Overview of Overseas Adoption
Every year, many U.S. citizens make the decision to adopt a child from overseas. The process can be overwhelming to many as they strive to comply with the three distinct bodies of law applicable to intercountry adoptions, namely 1) U.S. federal law; 2) the law of the country where the child is from; and 3) the state law where they will reside in the U.S. As the body of international law continues to emerge and develop, an effort has been made to facilitate the adoption process while, at the same time, preventing child abductions and trafficking and protecting the interests of the child, the biological parents, and the adopting parents. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption is an international treaty that resulted from this effort and concern. It was signed by the U.S. in 1994 and subsequently entered into force in 2008. The Hague Convention requires participating countries to put in place safeguards, including a central authority to provide accurate information for parents; to establish a system of cooperation to ensure safeguards are respected; and to recognize subsequent adoptions that take place. To date, some 83 countries have signed the agreement, but not all participating countries have ratified it or adopted procedures in compliance with the standards set forth. Common participating countries that have ratified the Convention include China, Guatemala, Colombia, India, Philippines, and Mexico.
Since the Convention has yet to achieve complete acceptance and compliance from all countries around the world, there remain three distinct adoption procedures. The process that parents must follow depends on the circumstances of the adopting parents, the child's country of origin, and whether or not that country is a signatory of the Hague Convention.
Hague Convention – The Hague process applies to U.S. citizens who reside in the U.S. and intend to adopt a child from another country that is a party to the Hague Convention. For married couples, both spouses must sign the adoption forms and must intend to adopt the child. For people who are not married and intend to adopt a child, they must be at least 24 years of age when filing the Form I-800A and 25 years of age when filing Form I-800. Under the Hague process, in order to be eligible for adoption, the child must be under the age of 16 at the time of filing Form I-800 and must reside in a country that is a party to the Convention. Parents are required to obtain a home study and will be in contact with the United States Citizen and Immigration Service, which will determine the suitability of parents to adopt and the eligibility of the child to immigrate to the U.S.
Non-Hague (Orphan Adoption Process) – The Orphan Adoption process, on the other hand, is available to U.S. citizens who intend to adopt a child from a country that is not a party to the Hague Convention. Under this process, for married couples, both spouses must sign the petition and intend to adopt the child. A single parent must be at least 25 years old when filing Form I-600, and the child must be under the age of 16. Parents bear the responsibility of establishing that they will provide proper parental care to the child and are required to submit a home study. Parents must also show that the child to be adopted is an “orphan” as defined under U.S. immigration law, and as part of processing the adoption case, the USCIS (or, in some cases, the Department of State) will conduct an investigation overseas to verify that the child is indeed an orphan.
Immediate Relative Petition – The Immediate Relative Petition is available to both U.S. citizens and lawful permanent residents (green card holders). However, the circumstances are limited, and parents must meet a list of requirements in order to be eligible to file the petition. Parents must show, for example, that there has been a full and final adoption, that the adoption took place before the child’s 16th birthday, and that the parents have had legal and physical custody of the child for at least two years while the child was a minor. This is difficult in most cases, since parents generally do not have custody for an extended period prior to petitioning for the child to enter the U.S. But for those who do meet the requirements, the process is simplified, requiring only that parents obtain a visa by submitting an I-130 Petition for Alien Relative.
Adoption is a special time for the child and the adopting parents. It is important that the legal issues are not an unnecessary burden, so that parents can focus on the details that really matter as they welcome a new child into their home. With compassion, dedication, and experience, If you are contemplating or have begun the process of adopting a child from overseas, contact the Law Offices of Van T. Doan and let our knowledge, skills, and experience guide you and your family.
Learn More - Overseas Adoption: The Hague Process
Categories: Immigration Law