Chapter 1 - Purpose and Background

A. Purpose

Each year, thousands of U.S. citizens and lawful permanent residents adopt children from other countries. The adoption or legal custody of a foreign-born child alone does not convey U.S. immigration status to the child or enable the child to travel to the United States. Congress enacted legislation so that eligible foreign-born adoptees can obtain citizenship or lawful immigration status in the United States.

B. Scope

This volume addresses requirements for prospective adoptive parents (PAPs) and adoptive parents to submit immigrant petitions to USCIS on behalf of adopted children so they can obtain lawful immigration status in the United States.

This guidance does not address:

• Other adoption-related requirements, such as those of the child’s country of origin,^[1] state of proposed residence,^[2] or other federal agencies, such as the U.S. Department of State (DOS);^[3]
• The specific requirements for an adopted child to obtain U.S. citizenship;^[4] or
• Requirements for stepparents to file a petition based on the stepparent-stepchild relationship (and not based on an adoptive relationship).^[5]

C. Background

1. Adoption Processes

There are three different ways for a child to immigrate to the United States based on adoption. The laws, regulations, and eligibility requirements that govern immigration based on adoption depend on which of the processes the adoptive parent (petitioner) follows. The processes are:

• Hague Adoption Convention – for children from a country that is party to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption;^[6]
• Orphan (non-Hague) – for children from a country that is not party to the Hague Adoption Convention; and
• Family-based petition – for certain adopted children who have been in the legal custody of and jointly resided with the adoptive parent(s) for at least 2 years.

A child may only immigrate through the family-based process if the child was already adopted.^[7] The orphan and Hague Adoption Convention processes provide the option for a child to immigrate to the United States after an adoption outside of the United States or for the purpose of adoption in the United States. 

2. Federal Agency Roles

Both USCIS and DOS play a role in the intercountry adoption and immigration process.

USCIS Roles

USCIS determines the:

• Eligibility and suitability of the adoptive parents (for the Hague Adoption Convention and orphan processes);
• Eligibility of a child to immigrate to the United States (for all three of the processes); and
• Eligibility of adoptees to receive a certificate of citizenship or to naturalize.

DOS Roles

The roles of DOS in intercountry adoption include the following:

• Serves as the U.S. Central Authority for the Hague Adoption Convention. This role includes monitoring accrediting entities to ensure that adoption service providers perform their functions consistent with the Hague Adoption Convention and the Intercountry Adoption Act.^[8]
• Determines the eligibility of a child to immigrate to the United States for certain orphan petitions filed outside the United States, completes the Determination on Child for Adoption (Form I-604) for certain orphan petitions, and completes the final adjudication of certain Hague Adoption Convention petitions at consular posts.
• Adjudicates visa applications for adopted children to immigrate to the United States.
• Adjudicates applications for U.S. passports.

3. Legislative History

The Displaced Persons Act of 1948 contained the first laws relating to the immigration of foreign-born orphans. In enacting legislation on foreign-born orphans and adoptees, Congress was primarily concerned with the welfare of the children. Since then, Congress has enacted several acts and amendments related to orphans and intercountry adoption. The table below provides an overview of major legislation and international treaties related to intercountry adoption.

D. Legal Authorities

• INA 101(b)(1)(E) – Definition of a child adoptee for family-based process
• INA 101(b)(1)(F) – Definition of a child adoptee for orphan process
• INA 101(b)(1)(G) – Definition of a child adoptee for Hague Adoption Convention process
• INA 201(b)(2)(A)(i) – Immediate relatives
• INA 203(a) – Preference allocation for family-sponsored immigrants
• INA 204 – Procedure for granting immigrant status
• 8 CFR 204.1 – General information about immediate relative and family-sponsored petitions
• 8 CFR 204.2(d) – Petition for a child or son or daughter
• 8 CFR 204.3 - Orphan cases under section 101(b)(1)(F) of the Act (non-Hague cases)
• 8 CFR 204 Subpart C – Intercountry adoption of a Convention adoptee
• 8 CFR 103.2 – Submission and adjudication of benefit requests

Footnotes

[^ 1] For general information on other countries’ requirements, see the U.S. Department of State (DOS)’s Country Information webpage. USCIS has country-specific processing for certain countries. For USCIS country-specific adoption information, see the USCIS Country-Specific Processing webpage.

[^ 2] For general information about state laws, see the Child Welfare Information Gateway’s State Laws Related to Adoption webpage.

[^ 3] For DOS guidance, see the Foreign Affairs Manual.

[^ 4] For guidance on citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F]. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H].

[^ 5] A stepparent is not required to adopt the stepchild in order for USCIS to approve a Petition for Alien Relative (Form I-130) or Refugee/Asylee Relative Petition (Form I-730). For information on filing a Form I-130 based on a non-adoptive relationship, see Form I-130 instructions. For information on filing a Form I-730, see Form I-730 instructions. For guidance on citizenship for stepchildren, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H].

[^ 6] The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption is referred to in this Volume as the Hague Adoption Convention.

[^ 7] The adoption may have occurred in or outside of the United States. Certain restrictions may apply if the child is from a Hague Convention country. See Chapter 2, Adoption Processes [5 USCIS-PM A.2] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) applies, depending on the PAP’s circumstances.

[^ 8] See Pub. L. 106-279 (PDF) (October 6, 2000).

[^ 9] See Pub. L. 80-774 (PDF) (June 25, 1948).

[^ 10] See Pub. L. 87-301 (PDF) (September 26, 1961).

[^ 11] See Pub. L. 89-236 (PDF) (October 3, 1965).

[^ 12] See Pub. L. 106–139 (PDF) (December 7, 1999).

[^ 13] See Pub. L. 106-279 (PDF) (October 6, 2000).

[^ 14] See Pub. L. 111-287 (PDF) (November 30, 2010).

[^ 15] See Pub. L. 112-276 (PDF) (January 14, 2013).

[^ 16] The UAA does not apply to cases that meet certain criteria (for example, UAA-grandfathered cases). See Guidance on the Implementation of the Intercountry Adoption Universal Accreditation Act of 2012 and the Consolidated Appropriations Act, 2014 in Intercountry Adoption Adjudications (PDF, 987.28 KB), PM-602-0103, issued June 30, 2014.

[^ 17] The regulations at 8 CFR 204.3(e) and certain definitions in 8 CFR 204.3(b) no longer apply in orphan cases that are subject to the UAA. See 8 CFR 204.301 for the definitions of adult member of the household, home study preparer, suitability as adoptive parent(s), officer, adoption, and applicant, which includes both a married U.S. citizen and the citizen’s spouse. See 8 CFR 204.311 for home study requirements.

[^ 18] See Pub. L. 113-76 (PDF) (January 17, 2014).