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Special Immigration Issues with Adopted Children
Visa petitions involving adopted children present special issues. The rules that apply to adopted children depend on whether the child was an orphan when adopted. The term "orphan," however, has a special definition under U.S. immigration law.
An "orphan" is a child whose parents:
• died or disappeared
• abandoned or deserted the child, or
• are separated or lost from the child.
If the adoptive parents do not see the child before the foreign adoption, the adoptive parents must be willing to re-adopt the child in the United States.
If there is only one surviving parent, the child may still be considered an orphan if the surviving parent in unable to provide care to the child, and irrevocably gives up his or her rights to the child so that the child can be adopted and leave the home country.
To qualify for immigration to the United States as an immediate relative, the orphan must be adopted by a U.S. citizen and spouse or an unmarried U.S. citizen who is at least 25 years old. The adoption can take place in the foreign country, or the orphan come to the United States to be adopted. The adopted parents must have seen the orphan personally before the adoption proceedings. Finally, the Attorney General must be satisfied that the adoptive parents can give proper care to the adopted orphan. The adoption must take place before the orphan reaches the age of 16.
The prospective parent or parents must show that the child will have a proper home environment when he or she comes to the United States. This is done through a home study and a fingerprint check. The adoptive parents must also show that they comply with any adoption requirements of the state in which they live.
An adopted child, who is not an "orphan" may still qualify as a "child" for the purpose of U.S. immigration law if the adoption must take place before the child’s 16th birthday. Also, the adopted child must be in the legal custody of the adopted parents, and living with them, for 2 years.
