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How Expat Adoptive Parents Can Secure U.S. Citizenship for their Adopted Child

March 29, 2022

Kelly Dempsey, Dempsey Law, PLLC

Adoptive Parents

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How Expat Adoptive Parents Can Secure U.S. Citizenship for their Adopted Child

Ensuring U.S. citizenship for their adopted child can be a daunting task for expat parents. Essentially, there are three ways that a foreign-born child can obtain U.S. citizenship following adoption by U.S. citizen parents living abroad:

1) Orphan status
2) Hague Convention Adoptee status
3) Immediate Relative status

Determining which of these options may apply in any given adoption is the most critical first step in any adoption-based immigration plan. When in doubt, an experienced immigration attorney can help a family determine the right path for them.

To obtain orphan status, the U.S. citizen parent(s) must apply to USCIS using Form I-600.  This path is only available in countries that are not a party to the Hague Convention on Intercountry Adoption. Orphan status requires the family to prove that the child qualifies as an orphan under US immigration law and that the U.S. citizen parents have engaged a Hague-accredited U.S. adoption service provider for their adoption. For many expat families, both requirements can be too onerous for this option to be viable. For example, if the child was placed with the U.S. citizen parents by the child’s birth parents, the child cannot be an orphan as direct placements are prohibited. It can also be difficult to find a licensed and approved home study provider to complete the required home study for U.S. immigration when a family lives abroad.

To obtain Hague Convention adoptee status, the U.S. citizen parents must apply to USCIS using Form I-800. This path is only available in countries that are a party to the Hague Convention on Intercountry Adoption. Like orphan status, Hague Convention Adoptee status requires the family to prove that the child qualifies as a Hague Convention adoptee under U.S. immigration law and the U.S. citizen parents have engaged a Hague-Accredited U.S. adoption service provider for their adoption. In addition, in Hague adoptions, there is a required sequence of events, and families are often forced to repeat or undo a legal proceeding if they obtained custody or completed an adoption before engaging an adoption service provider. Again, it can be difficult to find a licensed and approved home study provider to complete the required home study when a family lives abroad. For many expat families, the requirements for a Hague convention adoption process are also onerous for this option to be viable.

To obtain immediate relative status, the U.S. citizen parents must apply using either Form I-130 or N-600K. Form I-130 is appropriate when the family has met the legal requirements and intends to bring the child to live with them in the United States. Form N-600K is appropriate when the family has met the legal requirements but intends to continue to reside abroad with the child. The evidence required to receive approval for Form I-130 and N-600K is the same; the choice of which form to use is made by determining where the U.S. citizen parents intend to reside once the immigration process is complete.

Immediate relative status, whether through Form I-130 or Form N-600K requires that the U.S. citizen parents prove that they have satisfied three basic requirements:

1) a full and final adoption order
2) two years of legal custody
3) two years of physical custody

A family cannot rely on a custody order, kafala, or guardianship order – an adoption order is required in every case. Legal custody typically begins to accrue on the date the adoption order was entered, but some families have a custody or guardianship order first that will allow them to accrue the legal custody necessary without waiting two years after receiving the adoption order. Physical custody is determined by the exercise of primary parental control. It is best proven when the adopted child and U.S. citizen parents live in the same home at the same time. The U.S. citizen parents must be exercising control over all daily decisions, such as who will provide medical care and where will the child go to school. Physical custody is not required to be at the same time as legal custody (though most often it will).

Finally, for families who pursue orphan status or Hague Convention adoptee status, if they also intend to continue to live abroad with their adopted child, they will be required to file for U.S. citizenship for their child using Form N-600K after they have received approval of their Form I-600 or Form I-800. Families should know that USCIS processing times vary widely; for many families, the immigration process takes an additional 1-3 years after their adoption is complete and they most often cannot come to the United States with their adopted child during this time.

Expat families are well served to have a plan for immigration in place prior to beginning the adoption process.

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