Practice Areas
Family & Citizenship

Adoption or Orphan Status

Many U.S. couples adopt children abroad. Immigration considerations should be a very important consideration in the adoption process.

What are the requirements for obtaining permanent residence for adopted foreign orphans?

An orphan is a child who is orphaned by the death, disappearance of, abandonment or desertion by, or separation or loss from, both parents, or if the sole surviving parent is incapable of providing the child with proper care and irrevocably relinquishes custody of the child for emigration and adoption. To immigrate an adopted foreign orphan the following requirements must be met:

  • The child’s country of origin must permit adoptions by foreign nationals, and the prospective U.S. citizen parents must comply with all of the rules of that country relating to adoptions;
  • The child to be adopted must be under 16 years old at the time the petition to classify the child as an immediate relative is filed. If the child is adopted along with a sibling, then one of the siblings must be under 16 and the other siblings must be under 18 at the time the petition is filed;
  • The child must have no surviving parent, or demonstrate that the parents have disappeared, abandoned or deserted the child, or, in the case of a sole surviving parent, must demonstrate that the sole surviving parent cannot care for the child and has authorized the child’s adoption and immigration; and
  • The adoptive parent must be a U.S. citizen, although in the case of a married couple, who must make a joint petition, only one needs to be a U.S. citizen. Single adoptive parents must be at least 25 years of age.

What if the child is adopted in the United States?

If the child was not adopted abroad, or if the foreign adoption was invalid, the child must be adopted in the U.S. For this to occur, 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 preadoption requirements of the state in which they will live with the adoptive child; and
  • The state in which the adoptive parent and child will live must allow a readoption or else provide for judicial recognition of a foreign adoption that was invalid for immigration purposes.

What is included in the home study requirement?

Before an adopted child can immigrate, the adoptive parents and any other adults that will be living with the adopted child must be evaluated through a home study conducted by a USCIS authorized organization. The home study must be submitted to USCIS while it is less than six months old.

The State Department website provides helpful information on foreign adoptions at http://travel.state.gov/adopt.html.