Issues in resolving cases of international child abduction
If the child is habitually residing in the country of citizenship, the process must proceed through the Convention.
If the child’s actual residence is outside his country of citizenship, the child will be deemed habitually resident in that other country rather than the country of citizenship, if the Central Authority (of that country) has determined that the child’s status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody.
The child will not be considered to be habitually resident in any country to which “the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.”
Thus, if the child is in the U.S. as a Nonimmigrant, parolee, or Entered Without Inspection, he or she will be treated as an habitual resident of the Convention country and an adoption can only proceed under the Convention. If the child is otherwise ineligible to adjust or if the Central Authority in the other country requires the child’s return to approve the adoption, the petition may be provisionally approved but the child must return to the country and obtain an immigrant visa.
If it is determined that the child is habitually residing in the U.S., the Convention does not preclude the adoption of the child in the U.S. and therefore an I-130 petition may be filed but only if there is a statement from the Central Authority of the country of birth/citizenship that the child is not habitually residing there.
There may also be a situation where the Central Authority in the country determines that, from its perspective, the Convention does not apply. USCIS may conclude that the Convention does not apply in that situation and allow the person to adopt and file an I-130. Similarly, the regulations are read not to bar adoption in the U.S. and the submission of an I-130 where the child is in the U.S., as long as the U.S. adopting court enters an adoption order that expressly states the Central Authority of the other country “is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country.”