Chapter 3 - Required Order of Immigration and Adoption Steps
A. General
The prospective adoptive parent (PAP) must follow the adoption and U.S. immigration process in a specific order. Specifically, a PAP should not adopt or obtain legal custody of a child for purposes of emigration and adoption before completing certain steps in the Hague Adoption Convention process.[1] The table below highlights some of the key determinations and when they must be made in the process.
| Step | Required Documentation |
|---|---|
| Before a placement is made | The receiving country (the United States) must determine that the PAP is suitable and eligible to adopt a foreign-born child; and the sending country must determine that the child is eligible for intercountry adoption. |
| Before the adoption or legal custody order is obtained | The receiving country must determine that the child appears eligible as a Hague Convention adoptee and notify the sending country that the adoption may proceed.[2] |
| Before a visa is issued | The receiving country and sending country must determine that the adoption, or custody for purposes of emigration and adoption, was completed in compliance with the Hague Adoption Convention. |
B. Out-of-Order Adoption or Legal Custody Order
If the PAP adopts or obtains legal custody of the child out of order, before the required immigration processing steps take place, USCIS considers the adoption or custody order to be premature. If the PAP obtained an adoption or custody order prematurely, the petition[3] must generally be denied.[4] USCIS considers an adoption or custody order to be premature when the PAP adopted the child, or obtained custody for purposes of adoption, before USCIS provisionally approved the petition.
The PAP must show that an order obtained prematurely was voided, vacated, annulled, or otherwise terminated, in order for USCIS to provisionally approve a petition.[5] USCIS may provisionally approve the petition if the PAP can establish that an order obtained prematurely was terminated[6] (no longer in effect) at the time of filing the petition.
Additional Evidence
If the PAP obtained an order prematurely, the officer should send a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) asking the PAP to submit:
-
A copy of the applicable law governing the termination of adoption and custody orders, as well as a certified English translation of that law; and
-
Evidence showing the following:
-
The order is no longer in effect, as demonstrated by an order from a competent authority terminating the adoption or custody order; or
-
Why the order cannot be terminated (order is still in effect) and why the PAP did not follow the proper sequence.
-
The PAP may demonstrate the order cannot be terminated by providing both:
-
A statement from the Central Authority of the sending country indicating that, under the law of that country, the petitioner is not able to obtain an order terminating the adoption or custody order; and
-
A statement from the PAP, signed under penalty of perjury under U.S. law, explaining why, despite the clearly stated requirements[7] and the warnings on the form instructions,[8] the PAP obtained the adoption or custody order before receiving provisional approval of the (immigration) petition.
If the PAP submits evidence that the order obtained prematurely was terminated, the officer may provisionally approve[9] the petition, if it is otherwise approvable.
Some countries may not have readily available legal mechanisms for terminating adoption or custody orders. If the PAP’s response establishes that the PAP is not able to obtain an order terminating the adoption or custody order obtained prematurely, USCIS considers the evidence of record and adjudicates the petition in light of the fact that the adoption or custody order appears to have been obtained without compliance with the Hague Adoption Convention requirements and related U.S. laws[10] and regulations.
The officer must deny the petition if the evidence of record establishes that the PAP knowingly obtained the adoption or custody order before filing the petition with the specific intent to circumvent the Convention’s requirements, U.S. immigration laws, and the implementing regulations.[11]
Footnotes
[^ 1] See Articles 4, 5, 16, 17, and 23 of the Hague Adoption Convention (PDF).
[^ 2] See Articles 5 and 17 of the Hague Adoption Convention (PDF).
[^ 3] See Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 4] See 8 CFR 204.309(b)(1).
[^ 5] See 8 CFR 204.309(b)(1).
[^ 6] For purposes of this section, the terms terminated, terminating, and termination all refer to adoption or custody orders that are voided, vacated, annulled, or otherwise terminated under the law of the child’s country of habitual residence.
[^ 7] See 8 CFR 204.309(b)(2).
[^ 8] See instructions for Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) and Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 9] USCIS may only deem the premature order voiding requirement at 8 CFR 204.309(b)(1) to be met for purposes of provisional approval.
[^ 10] See Section 301(b) of the Intercountry Adoption Act, Pub. L. 106-279 (PDF), 114 Stat. 825, 837 (October 6, 2000).