Intercountry adoption is the process by which a child born in one country is adopted by an individual living in another country. There are several ways by which intercountry adoption may be done under U.S. immigration law.
The first is called the Hague process because it proceeds under Hague Adoption Convention, an international agreement that aims to prevent child abduction and trafficking and ensures that intercountry adoptions are made in the best interests of children and with respect to their fundamental rights.
Beginning April 1, 2008, the date the Convention entered into force in the U.S., adoptions between the U.S. and another Convention country must follow the Hague process for intercountry adoptions. There are currently 89 countries including the Philippines that are parties to the Convention.
The Hague process must be used if both the prospective adopting parent and the child are habitual residents of Convention countries. The adopting parent is a habitual resident of the U.S. if he has a domicile in the U.S., even if he is temporarily living abroad. A child’s habitual residence is generally his country of citizenship.
Only U.S. citizens may adopt under the Hague process. If the adopting parent is married, the spouse must adopt the child jointly. An unmarried U.S. citizen may adopt as long as he is at least 25 years old.
A Hague adoption begins with a home study by an accredited agency whereby the prospective adoptive parents, their family and home environment are studied to determine their suitability to adopt a child.
The adopting parents must then file a Form I-800A application with the USCIS to establish their eligibility and suitability to adopt. If approved, the I-800A approval notice, home study and other supporting documents are forwarded to the Central Authority (CA) of the country from which the parents are planning to adopt.
The CA then refers a child to the adopting parents. They are provided with the child’s medical background along with the necessary consents and the CA’s determination that the child is eligible for adoption, that the intercountry adoption is in the child’s best interests, that the child has freely consented to the adoption in writing, and that no payment has been given to obtain the necessary consents. Note that under the Hague process, adopting parents are “matched” to a child and they generally may not identify a child for adoption.
The adopting parents are then given some time to decide whether to accept the referral. If they accept it, they must file Form I-800 with the USCIS to qualify the child as a Convention adoptee eligible to immigrate to the U.S. on the basis of the proposed adoption. The I-800A must be filed before the child’s 16th birthday.
After provisional approval by the USCIS, the petition will be forwarded to the proper consular post where the adopting parents will file a visa application for the child. If the consular post finds that the child is not ineligible for an immigrant visa and that no inadmissibility grounds apply, it will notify the CA that the prospective adopting parents may proceed with the adoption.
It is only at this point that the prospective adopting parents can adopt the child or obtain legal custody of the child. After the adoption, the adoptive parents will then bring the adoption decree, the child’s new birth certificate and passport, and medical examination results to the consular post which will certify the case as “Hague compliant” and finally issue an immigrant visa for the child.
Adoptions from countries that are not on the list of Convention countries must use a non-Hague process. This means that the child being adopted must meet the definition of a “child” or “orphan” under the Immigration and Nationality Act.
Adoptions to which the Hague Convention does not apply must follow the orphan process. An “orphan” is a child who does not have any parents because of the death or disappearance of or abandonment or desertion by, or separation or loss from, both of the child’s parents, or if the child has a sole parent who is unable to care for the child and who has irrevocably released in writing the child for emigration and adoption. The orphan process has many similarities with the Hague process.
The third process is the family-based petition route. An adopted child would be considered a “child” for immigration purposes if the adoption took place before the child turned 16 and the adopting parent had legal and physical custody of the child for at least two years. In such a case, the adopting parent may file an immigrant visa petition for the child to bring him or her to the U.S. The adopting parent could either be a U.S. citizen or a lawful permanent resident (LPR) if the adoption was finalized before the parent became an LPR.