(We are reprinting with permission the article/column of Atty Susan V. Perez which regularly appears on the Asian Journal, a publication based in San Diego, California, USA)
Orphan Adoption under the Hague Convention by Atty. Susan V. Perez
Family relationships serve as a basis to apply for legal permanent residence status. I became a legal permanent resident through my father. I was a child when my father filed a petition on my behalf. I waited for ten years before my visa finally arrived. By then, I was already an adult but still single. Child is defined as unmarried and under 21 years old. It includes adopted children but adoption must have occurred before the 16th birthday except if you are adopting a sibling of an adopted child. In this case, 18 years is the age limit. It doesn’t matter if the first child adopted was the 18 years old. If you adopt a natural sibling whose age is below 16 the 18 year-old can still be petition.
For adopted children, the law requires two years physical and legal custody. Most U.S. citizens who wish to adopt children from the Philippines are unable to comply with the two-year physical custody requirement because they have jobs in the U.S. which they would lose if they stay in the Philippines for an extended period of time. The two-year legal custody requirement is easier to comply. They just need to wait for two years from the time the decree of adoption is issued. In case of orphan adoption, there is no need for two years physical and legal custody. A child is considered an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or if the sole or surviving parent is incapable of providing the child with proper care and irrevocably releases the child for emigration and adoption. In orphan adoptions, the petitioner must be a U.S. citizen. If married, the spouse must join the petition. If the petitioner is single, he or she must be at least 25 years old.
The immigration process of an orphan child adopted from the Philippines must comply with the procedures under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention). The Hague Adoption Convention is an international treaty to safeguard intercountry adoptions and applies to countries who joined the treaty such as the United States and the Philippines. The first step is to find an accredited adoption service provider which will conduct the home study of the adopting parent. A list of these provides can be found in the State Department website. The second step is to file the I-800A, Application for Determination of Suitability to Adopt a Child form a Convention Country, along with the home study and other documents with the United States Citizenship and Immigration Services (USCIS). Once the I-800A is approved, the I-800, Petition to Classify Convention Adoptee as Immediate Relative must be filed. USCIS will review the I-800 to determine if the child qualifies as a Convention adoptee. .
As soon as Form I-800 is provisionally approved, it will be forwarded to the visa issuing post for final approval. The petitioner will be contacted by the National Visa Center that the papers have been forwarded to U.S. consulate or embassy abroad. The consulate or embassy will then contact the petitioner with instructions for the next step and documents needed. Among the documents needed for the initial interview are: DS-230 parts 1 and 2, child’s birth certificate, pictures and passport of the child, and results of physical exam of the child.
The petitioner should not adopt or obtain custody of the child until the consulate or embassy issues the Article 5 letter. After the petitioner receives the Article 5 letter, only then should he or she files the adoption or obtain custody of the child. After the adoption decree is submitted to the consulate or embassy, the petitioner will be contacted for interview.
The consular officer will review the I-800 for approval. One ground for denial of the I-800 is when the petitioner completed the adoption of the child or acquired legal custody of the child before the provisional approval of Form I-800. Another ground for denial of the I-800 is when the petitioner or any adult member of the household had met with, or had any other form of contact with, the child’s parents or legal custodian unless the contact is permitted by law. Contact is permitted if: 1) the first contact occurred after USCIS had approved the Form I-800A and after the competent authority of the Convention country had determined that the child is eligible for intercountry adoption and that the required consents to the adoption have been given; or 2) the competent authority of the Convention country had permitted earlier contact; or 3) the petitioner was already before the adoption, the father , mother, son, daughter, brother, sister, uncle, first cousin, second cousin, nephew, niece, husband, former husband, wife, former wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother or half-sister of the child’s parent(s).
At the final interview, the consular officer will approve or deny the I-800. If approved, a U.S. visa will be issued to the adoptee. The IH-3 visa is issued to the child who was adopted in the home country and the child becomes a U.S. citizen as soon as he or she entered the United States as long as he or she is under 18 years old. The IH-4 visa is issued to the child who will be adopted in the United States. They do not automatically become U.S. citizens upon entry to the United States. They are legal permanent residents until the adoption becomes final.
We welcome your feedback. If you have any immigration questions, please feel welcome to email me at email@example.com or contact us at 619 819 -8648 to arrange for a telephone consultation.
*Susan V. Perez, Esq. is a licensed attorney in California and the Philippines.