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An adopted child may qualify for immigration if:
|1.||The adoption occurs prior to the child's 16th birthday;|
|2.||The adoptive parent(s) have had legal custody of the child for at least two years (before or after the adoption); and|
|3.||The child had resided with the adoptive parent(s) for at least two years (before or after the adoption).|
A sibling of an adopted child may also qualify for immigration if
|1.||The sibling while he/she is under age 18;|
|2.||The original adopted child was adopted while under the age of 16; and|
|3.||The sibling has been in the custody of, and has resided with the adoptive parent(s) for at least two years.|
A foreign-born child is an orphan if:
|1.||Both the child's parents have died, disappeared or have been separated or abandoned the child; or|
|2.||If the child's sole parent cannot care for the child and has, in writing, irrevocably released the child for emigration and adoption.|
An orphan petition must be filed before his or her 16th birthday. An orphan petition may be filed before the 18th birthday for a natural sibling of an orphan or adopted child if the sibling is adopted with or after that child by the same adoptive parents.
|1.||Who is eligible to file an orphan petition? |
A married U.S. citizen and his spouse (no age minimum) may file a petition for adoption of an orphan. The spouse does not need to be a US citizen but must legally live in the US. Also, an unmarried US citizen of at least 25 years of age may file an orphan petition.
|2.||Advance Processing of an Orphan Adoption |
To expedite the immigration process, the eligible US citizen may apply for advance processing before he/she actually finds an orphan to adopt. An application for advance processing may be filed by anyone eligible to file an orphan petition. An unmarried US citizen may file an application for advance processing if the U.S. citizen is at least 24 years of age and will be at least 25 when an orphan petition is filed on behalf of the actual child.
Before the applicant identifies a foreign-born child to adopt, he/she may file Form I-600A which allows the USCIS to first process the application that relates to the applicant's ability to provide a proper home environment and his suitability as a parent. Then, once an orphan is identified, the applicant must file Form I-600 on behalf of the adopted child.
|3.||Exemption of the Two-year Residence and Legal Custody Requirements for Orphan Adoption|
Orphan adoptions are exempt from the two-year residence and legal custody requirements for immigration. However, such adoptions must comply with local state adoption rules.
Adoption by US Permanent Residents (Green Card Holders)
Only children who were adopted before their parent became a Green Card holder and who satisfy the three requirements for adoption: (1) adoption before the age of 16; (2) two years custody by their adoptive parent; and (3) two years of residence with the parent) may immigrate into the U.S. together with their parent as a derivative.
There is no provision for newly adopted children of permanent residents to immigrate and join their parents in the United States. The only way for these newly adopted children to immigrate is to meet the definition of "adopted child" under immigration law: (1) adoption before the age of 16; (2) two years custody by their adoptive parent; and (3) two year of residence with the parent. Once an alien child satisfies these criteria, his adoptive parent, as a lawful permanent resident, may petition for the child in the family-based second preference category.
Taking into account the required two-years of custody and residence, as well as the lengthy waiting period for second preference category visas, by the time an adopted child qualifies for immigration, his/her parents may have already qualified for naturalization. Thus, at that time, the parent, as a U.S citizen, may petition for the child's immigration as an immediate relative of Family-Based First Preference.
An alien with nonimmigrant status may not petition for their adopted children. A newly adopted child by a non-immigrant alien would not qualify for a dependent visa unless they satisfy the three requirements for adopted children (i.e., adoption before the age of sixteen, two years custody, and two years of residence with the adoptive parent). However, a newly adopted child may apply for a tourist visa to visit his/her parents.
The Child Citizenship Act
|1.||The Child Citizenship Act (CCA)|
CCA became effective on February 27, 2001. Under the CCA, most foreign-born children adopted by U.S. citizens will automatically acquire U.S. citizenship on the date they immigrate to the United States.
|2.||Qualification of automatic citizenship of adopted children|
Under the CCA, the adopted child will automatically acquire U.S. citizenship on the date that all of the following requirements are satisfied:
Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under the CCA, even if they meet all other criteria. If they wish to become U.S. citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.
|3.||The general rule for adopted children to become U.S. citizens if not qualified under CCA|
For the adopted child whose parent(s) is a U.S. citizen: After the adoption is completed and the child has entered the United States as a permanent resident, the adoptive parent may apply for citizenship on behalf of the child by filing Form N-643. This must be done before the child is 18 years old in order for the child to become a U.S. citizen. If the naturalization process is not completed before the child's 18th birthday, the child will have to apply for naturalization on his own behalf.
For the adopted child whose parent(s) is a U.S. permanent resident:
If the adopted child is unmarried and under 18 and his parent(s) is a U.S. permanent resident, he can be included in the naturalization petition of his alien parent(s) as a derivative beneficiary by filing Form N-400. He must also be a permanent resident and reside in the U.S. before his eighteenth birthday.
If the adopted child is 18 years or older, he must apply for naturalization independently and meet eligibility requirements that currently exist for adult lawful permanent residents.
|4.||Adopted children living outside the United States do not automatically attain U.S. citizenship |
For a foreign-born child living outside the US to acquire citizenship, the U.S. citizen parent must still apply for naturalization on behalf of the child. The naturalization process for such a child cannot take place overseas. The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance.
To be eligible, a child must meet the following requirements:
|a.||The child has at least one U.S. citizen parent who is a U.S. citizen by birth or naturalization;|
|b.||The U.S. citizen parent has been physically present in the United States for at least five years, at least two of which were after the age of 14, or the U.S. citizen parent has a citizen parent who has been physically present in the United States for at least five years, at least two of which were after the age of 14;|
|c.||The child is under 18 years of age;|
|d.||The child is residing outside the United States in the legal and physical custody of the U.S. citizen parent;|
|e.||The child is temporarily present in the United States, having entered the United States lawfully and maintaining lawful status in the United States; and|
|f.||The child meets the requirements applicable to adopted children under immigration law.|
Once adoption is complete, the biological parent no longer has the status of parent of the adopted child. Thus, as a general rule, the adopted child may not confer immigration benefits on his natural parent even if the adoptive relationship has been terminated. Similarly, the natural sibling of the adopted child may not enjoy immigration benefits from the child.
However, the natural parent-child relationship may again be recognized for immigration purposes after the termination of an adoption if the following criteria are met:
|1.||No immigration benefits were obtained or conferred through the adoptive relationship to the adopted child;|
|2.||A parent-child relationship once existed between the natural parent and child;|
|3.||The adoption has been lawfully terminated under applicable law; and|
|4.||The natural relationship has been re-established by law.|
If you are planning to or already have adopted a child to join your family in the US, please call us to speak with an immigration lawyer. Our immigration lawyers have helped countless American families grow and live together in the US. Our lawyers can help you at any stage in the process and guide you through the entire process.
The Law Offices of Omar Zambrano assists individuals and their families in many aspects of U.S. immigration matters including visas, Adjustment of Status, Immediate Relative Petitions and removal proceedings.
Specifically, we provide representation for a wide range of immigration issues:
The beauty of immigration law is the diversity and case variety. Omar Zambrano knows that no two immigration cases are the same, and that each one must be treated with the utter most attention to detail. Regardless of immigration status, Omar Zambrano represented each client with the dignity and respect that they deserve.
Don’t hesitate to call the Law Offices of Omar Zambrano and schedule a free consultation.
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