U.S. and therefore an I-130 petition may be filed but only if there is a statement from the Central Authority of the country of birth/citizenship that the child is not habitually residing there. There may also be a situation where the Central Authority in the country determines that, from its perspective, the Convention does not apply. USCIS may conclude that the Convention does not apply in that situation and allow the person to adopt and file an I-130. Similarly, the regulations are read not to bar adoption in the U.S. and the submission of an I-130 where the child is in the U.S., as long as the U.S. adopting court enters an adoption order that expressly states the Central Authority of the other country “is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country.”

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