Adopting a Relative who lives Overseas – Options and Overview

 

Adopting a relative who lives overseas by itself may not be a large undertaking, but obtaining immigration benefits for the child and being able to bring them lawfully to the United States is another ordeal entirely. In general, there are two primary paths available to bringing adopted relatives lawfully to the United States: As an Orphan, and as a Relative.

 

Orphans

 

The term Orphan is defined by US law and varies depending on whether the child's home country is a signatory to the Hague Convention on Intercountry Adoptions ('Hague Convention' or 'Signatory Country'.) In it's most basic form, the definition includes children who have no parents, or have one or both parents who have abandoned them or who are unable/unwilling to care for them. If the child initially meets the definition of an orphan, prospective adoptive parents can proceed with an adoption of the child under the Orphan Visa Process. This process will vary depending on whether the home country is a Hague Country or not, but general considerations include the following. 

 

  1. Adoptive parents must be US citizens, or in a married couple, at least one parent must be a US citizen. The Orphan process is not available to Lawful Permanent Residents, Nonimmigrants, or undocumented immigrants living in the United States. 

  2. The child must be adopted before the age of 16 to qualify as an orphan. If there are siblings, so long as they are adopted together and at least one child is under 16 and the oldest is under 18 (16 or 17 at time of adoption) the entire sibling set will qualify as orphans. 

  3. Adoptive parents must utilize the services of a Primary Care Provider (PCP) even in non-Hague Countries. The United States passed a law in 2014 (Universal Accreditation Act, or UAA) mandating this. In the United States, there are approximately three private attorneys who are accredited and allowed to act as PCPs. What this means practically, is that you must utilize the services of an adoption agency to facilitate the adoption and immigration process. Referrals for agencies that may be able to assist you are linked at the end of this article. 

  4. There are strict steps that must be followed in order to comply with the Hague Convention and the UAA. You must not adopt the child or initiate any immigration paperwork until you have engaged a PCP.

  5. The orphan visa process may take between 1-3 years to complete and fees may total between $10,000-$40,000, even for a close relative. The cost and timeframe will vary depending on the child's country of citizenship. 

  6. Here are two articles that detail the UAA and affect is has had on relative adoptions since 2014:

    https://mljadoptions.com/blog/relative-adoption-20140721 

    https://mljadoptions.com/blog/relative-adoption-part-2-20140722

 

Relative Adoption

 

If the child does not qualify as an orphan, or if the prospective adoptive parents are not US Citizens, the alternative route is to classify the child as a Relative under US adoption law. This is a legal term, not referring to the child being related to the adoptive parent. Who is a Relative for immigration purposes is defined under US law. For an adopted child, the definition states that the child must have been adopted under the age of 16, and have lived in the legal and physical custody of the adoptive parent for at least 2 years. Practically what this means, is that if the child is residing overseas and does not qualify as an orphan, the prospective adoptive parent(s) must go live with the child overseas for a minimum of 2 years. They must complete the adoption under the laws of where the child lives, and compile 2 years of Legal Custody(this starts on the day full legal custody is transferred to them, usually on the date the adoption is finalized) and Physical Custody (this means living in the same home as the child and acting as the parent on a day-to-day basis. And if the child's country is a Hague Country, the parent must establish the home country as their principal place of abode as well, meaning they cannot simply visit for long terms while residing primarily in the United States.)

 

For most families, moving to the child's country for two years is not possible. But if it is, there are some additional considerations. The 24 months can be counted from before or after the final adoption, and time spent by one parent can be added to time spent by the other parent, to accumulate 24 months total. You must be prepared to heavily document each of the 24 months with school records, medical records, utility bills, tax returns, family photos, passport stamps, proof of home ownership, etc.

 

Once you have accumulated 24 months of physical and legal custody, you may then file an I-130 petition for the child with the US Citizenship and Immigration Service. The processing times for the petition could be another 5-12 months, followed by immigrant visa processing, taking another 3-6 months. So while the requirement is two years abroad with the child, the reality is that once the adoption is finalized, the time it will take for the child to be admitted to the United States may be closer to 3-4 years.

 

Any other options?

 

A frequent question regarding this situation is, what if the child is in the United States, either by way of a visa or illegal entry? Can we spend the two years together in the US and then apply for the child? The answer is, probably not, and even if you can, it will be very complicated. It is against the law to bring a child into the United States illegally and may constitute Alien Smuggling. It is also against the law to bring a child to the United States on a visitors or student visa with the intention to adopt them here. If the child's home country is a Hague Country, such adoption may be in violation of international law as well. If a child is already in the United States (for instance, on a student visa) and conditions or the situation in the home country has changed such that adoption is now in the best interest of the child, it may be possible to complete a domestic adoption in the United States and petition the child as a relative stateside. However, before bringing a child to the United States or initiating any adoption of a child in the US or abroad, you must consult with an experienced immigration attorney.

 

Agency Referrals for orphan visa processing:

 

https://azadoptionoptions.com/international-adoption

https://nightlight.org/international-adoption/