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.)

Sunday, January 5, 2014

USCIS new policy on adoption-based I-130 petition

The Hague Adoption Convention, effective in the United States on April 1, 2008, is an international convention dealing with international adoption. It's primary purposes are to protect children's basic rights and to guard them against abuses and exploitation such as child laundering and trafficking.  The Hague Adoption Convention applies when a child who is habitually residing in one Convention country is adopted by someone habitually residing in another Convention country.

To prevent circumvention of the Hague Adoption Convention protections, a child who is a citizen of a Hague Adoption Convention country is deemed to be habitually residing in that country under the Department of Homeland Security regulation, even if the child is actually residing in the United States. Under this policy, the child is not eligible to adjust status in the United States to become a permanent resident.

A USCIS memo dated October 31, 2008 provides a solution to this problem.  It authorizes USCIS officers to approve an I-130 visa petition (which is required before the child may adjust status) filed on behalf of such a child if, prior to the adoption, the prospective adoptive parents obtain a written statement from the Central Authority of the child's country of origin stating that: a) It is aware of the child’s presence in the United States; b) It is aware of the proposed adoption; and c) It has determined that the child is not habitually residing in the country of origin.

Additionally, the adoption order that is submitted with the Form I-130 must expressly state that such written statement from the Central Authority was filed with the court finalizing the adoption. An amended order can be obtained if such Central Authority statement is not obtained until after the adoption was finalized.

Cognizant of fact that some countries of origin do not issue statements described above, the USCIS issued another policy memo on December 23, 2013 which provides further assistance to the adoption-based I-130 petitioners.  Specifically, the memo states that if a petitioner has attempted to obtain the statement of habitual residence from the country of origin for at least 6 months with no response, and the child was not paroled into the United States, USCIS will approve a Form I-130 if the following three criteria are met:

1) At the time the child entered the United States, the purpose of the entry was for reasons other than adoption (intent criteria);
2) Prior to the U.S. domestic adoption, the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States, (actual residence criteria); and
3) Any adoption decree issued after February 3, 2014, confirms that the country of origin Central Authority was notified of the adoption proceeding in a manner satisfactory to the court and that the Central Authority did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (notice criteria).

It should be noted that approval of the I-130 visa petition is only a prerequisite for adjustment.  The child must also meet the other requirements for adjustment before it may become a lawful resident of the United States. Under the Hague Adoption Convention, international adoption has become an extremely complicated process.  USCIS memos such as this one provide much needed guidance to the U.S. petitioners who plan to adopt internationally.

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