New Guidance on Adoption for Immigration Petitions

The U.S. Citizenship and
Immigration Services (USCIS) has issued new guidance on the requirements of
adoption for immigration purposes under the Immigration and Nationality Act
(INA).   Under U.S. immigration law, children may receive benefits
based on their relationship to their parents. For instance, a U.S. citizen or
lawful resident may petition for his children under the age of 21 for
immigration.  Children may also indirectly derive benefits through their
parents in other situations. For example, when a U.S. citizen's immigrant visa
petition filed on behalf of a sibling gets approved, the sibling's minor
children may also immigrate with their parent.  Similarly, children may
also derive immigration benefits through their parents in other types of
applications including political asylum, refugee status and naturalization, if
other requirements are met.  The policy is to foster family unity.

Adoption becomes an important
issue because adopted children may also receive immigration benefits like
naturally born children.  The key is that the underlying adoption must be
legally valid.   Generally speaking, the INA authorizes three different
ways for an adopted child to be treated as a naturally born child of their
parent for immigration purposes pursuant to INA section 101(b)(1).
 First, adoption is valid when the adoptive parent(s) have two years
of legal custody and joint residence over the child, in addition to other
requirements.  The second way is when children are coming to the
United States as 
“orphans” from countries that have
not ratified the Hague Adoption Convention, if they have been adopted, or
are coming to the United States to be adopted, by U.S. citizen(s).  The
third situation is when children are coming to the United States who
have been adopted, or are coming to the United States to be adopted, by
U.S. citizen(s) under the Hague Adoption Convention. 

In a recent policy memorandum
issued by the USCIS on November 6, 2012, the government agency provided new
guidance on the issue of adoption.  In order for an adoption to be valid
for immigration petitions, an adoption must satisfy three important requirements:
 "(1) Be valid under the law of the country or place granting the
adoption; and (2) Create a legal permanent parent-child relationship
between a child and someone who is not already the child’s legal parent;
and (3) Terminate the legal parent-child relationship with the prior legal
parent(s)."    This memorandum is binding on all USCIS officer
for the purposes of adjudicating immigration petitions. 

Since the INA does not define
"adoption", the only guidance was provided by the Board of Immigration
Appeals (BIA).  BIA has previously held that an "adoption" is
valid only if it: "1. Terminates the legal parent-child relationship
between the child and any prior parent(s); and 2. Creates a permanent
legal parent-child relationship between the child and the adopter. "
 The BIA's interpretation of adoption has been adopted by the USCIS.
 

The requirements listed in the new
guidance applies to every benefit request and application based on
an “adopted child” relationship under INA section 101(b)(1)(E),
including, but not limited to:  Form I-130;  Form
I-730;  Form N-600;  Form N-600K; or "a claim to
eligibility for an immigrant or nonimmigrant visa or classification as
a derivative under INA section 203(d)." 
The memorandum clarifies that a
child “coming to the United States for adoption” may also qualify as an
orphan or as a Hague Convention adoptee under INA.  Hence, even if an
adoption does not meet the three requirements listed in the memorandum, the
child may still establish that the prospective adoptive parents have legal
custody to bring the child to the United States for adoption under INA.
The memorandum also provides other
tips in filing an adoption-based petition.  For example, it comments
that even if a petitioner is not the birth parent, a child may also
qualify as the child of the principal refugee or asylee.  In other
situations, a step parent-child relationship may be a more preferable way
of petitioning for a child whose parent has re-married a U.S.
citizen.  For Hague Convention Adoption,  it is also a good idea for
the petitioner to obtain the written statement from the "Central Authority"
of the other Hague Adoption Convention country before applying for an
adoption order in the United States. Even if a written statement is
obtained afterwards, it can still be used to resolve any jurisdictional issues
of the adoption court.

 

The new guidance is implemented
through amendments of the related sections of the Adjudicator's Field
Manual (AFM). The new guidance applies to all both domestic adoptions and international
adoptions of non-U.S. citizen children.  Similarly, all adoption-related
immigration benefits are also covered.  We welcome the new guidance as it
provides important guidelines for both prospective adoptive parents and USCIS
officers in handling adoption situations. 

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