In my practice, I have had a number of people come to me to ask about how they can help a relative come to the United States. When the relative is a spouse, child, parent, brother or sister, there may be ways to help them. The rules for these types of relatives vary on whether the petitioner is a U.S. citizen or permanent resident. But, when the relative is a cousin, niece or nephew, often people are disappointed to learn that U.S. immigration law does not provide an opportunity for that relative to come to the United States.
That is when some people start to think creatively. “What if I adopted my niece?” That is a question I hear a lot. On the surface, it would seem to solve the problem. If you adopt a relative, then they become your child, and then, logic would have it, you could file a visa petition. Right?
Well, the answer is not always that simple. In fact, quite the contrary, 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.
Orphans
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.
Non-Orphans
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 two years. For all intents and purposes, this means that the adopted parents must live overseas with the child for two years before the child can come to the United States. This makes it almost impossible for a permanent resident to adopt a foreign-born relative in order to bring that relative to the United States. That is because a trip abroad for over six months is considered by U.S. law to be an abandonment of permanent residency.
Because foreign adoptions present tricky issues, it is best that a person consult with a knowledgeable immigration lawyer before going through the process.