Chapter 1 - Purpose and Background

A. Purpose

The family-based petition process is one of the three processes for a beneficiary to immigrate to the United States based on adoption.^[1] Unlike the Hague Adoption Convention^[2] or orphan processes, eligibility for the family-based process generally requires the adoptee beneficiary to have been in the legal custody of and jointly resided with the adoptive parent for at least 2 years (amongst other requirements),^[3] and it does not require a USCIS determination of the adoptive parent’s suitability.  

There are certain restrictions for U.S. citizens on using the family-based petition process for an adoptee beneficiary from a Hague Adoption Convention country. USCIS can only approve a family-based petition filed by a U.S. citizen for an adoptee beneficiary from a Hague Adoption Convention country under limited circumstances.^[4]

B. Background

The family-based petition process describes the process by which a U.S. citizen or lawful permanent resident (LPR) petitions for an adopted child, son, or daughter. The petition process establishes the petitioner’s^[5] relationship to an adopted child, son, or daughter so that the adoptee beneficiary can apply to become an LPR.^[6]

Filing a family-based petition^[7] is the first step for an adopted child, son, or daughter to become an LPR. The filing or approval of the petition does not give the adoptee beneficiary any immigration status or benefit. Generally, if the petition is approved, the adoptee beneficiary will need to take additional steps to become an LPR.

C. Scope

This Part discusses the requirements for a qualifying family member to file a Petition for Alien Relative (Form I-130) on behalf of an adoptee beneficiary.  

This Policy Manual does not address other adoption-related requirements, such as those of the adoptee beneficiary’s country of origin,^[8] state of proposed residence,^[9] or other federal agencies, such as the U.S. Department of State.^[10]

Additionally, this Part does not discuss how to obtain U.S. citizenship for an adoptee beneficiary.^[11]

D. Legal Authorities

• INA 101(b)(1)(E) – Definition of an adopted child

• 8 CFR 204.1 – General information about immediate relative and family-sponsored petitions

• 8 CFR 204.2 – Petitions for relatives, widows and widowers, and abused spouses and children

• 8 CFR 204.303 – Determination of habitual residence

Footnotes

[^ 1] See Part A, Adoptions Overview [5 USCIS-PM A] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) applies.

[^ 2] The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (PDF) is referred to as the Hague Adoption Convention.

[^ 3] See INA 101(b)(1)(E).

[^ 4] For general information on when a U.S. citizen can file a family-based petition for a child from a Hague Adoption Convention country, see Part A, Overview and Guiding Principles [5 USCIS-PM A]. For information on how restrictions apply if the child is physically present in the United States, see Chapter 3, Hague Restrictions on Family-Based Petitions [5 USCIS-PM E.3].

[^ 5] Petitioner refers to the petitioning adoptive parent in this Part.

[^ 6] A person can apply for lawful permanent residence through either consular processing outside of the United States or adjustment of status within the United States. See Volume 7, Adjustment of Status [7 USCIS-PM]. Additional eligibility requirements apply to applicants seeking adjustment as opposed to consular processing.

[^ 7] See Petition for Alien Relative (Form I-130).

[^ 8] For general information on other countries’ requirements, see the U.S. Department of State (DOS)’s Country Information webpage.

[^ 9] See the Child Welfare Information Gateway’s State Laws Related to Adoption webpage.

[^ 10] For DOS guidance, see their Foreign Affairs Manual.

[^ 11] For information on acquisition of citizenship for the adopted children of a U.S. citizen, 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]. For information on naturalization, see Volume 12, Citizenship and Naturalization [12 USCIS-PM].