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Immigration Law

U.S. based adoption takes place within the borders of the United States and its territories. Parents must qualify to adopt a child according to individual state adoption laws. Depending on the state in which the parents would like to adopt their child, various state adoption laws will consider such factors as age, residence, marital status, and other criteria for those involved in the process. Adopting a child takes a considerable amount of time and research, but for those who are serious about becoming a parent, the rewards are well worth it.

During any adoption process, future parents are required to complete a home study, in which a state representative will ensure the eligibility of the parents based on official documentation (marital status, financial background, criminal records, etc.) and the condition of the future household. The main concern of the home study is proving the prospective adoptive family can provide a stable living environment for the child.  In addition, the rights of the child’s biological parents must be reviewed. Under some state adoption laws, these rights must be terminated before the child can be adopted by the adoptive parents. Moreover, it is likely that the adoptive parents and child will be required to reside together before the adoption becomes official. Naturally, there isalso a substantial amount of paperwork to complete. The adoption process continues until it is finalized in a family court session in the state of residence where a judge can legalize the adoption with proper documentation.

Often times, assistance is sought from organizations, such as adoption agencies, that can guide prospective parents throughout the adoption process in a particular state. Of course, individuals may choose to forego an agency’s help and initiate a private adoption process.A private adoption processwill still require assistance from an attorney who is familiar with the adoption procedure in a given state, however. Whether parents plan to use an agency or handle their adoption individually, they will ultimately be utilizing the services of an attorney who is specialized and licensed in their state of residence. As long as both the child and the future parents reside in the same state, the adoption process should take place entirely within that state.

Another aspect of the adoption process is the choice of engaging in an open adoption. Open adoption is a loosely-defined term since each individual U.S. state has different adoption laws, some of which do not even recognizeopen adoption. Generally, open adoption is a type of adoption that allows for the sharing of information or communication between biological parents and adoptive parents. As mentioned earlier, some state adoption laws require the parental rights of the biological parents  be terminated and later transferred to the adoptive parents; administering an open adoption does not remove this requirement. Open adoption can, however, allow both sets of parents to remain in contact with each other and the adopted child. The process and extent of an open adoption will vary on a state by state basis.

In regards to an adoption involving a child without legal permanent resident status, it is important to realizethat the U.S. is a member of the Hague Adoption Convention, created for the purpose of protecting the interests of children involved in intercountry adoptions. For U.S. based adoption, the Hague Convention does not come into play. However,issues involving immigrant status can complicate U.S. based adoptions. The reason is that state adoption laws canallow residents in their respective state to complete theadoption process, but those laws are not concerned with the immigration implications of that adoption. Adoption and immigration are two separate issues governed by two different sets of laws (adoption – state; immigration – federal).

With regards to providing immigration benefits for the child, if the child is from a non-Hague Convention country, or the adoptive parent is a U.S. permanent resident rather than a U.S. citizen, it is certain that the adoptive parent can file a family-based petition for the child as long as the child qualifies under the Immigration and Nationality Act (INA). For further details on the factors used to determine if a child qualifies under the INA. If the child is from a Hague Convention country, but did not move to the U.S. for the purpose of the adoption, and the adoptive parent(s) is a U.S. citizen, thenadditional steps will be required.  Examples of these additional steps include receiving a letter from the Central Authority of the child’s country.

Future parents will find it beneficial to become familiar with relevant adoption and immigration lawsbeforebeginning the adoption process in order to avoid any difficulties. Fortunately, there are many resources that aim to provide adoption assistance with the intention of promoting the placement of children in a stable family environment. We wish you the best in your adoption endeavors. -

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