Chapter 5 - Qualifying Adoptive or Custodial Relationship

A prospective adoptive parent (PAP) must have one of the following to petition for a child to immigrate based on an adoption:

• A final adoption granted by the foreign-sending country, or

• Legal custody of the child granted by the foreign-sending country for emigration and adoption in the United States.^[1]

A. Final Adoption

A child may qualify to immigrate based on a final adoption if:

• The adoption meets USCIS requirements for a final adoption (is valid under the law of the foreign-sending country, creates a legal permanent parent-child relationship, and terminates the prior legal parent-child relationship);^[2]

• The petitioner (and spouse, if married) adopted the child; and

• The petitioner (or spouse, if married) personally saw and observed the child before or during the adoption proceedings abroad.

If these requirements are met, the child may qualify for an IR-3 visa (child adopted outside the United States by U.S. citizen)^[3] based on a valid final adoption in accordance with the laws of the foreign-sending country. USCIS considers a final adoption that meets these requirements a “full and final” adoption.

A child does not, however, meet requirements to immigrate based on a “full and final” adoption if the petitioner is married and neither the petitioner nor the spouse actually saw and observed the child before or during the adoption proceedings.^[4] Additionally, a child does not meet the requirements if only one parent of a married couple adopted the child. USCIS may, however, consider the final foreign adoption to have established legal custody for emigration and adoption and the child may be eligible for an IR-4 visa (child to be adopted in the United States by U.S. citizen).^[5]

B. Legal Custody for Emigration and Adoption

Not all countries grant what USCIS considers final adoptions abroad for immigration purposes.^[6] A child may, however, be eligible on the basis of legal custody for the purpose of emigration and adoption if the following criteria are met: 

• The PAP secured legal custody in accordance with the laws of the foreign-sending country;

• The person, organization, or competent authority that has legal custody or control over the child irrevocably released the child for emigration and adoption;

• The PAP is in compliance with all state pre-adoption requirements, if any; and

• If there was an adoption outside the United States that did not meet the requirements for a “full and final” adoption for U.S. immigration purposes, the child’s proposed state of residence allows re-adoption or provides for judicial recognition of the foreign adoption.

If the child meets these requirements, the child may qualify for an IR-4 visa to come to the United States for adoption.^[7]

Footnotes

[^ 1] Some countries will not allow a child to emigrate without a final adoption decree. To determine the specific laws of a foreign-sending country, see the U.S. Department of State’s Country Information webpage.

[^ 2] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].

[^ 3] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child adopted abroad by a U.S. citizen.

[^ 4] An adoption in which neither adoptive parent actually saw and observed the child before or during the adoption is known as a proxy adoption. If the laws of the foreign-sending country allow proxy adoptions, U.S. citizen petitioners may complete an adoption abroad without ever traveling to a foreign-sending country or meeting the child before the child's entry into the United States. This type of adoption may be fully valid in the United States as a matter of domestic relations law, however, a child adopted through this process is not eligible to immigrate under the basis of a “full and final” adoption and receive an IR-3 visa. Instead, a child with a final adoption order that is not considered “full and final” may be eligible to immigrate and receive an IR-4 visa.

[^ 5] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child coming to be adopted in the United States by a U.S. citizen.

[^ 6] For example, guardianships, simple adoptions, or Kafala orders in countries that follow traditional Islamic law may not qualify as final adoptions abroad. Such guardianship, Kafala, or other custody orders may, however, be sufficient to establish that the PAPs have secured legal custody of the child. See 8 CFR 204.3(d)(1)(iv)(B)(1). If the legal custody is for emigration and adoption and all other requirements are met, such an order could support approval of an orphan petition. 

[^ 7] For information 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]. A U.S. adoptive parent needs to take additional steps to secure U.S. citizenship for a child entering with an IH-4 visa because the adoption of the child has to be finalized in the United States or recognized under state law, unlike in cases of children entering with IH-3 visas on the basis of “full and final” adoptions.