Who is Considered an Orphan?

Under U.S. immigration law, a foreign-born child is an orphan if he or she does not have any parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. A foreign-born child is also an orphan if his or her sole or surviving parent is not able to take proper care of the child and has, in writing, irrevocably released the child for emigration and adoption. For such a child to gain immigration benefits, an orphan petition must be filed before his or her 16th birthday. An orphan petition may be filed before the child’s 18th birthday, if the child is a natural sibling of an orphan or adopted child, and is adopted with or after that child, by the same adoptive parents.

Who May File an Orphan Petition?

A married U.S. citizen and spouse (no special age) or an unmarried U.S. citizen at least 25 years of age may file an orphan petition. The spouse does not need to be a U.S. citizen; however, the spouse must be here legally if living in the United States. To make the adoption process faster, you may apply for advanced processing before you actually find an orphan to adopt. An application for advance processing may be filed by anyone eligible to file an orphan petition. An unmarried U.S. citizen may file an application for advance processing if the U.S. citizen is at least 24 years of age and will be at least 25 when an orphan petition is filed in behalf of an actual child and when the child is adopted.

The Application Process

What is the quickest way to bring a foreign-born orphan that I adopt to the U.S.?

The fastest way is to file USCIS Form I-600A (Application for Advance Processing of Orphan Petition) before you identify a foreign-born child to adopt. This allows the USCIS to first process the application that relates to your ability to provide a proper home environment and your suitability as a parent. Then, once a child who meets the INA’s definition of orphan is identified, you must file USCIS Form I-600 (Petition to Classify Orphan as an Immediate Relative) on behalf of the child.

Should I do "advance processing" if I’ve already identified the child?

It is generally advisable for all prospective adoptive parents to do advance processing. You should do advance processing even if you are traveling to the country where the child is located and will file an orphan petition at an overseas Immigration office (or at an American consulate or embassy if there is no Immigration office in the country). By completing advance processing, you will ensure that USCIS has already processed the application that relates to your ability to provide a proper home environment and your suitability as a parent before you adopt a child in a foreign country. This is important, because you will not be allowed to bring a child that you have adopted to the United States if you are found to be unable to provide that child with a proper home environment or you are found unsuitable as a parent.

What kind of information will I need to provide to the USCIS?

You must provide proof of U.S. citizenship. If you are married and living in the United States, you must provide evidence of your spouse’s U.S. citizenship or lawful immigration status as well as proof that you are married and that any previous marriages ended legally. You must submit a complete and current home study within prescribed time limits. You may also have to prove that you comply with the preadoption requirements of the state in which you will live with your adopted child. You must submit the required filing fee for your application, and be aware that each adult member of the household must be fingerprinted by the USCIS.

What kind of information about the child will I need to provide to the USCIS?

You must provide:

  • The child’s birth certificate or, if the certificate is unavailable, evidence of the child’s age and identity;
  • Proof that the child is an orphan as defined by the INA;
  • A final decree of adoption, if applicable;
  • Proof of legal custody of the child for emigration and adoption, if applicable; and
  • Proof of compliance with preadoption requirements, if applicable.

Can I adopt a foreign-born orphan and bring him/her to the U.S. without involving the USCIS?

There is no way an orphan can legally immigrate to the U.S. without USCIS processing.

Can I adopt a child from any country in the world?

Countries experiencing social or political upheaval.

In countries experiencing social or political upheaval, it can be exceptionally difficult to fulfill the legal requirements for adoption of the child’s country of origin. This is especially true when civil authority breaks down. Correspondingly, it can be very difficult to gather documents necessary to fulfill the legal requirements of the immigration law of the United States. Also, in a crisis situation, it can be extremely difficult to determine if children whose parents are missing are truly orphans. It is not uncommon in a hostile situation for parents to send their children out of the area, or to become separated during an evacuation. Even when children have been truly orphaned or abandoned by their parents, they are often taken in by other relatives. International conventions place a strong preference on keeping children within extended family units and within their culture as opposed to uprooting the child completely. Finally, corruption and lawlessness are more likely in such countries. This increases the risk that you may be provided with false documents or otherwise taken advantage of as you attempt to adopt a child. For these reasons, individuals considering adoption from a country in crisis should proceed with extreme caution.

Countries that do not permit adoption

Some countries do not permit adoption and will grant legal custody only so long as the applicant for custody resides in that country. This is often true in countries that apply Islamic law. Children from such countries do not qualify for immigrant status in the U.S.

Where Can I File My Application?

You should file your advanced processing application with the USCIS office that serves the area where you live.

If I am a U.S. Citizen, Will the Child I Adopt Automatically Become a Citizen Too?

Presently, adoption of a foreign-born child does not guarantee the child’s eligibility to immigrate to the United States. If the orphan petition is approved, the child is considered to be an immediate relative of a U.S. citizen and the child can get an immigrant visa right away without being put on a visa waiting list. The child still must qualify for an immigrant visa just like any other foreign-born person. For example, the child may be inadmissible if he or she has a contagious disease of public health significance.

When an orphan enters the United States with an immigrant visa, the child is considered to be a lawful permanent resident of the United States, not a U.S. citizen. However, in some situations, a child will automatically become a United States citizen immediately upon admission into the United States as a lawful permanent resident.

SOURCE: FindLaw