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. 

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.

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.