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February 28, 2011: Is Ten Years in the US Enough to Apply For Permanent Residency?

Can This Family Adopt and Petition For This Child?

My family and I have decided to adopt the daughter of a close family friend. They recently had to move back to Mexico because of immigration issues. Their daughter is still in high school and we would like to adopt her so she can stay in the U.S. until she graduates. She entered the U.S with a passport but is not a legal resident. How can we get her a visa and adopt her? Are there any websites or places to receive more information?
— Anonymous

There is a two step process. First, you must legally adopt this person in accordance with the laws of the state in which you reside. It would be wise to contact a family law attorney in your state that specializes in adoptions. Second, you must file an I-130 visa petition on behalf of your adopted child. The caveat in the immigration law is that an adopted child is considered a ‘child’, and thus an ‘immediate relative’, under the immigration laws only where at the time of the adoption, the child is under the age of 16 and has been living in the legal custody of, and has resided with, the adopting parent(s) for at least two years.

Depending on the facts, this child may instead be an orphan under the immigration laws. Generally, an orphan is a child under the immigration laws when a petition is filed while the child is under the age of sixteen, and is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption.

It would be wise to consult with an experienced immigration law attorney and family law attorney before proceeding because the process can be very confusing and must be done properly.

Michael Shane and Evan Shane, Immigration Attorneys

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