US visas for adopted children

In the past few decades, the number of children born abroad who are adopted by American parents has increased dramatically. The adopted child's immigration can be a major issue in the international adoption process. To avoid making a mistake that could lead to heartbreak and disappointment down the road read our website carefully before you begin the process, or contact us if you are having difficulties.

In gaining permanent residence for an adopted foreign child, the following requirements must be met:

• The child's home country must permit adoptions by foreigners, and the prospective US citizen parents must comply with all of that country's rules;
   
• The child to be adopted must be under 16 years old and must fit the US government's definition of orphan;
   
• The adoptive parent must be a US citizen, or in the case of a married couple, only one needs to be a US citizen. Single adoptive parents must be at least 25 years of age;
   
• The child must have been formally adopted in its country of origin, or the adoptive parents must have custody of the child for immigration and an adoption to be finalized in the US; and
   
• An agency must determine if the home/family are suitable to adopt a child.

Family evaluation

The first step in the international adoption is an evaluation of the family that wishes to adopt. It is a good idea to take care of this procedure (called "advance processing") before finding an appropriate child, as this interview process can take time. This is conducted by a United States Bureau of Citizenship and Immigration Services (USCIS) authorized organization.

The evaluation may vary, but will likely include the following: an interview of each adult living in the home; a visit to the home; a report detailing the physical, mental and emotional ability of the prospective parents; a report of the prospective parents' financial situation; background checks (including previous attempts at adoption, and criminal history); training; references; autobiographical statements written by both prospective parents.

At this stage, the parents must provide proof that at least one parent is a US citizen. If the potential parent is a single US citizen, he or she must be over 25. The application is then submitted to the USCIS office where the adoptive parents live. The next step requires proving that the child they wish to adopt is actually an orphan. See the definition of orphan.

Getting your adopted child a visa

When the foreign adoption process is completed, the adoptive parents can apply for an immigrant visa at the appropriate U.S. consular office abroad. In addition to the notification of the approved I-600 or I-600A petition from USCIS, the consular officer also requires specific documentation to conduct a visa interview and to approve visa issuance. Some of these requirements are discussed below. However, we strongly suggest that adoptive parents contact the consular section conducting the visa interview prior to the actual scheduling of the interview. Remember, a visa is not permission to enter the United States. Final authority to enter the U.S. rests with the USCIS at the port of entry.

The Department of State Consular Officer who adjudicates your child's immigrant visa application is required to conduct an investigation (called the "I-604 Orphan Investigation") before an immigrant visa can be issued to your child. This investigation serves two purposes: (1) to verify the orphan status of the child, and (2) to ensure that the child does not suffer from a medical condition that you, the adoptive parents, do not already know about and are willing to accept. As a part of the immigrant visa application process and the I-604 Orphan Investigation, your child will be examined by a U.S.-approved foreign physician.

Two types of visas for internationally-adopted children

• The IR-3 ("IR" stands for Immediate Relative) visa classification signifies that the orphan has been adopted abroad prior to the issuance of the immigrant visa. In order to issue an IR-3 visa, the adjudicating officer must be satisfied that the adoption was both legal in the country where it occurred and valid for U.S. immigration purposes. Children who enter the U.S. on an IR-3 visa are automatically granted U.S. citizenship, and under the new regulations, will be sent a Certificate of Citizenship within 45 days of their entry. Parents do not need to complete a separate application on behalf of their children for this document.

• The other international adoption visa category is the IR-4. This type of visa is given to a child who will undergo the adoption process in the US, rather than in his/her home country. This situation arises when the foreign country's laws only permit the adoptive parents to obtain guardianship of the child, rather than to fully adopt the child in that country, and/or the prospective adoptive parents did not see and observe the child prior to the adoption process. If this is the case, the following requirements must be met:
  • The parent, or a person or organization acting on the parent's behalf, must have legal custody of the child under the laws of the child's home country
     
  • The parent must obtain an irrevocable release for adoption and immigration from the person or entity that last had legal custody of the child
     
  • The parent must comply with all pre-adoption requirements of the state in which they will live with the adoptive child
     
  • The state in which the adoptive parent and child will live must allow a re-adoption or else provide for judicial recognition of a foreign adoption that was invalid for immigration purposes.

IR-4 orphans must be readopted in the United States before they are automatically U.S. citizens.

Definition of orphan

The US government's definition of orphan says that improper understanding of the term orphan most often causes delays or denials in the adoption process.

It is important to note also that in order to obtain an immigrant visa for the child you wish to adopt, the child must qualify as an orphan under U.S. law, not under the law of the foreign country in which you are adopting.

The legal definition of "orphan" is:

"...a child under the age of sixteen who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole surviving parent is incapable of providing the proper care (according to the standards of adoptee's country) and has, in writing, irrevocably released the child for immigration and adoption."

Information for US permanent residences

The US government says that each year, non-US citizen parents legally adopted a child internationally, only to learn that the child cannot join them in the US. The problem with non-US citizens living in the US attempting to adopt internationally is the following:

Long term nonimmigrant visa holders and legal permanent residents can bring their spouses and children with them when they enter the United States or have them enter later. The Immigration and Nationality Act (INA) divides the definition of "child" into several sub-groups: natural born children, step-children, and adopted children. The INA recognizes as a "child" one who has been adopted before the age of sixteen and who has resided with, and been in the legal custody of, the parent for two years. A child born overseas to the principal applicant after his or her entry to the US may receive the appropriate dependent visa immediately. A child adopted overseas by a non-citizen must first meet the two-year co-residence requirement. However, the INA does not provide any way for the child to enter the US to satisfy this requirement.

As a solution, the parents could live with the child for two years in the child's country of origin. However, a permanent resident cannot reside outside the US making the two-year requirement basically impossible.

The best solution is for legal permanent residents to first naturalize as US citizens and for long-term nonimmigrant visa holders to return to their home countries before adopting.

US citizens living abroad

Adoptive parents who wish to naturalize their children but who will continue to reside abroad may enter their adoptive children with a B-2 visa into the United States and complete the naturalization process there. To do this, they should contact the United States Bureau of Citizenship and Immigration Services (USCIS) office which has jurisdiction over their case and which will set an appointment for the procedure.

In order to get a B-2 visa, adoptive parents must demonstrate that the child qualifies either under the two-year physical/legal custody rule or present an approved I-600. (The I-600 classifies an alien orphan who either is, or will be, adopted by a U.S. citizen as an immediate relative of the U.S. citizen to allow the child to enter the U.S. The petition is filed by the U.S. citizen who is adopting the child.)

When applying for a nonimmigrant visa, the adoptive parents must also prove that they have made all the necessary arrangements with the USCIS office and that they intend to depart the U.S. to continue their residence abroad. Adoptive parents can show proof of arrangements made with the USCIS by presenting a USCIS General Call-in Letter (Form G-56).

This means that parents who qualify under the two-year legal/physical custody rule and who will continue to reside abroad can avoid the cost and paperwork of both the I-130 and the I-600 by using this procedure. Expeditious naturalization in all cases must be complete before the child turns 18.