LEGAL BRIEF by Atty. Susan V. Perez.

One of the significant changes in immigration law was the incorporation of the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption or the Hague Adoption Convention into the rules for adopting children from a foreign Convention country. The Hague Adoption Covention, which took effect on April 1, 2008, introduced a new procedure for adopted children emigrating to the United States from a country who is a signatory to the Convention. The United States and Philippines are among the 75 countries where Hague Adoption Convention is in force. The new rules do not apply to children coming from countries who are not signatories to the Hague Adoption Convention such as Russian, South Korea, Ethiopia, or when the adoption was finalized before April 1, 2008.

The Hague Convention Adoption governs the case if the prospective adoptive parents are considered habitual residents of the United States and the child is a habitual resident of another Convention Country like the Philippines, and the child will be immigrating to the United States To confirm if the Hague Adoption Convention applies to the case, the attorney must look into the “habitual residency” of the parties involved in the adoption. It is not enough to rely on the citizenship of the prospective adoptive parents, or that of the child, to understand whether the case is a Hague case. Under the regulations, a United States citizen with a domicile in the United States, even if he/she temporarily lives abroad, is considered a habitual resident. If the United States Citizen is not domiciled in the United States, he/she will have to establish that he/she will have a domicile in the United States on or before the child’s admission in the United States as a lawful permanent resident (LPR); or b) he/she will have a domicile in the United States after adopting the child abroad and before the child’s 18th birthday, so that the child may obtain naturalization as a USC. Only then will the United States Citizen be considered a habitual resident of the United States. The child is a habitual resident of his or her country of citizenship.

What if the prospective adopted parents are United States citizen but are domiciled in the Philippines? The Hague Adoption Convention will not apply. They can adopt the child in the Philippines and establish two years physical and legal custody. If the prospective adoptive parents later decide to come back to the United States, they can file an I-130 petition on behalf of the adopted child.

What happens if the child is a citizen of a foreign Convention country but is residing in the United States? On September 29, 2008, U.S. Citizenship and Immigration Services (USCIS) provided guidance on cases like this. USCIS explained that the regulations could be interpreted to permit a finding that a child is no longer a habitual resident of the country of citizenship, and is instead a habitual resident of the United States. In such a case, it will be considered a Non-Hague case and the child may be adopted locally in the United States. Before the case can be considered a Non-Hague case, certain requirements need to be met.

What happens if the adoption was finalized before the Hague Adoption Convention took effect or prior to April 1, 2008? The adoptive parents may pursue the case as an I-130 case and follow the old immigration procedure for petitioning an adopted child. Under such procedure, the adoptive parents must establish two years legal and physical custody before filing the I-130 petition. If the child is an orphan, the adoptive parents may pursue the case as an I-600 case. Only a United States Citizen is eligible to file an orphan petition, provided that the petition is filed prior to the child’s 16th birthday. A child is an orphan: 1) due to the death or disappearance of, abandonment or desertion of, or separation or loss from both parents; or 2) when the sole or surviving parent is incapable of providing proper care for the child and has irrevocably released parental rights to the child in writing for emigration and adoption. If both biological parents are alive but have abandoned the child to an orphanage or other authorized institution of the child’s home country, the child may be considered to be an orphan.

What happens if the case was started before April 1, 2008, and has not been completed when the Hague Adoption Convention took effect? The case may be considered a transition case depending on the facts of the case. The determination whether the case is a transition case can be complicated and it is best to get the advice of an immigration attorney. If the case has not been grandfathered, the prospective adoptive parents have to start the process all over again.

What happens if the prospective adoptive parents obtained custody for emigration purposes and adoption after April 1, 2008? The custody decree must be voided. Otherwise, the I-800 will not be approved. What if the prospective adoptive parents or their relatives obtain temporary custody of the child or provided foster care before April 1, 2008, not for the purpose of adoption. Then, after April 1, 2008, the prospective adoptive parents became U.S. citizens and decided to adopt the child. Will the I-800 be approved? Unfortunately, there is no guidance on this issue. This is only one of the many issues where no guidance has yet been issued by either USCIS or the Department of State (DOS). Inter-country adoption is a complex process and the Hague Adoption Convention is relatively new. We are hoping that USCIS and DOS make liberal interpretation of the regulations so that more children would benefit from the Hague Adoption Convention.

We welcome your feedback. If you have any immigration questions, please feel welcome to email me at or call 619 819 -8648 to arrange for a telephone consultation.

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