April 13, 2009: Adoption of a Non-immigrant Child

Adoption of a Non-Immigrant Child

My friend’s niece came to the US about a year ago on a sponsored student visa and is visiting a private school. She is 15 years old and was sponsored by my friend. However, my friend is unable to further cover for her tuition and expenses and believes, if she is not able to find another option before she turns 16, she has to go back to her country. I am looking to adopt her so she can stay permanently in the US with me and my husband. I would like to see, if that is even possible and what requirements are there to comply with the necessary immigration laws as well as the adoption statutes.
— Anonymous

The Immigration and Nationality Act (INA) sets forth very specific requirements and procedures for United States citizens and lawful permanent residents to adopt a foreign national child. Because this area of immigration law can be cumbersome and confusing and is fact intensive, your question can only be answered in general terms. There are some very important prerequisites.

The adoption must be legally valid in the country or state where it occurred. The adoption must occur before the child turns sixteen years old. Pursuant to the INA, a child is considered to be an “adopted child” if the adoption occurs before the child turns sixteen and that child has been in the legal custody of, and resided with, one or both of the adopting parents for at least two years. The two year legal custody rule may be satisfied either before or after the adoption. Also, the Petitioner must show that the beneficiary resided with the petitioner for two years, which may occur before or after the adoption. If a child falls within the INA definition of an “adopted child”, then the United States citizen or lawful permanent resident adoptive parent may file an I-130 petition on behalf of the child as an adopted child. A case for a properly adopted child will be treated just like a case for a biological child. If the parent who files the I-130 petition is a United States citizen, then the child may file an adjustment of status application (Form I-485) and an employment authorization application (Form I-765) concurrently with the I-130 petition. It is important to note that the I-130 petition does not need to be filed before the child turns sixteen years old for the child to benefit from the adoption.

It would be wise for you to consult with an experienced immigration attorney before filing any adoption and immigration paperwork because it is very technical and must be done correctly within the statutory requirements.

Michael Shane and Evan Shane, Immigration Attorneys