We often hear from prospective adoptive families who are caring for a foreign-born child in the United States that the child needs adoption and permanency. The child may have come to the United States on parole or a non-immigrant or immigrant visa. Ultimately, the prospective adoptive parents want the child to have a permanent immigration status in the United States, and they look to adoption.
Parents often assume that if they adopt the child in the United States, the child will gain U.S. Citizenship or legal permanent residency because of the adoption. This is incorrect and has led to frustration and heartache for many families. Adoption alone does not lead to an immigration benefit, regardless of whether the adoption is completed abroad or in the U.S.
In general, for children who are already residing in the United States, there are two potential paths to immigration. The first method would be to pursue an immigration benefit as an “adopted child.” “Adopted child” is a defined term and requires that the parents have had both the legal and physical custody of the child for two years and have completed an adoption of the child before the child turns 16. In this case, if the child is from a country that is a member of the Hague Convention on Intercounty Adoption, there will be additional requirements to establish the child’s immigration eligibility.
The second potential path may be available to the child, but only under specific facts and circumstances. In this case, the immigration path is not based on adoption necessary but based on a predicate order from a state court finding that the child experienced abuse, neglect or something similar under that law and that it is not in the child’s best interest to return to their country of origin. Depending on the state, this may be available to children up to the age of 18 or 21.
It is of the utmost importance that prospective adoptive parents consult with an attorney familiar with the immigration paths available to foreign born children before gaining legal custody or pursuing adoption. If your family is considering the adoption of a foreign-born child, please feel free to call our office at (973) 994-7802 and we would be happy to schedule a consultation.