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 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.
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.
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
- 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 & Associates today.