Adopting an Orphan Child From a Non-Hague-Convention Country

If you are a U.S. citizen (not a lawful permanent resident), and you are planning to adopt an orphan child from outside the United States and to help get that child U.S. residence and citizenship, get ready for a long, complicated, and expensive process. This article addresses the immigration aspects of the process The adoption process will depend mostly on the country from which you are adopting.

The first thing you must find out is whether the country from which you would like to adopt (or where the child that you have in mind lives) has signed onto the Hague Convention on the Protection of Children. That will affect both the eligibility rules and the immigration process. For a list of participating countries, see the “Convention Countries” page of the U.S. Department of State website. Any country not on the list is not a current participant – but it may still be in the process of joining, which takes some time.

Note: The process for adopting a non-orphan child is different, and is discussed in the article, “Adopting a Child From a Non-Hague-Convention Country.” 

Immigration Eligibility Requirements When Adopting an Orphan From a Non-Hague-Convention Country

In order to adopt an orphan from a non-Hague convention country, both you and the child need to match certain eligibility criteria.

Who Qualifies as an Orphan Child for Immigration Purposes

The child must be under 16 years of age (or under 18, if he or she is being adopted along with a brother or sister under 16), and must truly be an orphan, by meeting any of the following conditions:

• both parents have died or have disappeared
• the sole or surviving parent is incapable of providing the proper child care and has, in writing, released the child for adoption and emigration, or
• both father and mother have abandoned the child, or have become separated or lost from the child—and the legal authorities in the child’s country, recognizing the child as abandoned, have granted legal custody of the child to an orphanage.

Who Can Petition for an Orphan Child

Only U.S. citizens are allowed to file a visa petition for an orphan child. U.S. lawful permanent residents (green card holders) may not do so. A number of other rules also apply.

• If a married couple is adopting, only one of them need be a U.S. citizen (but both have to be age 21 or over and sign the petition).
• If the U.S. citizen is not married, then he or she must be at least 25 years of age before filing the petition. In addition, if the citizen was under 25 when the foreign adoption took place, the adoption will be considered invalid, and the citizen will have to readopt the child after the child reaches the United States (if allowed in his or her state of residence).
• The orphan child must be less than 16 years of age when the petition is filed (or under 18, if the parents are also petitioning for the child’s brother or sister who is under 16).
• The adopting married couple, or single person, must have completed certain pre-adoption requirements, such as a home study, before filing the petition.
• The adopting married couple, or single person, must have seen the child in the orphan’s country before or during the adoption proceedings, or show that they’ll be able to “readopt” the child in the United States.

Application Procedures When Adopting From a Non-Hague-Convention Country

There are two types of orphan immigrant visas that your child may apply for:

• an IR-3 visa classification, for orphans who have met the parents and whose adoptions were completed abroad, and
• an IR-4 classification, for orphans who, although in the legal custody of the U.S. citizen parent or parents, still need to be legally adopted after reaching the United States, or who need to be readopted because the U.S. parents haven’t yet seen the child.

In either case, the application process includes a number of complexities. Because of these complexities, most Americans who adopt from overseas use an agency that specializes in international adoptions. Be selective in choosing an adoption agency— look for one that has been doing adoptions for a number of years, successfully completes a comparatively large number per year, serves the countries in which you’re interested, and will show you evidence that it’s licensed and comes with good references.

Pre-Adoption Requirements – Home Study

To protect the child and to ensure that the adopting parent or parents will care for the child properly, the immigration laws require what’s called a “home study” before an adoption decree is finalized or before a petition for an orphan child will be approved. Many couples take care of this first, as part of an advance processing application, described below.

The purpose of the home study is to allow the state agency handling adoptions to investigate the future home of the child (and any adult living in it) and verify whether the adopting couple, or the single person, is psychologically and economically fit to adopt a child.

In addition to the home study, other pre-adoption conditions may be required by some states.

When the Child Has Not Yet Been Identified

If you are planning to go abroad to locate an orphan child for adoption, or to adopt a child only after he or she arrives in the United States, you should file what’s called an advance processing application. This is done using USCIS Form I-600A, Application for Advance Processing of Orphan Petition. The form must be accompanied by various documents, including proof of the U.S. citizen petitioner and spouse’s U.S. citizenship and marital status; evidence of the petitioner’s age, if unmarried; a favorable home study report; proof of compliance with any state pre-adoption requirements if the adoption is to be completed in the United States, and appropriate fees for fingerprints of the U.S. citizen(s) and for the Form I-600A.

After the advance processing application has been approved by USCIS, you have 18 months in which to locate an orphan child and continue with the application process. If you're not having any luck finding an orphan child within one year, you can ask USCIS for a one-time extension.

When the Child Has Been Identified

When the adopting parent or parents have identified the orphan child they wish to adopt, they can immediately file a petition for the child at the appropriate USCIS Service Center. Or, if the U.S. citizen will go overseas to adopt or locate the orphan, you can file the petition with the U.S. consulate in the country of the child’s residence.

This can be done even if the advance processing application has not yet been approved or has not yet been filed. If the advance processing application has been filed but not approved, include a copy of the filing receipt with the petition. If it has already been approved, include a copy of the approval notice.

You must file all the documents mentioned above (except Form I-600A), and also file USCIS Form I-600, Petition to Classify Orphan as an Immediate Relative; the birth certificate of the orphan child, who must be under 16 years of age when the petition is filed; and the death certificates of the child’s parents or proof of legal abandonment by both the father and mother; plus the adoption decree or evidence that you have legal custody of the orphan and are working toward adoption; as well as the filing fee, unless you’re filing based on an approved I-600A filed within the previous 18 months.

After the Petition Is Approved

Once a visa petition is filed and approved by USCIS in the United States, the entire file is sent to the U.S. consulate in the country in which the child lives. The consular officer then investigates the child, in order to confirm that the child:

• truly meets the legal definition of an orphan, and
• does not have an illness or disability that was not described in the orphan petition.

Filing for a Visa

The next step in the process is for the U.S. consulate in the orphan child’s country of residence to commence immigrant visa processing. (For advice and instructions on this, see “Consular Processing”.)

In addition to the documents ordinarily required for consular processing, you’ll need to bring the child’s final adoption decree or proof of custody from the foreign government.

After receiving an immigrant visa, the orphan child can then enter the United States as a permanent resident. If the child has not yet been adopted in the foreign country, the U.S. citizen or couple can proceed to adopt the child according to the laws of the state in which they live.

The Adopted Child May Gain Automatic U.S. Citizenship

Under the Child Citizenship Act of 2000, orphans who enter on IR-3 visas (meaning the adoption is legally complete before they enter the U.S.) become citizens as soon as they enter the United States, and should receive a citizenship certificate by mail from USCIS within about six weeks.

Orphans who enter the U.S. on IR-4 visas will become U.S. citizens as soon as their adoptions are complete. To obtain proof of their citizenship, the parents will need to apply to their local USCIS office, using Form N-643K.

Getting Legal Help

This is a highly complex process, and can become especially so if the country for which you wish to adopt has developed a reputation for inappropriate behavior in the matter of international adoptions. Your best bet is to get the help of an experienced immigration lawyer and adoption agency.