The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

The Intersection of Immigration and Adoption Law: Incoming Intercountry Adoption for Hague and Non-Hague Convention Countries
By Ana M. Mencini

Since the U.S. ratified the Hague Convention on Protection of Children and Cooperation in Respect to Intercountry Adoption on December 12, 2007 and it became effective for the U.S. on April 1, 2008, the field of intercountry adoptions has become complicated by the bifurcation of procedures to be followed for intercountry adoptions between so-called Hague and non-Hague countries. Practitioners in this area must be cognizant of the critical differences between Hague and non-Hague procedures because early and proper planning is critical to a successful intercountry adoption. An early misstep can easily lead to the complete inability to complete an intercountry adoption. This is especially true for those countries where the Hague Convention applies. This article will outline the procedures for both Hague and non-Hague adoptions and it will address those pitfalls that many practitioners encounter in this area of law.

Hague Convention. In order to better understand the differences between the adoption procedures for under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoptions (“Hage Convention”) and non-Hague adoptions, it is important to understand the reasons the Hague Convention was drafted and ratified.[1]

The Hague Convention was enacted for the protection of children and to prevent children from becoming a commodity. The Preamble of the Hague Convention acknowledges that common procedures must be followed to achieve the goal of having children “grow up in a family environment, in an atmosphere of happiness, love and understanding . . . .” with an emphasis on keeping each child in his or her own country of origin.[2] Specifically, the preamble states that “each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,” and that “intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her own State of origin.”[3] So, the Hague has a two-fold purpose—to keep children in their country of origin if at all possible, and it not possible, to establish a standard set of procedures to be followed uniformly by all participating countries when completing adoptions. The rules established by the Hague Convention are very specific and leave no room for mistakes so advanced preparation is critical. It is impossible in most cases to “unring the bell” if an adoption is completed or contact is made with the child before it is permissible to do so.

Does Hague Convention Apply? When approaching an incoming international adoption, the first analysis that must be made is to determine whether the adoption is governed by the Hague Convention. The Hague Convention sets out a two-prong test to determine whether an adoption falls under its auspices. Specifically, the Convention notes that the “Convention shall apply where a child habitually resident in one Contracting State (‘the State of origin’) has been, is being, or is to be moved to another Contracting State (‘the receiving State’) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.” [4] However, the Convention only applies to adoptions which create a permanent parent-child relationship. [5]

So, the first question is whether the child is moving from one Contracting State to another and to parents who are habitually resident in a Contracting State. The list of contracting States is long and should be referred to often because new countries are still being added to the Convention.[6] Although the inquiry may seem pro forma, care must be taken in situations where U.S. citizens or foreign nationals are residing outside their country of citizenship. Generally, parents are habitually residing in the United States if they are domiciled in the United States or living abroad and intending to live in the United States. As to the child, generally the child is a habitual resident of his or her country of citizenship. Occasionally, and depending on the circumstances, a child could be a habitual resident of the country where the child is living even if that is not the child’s country of citizenship.

The second test is whether a permanent parent-child relationship is to be established. As the intent with an adoption is to create a permanent relationship, in most cases in an adoption scenario, that intent is present.

Non-Hague Convention Procedures. If not dealing with a Hague Convention adoption, U.S. immigration law allows for one of two methods of adopting children. The first is an adopted child adoption and the second is an orphan child adoption.

Adopted Child Procedures. The threshold question in an adopted child inquiry where parents want to confer immigration benefits upon their adopted child is whether the child is an adopted child under the Immigration and Nationality Act’s (“INA”) definition of adopted child. The Act defines adopted child at §101(b)(1)(E) of the Act as 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 . . . Provided, that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”[7]

There are four key issues to review in determining whether a child is an adopted child: the age of the child at the time of the adoption, the legality of the adoption, the custody requirement, and the residency requirement.

First, the adoption must be legally completed by the child’s sixteenth birthday.[8] There are two small exceptions to this rule. First, if there are siblings being adopted together, and a younger sibling is under sixteen years of age at the time the adoption was finalized, the older sibling’s adoption, although occurring after that sibling’s sixteenth birthday will qualify under this definition as long as it occurs before the child’s eighteenth birthday.[9] Second, pro tunc adoptions are recognized thus giving the practitioner some assistance if the adoption could not be completed by the child’s sixteenth birthday but should have been completed by this time.[10]

Second, the adoption must be a legal adoption.[11] This is an important inquiry because in some countries and in some cultures, the need to go to court and complete a formal adoption process is not as urgent as it is in the United States. It is not uncommon to work with a client who has raised an adopted child for many years and yet the parents have no legal paperwork recognizing that adoption.

Third, the statute requires that the parents have had legal custody of the child for at least two years before immigration benefits can be bestowed upon the child.[12] It is permissible for this legal custody requirement to be met before or after the actual adoption. The key is that the custody need not be legal as with the adoption but must be customary under the laws of the jurisdiction in which the parent and child reside. The legal custody period can run concurrently with the residency requirement, which is the fourth element of the definition. The child must reside with the adoptive parents for a period of two years before or after the adoption. It is important when counseling parents to make sure that the residency is documented if the U.S. Citizenship and Immigration Service (“USCIS”) questions whether the child has lived with the parents for the two years. Proof of the residency would include leases, school records, mail, consent for medical treatment, doctor and insurance bills, and other materials tending to show that the parent and child shared a parental relationship where the parent exercised control over and care of the child.

Once these requirements are met, the parent can confer immigration benefits upon the adopted child. To do this, the parent, who can be either a U.S. citizen or a legal permanent resident, must file a Petition for Alien Relative (USCIS Form I-130) with USCIS. This makes an immigrant visa number available to the child either immediately (if the child of a U.S. citizen) or in a number of years (if the child of a legal permanent resident and depending on the country of origin of the adoptive parent).[13]

Acquiring the actual residency and then citizenship can be tricky depending on where the child is living and, if in the United States, how the child entered the United States. If the child is living outside of the United States, the child will be admitted to the United States via a process called consular processing. Once the child has completed the paperwork requirements and a consular interview, an immigrant visa will be issued and the child will enter the United States where the child will become a legal permanent resident. If the adopted parent is a U.S. citizen, the child will acquire U.S. citizenship upon entering the United States. If the parent is a legal permanent resident, the child will have to wait to become a citizen until the parent naturalizes (if before the child’s eighteenth birthday) or the child attains the age of eighteen years and has had five years of legal permanent residency. Other requirements outside the scope of this article apply.

If the child is in the United States, it must be determined whether the child can adjust status. That is whether there the child can remain in the United States to obtain legal permanent residency or whether the child will have to consular process back into the United States as a legal permanent resident. This inquiry can be tricky depending on the age of the child because if the child was previously undocumented and has been in the United States past the child’s eighteenth birthday, potential bars arise if the child leaves the United States. If the child last entered the U.S. legally, generally the child will be able to remain in the United States and adjust status. The scope of this inquiry again is outside the parameters of this article.

Orphaned Child Provisions. The INA defines an orphan as “a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b), [i] who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; [ii] who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or [iii] who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child's proposed residence.” [14] However, the Attorney General must be satisfied that proper care will be furnished the child if admitted to the United States. [15]

This definition can be broken down into a number of distinct components. First, this option is only available to U.S. citizens or a U.S. citizen married to a person in lawful immigration status, or to an unmarried U.S. citizen who is at least twenty-five years old. Second, the parents must be suitable. Finally, the child must be an orphan.

The determination of the second prong of the definition is made by the parents filing with USCIS an Application for Advance Processing of Orphan Petition (USCIS Form I-600A). This can be filed before, during, or after the process has begun and its determination that the parents are suitable to adopt is valid for 18 months.

The determination of the third prong of the definition is made by the filing of Petition to Classify Orphan as an Immediate Relative (USCIS Form I-600). This must be filed before the child turns sixteen years old regardless of the date of adoption. Again, as with the adopted child provisions, there is an exception if there is a jointly adopted sibling under the age of sixteen and the older sibling has not yet reached the age of eighteen.[16] Unlike the previous filing, which only looked to the fitness of the parents, this filing is specific to the child being adopted.

The adjudication of the I-600 Petition deems the child an orphan for immigration purposes. In making this determination, USCIS looks for the death, disappearance, abandonment or other separation from both parents.[17] If only one parent is not present, the remaining parent must be unable to care for the child. This means that the care the parent can provide for the child must fall very far below the standard of living in the country where the child resides. A comparison to the child’s standard of living in the United States cannot be made. Instead, the remaining parent must be ill or so poor that the child lives below even the usual standard of living in the country at bar.[18]

If both parents are present, they must both give the child up to an agency, i.e., a recognized orphanage, which will have complete control over the future placement of the child. Parents are barred from indicating where the child should be placed and can have no say in the placement of the child. Furthermore, the parents’ parental rights must be terminated legally in the jurisdiction where the parents and child are living.[19]

Once the parents are deemed suitable, the child is deemed an orphan, the adoption is final, and the parents have met the child in person, the parents can confer immigration benefits on the child. Providing that the adoption is final, the child will enter the United States as an IR-3 and will acquire citizenship upon entering the United States as long as the child is under the age of eighteen. If the adoption is not final (again because the country of origin does not have formal adoption laws), the child enters the United States as an IR-4 and will acquire citizenship once the adoption is finalized in the United States providing that the child is under the age of eighteen.

Hague Convention Procedures. If it is determined that the Hague Convention applies to the adoption, there is a six step process to be followed in completing the adoption. The petitioner in a Hague adoption (the parent) must be a U.S. citizen and the spouse must have legal status. Legal permanent residents cannot adopt under these procedures.

Selecting an Accredited Adoption Service Provider. First, parents interested in adoption from a Hague Convention country must first select an accredited adoption service provider.[20] The central authority for each country determines how adoption agencies will become accredited adoption service providers. In the United States, the Department of State is the Central Authority and it deems those agencies that have been accredited or approved by either the Council on Accreditation or the Colorado Department of Human Services to be an accredited adoption service provider.[21] Once the parents select a provider, a home study will be completed to determine whether the parents will be eligible to adopt.[22]

Filings with USCIS. Second, if the parents are found eligible to adopt, the parents will file an Application for Determination of Suitability to Adopt a Child from a Convention Country (USCIS Form I-800A). When filing this form, the home study must be included. Note that at this point in the process, a child has not and cannot be identified.[23] The parents are merely requesting that a determination be made that they are eligible to adopt a child. If a child is identified at this point in the process, the parents will not be able to adopt that child because premature contact will have been made with the child.[24]

Central Authority. Third, each country in the Hague Convention has designated a Central Authority as a clearing center for the determination of whether a child is available for adoption and whether that adoptions is proper under the Hague Convention.[25] For example, the United States has designed the Department of State as the Central Authority for the United States.[26] Once the I-800A application has been approved, the approval and all supporting documents are forwarded to the Central Authority for the referral to a child. Once the child has been identified, the Central Authority will determine if the child is eligible to be adopted, whether it is in the child’s best interest to be adopted, and whether the necessary consents for the child’s adoption have been obtained. Finally, the central authority will ensure that no payment has been made for the child’s adoption.[27]

Consular Adjudication. Fourth, once the Central Authority’s work is done, the parents will file a Petition to Classify Convention Adoptee as an Immediate Relative (USCIS Form I-800) with the consulate governing the place of adoption. A consular officer will adjudicate the petition and if adjudicated in the affirmative, will send an Article Five Letter to the Central Authority allowing the parents to finally and legally adopt the child.[28]

Final Adoption. Fifth, at this point in the process, the child can finally be adopted by the adoptive parents. The child should be adopted pursuant to the local requirements for adoption and the adoptive parents should be careful to follow all of the rules and requirements of the country in which the child is being adopted.

Some countries do not allow for adoptions in their laws. Therefore, the adoptive parents should follow all procedures for lawfully removing the child from the country and then an adoption should be completed in the United States.

U.S. Immigration of Adopted Children. Last, once a child has been fully adopted outside of the United States, the child will travel to the United States as an IH-3 and then acquire citizenship upon entry to the United States providing that the child is under the age of eighteen. If the child was not fully adopted outside of the United States because the country did not allow for a full and final adoption, the child will come to the United States as an IH-4 and will only acquire citizenship upon the entry of the final decree of adoption in the United States providing that the child is under the age of eighteen.

Attorney Prohibitions. Under the Hague Convention, attorneys must be careful not to assume roles outside of the attorney’s usual duties and to assume the role of the central authority or the accredited adoption service provider. For example, attorneys are specifically prohibited from identifying a child for adoption.[29] In addition, attorneys may not obtain the termination of parental rights.[30] This is a change because pre-Hague and outside of Hague adoptions, attorneys have in some cases assisted in this facet of the adoption process. The attorney is also barred from performing the background and home study, making any determination of the best interest of the child, and from performing any post-placement monitoring of the child.[31] Finally, attorneys are also barred from providing any care for the child at any point in the process.[32]

Conclusion. As can be seen from this overview of the intercountry immigration process, it can be fraught with pitfalls. When completing an adopted child or orphan child adoption, the rules are somewhat flexible and fluid and allow for early contact with the child. In contrast, Hague Convention adoptions are strict in the order in which steps must be completed and early contact with the child will render an adoption impossible to complete. However, with careful advanced planning, successful intercountry adoptions are possible and positive for both the parent and child.

[1] For an interesting history of intercountry adoptions, see Eckman, Mark, Intercountry Adoption: The United States as Receiving County, 1940-1994 in The International Adoption Sourcebook, Berger, Dan H., Editor.

[2] Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 (1998) Preamble.

[3] Id. (emphasis added).

[4] Id. at Article 2, §1.

[5] Id. at Article 2, §2.

[6] The following countries are currently Hague Convention signatory countries (countries in bold do not currently complete adoptions with the United States): Albania, Andorra, Armenia, Australia, Austria, Azerbaijan, Belarus, Belgium, Belize, Bolivia, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Canada, Cape Verde, Chile, China (and Hong Kong), Colombia, Costa Rica, Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Georgia, Germany, Greece, Guatemala, Guinea, Hungary, Iceland, India, Ireland, Israel, Italy, Kenya, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malta, Mali, Mauritius, Mexico, Moldova, Monaco, Mongolia, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Uruguay, Venezuela.

[7] INA §101(b)(1)(E).

[8] Id.

[9] Id.

[10] Messina v. USCIS, Dkt. No. 05-CV-73409-DT, 2006 U.S. Dist. Lexis 10292, 2006 WL 374564 (E.D. Mich. Feb. 16, 2006).

[11] INA §101(b)(1)(E).

[12] Id.

[13] The Visa Bulletin published by the Department of State monthly provides the visa waiting list for this category of immigration. To see the current visa bulletin, go to

[14] INA §101(b)(1)(F).

[15] INA §101(b)(1)(F).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 (1998), Article 5 and 15.

[21] For a list of U.S. accredited adoption service providers, go to

[22] Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 (1998), Article 5 and 15.

[23] Id. at Article 29.

[24] Id.

[25] For a list of each country’s central authority, go to

[26] 8 C.F.R. §204.301.

[27] Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 (1998), Article 15 and 16.

[28] Id. at Article 5.

[29] Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 (1998), Article 9 and 11.

[30] Id.

[31] Id.

[32] Id.

Ana M. Mencini is an Assistant Clinical Professor of Immigration Law at Chicago-Kent College of Law. She also runs the Chicago-Kent Law Offices’ Immigration Clinic, which is a fee-generating law office where law students intern to gain experience in the immigration law field. Professor Mencini, a graduate of Lake Forest College, DePaul University, and Chicago-Kent College of Law, sees clients in Chicago and at her Itasca office.

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