Family Member Petitions
The Nuts and Bolts of 245i
Question:I have read a great deal on this new 245-i law. However, I am still unclear how it affects me and what I need to do to fall under the law. Could you explain?
Answer:Yes, there is confusion around this law. It is imperative to understand how the law works so that you and your friends can take advantage of the law.
You can take advantage of this law in two distinct and different ways. First, if you have any close relatives in the United States, they may be able to petition you. Therefore, please let me know what family you have in the United States.
Question:I have a U.S. Citizen sister, an 18-year-old U.S. Citizen daughter and an uncle. However, I have heard that it takes up to twenty years to get the Green Card if my sister petitions me. Since the deadline on this law is only a few months away, how can my sister help?
Answer:You are correct that it will take about twenty years for a visa number to become current if your sister petitions you. However, the critical and important fact to remember is NOT WHEN YOU ARE ELIGIBLE TO FILE FOR THE GREEN CARD, BUT WHEN THE INITIAL FAMILY PETITION WAS FILED. Therefore, if your sister petitions you prior to the end of April, 2001, you will fall under the provisions of 245(i). Your uncle cannot petition you since there is no category under the immigration laws for an uncle to petition a niece or nephew. Your daughter cannot petition you until she turns 21 years old.
Keep in mind that you will most likely not wait twenty years to obtain your Green Card. Rather, you are doing what you must to get under 245(i). Afterwards, when your daughter turns 21 years old, she can petition for you. Since you would have had your sister petition prior to the deadline, the new petition from your daughter three years from now will allow you to immediately adjust your status and get your Green Card.
Question:While I am lucky to have a U.S. Citizen daughter, I have friends who do not have a U.S. Citizen relative. How can they take advantage of 245(i)?
Answer:They can fall under 245(i) by using a future employer, rather than a family member. They can have an employer petition them. This procedure is known as Labor Certification. It takes a few years to get a Labor Certification, but if filed immediately, the new law will allow them to eventually adjust your status and to obtain your Green Card.
Remember, it is not when your friend would get their Green Card that is important, but WHEN THE LABOR CERTIFICATION IS FILED.
Question:What type of position would be eligible for a Labor Certification?
Answer:You friend should look for an employer who will sponsor them for a position, which they have at least two years of experience. However, if that is not possible, we can file a Labor Certification on their behalf for a position that they have less than two years experience. It will take longer to obtain the Green Card, but your friend can eventually get their Green Card.
To obtain the Green Card based upon a Labor Certification involves three distinct steps. First, you must obtain the Labor Certification. Second, you must file what is known as the I-140 petition. This tells the Bureau of Citizenship and Immigration Services that you are eligible for the position, which is the subject of the Labor Certification. Finally, the third step is the Adjustment of Status phase. This step allows you to obtain your Green Card.
Question:Once I get either the family based petition or the Labor Certification filed, am I safe from deportation?
Answer:Unfortunately, there is nothing in the law, which prohibits the Bureau of Citizenship and Immigration Services from putting you in removal proceedings and trying to deport you. However, if filed properly and immediately, you could be represented in removal proceedings in such a manner that you would eventually be able to have the judge in Immigration Court order that your status be adjusted to that of a Lawful Permanent Resident.
Question:Will I have to leave the United States once I file the necessary petition?
Answer:No. The whole purpose of 245(i) is so that you do not have to leave the U.S. Rather, you can stay in the U.S. and eventually adjust your status to get the Green Card. If you leave the U.S., you are most likely subject to the 3/10-year bar, which will prohibit you from coming back to the U.S. for up to 10 years, even if you filed the necessary petition.
Even if you are here legally and in status, you might want to strongly consider getting the necessary petition filed to fall under 245(i). While it is never recommended that you go out of status, you never know what will happen in the future. Therefore, for insurance purposes, even if you are in legal status, it would be a good idea to get under 245(i). You could even leave the U.S. after filing the petition and later come back to the U.S. and adjust your status to that of a Lawful Permanent Resident.
Question:I have a friend that is outside the U.S. Can he get under 245(i)?
Answer:No. Only if your friend was in the U.S. on December 21, 2000, will he be eligible to fall under 245(i).
As you can see, there are many wrinkles to 245(i). However, if you walk away with only one piece of information, it should be the following: Contact a knowledgeable attorney to get the necessary petition filed before the end of April, 2000. We never know when this chance, if ever, will come about again. Do not be one of the millions of people on May 1, 2001 who will miss the chance to get under 245(i) and either have to remain illegally in the U.S. forever, or leave the U.S. and be subject to the 3/10 year bar.
This information is for United Stated (U.S.) citizens and lawful permanent residents who wish to bring their child(ren) to live permanently in the U.S. : Information concerning the new K (advance admission for the spouse and children of a U.S. citizen) and new V (advance admission for the spouse and the minor children of a lawful permanent resident) nonimmigrant categories is available on the temporary visa section of our site.The immigration law defines a “child” as an unmarried person under the age of 21 (a minor) who is one of the following:
The immigration law defines a “son or daughter” as a person who was once a “child” but who is now either married or over the age of 21.
A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your child or son or daughter to become a legal immigrant.
You must obtain INS approval of an immigrant visa petition that you file for your child, son or daughter. The State Department must then give your son or daughter an immigrant visa number, even if he or she is already in the United States. If you are a U.S. citizen and the child is both under 21 years of age and unmarried, a visa number is not required. If your child or son or daughter is outside the United States, he or she will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa when one becomes available. If your child or son or daughter is legally in the U.S. when an immigrant visa number becomes available (or if one is not required), he or she may apply to adjust status to that of a lawful permanent resident using the Form I-485.
A U.S. citizen may petition for:
If your unmarried, minor child was admitted or paroled into the U.S., he or she may file the Form I-485, Application to Register for Permanent Residence or Adjust Status, at the time you file your Form I-130, Petition for Alien Relative.
A lawful permanent resident may petition for:
If you had children before you became a permanent resident and you did not immigrate as an immediate relative of a U.S. citizen, your unmarried, minor children may be eligible to receive following-to-join benefits. This means that you do not have to submit a separate INS Form I-130 (Petition for Alien Relative) for your children, and your children will not have to wait any extra time for a visa number to become available.
This information is for U.S. citizens who wish to bring a sibling to live permanently in the United States. Only U.S. citizens can bring their siblings to live permanently in the U.S. Lawful Permanent Residents can not.A sibling is a brother, sister, stepbrother, stepsister, or adopted brother or sister. For the necessary sibling relationship to exist, each person must have been a child of at least one of the same parents. The siblings need not share the same biological parents as long as both became “children” at the appropriate time (before the age of 16 in cases of adoption, and before the age of 18 for stepchildren).
A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your brother or sister to become a legal immigrant:
If you are a U.S. citizen and at least 21 years old, you are eligible to petition to bring your brother or sister to live and work permanently in the United States. If you are a lawful permanent resident, you are not eligible to apply to bring your brother or sister to live and work permanently in the United States.
A new law, the “Child Status Protection Act of 2002” was signed into law by the President on AUGUST 6, 2002 and effective on that date. It also provides initial interpretative guidance regarding it, as well as procedures to be used to implement it. The new law radically changes the process for determining whether a child has “aged out” for the purpose of the issuance of visas and the adjustment of status of aliens in most immigrant categories.The text of the law is as follows:
“SECTION 1. SHORT TITLE.
`(1) AGE ON PETITION FILING DATE- Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which the petition is filed with the Attorney General under section 204 to classify the alien as an immediate relative under subsection (b)(2)(A)(i).
`(2) PETITIONS DESCRIBED- The petition described in this paragraph is–
`(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.’ SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS AND DAUGHTERS OF NATURALIZED CITIZENS. Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
SEC. 8. EFFECTIVE DATE.
This law is new and is interpreted differently by either Department of State, or BCIS . However, a general interpretation is below. The intent of this legislation (CSPA) is to preserve child status for certain alien children beneficiaries who age-out, and particularly with respect to section 3, age- out because of delays in processing. Age-out benefits are extended to applicants who should be processed as Immediate Relative children (IR-2, IR-3, IR-4) (note that although IR-3s and IR-4s are technically covered by the new law, application in those cases would appear to be very rare) and applicants who should be processed as Second Preference children (F2-A), but who attain the age of 21 before their cases are finalized, as well as derivative beneficiary children in all preference categories and DV cases.
The law also provides relief for F2B applicants in cases where the petitioner has naturalized and the applicant would be disadvantaged by a conversion to F1 status due to a less favorable F1 cut-off date. (This particular provision is only of interest to natives of those few countries (e.g., the Philippines) where the F1 cut-off date is earlier than the F2B cut-off date).
The CSPA also provides age-out relief for children of asylees and refugees, but these sections will not be addressed in this cable since interpretations regarding them must come from BCIS .
Because the language in some sections of the CSPA is extremely complicated, especially section 3, there may be refinements in interpretation with additional guidance to follow, as needed. To the extent possible, automated systems will be reworked to implement the new rules, but necessary adjustments likely will not be completed in the immediate future. Any new procedures or processes to be used in these cases will be the subject of future cables as they are developed.
Section 2 establishes rules for determining whether certain aliens are Immediate Relatives. Under the new rules, consular officers will use the age of the beneficiary on the date of filing the Form I-130, Petition for Alien Relative, to determine whether the applicant qualifies as an IR-2, IR-3 or IR-4. For example, if a Form I-130 is filed for a child of an American when the child is under 21, the child will permanently qualify as a child as long as he/she does not marry.
Section 2 also amends the Act to allow the age of an alien child who is a Second Preference beneficiary but whose parent/s naturalizes and whose petition is converted to Immediate Relative classification, to be considered the age on the date of naturalization. Consular officers will now use the child’s age on the date of the parent’s naturalization to determine whether the child will be eligible for Immediate Relative status. For example, if a LPR files a Form I-130 for a 17 year-old son and then naturalizes when the son is 20, the son will remain eligible for a visa as an IR-2, even if the son has attained the age of 22 on the date of visa application. The applicant should submit evidence of his parent’s naturalization (a bona fide copy of the naturalization certificate) to establish eligibility for age-out relief under this provision of the CSPA.
Section 2 also amends the Act to allow third preference married children of Americans to use the age on the date of the termination of a marriage when applying for a visa. If the alien is under 21 at the time of the termination of his/her marriage, then his/her petition will convert to IR- 2. If the alien is 21 or older on the date his/her marriage is terminated, an F-3 will convert to F-1 status. For example, if the 19 year-old married son of an American petitioner obtains a divorce before attaining 21, as long as he remains unmarried, the son will be classifiable as an IR-2, even if he does not apply for a visa until age 23.
Aliens who qualify as a K-4 child are eligible for child status protection under this section if a separate immediate relative petition has been filed in their name and they are accompanying a K-3 parent.
Section 3 of the CSPA applies to:
This section provides relief from age-out by establishing the alien’s age as of the date a visa becomes available for the alien (or the alien’s parent), minus the number of days that the petition was pending. Only those aliens who seek to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability are eligible for relief under this section. For this section, visa availability is defined to require both a current priority date and an approved petition. The number of days a petition has been pending is calculated from the date the petition was filed to the date the petition is adjudicated. “Seeks to acquire the status of an LPR” will be defined to mean apply for an immigrant visa, i.e., the date of visa application.
DV Applicants. Section 3 also applies to derivative DV applicants. Because the DV process differs substantially from the preference process, however, treatment of DV derivatives will also be somewhat different. For the purpose of calculating the period during which the “petition is pending”, VO has decided to use the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal applicant that his/her application has been selected (congratulatory letter). That period will be subtracted from the derivative alien’s age on the date the visa becomes available to the principal alien. The date the visa becomes available will be the first day on which the Department determines the principal alien’s selection number becomes eligible for visa processing.
V Applicants. While subject to revision, the Department interprets V visa applicants as ineligible for child status protection under this section.
Section 6 of the CSPA addresses the problem encountered by Philippine F2-B applicants whose parents naturalize. Automatic conversion from F2B to F1 at the time of their parent’s naturalization disadvantages these beneficiaries because the cutoff date for Philippine F1s is earlier than the cutoff date for Philippine F2Bs. Although this section continues to allow for the automatic conversion of preference categories when a parent naturalizes, it also permits the son/daughter beneficiary to make a request to the Attorney General that such conversion not occur. At this time, it is not known how this request to the Attorney General will be made or what formalities will be required.
This type of visa will allow you to obtain the Green Card for you, your spouse and your unmarried children under 21 years old.If you marry a United States Citizen, you can begin the process immediately to get your Green Card. Depending on your current status and whether you entered the country legally, you can stay in the United States and Adjust your Status to that of a Lawful Permanent Resident. Otherwise, you may have to have the application prepared and sent to the United States Consulate of your home country.
If you have been married less than two years, you will get a Conditional Green Card. This means that two years later, you will have to file another petition to remove the Conditional Residency to prove the marriage is real.
This type of visa will allow you to obtain the Green Card for you, your spouse and your unmarried children under 21 years old. Immigration marriage petitions are issued for only 2 years through a conditional green card.
There are many types of family relationships that the United States allows a petition to be filed to get the Green Card. Some types of relationships would be United States Citizens petitioning their son, daughter, mother, father, brother, sister or spouse. Other petitions would be Lawful Permanent Residents petitioning their son, daughter, or spouse.
Depending on the type of petition, a visa number must be available to proceed to the final processing for the Green Card. Sometimes this takes many years. A petition for a brother or sister in the Philippines can take nearly 20 years. If the wait is too long, there are several other options that each family should consider to allow their loved ones come to the United States sooner.
Adoption in General
This page explains the process for adopting children from foreign countries. Additionally, it provides information on immigration benefits obtainable through adoptive relationships. These resources are intended for adoptive and prospective adoptive parents of foreign-born children, as well as adoption agencies, and state and local officials involved in adoption proceedings.
Orphan petitions are the most common way of bringing foreign adopted and prospective adoptive children to the United States. The material addressed on this link is comprehensive and meant for readers who want to avoid problems and/or delays with the adoption process. Information is included on some of the difficult issues that can occur in orphan cases.
The Immigration of Adopted and Prospective Adoptive Children materials feature a section on immigration benefits that may be gained from adoptive relationships through procedures other than the orphan petition. There is also some general information on how a foreign-born adopted child can become a U.S. citizen.
Above all, this material alerts prospective adoptive parents about some serious problems that may happen in foreign adoption cases. For example, unscrupulous adoption practices are common in many areas of the world. Moreover, adoption of a foreign-born child does not guarantee the child’s eligibility to immigrate to the United States. The adoptive parent must comply with the U.S. immigration law and legal regulatory procedures. There is no way an orphan can legally immigrate to the United States without Bureau of Citizenship and Immigration Services (INS) processing.
INS regulations require that all foreign adoptions undergo an investigation to guarantee compliance with the laws of both the United States and foreign sending country. When necessary, an overseas investigation is initiated. This investigation can cause delays in adjudicating the case. Prospective adoptive parents are advised to retain a reputable agency with foreign adoption experience or competent legal representation in their efforts to bring foreign-born children to the United States.
INS places a priority on processing adoption petitions. Many BCIS field offices have assigned individual officers and clerks to process orphan petitions applications and respond to inquiries from the petitioners concerning the status of their case. Prospective adoptive parents are encouraged to go through their adoption agencies for guidance and insight on the immigration of orphan and adopted children.
The U.S. Department of State’s Office of Children’s Issues coordinates policy and provides information to the public on international adoptions, including country-specific data. Prospective adoptive parents can contact the Office of Children’s Issues at (202) 736-7000.
Adoption information is also available from the U.S. State Department internet website at http://travel.state.gov/family/family_1732.html.
A. Children Born Out of Wedlock
The prospective adoptive parent(s) should be aware that although a child may be born out of wedlock, that child may still have two parents.
A child born out of wedlock in a country that has not eliminated all legal distinctions between “legitimate” and “illegitimate”, and who has not been legitimated under the laws of the child’s or father’s residence or domicile, has a sole parent — his or her mother — unless the child has or had a bona fide relationship with the father.
If the child has or had a bona fide relationship with his or her father, the child may be considered to have a sole parent — his or her mother — only if the father has disappeared, abandoned, deserted, or in writing irrevocably released the child for emigration and adoption.
In both cases it must be evident that the mother is incapable of providing proper care for the child according to the standards of the country where she and the child reside and, in writing, irrevocably releases the child for emigration and adoption.
If a child is born out of wedlock in a country that has eliminated all legal distinctions between “legitimate” and “illegitimate”, paternity has been established, and the father has recognized or acknowledged the child, that child is considered “legitimated” with the child having both parents, not a sole parent.
Adoptive and prospective adoptive parents of children who were born out of wedlock should become familiar with the legitimacy laws in the countries where the children were born and/or live. If a child born out of wedlock is from a country which has eliminated all legal distinctions between legitimate and illegitimate, the child may still qualify for classification as an orphan under U.S. immigration law as long as there is proof that paternity has not been acknowledged or established before the civil authorities in that country. Prospective adoptive parent(s) may obtain information regarding a specific country’s legitimacy laws from BCIS or the Department of State.
B. Legitimated Children
Most countries have legal procedures for the legitimation of children by their natural fathers. Accordingly, adoptive and prospective adoptive parents of children born out of wedlock should become familiar with the laws of a foreign country to determine how children become legitimated. A legitimated child has all the same rights as a child born in wedlock. A legitimated child from any country has two legal parents and cannot qualify as a orphan unless only one of the parents is living or both of the parents have abandoned the child.
A child abandoned by both parents may qualify as an orphan under U.S. immigration law.
INS regulations state that a child who has been unconditionally abandoned to an orphanage is considered to have no parents. A child is not deemed abandoned, however, when he or she has been temporarily placed in an orphanage and the parent or parents are contributing or trying to contribute to the child’s support, or the parent or parents otherwise show that they have not ended their parental obligations to the child.
While a finding of abandonment may normally be made when the child is in the custody of an orphanage or an orphanage-like institution, the definition of the term “abandonment” is not limited to those instances. Children in other situations could possibly be considered abandoned, but adoptive or prospective adoptive parents seeking to prove the claimed abandonment should obtain legal documentation from a competent authority in the country where the child resides.
For example, in a case where a child is a ward of the court, the parents must refuse to meet their parental and legal obligations to care for and support their child and give up parental claims to the child. On the other hand, if the natural parents are deprived of custody only temporarily and afforded a chance to care for the child, the child would not be considered an orphan.
Also, a relinquishment or release of a child by the biological parents to the prospective adoptive parents or for a specific adoption does not constitute abandonment.
Occasionally, some persons will try to make a child appear to have been abandoned in order to facilitate the child’s immigration to the United States. If a child has been designated a ward of the court merely as a contrivance, the child would not qualify as an orphan. If the decree declaring the child to be a ward of the court does not describe circumstances establishing that he or she is an orphan, other proof of abandonment must be submitted in support of the petition.
D. Intra-Familial Adoptions
Prospective adoptive parents wishing to adopt a family member may encounter problems that are not found in other adoption cases. Most will find it difficult to prove that the child meets the definition of an orphan under U.S. immigration law.
As stated previously, a child is a orphan only if the sole or surviving parent is unable to care for the child properly according to the standards of the country where the parent and child reside and has, in writing, irrevocably released the child for emigration and adoption; or if the child has been abandoned or deserted by, separated or lost from, both parents, or if both parents have disappeared or died.
Additional documentation is required to verify the claim of abandonment, desertion, separation from both parents or that both parents have disappeared or died.
Once the child has been irrevocably released by the natural parents, the parents can never gain any immigration benefit through the child.
E. Some Problems Faced by Adoptive and Prospective Adoptive Parent(s) of Foreign-Born Children
The adoptive and prospective adoptive parent(s) of foreign-born children face complex requirements which appear in the law itself. BCIS has kept the documentary, regulatory and procedural requirements to a minimum, while conforming with the intent of the law. In addition to BCIS requirements, petitions for orphans must also comply with state and foreign adoption laws.
The laws of some countries do not permit adoption. Laws of other countries restrict persons eligible to adopt children. There are children legally adopted abroad who do not qualify as orphans according the U.S. immigration laws (see definition of orphan in Appendix B). The adoptive and prospective adoptive parent(s) should be aware that not all children adopted abroad are orphans, and what appears to be a foreign adoption may not comply with the laws of the foreign state; and some valid foreign adoptions are not sufficient to classify the adopted person as a “child” under U.S. immigration law.
It is the responsibility of the petitioner to prove to BCIS that a child is eligible for classification as an orphan for immigration purposes. The evidence must be in the form of documents. This evidence may vary, depending on the facts of the case. Therefore, it is sometimes necessary to submit documents in addition to those described in Section II, B, Forms Used for an Orphan Petition.
When a request is sent to an orphan or registered in a U.S. embassy or consulate for the possible acquisition of an immigrant visa for a child, an orphan of research abroad as part of normal procedure. This research is conducted by the consular officer of the Department of State or an officer of the BCIS for those posts where the BCIS has an office. The officer will make every effort to expedite the investigation, but the process may take a longer time. Before arranging the trip, the adoptive parents who are going abroad to complete the formalities, please contact the appropriate U.S. embassy or consulate, or the foreign office of the BCIS to request information about the terms of the process. The objective of this research is to confirm that the child is an orphan under the Immigration Law of the United States, and that the child has no illness or disability that has not been specified in the solicitation of an orphan.If the child does not comply with the requirements for classification as an orphan under the Immigration Law of the United States, the BCIS will prepare a report to try to revoke the approval of the request for an orphan. When the applicant receives such a notice, he or she have an opportunity to provide evidence in order not to revoke the approval.
If we knew that the child has an illness or disability that has not been mentioned in the petition the BCIS or the embassy or consulate, depending on the location of the request for an orphan, they will provide to the petitioner and his spouse, if they are married Details of the medical condition. The petitioner and her spouse, if they are married, to decide if they still want the child to enter the United States as an immigrant.
If the prospective adoptive parents choose the child to enter the United States, parents should be warned that the child is still admissible in the United States. Some diseases cause the child to be inadmissible. For example, if a child has a contagious disease, the child may be inadmissible. If we apply the margins of inadmissibility, they notify parents about the requirements to be met before the child to legally enter the United States.
Prospective adoptive parents are advised to avoid fraudulent practices of adoption and agree with agencies or individuals involved in such activities. Just have to agree with sources recommended for children in adoption and ensure that the entire procedure is legal.
The INS has found that foreign children are often stolen for adoption in the United States. There is also a market for fraudulent documents for children who may be beneficiaries of petitions for orphans. There are unscrupulous individuals that attract customers saying that they have a faster, economical and easy to adopt children. The adoptive parents are exploited by the exorbitant amounts of money without requiring them to receive the child, or getting a sick child, or proving to be parts of fraudulent acts.
When the BCIS has reason to believe that a request for an orphan may be involved in fraudulent acts, a foreign investigation of orphan before the petition is approved. The investigation may delay the completion of the case whenever done as quickly as possible. The BCIS will make every effort to ensure that the request for an orphan is not involved in fraudulent practices of adoption. In addition, research is done as a service to adoptive parents. Protects them from any painful situation that might occur when an adoption is illegal.
Overview of Adoption of an Orphan
This page explains the procedure for adopting children from foreign countries. In addition, it provides information about immigration benefits available through links adoptive. These resources are intended to foster parents or potential adoptive parents of children born abroad, as well as adoption agencies and local and provincial officials involved in adoption procedures.The request for orphans is the most common form of moving adopted aliens and potential adoptive children to the United States. The information provided in this link is detailed and is aimed at readers who wish to avoid problems and / or delays in the adoption process. The information includes some difficult issues that can occur in cases of orphans.
The material immigration adopted children and potential adoptive highlights a section on immigration benefits that can be obtained by adoptive links through different procedures for the request for orphan. There is also some general information about how an adopted child born abroad can become an American citizen.
Above all, this material warns prospective adoptive parents about some serious problems that can occur in cases of adoption. For example, unscrupulous adoptions carried out are common in several parts of the world. Moreover, the adoption of children born abroad does not guarantee that the child complies with the requirements of immigration to the United States. The adoptive parent must comply with the immigration law of the United States and with legal procedures. There is no way that an orphan may immigrate legally to the United States without the treatment of the Office of Citizenship and Immigration Services (INS).
The regime of the INS requires all foreign adoptions are subject to an investigation in order to ensure compliance with the rules of the United States and the foreign country. Where necessary, initiate an investigation abroad. This research may cause delays in the case awarded. Prospective adoptive parents are notified to contact an agency with a good reputation and experience in making foreign or a competent legal representation in their efforts to move the United States to children born abroad.
The INS gives priority to the procedures for making requests. Several offices of the Citizenship and Immigration Service (BCIS) have assigned officers and secretaries to bring forward requests for requests for orphans and answer questions from the petitioners related to the state’s case. It encourages prospective adoptive parents to appeal to their adoption agency for guidance and to get an idea about the immigration of adopted children and orphans.
The Office of Children’s Affairs of the State Department of the United States develops policy and provides information to the public about international adoption, including country-specific data. Prospective adoptive parents may contact the Office of Children’s Affairs at (202) 736-7000.
You can also obtain information about the adoption at the website of the State Department of the United States.
What on an orphan?Under the Immigration Law of the United States, an orphan is a child who has no parents abroad owing to the death, disappearance, abandonment, separation or loss of both parents. An orphan can also be a child born abroad with a single parent or survivor who could not provide the basic needs of a child, according to the standards of local foreign country who has made a written irrevocable transfer of the child to his emigration and adoption.
For that child to obtain the benefits of immigration, the orphan petition must be registered before the child reaches 16 years. The only exception to this rule is when a child is adopted by the same adoptive parents or potential adoptive parents, along with, or subsequent to the adoption of a relative considered “child”, according to the law. In this case, the request must register before the child turns 18.
Who can file a request for orphan?
An American citizen married and your spouse (without special age) or a single American citizen over age 25 may file a request for orphan. The spouse does not necessarily have to be a citizen of the United States. However, if you live in the United States, the spouse must have a legitimate state. The potential parent or adoptive parent who signs the certification applicant “on the request of the applicant is an orphan.
Who is not entitled to file a request for orphan?
These people are not permitted to register a request for orphan:
Individuals with legitimate residency in the United States who are not American citizens.
Married couples with legitimate residency in the United States, without American citizenship.
Individuals or couples who do not have a legitimate immigration status in the United States.
The request for orphan can be refused if:
The INS determines that the potential adoptive family is not capable physically, mentally and / or emotionally to adopt a child properly.
The INS believes that the potential adoptive family has no financial ability to take care of a child.
An investigation by the BCIS or analysis of the home reveals a history of abuse and / or violence and / or criminal record.
An investigation by the BCIS reveals inadequate housing.
The INS determines that the child does not fall within the statutory definition of “orphan.”
How will benefit from immigrant?
If a request for orphan is adopted, the beneficiary of the petition (the child) will be considered as a direct relative of a United States citizen. This means that the child may obtain an immigrant visa immediately, without having to move to the waiting list.
However, the child must also qualify for an immigrant visa like any other immigrant. For example, the orphan may not get a visa if he or she is considered / inadmissible to the United States. One reason that an orphan may be inadmissible in the United States is the fact suffering from a contagious disease of great public importance. They may be exemptions from certain areas of inadmissibility. If a request for orphan is adopted, the application for an immigrant visa may be made in the United States embassy or consulate with jurisdiction over the residence of the child.
When an orphan admitted to the United States with an immigrant visa, the child is considered lawful permanent resident of the United States, not an American citizen. You can get general information about the American citizenship of a child born abroad in Section VII of this publication.
What happens if the child is already in the United States?
The request for an orphan may not register in respect of a child who is not in the United States, unless the child is in a state of freedom and has not been adopted. If a request for orphan is adopted in respect of a child in the United States, the child may obtain permanent residence through legitimate procedure called “change of status”. In some ways, the change in status is similar to the application for an immigrant visa in a foreign country.