On June 3, 2013 the final ruling came into force and now U.S. parents can file an immediate relative petition for the biological sibling of a child already adopted (or to be adopted) by the same U.S. citizen parents, further enhancing the capacity of inter-country adoption.
In order to receive a visa for the natural sibling of the child that you already adopted, s/he needs to be younger than 18 years of age or attained the age of 18 on or after April 1, 2008 if the petition was filed for such child on or before November 30, 2012.
Inter-Country Adoption
Inter-country adoption is dictated not only by U.S. adoption laws, but also by the laws of the country in which the child currently lives. There are different procedures that must be followed depending on whether or not the adoption is a Hague Convention adoption. This particular amendment to U.S. immigration laws only deals with Hague Convention adoptions. The Hague Convention is a treaty that was entered into by over 75 countries, making the adoption process more streamlined between countries on this list.
Immigration Rules for Adopted Children
Many countries have different adoption laws than the adoption laws in the United States. For example, a child may be eligible for adoption in another country, but not eligible for adoption and citizenship into the U.S. Before you enter into the process of adoption in another country, make sure that the U.S. will actually process that adoption and recognize it.
Convention Adoptee
In order for an adoption to be considered a Hague Convention adoption, the child must meet five major criteria. If any of the following conditions are not met, then the adoption cannot be considered a Convention adoption.
- At the time the I-800 form is filed, the child to be adopted is under 16 years old, not married and resides in a Hague Convention country (see list of Hague Convention countries).
- The adoptive parent(s) of the child must be: a) U.S. citizen and spouse filing jointly, b) An unmarried individual who is at least 25 years old. The adoptive parent(s) must also "habitually reside" in the U.S. and receive approval from the U.S. Citizenship and Immigration Services via an I-800A form.
- The adoptee's current parents or legal guardians must provide their written and final consent that their legal responsibility to the child will be terminated. The child's current legal guardians must also consent to the adoptee's emigration to the U.S.
- The adoptee, if they have two living birthparents, and those birthparents were the last legal custodians of the child, they must be determined as incapable of properly raising and providing for the child.
- The adoptee must be adopted into the U.S. (or another Convention country) and that adoption must comply with all the rules and procedures laid out in the IAA. Fraud, misrepresentation and other illegal acts will disqualify a Convention adoption.
Visa Requirement
An adoptive child from another country needs a visa to come to the United States. To receive a visa, children in Convention countries must meet the definition of a Convention adoptee and the relevant regulations are now amended to include a new adoption provision from the International Adoption Simplification Act.
According to the U.S. Citizenship and Immigration Services (USCIS),
The International Adoption Simplification Act of 2010, Public Law 111-287, amended section 101(b)(1)(G) of the Immigration and Nationality Act to allow the birth sibling of an adopted child to qualify as a Hague Convention adoptee after the birth sibling’s 16th birthday, but prior to the birth sibling’s 18th birthday. After November 30, 2010, a Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative may be filed, in accordance with form filing instructions, if:
- The child's country of origin is a recognized Hague Convention country and cooperates with inter-country adoptions.
- The child's birth sibling is a foreign national who has already immigrated to the U.S. due to adoption by the same adoptive parent(s).
- The I-800 form must be filed before three things expire: 1) Notice of approval or extension, 2) Application for Determination of Suitability to Adopt a Child, and 3) The child turns 18.
Before you file an I-800 form, you must already possess an approved Form I-800A. If this form has already expired or you never filed for one, then you will have to re-file or file before you can file the I-800 Form. There is a fee included with the I-800A filing.
Special Instructions for a Sibling Child who Turned 18 on or after April 1, 2008
If you wish to adopt a child who is a sibling, but that child turned 18 on or after April 1, 2008, then there are different rules for filing according to The International Adoption Simplification Act of 2010. There are six requirements for this type of filing:
- The child must have turned 18 either on April 1, 2008 or any time after this date.
- The person(s) making this petition must have already adopted or plan to adopt the child.
- The child's country of origin is Party to the Hague Convention and otherwise complies with inter-country adoptions.
- The child must be a birth sibling of a foreign national who either was already adopted and emigrated to the U.S. by the same adoptive parent(s).
- The individual petitioning for adoption must have already filled out and received approval for their Form I-800A before the Form I-800.
If you have questions about the new inter-country adoption and immigration rules, please do not hesitate to contact a New York immigration attorney at Musa-Obregon Law PC today.