Immigration

Immigration Visa for Adopting an Orphan (Non-Hague)

Adoption always has been an option for couples and individuals to start or complete a family. In recent years, it seems, more US citizens are adopting foreign children, that is, orphaned children who were born outside the US to parents who aren't US citizens. And it's not just the Hollywood celebrities who are adopting these kids. Ordinary, everyday Americans are looking to adopt foreign children, too.

If you're thinking of taking a foreign child into your family, you should know that it's not an easy or short process. It involves multiple steps. The first is figuring out from which country you're going to adopt. This is critical because there are two different sets of rules:

  • The Hague Adoption Convention applies to countries that are parties to the Hague Convention. The US, Mexico, and Canada, for example, are parties to the Convention
  • The rules for adopting orphans apply when the child's native country is not a party to the Hague Convention
  • If a country is not listed here, the orphan adoption rules apply to your adoption. There are several steps you need to take to complete the adoption under these rules, including:

    • Filing an adoption petition for an "orphan"
    • An investigation of you, your finances, and your home, as well as an investigation of your spouse, if you're married
    • Following the laws of the country where the child was born
    • Getting a visa for the child
    • Possibly having the child go through the naturalization process

    Orphan Petition

    In order for you to bring an adopted foreign child into the US you have to file an orphan petition or Form I-600 with the US Citizenship and Immigration Services (USCIS). Basically, this form asks the USCIS to classify the child as an "orphan" and your immediate relative (IR). Having IR status means that the child will be able to enter the US much faster than most other immigrants seeking a visa.

    Rather than starting off with the orphan petition, it's usually a good idea to take advantage of the USCIS' advance processing program by filing Form I-600A. This starts the process of investigating your (and your spouse's) qualifications to be a parent. It's a good idea to start here first because the investigation takes some time to complete. Also, if you adopt before the investigation but the USCIS finds that you can't provide for the child, you won't be able to bring the child into the US.

    If you're single, you must be a US citizen and at least 25 years old to file an orphan petition. If you're married, the petition must be filed jointly with your spouse, but there's no minimum age requirement, and only one of you needs to be a US citizen. If you qualify to file an orphan petition, you're automatically qualified to file an application for advance processing. Also, if you're single, you can file an application for advance processing if you're a U.S. citizen and least 24 years old and will be at least 25 when an orphan petition is filed and the child is adopted.

    "Orphan"

    The child must be an orphan. Generally, this means that the child must be under the age of 16 and both parents must be dead, the parents abandoned or deserted the child, or there's a single parent who's unable to care and provide for him and the parent releases him, in writing, for adoption.

    Your Qualifications as a Parent

    The USCIS will make a thorough investigation of your ability to provide a home for the child, and particularly your physical, mental, and emotional conditions. You and every adult in your home will be interviewed, and your home will be visited at least once. The investigation will look into all sorts of things, including your finances; your background, including any criminal record and any previous attempts at adoption; and your training and education for parenthood.

    Foreign Laws

    In order for you adopt a foreign child, the country in which the child was born must permit adoptions by foreign nationals. Also, you have to follow all of the adoption laws and rules of that country. If the country forbids the adoption of children born there, then that child won't qualify for immigrant status in the US, and so you can't bring that child into the country.

    Adoption laws can vary greatly by country. The US Department of State can give you some information about different countries' adoption laws. However, it's probably best that you talk to an experienced immigration or family law attorney to make sure you follow the laws of the child's country.

    Visas

    Once you've completed the foreign adoption, and your orphan petition is approved, the child is considered to be your immediate relative (IR), and so the child can get an immigrant visa right away without being placed on a visa waiting list.

    You apply for a visa with the US consular office or embassy in the country where the child was born. A consular officer will make an "orphan investigation." The investigation is meant to make sure that the child:

    • Is an orphan, as defined in US immigration law, and
    • Doesn't have an illness or disability that's not listed in your orphan petition

    If the investigation goes smoothly, the child will qualify for one of two types of visas:

    • An IR-3 visa is given to a child who's been adopted legally in the foreign country and whose adoption is valid for US immigration purposes. A child with an IR-3 visa is automatically granted US citizenship, and she will receive a Certificate of Citizenship within 45 days of her entry into the US
    • An IR-4 visa is for a child who will be adopted in the US, such as when the foreign country allows adoptive parents to get guardianship of the child only. A child with an IR-4 visa must be adopted in the US according to the laws of the state where you'll live. Also, after the child is adopted in the US, you need to complete an application for a certificate of citizenship for the child

    It Is Complicated

    As you can see, the process of adopting a foreign-born child is complicated, and there are many more details and possible pitfalls than those discussed here. The USCIS can give you a lot of information and guidance, but you should talk to your adoption attorney to make sure that the adoption goes smoothly and quickly.

    Questions for Your Attorney

    • How much will it cost in fees to adopt a child who was born in foreign country? How much will you charge to help us through the process?
    • How long are my completed Forms I-600 and I-600A good for? I filed them one year ago, but still have been unable to find the right child for me to adopt. Do I need to file those forms again?
    • If I've filed Forms I-600 and I-600A and won't complete the adoption of the child I initially planned to adopt, can the same forms be used if another child is available for adoption?
    • The USCIS denied my orphan petition because they said I had a criminal record. They're wrong; I don't have a criminal record of any kind. How can I challenge the USCIS decision?
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