International Adoption Law
International adoption is essentially a private legal matter between a private individual (or couple) who wishes to adopt and a foreign court. U.S. authorities can't intervene on behalf of prospective parents with the courts in the country where the adoption takes place. However, the Department of State (DOS) does provide extensive information about adoption processes in various countries, as well as the legal requirements to bring a child adopted abroad to the United States.
If you're interested in adopting a child from outside the United States, make sure you understand international adoption laws -- and particularly the laws of the country where you plan to adopt. The following is a summary to help you make the right choices.
International Adoption Laws and Requirements: Overview
To complete an international adoption and bring a child to the United States, prospective adoptive parents must meet the requirements established by the U.S. Bureau of Citizenship and Immigration Services (USCIS), the foreign country in which the child resides, and sometimes the adoptive parents' state of residence.
There are three general processes for adopting a child across international boundaries, depending on your circumstances and the child's country of residence. One of the most important determinations of the international adoption process is whether the child's country of residence has signed on to the Hague Adoption Convention (the United States became a Hague nation in 2008):
- Hague Process - If you're adopting a child residing in a country that is a party to the Hague Adoption Convention, you'll use the "Hague process." Each member nation has a designated central authority (DOS in the United States) responsible for overseeing the process.
- Orphan Process - If you're adopting a child from a "non-Hague" country, then you'll go through what's called the "orphan process." This process lacks many of the safeguards that a Hague adoption provides, such as preparation and verification of the child's medical records.
- Immediate Relative Petition - The "Immediate Relative Process" is available to certain individuals who don't qualify for a Hague or non-Hague adoption. In this process, an adopted child is considered to be the child of the adopting parent for immigration purposes if certain requirements are met.
Although procedures and documentary requirements may seem repetitive, you should make several copies of each document in case they're needed to meet the requirements of these various entities. The process is often labor intensive and repetitive. However, it's designed to protect the child, the adoptive parents, and the birth parents.
Documents commonly required for an international adoption include (but aren't limited to) the following:
- Birth certificate of adoptive child (if it's available, which isn't always the case)
- Birth certificate of prospective adoptive parent(s)
- Death certificate(s) of orphan's parent(s), if applicable
- Foreign custody decree
- Passport for the child
Applicable U.S. Law
The Immigration and Nationality Act (INA) governs the issuance of visas to nationals of other countries, including children adopted abroad or coming to the United States for adoption.
The basic statutory provision concerning adopted children provides immigrant classification for "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." This so-called "two-year provision" is for individuals who are temporarily residing abroad and wish to adopt a child in accordance with the laws of the foreign state where they reside.
Most adoptive parents, however, are not able to spend two years abroad living with the child. Therefore, they seek benefits under the next section of the INA, which grants immigrant classification to orphans who've been adopted or will be adopted by U.S. citizens. Under this section of international adoption law, both the child and the adoptive parents must satisfy a number of requirements. However, in such cases, the two-year residency requirement is eliminated.
Only after it's demonstrated that both the parents and the child qualify, can the child be issued a visa to travel to the United States.
What the State Department Can Do
In its handlings of international adoptions, the State Department can do the following:
- Provide information about international adoption in countries around the world
- Provide general information about U.S. visa requirements for international adoption
- Make inquiries of the U.S. consular section abroad regarding the status of a specific adoption case and clarify documentation or other requirements
- Ensure that U.S. citizens are not discriminated against by foreign authorities or courts in accordance with local law on adoptions
What the State Department Can't Do
The State Department is, however, not permitted to engage in the following:
- Become directly involved in the adoption process in another country
- Act as an attorney or represent adoptive parents in court
- Order that an adoption take place or that a visa be issued
Get Professional Help Understanding International Adoption Laws
If you're planning to adopt a child, you already understand how involved and time-consuming the process can be, and for good reason. If you're adopting internationally, it can be even more complicated. Make sure you get it right. Avoid pitfalls by working with an experienced adoption law attorney licensed in your state.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified attorney specializing in adoptions.