Is it possible for me to adopt a family member? Prospective adoptive parents wishing to adopt relatives from overseas should be aware of U.S. Government laws and regulations that may prevent such relatives from being able to enter the United States.
What are those laws/regulations? The U.S. requires that all children involved in intercountry adoption meet the definition of a “child” or an “orphan” as defined in the Immigration and Nationality Act (INA) sections 101(b)(1)(E) or (F) before they can be considered for United States permanent residence/citizenship. If an adopted child does not meet one of these legal definitions, the child cannot immigrate to the United States.
How does the INA define an “orphan”? Under INA 101(b)(1)(F), a United States citizen may petition for an adopted “orphan” to enter the United States if the petition is filed before the orphan turns 16 (or 18 for older siblings). The INA defines the word orphan under two conditions:
The child must either have no parents
A sole or surviving parent who is unable to care for the child and has, in writing, irrevocable released the child for emigration and adoption. A sole or surviving parent's inability to care for the child would be based on local (not U.S.) standards. Of special note is the fact that only a sole or surviving parent may release a child for adoption to a particular person.
What does it mean for a child to have “no parents”? A child would be considered to have no parents if both are determined to have died, disappeared, deserted, abandoned or have been lost or separated from the child.
What does the phrase “surviving parent” mean? A child would be considered to have a surviving parent if one natural parent died and the remaining spouse has not remarried.
How does the INA define “sole parent”? A child would be considered to have a sole parent if the child was born out-of-wedlock, the birth mother is not married, and the birth father did not legitimate the child and is either unknown or has abandoned, disappeared, deserted the child or released the child for emigration and adoption.
What is “abandonment” and how does this affect my adoption? Abandonment requires that the natural parents give up all parental rights, obligations and claims to the child, as well as all control over and possession of the child (without transferring these rights to any specific person). By definition, abandoned children may not be relinquished or released to prospective adoptive parents or for a specific adoption.
The child I would like to adopt does not fit into these categories. Is there another way I can petition for this child to immigrate into the United States? Under INA 101 (b) (1) (E), if the adoption took place before the child turned 16, and if the child has resided with the United States citizen in legal custody for at least two years, then the U.S. citizen may file an immigrant visa petition for the child. This generally applies only to U.S. citizens who live and work overseas.