In a previous guide, we discussed the I-485 process for children and stepchildren either seeking a visa to enter the United States or for children already residing in the United States and looking to adjust their status. The INA definition for a child is someone who is unmarried and under the age of 21, and this applies for any adjustment of status of an individual who wishes to fit into this category.
However, there is a different procedure for children adopted by a U.S. citizen, and the process must abide by the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption—for children whose country is a party to the Convention.
How does the Convention work?
For those who aren’t familiar, the Convention states that countries who are party to it establish a central authority to be the source of information and point of contact in that country. For example, in the U.S. the State Department is the central authority for matters of adoption. It could be a different central source for other countries depending on how they conduct their international affairs.
The Convention (and the countries that have signed onto it) must recognize that adoption is a means of offering a permanent home to a child and is advantageous in finding such an individual a suitable place to live. The Convention also enables inter-country adoption to take place when:
1. The child has been deemed eligible for adoption by the child’s country of origin
2. Due consideration has already taken place when it comes to finding an adoption placement in their country of origin.
The other condition of the convention that is critical is that any adoption service, and fees accrued from such an agency or organization, must first be recognized at the federal level in the country of origin where the child is living. For more information as it applies to the rules of the Convention, please see the State Department’s helpful link, here.
Can an adopted child in the U.S. receive a green card?
Given that the child has been adopted, the now legal parents have gone through an extensive process of filing the Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, and Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, for Convention adoption cases.
Both forms must be filed with the USCIS, and upon approval and depending on the case, two visa categories, IH-3 and IH-4 are possible for the child’s immigration to the United States.
Once this has happened, the visa holding child, or perhaps adult, may file to adjust their status in the United States and receive a green card.
Rules for adjusting status
If the adopted child is unmarried, under the age of 21, was adopted before the age of 16, has lived with his adoptive parents for two years, and has been under the custody of his adoptive parents for two years, an adoptive parent can file an I-130 petition on behalf of their legal child, and the adopted child can file an I-485 at the same time to keep the process consistent.
If the adopted child is no longer a child and is over the age of 21, the adopted parents will still need to file an I-130 petition, but instead of filing at the same time, the USCIS will need to process the petition first, and see if a visa number is available, at which point the adopted individual can then file a separate adjustment of status I-485 application.
If the adoptee is married and is over the age of 21, the adoptive parents may still file an I-130 on behalf of their legal son/daughter. At this time, the adoptee must wait for the immigrant visa number for his country to become available before he/she may file an I-485 application. During this waiting period, the adoptee also needs to independently maintain valid nonimmigrant status.