Exceptions to the Hague Adoption Convention Application


An adoption and immigration application for a child from a Hague country, who is temporarily present in the United States, is regulated under the Hague Convention.  Therefore, an I-130 is not needed to petition for immigration on behalf of the child.

Under the Hague Convention, if a US citizen adopted a child from a Hague Adoption Convention country on or after April 1, 2008, a Form I-130 may be approved only if the citizen establishes that, at the time of the adoption:

  • EITHER the citizen was not habitually residing in the United States; OR
  • The child was not habitually residing in another Hague Adoption Convention country1.

The Citizens’ (Adoptive Parents’) Habitual Residency


The Hague Adoption Convention regulation, at 8 CFR 204.303, explains when the adoptive parents are deemed to be “habitually resident” in a particular country.

A U.S. citizen is deemed to be “habitually resident” in the United States if he or she is domiciled in the United States, that is, if he or she actually lives in the United States with the intent to maintain that residence for the indefinite future.

A U.S. citizen is also deemed to be “habitually resident” in the United States if he or she is domiciled abroad, but the U.S. citizen plans to take either of the following actions before satisfying the 2-year residence and custody requirements that would permit the child to immigrate under section 101(b)(1)(E):

  • establishing a domicile in the United States on or before the date of the child’s admission for permanent residence (and, therefore, will be living with the child in the United States after the adoption); or
  • bringing the child to the United States temporarily to obtain the child’s naturalization under section 322 of the Act.

Under 8 CFR 204.2(d)(2)(vii)(E), the citizen will be deemed, for purposes of adjudicating a Form I-130, not to have been habitually resident in the United States at the time of the adoption if the citizen completes the two-year custody and joint residency requirement by living with the child outside the United States. In this situation, the adoptive parent may file a Form I-130 instead of following the Hague Adoption Convention procedures.

The child was not habitually resident in the other Hague Adoption Convention country


A child whose classification is sought as a Convention adoptee is generally deemed to be habitually resident in the country of the child’s citizenship. If the child’s actual residence is outside the country of the child’s citizenship, the child will be deemed habitually resident in that other country, rather than in the country of citizenship. The Central Authority, or another competent authority, of the country in which the child has his or her actual residence must determine that the child’s status in that country is sufficiently stable for that country to properly exercise jurisdiction over the child’s adoption or custody2.

The child will not be considered 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 States3.

8 CFR 204.309(b)(4) specifically provides that  Form I-800A and Form I-800 can be filed, even if the child is in the United States, if the other Hague Adoption Convention country is willing to complete the Hague Adoption Convention process with respect to the child.

A child who is present in the United States, but whose habitual residence was in a Hague Adoption Convention country other than the United States immediately before the child came to the United States, is still deemed to be habitually resident in the other Hague Adoption Convention country for purposes of the filing and approval of a visa petition based on the child’s adoption by a citizen who is habitually resident in the United States. Thus, the adjudicator will presume that the child’s adoption and immigration are governed by the Hague Adoption Convention, the Intercountry Adoption Act, and 8 CFR 204 subpart D.4

However, if the U.S. adopting court receives a written statement from the Central Authority of the child’s citizenship country indicating that the Central Authority of the child’s citizenship country is aware of 1)the child’s presence in the United States, 2) the proposed adoption, and 3)that the Central Authority has determined that the child is not habitually resident in that country and enters an adoption order that expressly states the above 3 facts, USCIS will accept that determination. If all the other requirements of section 101(b)(1)(E) are met, the Form I-130 could be approved. (Transferred from a Convention adoption to a Family petition I-130)

The applicability of an I-130 is thus determined by the attitude of the Central Authority of the child’s country toward the particular adoption when the child is from a Hague Convention country.

If the Central Authority makes the three-fold finding in a written statement, the attorney finalizing the adoption in the United States must ensure that the final order of adoption also reflects these three findings. When the child becomes eligible under INA §101(b)(1)(E), the written statement from the Central Authority and the order from the State Court finalizing the adoption referring to such findings should be attached to the I-130 petition.5

Practically, it is very difficult to obtain a written determination from the Central Authority of a child’s country that the child is no longer a “habitual resident” of that country. The difficulty arises because the U.S. is the only country currently requesting such a written determination. Other Central Authorities are unfamiliar with the request and do not make it a high priority to comply. There are some countries whose Central Authorities have reportedly indicated to the U.S. Department of State that they will never issue such a letter. Other countries, such as Mexico, are very problematic.6

The most likely scenario for obtaining a written determination from a foreign Central Authority is one in which the adopted child was already in US, and the adoption process has already been completed. From the discussion above, if the adoptive parent(s) can receive such a letter from the Central Authority of the child’s country, then there is no doubt that they can petition for I-130 Family-based immigration for the adopted child. However, what if they cannot receive such a letter? The answer is uncertain due to a conflict of laws. Namely, the INA grants such child immigration benefits while the Code of Federal Regulations(CFR) does not. However, at least we might be able to file an action to Federal Court and claim the immigration benefit if the child can qualify to file an I-130 petition.

Legal Permanent Resident (LPR) Adoption


The Hague Adoption Convention does not apply to LPRs. When an LPR adopts a child, the adoption is not regulated by the Hague Convention even if the LPR becomes a US citizen later.

Citations:

  • 1 Chapter 21 of the Adjudicators Field Manual AFM Update AD09-26
  • 2 8 C.F.R. 204.303(b).
  • 3 Id.
  • 48 CFR 204.2(d)(2)(vii)(F)
  • 5 USCIS FAQ on Intercountry Adoptions” (Sept. 29, 2008), published on AILA InfoNet at Doc. No. 08093064 (posted Sept. 30, 2008).
  • 6 Virginia Women Attorneys Association Annual Conference Family Law Panel: Adoption-Pitfalls and Procedures, Karen Stoutamyer Law

For more information on immigration Process for Adopting a child from a Hague Convention Country, please visit the following links: