Sponsorship issues relating to adopted children and orphans
The process of obtaining lawful permanent resident status for an adopted child or orphan is not an automatic process. The adoption process can be long and tedious but once an adoption is finalized, then the immigration process begins.
In order for an adopted child or orphan to gain entry into the United States or/and lawful permanent residence status in the United States, various requirements must be met, such as residency, legal custody, and age when adoption is finalized.
In order for an adopted child to be approved for lawful permanent resident status in the United States, the adoption must be final before age 16, the child must reside with adoptive parents for two years and must have been in the legal custody of the adoptive parents for two years.
The U.S. Immigration authorities will require evidence to prove that the adopted child resided with the adoptive parent. Such evidence may include school records, tax return records, medical records, photos and notarized affidavits.
In addition, the adoption decree must be final before the adopted child reaches age 16. If the adoption was filed before the adopted child was age 16 but became final after the adopted child turned age 16, then the adoption cannot be used to establish a parent-child relationship for U.S. Immigration benefits.
Once an adoption is final, the adopted child cannot obtain immigration benefits from his/her natural parents and the adopted child cannot petition for his natural parents or siblings. The adopted child can only obtain immigration benefits through its adoptive parents and vice-versa.
A different set of immigration rules apply to orphans that are adopted and seek entry or lawful permanent resident status in the United States. An orphan is a child that has been abandoned by reason of death, disappearance, abandonment and/or desertion, separation or loss of both parents. Orphans do not have the two-year legal custody and residency requirement. Thereby, an adoptive parent can file an immigration petition for the benefit of an adopted and does not have to reside with the child for two years. However, the adoption must be final before the orphan reaches age 16.
A child in the U.S. either illegally or as a nonimmigrant is ineligible for the benefits of an orphan petition. In this case, the child can be adopted by his/her adoptive parents but would have to meet the two-year residency requirement before becoming eligible to apply for lawful permanent resident status in the United States.
The distinction between an adopted child and orphan can be complex and not meeting the requirements may lead to a denied immigration petition. It is recommended to seek the legal advice of an immigration attorney when filing for such immigration benefits.
Gail S. Seeram, LL.M, J.D., BBA, is a U.S. Immigration Attorney that handles cases involving family petitions, marriage-based petitions, business/investor visas, citizenship, international adoption, deportation, asylum, work authorization and extension of status. Call her office at 407-292-7730, email questions to Gail@Go2Lawyer.com, visit her website at www.Go2Lawyer.com or connect on facebook at www.facebook.com/Go2Lawyer.