Foreign adoptions are complicated matters. I do not handle adoptions in my law practice, so I can only make a few comments.
What is helpful is an Interim Policy Memo (dated July 9, 2012), and published by the USCIS. USCIS memos are created for the benefit of immigration officers when deciding whether a foreign adoption satisfies U.S. immigration requirements. Memos are considered by immigration officers when deciding cases.
The essential problem is that people look for clever ways to immigrate to the U.S. One possibility is to adopt a foreign child and bring the child to the U.S. as an immediate family member. In the worst cases the adoption is not sincere, but is instead done to help a family member overseas (or a next door neighbor’s child) immigrate to the U.S.
From the standpoint of the U.S. government, not anyone should be able to immigrate to the U.S. or there would simply be too many people here. Immediate family members can immigrate to the U.S. quickly. They are the spouses, parents and unmarried minor children of U.S. citizens. Other family members can immigrate to the U.S., but intentional delays are tacked onto case processing to help slow what is referred to as “chain migration.” A way to avoid delay is to adopt a more distant family member such as a niece or nephew. The adoption makes that child an immediate relative child.
In this situation, U.S. immigration rules mandate that the adopted child must fall in one of two groups:
- chosen through an orphanage approved by U.S. immigration agencies so that the child has no previous connection with the U.S. citizen, or
- the U.S. citizen must have lived together in the same home as the child for a period of at least 2 years before immigration processing begins. There are other requirements, but this 2-year live in condition helps ensure that the parent – child relationship is genuine and not simply a set-up for immigration purposes only.
Another set of rules come under the Hague Convention on child abduction. The U.S. is a member of the Hague Convention as are many other countries. Hague Convention rules are complex, so adoption generally requires involvement of an immigration attorney who is experienced with international adoption rules.
When marrying a foreigner overseas, it often can happen that the foreigner has already or wants to adopt a child prior to entry to the U.S. on either a fiancee or marriage visa. This is doable, particularly when the U.S. citizen is not involved with the adoption. In this case, the adoption by the foreign parent of the foreign child is local within the country and so does not involve international adoption rules. Once the local adoption is complete, I can generally immigrate the foreign parent as a fiancee or spouse of a U.S. citizen together with the adopted child.
If you are in a relationship that involves child adoption, please check with a qualified immigration attorney before proceeding. Allan