In today’s blog, we’re covering international adoptions of child relatives.
As we’ve discussed, there are three avenues for international adoption: the Hague/ Convention Process, the Orphan/ Non-Convention Process, and the Immediate Relative/ Family-Based Petition Process. There are similarities between them, but we want to highlight some of the differences that come along with adopting an immediate relative:
To petition to adopt a child relative, you will file Form I-130, Petition for Alien Relative.
Immediate relative adoption is available for U.S. citizens and lawful permanent residents. Only U.S. citizens qualify for Hauge and orphan process adoptions.
Family-based adoption petitions are generally not available to children from Hague countries.
The adoptive parent petitioner must accrue two years of legal and physical custody and obtain a full, final adoption of their child in order to file the adoption petition. Legal and physical custody can be accrued all at once, or cumulatively over time before, during, and after the adoption. However, it must be completed before filing Form I-130.
For more information regarding international adoption processes available under U.S. law, please visit https://www.skvlegal.com/post/three-processes-for-international-adoption.
Who can be adopted under a family-based petition process?
There are stringent guidelines for who can be adopted through a family-based petition process, and slightly different requirements apply to citizens and legal permanent residents.
U.S. citizens can file Form I-130 to petition to adopt:
Their spouse
Their child (unmarried and under the age of 21)
Their unmarried child over the age of 21
Their married child
Their sibling (the petitioner must be 21 years of age or older in this case)
Their parent (again, the petitioner must be 21 or older)
Lawful permanent residents can file Form I-130 to petition to adopt:
Their spouse
Their child (unmarried and under the age of 21)
Their unmarried child over the age of 21
The following people, among others, cannot be adopted using the immediate relative process:
An adopted child or adoptive parent if the adopted took place after the child turned 16, or of the child was not in the legal custody and has not lived with the parent for 2 years before filing the petition
A natural parent if the child gained lawful permanent residency or U.S. citizenship through adoption or a s a special immigrant juvenile
A stepparent or stepchild, if the marriage creating the relationship took place after the child turned 18
A grandparent, grandchild, nephew, niece, uncle, aunt cousin, or parent-in-law
A full list of who can and cannot be adopted in a family-based adoption can be found in the instructions for filing Form I-130: https://www.uscis.gov/sites/default/files/document/forms/i-130instr.pdf
Now that you know who can be adopted under the family-based process, lets talk about what the process actually entails.
Step One
The process starts with a family assessment or home study to be carried out by an accredited agency or independent social worker and later approved by an accredited agency. The home study is a written report that consists of the adopting family’s personal background, family history, health and financial information, and a parenting plan to welcome the future adoptive child or child relative. Attorneys do not perform home studies but work with agencies or social workers that can help you obtain one. As part of the home study, a social worker visits the home of the adoptive family to make sure their living situation is safe for a child. In general, a home study is the first step of every adoption process, including international adoptions of family members.
For more information, see: https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/how-to-adopt/home-study-requirements.html
Step Two
Once the home study is complete, the family can file the applicable forms with the U.S. Citizenship and Immigration Services. This step of the process includes two forms: the first form determines if the adoptive parent or parents is/are eligible to proceed with the adoption, and the second determines if the child relative is eligible to be adopted. At this stage in the process, the child relative must be in their country of origin and remain abroad until the end of the process. The adoption process has not started yet. This is just the initial determination made by U.S. immigration authorities to make sure all parties involved can proceed with this process and start the adoption process in the country of origin or the country where the child relative lives or is a citizen of.
Step Three
The adoption process starts now and is carried out by the agency or authority in the country where the child relative is a citizen or resides. From this point forward, the adoption process follows the laws of the child’s country of origin. This is why it is necessary to find an accredited agency to work with that can provide this bridge between the adoptive family’s situation in the U.S. and the foreign legal system. Because this step is carried out entirely outside of the U.S., it can be quite a long process taking up to two years or more depending on the country. Most countries require adoptive families to spend a few months in the child’s country of origin with the child before gaining full custody and returning to the U.S.
Step Four
Once the adoption process is finalized and the adoptive family is given custody of the child, the entire family - with its newest member - can travel back to the United States. Before returning to the U.S., however, it is necessary to request a visa or U.S. citizenship for the child. Once this part is over, the family can return to the U.S. together. In most cases, the child relative automatically becomes a U.S. citizen just like her adoptive parent(s).
Something to Remember
International adoptions can be very complicated because they include adoption laws from two countries. Each country has its own process that governs if and how a family member can adopt a family member. For example, in Brazil, under The Child and Adolescent Statute, grandparents cannot adopt their own grandchildren. Based on current case law, this seems to be changing, see C N da S v. N A de S., Processo: REsp 1.587.477. However, because a grandparent cannot adopt a grandchild in Brazil, a grandparent also cannot use this process to adopt and bring their grandchildren to the United States.
The international adoption process for a child relative is, in some cases, the only way to bring a child relative to the U.S. to live permanently and reunite families separated by borders and legal systems. If you would like to know if you can adopt a child relative, contact us today by calling us (385-334-4030) or sending us an email (info@skvlegal.com). Our highly experienced attorneys will be happy to assist you and answer any questions you might have.