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.)

Friday, February 6, 2015

Adoptions by U.S. permanent residents not governed by Hague Adoption Convention

Many thousands of American parents adopt children from overseas countries every year.  Yet, overseas adoption can be a very tricky and complicated process.  In recent years, the new legal requirements imposed by the Hague Adoption Convention have made international adoption an even more daunting task for U.S. citizen parents. However, if one of the two adopting parents is a lawful permanent resident while the other one is an American citizen, the Hague Convention requirements do not apply to them, according to a recent immigration appeal board decision on January 9, 2015.

Hague Convention
The Hague Adoption Convention became effective in the U.S. in 2008.  The Hague Convention is an international agreement created mainly to protect the interests of children and the adoptive parents against illegal activities such as fraud and child trafficking.  The convention introduced additional requirements in the adoption process including the use of different forms (I-800, I-800A) and visa categories(IH-3, IH-4), stricter requirements for the adoption agencies, mandatory parental education, additional home study requirements, etc.  On the other hand, Convention adoptions also confer additional benefits to the family. For examples, the adopted child may automatically acquire United States citizenship; and the adoptive parent does not need to satisfy the 2-year residency and legal custody requirements under the regular adoption rule. 

American couple's Mexican adoption denied
The couple in the case adopted a new-born baby from Mexico in December 2009.   The wife, a U.S. legal resident, file an immigration visa petition (Form I-130) with the California Service Center (CSC) of the USCIS.   The petition was denied by CSC Director on December 23, 2013.  The Service Center took the position that the couple's adoption was subject to the legal requirements of the Hague Convention.  Since the couple did not follow the Convention requirements when adopting their child, the visa petition was denied.  In denying the petition, the Service Center Director explained that because the petitioner's husband was a U.S. citizen, and they were adopting the child together, the adoption should therefore be subject to the Convention requirements.

BIA reverses the denial
The couple appealed the denial to the Board of Immigration Appeals (BIA).  Upon a review of the relevant regulations, the BIA noted that the regulations govern international adoptions by United States citizens only. Neither the language of the Convention nor the regulations specifically require a lawful permanent resident parent to pursue a Convention adoption.  Consequently, the BIA held that in petitions filed by a USC parent and a LPR parent, the adoptive parents may choose to pursue either a Convention adoption or the regular route of filing an I-130 visa petition. The Board therefore remanded the case to California Service Center for further actions. Although this decision may not be the final word on this important issue, adoptive parents can at least make arguments based on this case if they choose not to adopt under the Convention. 

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