A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, January 3, 2013

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. 

1 comment: