Lawful Permanent Residence and Citizenship for the Adopted Foreign Child
| Publication year | 1986 |
| Pages | 2207 |
1986, December, Pg. 2207. Lawful Permanent Residence and Citizenship for the Adopted Foreign Child
In recent years, adoption of foreign children has become a common occurrence. Adoption must conform to the substantive and procedural requirements of international and constitutional law, as well as the statutes, regulations, customs and discretion of foreign countries, the Immigration and Naturalization Service ("INS"), the consular branch of the Department of State, state and local governments and state licensed adoption agencies. The INS has adopted rigid standards of administration with a twofold purpose of preventing baby buying and deferring manipulation of the legal status of adoption to circumvent immigration restrictions. These standards often conflict with domestic adoption practice which is primarily concerned with the best interests of the child.
The purpose of this article is to provide guidance to obtaining benefits under the Immigration and Nationality Act ("INA")(fn1) for an adopted foreign child. Practitioners are encouraged to become familiar with the complex legal issues involved before their clients become emotionally committed to the adoption of a foreign child.
There are two separate procedures for obtaining lawful permanent residence for a foreign child who has been or will be adopted: the I-130 Petition for Alien Relative ("I-130 petition") and the I-600 Petition to Classify Orphan as an Immediate Relative ("I-600 petition"). The procedures for adopting foreign children under these two petitions are discussed fully below.
Immigration benefits will inure to an adopted child to the same extent as any other child. As defined by the INA, "child" includes legitimate children and certain illegitimate, step- and adopted children.
The I-130 petition is the first step in the process of obtaining lawful permanent residence for a relative.(fn2) An I-130 petition may be filed by a U.S. citizen or by a lawful permanent resident. The INS office with jurisdiction usually is the place where the petitioner resides.(fn3) As in all other visa petition proceedings, the burden of proof to establish eligibility for the immigration benefit sought rests with the petitioner.(fn4)
The petition must be accompanied by a filing fee and documentation of the petitioner's citizenship or lawful permanent residence(fn5) and a certified copy of the adoption decree.(fn6) Accompanying documents must be submitted in the original unless certified by an attorney, and foreign documents must be accompanied by an English translation certified by the translator.(fn7)
The petition also must be supported by documentation sufficient to show that the beneficiary meets the INA definition of "child." The definition restricts benefits to those children who were adopted under the age of sixteen and have been in the legal custody of and have resided with the adoptive parents for two years.(fn8)
The restriction that a child must be adopted before the age of sixteen is strictly construed by the INS despite substantial evidence that the child clearly has been part of the family for many years.(fn9) Moreover, the act of adoption is the official act creating the legal status. Attempted retroactive effect of an adoption decree to an earlier date is not recognized by the INS.(fn10)
The validity of the adoption is determined by reference to the domestic law of the jurisdiction in which the adoption took place. If the adoption took place abroad, the petitioner has the burden to prove applicable foreign law.(fn11) As with the age limitation, the requirement that the adoption conform to the requirements of the applicable jurisdiction may have harsh results even though the bona fides
of the family relationship are unquestionable.
In most administrative cases, adoptions which are void have not been distinguished from those which are voidable. Nevertheless, an adoption decree which was not entered in conformity with the written law should be recognized for purposes of the INA, if the petitioner can establish that the adoption is valid in the jurisdiction which entered the decree, unless revoked by judicial action within a specific time period and that period has lapsed without the required action.(fn12)
It is not necessary for an adoption to be recognized by a judicial act to be valid for immigration purposes.(fn13) An adoption by social or religious custom will be recognized if it is established that such customary adoptions are legally recognized in the jurisdiction where the adoption took place.(fn14)
The child must have been in the legal custody of the petitioning parent(fn15) and have resided with the parent for at least two years.(fn16) The residence can be with only one adopting parent,(fn17) but periodic visits to the child while still living in the biological parents' home are insufficient.(fn18)
Upon favorable adjudication of the I-130 petition, application must be made on the child's behalf at a consulate abroad for an immigrant visa.(fn19) The INS will forward notification of approval to the consulate and the consulate will contact the individual acting on behalf of the child to initiate the application process.(fn20) When a visa is available, the child must appear for an interview and, if eligible, the child will be granted an immigrant visa at that time. The child must enter the U.S. within four months; upon entry the child becomes a lawful permanent resident of the U.S.(fn21)
Denial of the I-130 petition may be appealed to the Board of Immigration Appeals.(fn22) An adoption valid in every respect may not be disregarded by the INS solely because its legal formalization facilitates immigration.(fn23)
Since World War II, there have been a number of humanitarian...
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