Only US citizens may petition for the immediate immigration of
foreign adopted children. There is no provision in Immigration law for the entry
of newly adopted children of legal permanent residents (green card holders) and
long term nonimmigrant visa holders. Legal permanent residents who do adopt
abroad can only expect frustration in trying to bring their adopted children to
the US.
The United States Department of State reports cases each year of non-citizen
parents who have legally adopted a child internationally and then find that the
child cannot join them in the United States. The parents and child face only
anguish and heartbreak. The best solution is for legal permanent residents to
first naturalize as US citizens and for long term nonimmigrant visa holders to
return to their home countries before adopting.
The problem lies in the definition of "child" in the Immigration
and Nationality Act (INA). Long term nonimmigrant visa holders and legal
permanent residents can bring their spouses and children with them when they
enter the United States or have them enter later. The INA divides the definition
of "child" into several sub-groups: natural born children,
step-children, and adopted children. The INA recognizes as a "child"
one who has been adopted before the age of sixteen and who has resided with, and
been in the legal custody of, the parent for two years. What this means is that
a child born overseas to the principal applicant after his or her entry to the
US may receive the appropriate dependent visa immediately. A child adopted
overseas by a non-citizen must first meet the two year co-residence requirement.
The INA does not provide any way for the child to enter the US to satisfy this
requirement.
The following example illustrates the problem: An Australian researcher in
the US on a J-1 Exchange Visitor visa adopts a baby girl from the People's
Republic of China. The child has not lived with the researcher for two years.
She does not meet the definition of "child." The US consulate cannot
issue her a J-2 visa (dependent of exchange visitor) to join her parent. If the
researcher leaves the US and lives with his adopted daughter for two years, she
can then receive a J-2 visa for future exchange visits to the US.
Long term nonimmigrant visa classes include: E1/E2 Treaty Traders or
Investors, F-1 Students, I Journalists, J-1 Exchange Visitors, H, O, or P Visa
Temporary Workers, L-1 Intra-company Transfers, and R-1 Religious Workers.
Different rules cover diplomats and officials in the US on A or G visas. The
employing embassy or international organization should contact the Department of
State for information.
The situation is even more difficult for legal permanent residents. The
adopting resident parent must first satisfy the two year co-residence
requirement, before he or she can begin the immigration process. At the same
time, a resident cannot reside outside the US making the two year requirement a
near impossibility. At the end of two years' co-residence, if the parent could
have complied, he or she would file a second family category (child of a legal
permanent resident) petition. The family must then wait for the petition to
become current: the backlog in this category is now four years. Therefore, a
resident faces a wait of six years or more before his or her adopted child may
immigrate.
Once a legal permanent resident naturalizes as a United States citizen, he or
she may petition for the immediate immigration of an adopted (or to be adopted)
orphan. There are strict limits on who may qualify as an orphan but there is no
two year co-residence requirement . Other adopted children would still have to
meet the two year requirement. A single US citizen over twenty-five years of age
or a married US citizen of any age may petition. The spouse of a married citizen
need not be a US citizen but he or she must agree to the orphan adoption.
