Generally speaking, an adoption and immigration application regarding a child from a Hague country and temporarily present in the United States is regulated under the Hague Convention and the I-130 is not applicable.

Under the regulation, if the US citizen adopted the 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 resident in the United States; OR
• The child was not habitually resident in the other Hague Adoption Convention country¹.

• The citizens’ (adoptive parents) habitually residency

The Hague Adoption Convention regulation, at 8 CFR 204.303, explains when the adoptive parent 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 residence 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, if the Central Authority or another competent authority of the country in which the child has his or her actual residence has determine that the child’s status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody².

The child will not be considered to be 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 a 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 C⁴.

However, if the US 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, and of 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. And 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 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 petition⁵.

But practically, it is very difficult to obtain the written determination from the Central Authority 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 problematic⁶.

The most practical case is that the adopted child was already in US and the adoption process had been completed. From the discussion above, if the adoptive parent can receive such letter from the Central Authority of the child’s country. Then there is no doubt they can petition an I-130 Family-based immigration for the adopted child. However, what if they cannot receive such letter? The answer might not be sure due to the conflict of laws. Namely, the INA grants such child immigration benefits while the 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 a 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.
• ⁴ 8 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:

• Adoption from a Hague Convention Country
• Steps in the Hague Adoption Convention Adoption Process
• Required Documents
• Exceptions to the Hague Adoption Convention Application