Traditionally, adoption abroad, or intercountry adoption, occurred through a “closed adoption.”  In a “closed adoption” the adoptive parent(s) would not be informed of the identities of the child’s biological parent(s).  Nowadays, the reasons for adoption have become diversified. Further, more people now want to adopt a child from whom they knew about, such as from a friends or relatives.  This type of adoption is known as an “open adoption.”

Regardless of the type of adoption, either closed or open, if the adoptive parent is a United States citizen or U.S. legal permanent resident, he or she probably wants the adopted child moved to the U.S. after the adoption abroad takes place. Thus, such an intercountry adoption mainly involves 2 steps: the adoption process, and later, the immigration of the adopted child. First, let’s look at the adoption process.

Introduction to the Hague Adoption Convention

When talking about intercountry adoption, it is important to recognize that the U.S. is a signatory to the Hague Adoption Convention and thus is subject to its provisions. The Hague Convention provides safeguards and standards above those of a given country own adoption laws to insure the best interests of the potential adoptee. Based on Article 2 of the Convention, it only applies where:

• a child habitually resides in one Convention country (the country of origin);
• has been, is being, or is to be moved to US for the purpose of adoption; and
• the prospective adoptive parent(s) habitually reside(s) in the US.

Next, let’s discuss the adoption process given different statuses for the adoptive parent(s) and for the potential adoptee.

The adoptive parents are US citizens

• The potential adoptee is from a Hague Convention country

If the US citizen parent, or parents, wants to adopt a child from a Hague Convention country (please find the Hague Convention Country list here), the adoption must comply with the Hague Convention standards and procedures. Since Hague adoptions must deal with the Central Authority of the adopted child’s country, the adoptive parent(s) has to first find an Accredited Adoption Service Provider that is designated as such by the U.S. Department of State. Then, the adoptive parent(s) must  complete all Hague Convention requirements under the guidance of the Adoption Service Provider. You may search for one in your state here.

For example:
Mary, a US citizen now living in Texas, wants to adopt a child from China without any preference regarding a specific child. To proceed, she must first contact a U.S. Accredited Adoption Service Provider. The Accredited Adoption Service Provider will lead her through the entire adoption process, as well as the immigration process later on.

The distinguishing characteristic of Hague Convention adoptions, compared to other adoptions, is that you cannot choose a specific child. Instead, the Central Authority of the potential adopted child’s country will match a child with you and provide you with information about the child. You will then be given a significant amount of time to decide whether to accept or decline the child.

To learn more about the immigration matters concerning the adopted child under Hague Convention adoptions, please click here.

However, it should be noted that under certain situations the adoptive parent may opt-out of the Hague Convention even if the proposed adopted child is from a Hague Convention country.

Exception

The Convention will not apply if, at the time of the adoption, either:

• the adoptive U.S. citizen parent does not habitually reside in the U.S., OR
• the potential adopted child is a citizen of a Hague Convention country but not habitually residing in that country.

Situations where the prospective adopted child is in the U.S.at the time of the adoption are discussed in our article, U.S. Based Adoption. Situations where the prospective adopted child is in a third country other than the U.S. or the country of the child’s origin are very rare. Thus, we will mainly discuss the situation when the adoptive U.S. citizen parent does not habitually reside in the US.

Generally, “a US 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.”If the adoptive parent is not domiciled in the United States, meaning he or she does not live in the U.S. and has no intention to maintain a residence in the U.S. for the indefinite future, then he or she will not be deemed to habitually reside in U.S.

For Example:
Kathy moved to China from the U.S. and has lived there for 10 years before deciding one day she wanted to adopt a child there. She might not be deemed to habitually reside in the U.S., and thus can disregard the Hague Convention.

In addition, there is a special rule about the adoptive parent’s habitual residence which states that “the adoptive parent will not be deemed a habitual resident in the United States at the time of the adoption if the citizen completes the two-year custody and the two-year joint residence requirement by living with the child outside the United States.”

Example: The James family met their friend’s child when they traveled to China and decided to adopt him. They obtained custody and have lived with him for two years in China. Now, the James family can ignore the Hague Convention and complete the adoption process by solely complying with the Chinese legal requirements. Later on, if they plan to move the child to the U.S., the adoption will be recognized by U.S. immigration law and they can file I-130 immigration petition for the adopted child.

For details about the immigration matters surrounding the adopted child under this exception, please click here.

• The potential adoptee is from a non-Hague Convention country

If the potential adoptee is from a non-Hague Convention country, then the Hague Convention will not apply. Therefore, the adoption solely needs to comply with the law of the country of the potential adoptee’s origin.

With respect to immigration, the U.S. approaches this situation differently depending on whether the potential immigrant child qualifies as an orphan under U.S. law. Please click here for more detailed information on orphan petitions, or click here for more information on regular petitions.

The Adoptive Parents are U.S. Permanent Residents

In terms of the adoption process; U.S. permanent residents are treated similarly to U.S. citizens. Generally, if the potential adoptee is from a Hague Convention country and the adoptive parents are citizens of a Hague Convention country, then the adoption has to comply with Hague Convention standards. Otherwise, since the Hague Convention does not explicitly address the citizenship issue of the adoptive parents, the adoption regulations of the child’s country will probably come into play.

Special Circumstance—The Same Citizenship

There is generally only one situation under which the adoption can ignore the Hague Convention even if the potential adoptee is from a Hague Convention country. This is when the U.S. permanent resident prospective parent has the same citizenship as the prospective adopted child. Since it is no longer an intercountry adoption, only the law of their mutual country of citizenship will apply.

For example:
The Chens are U.S. Green Card holders. They have no child. Mr. Chen’s elder brother in China has two. When they traveled back to China, they met Mr. Chen’s elder brother and decide to adopt one of his children. Due to their mutual citizenship, no matter where they propose to finish the adoption, they can simply ignore the Hague Convention. For practical matters, they will probably plan to finish the adoption process in China, and thus will only be required to satisfy the adoption laws of China.

For the purposes of immigration, children adopted by U.S. permanent residents, unlike those adopted by U.S. citizens, cannot enjoy the immigration benefits provided by the Hague Convention. Therefore, U.S. officials recommend permanent residents first gain U.S. citizenship before they attempt intercountry adoptions. Although permanent residents can legally adopt a child, when it comes to immigrating the adopted child to the U.S. there will be additional hurdles and a lengthier process.

As we discussed before, Convention adoptions entail that the adoptive parent(s) cannot choose their child themselves, and instead may only have the right to either accept or decline the child chosen by the Central Authority of the child’s country. As such, non-Convention adoption may be preferred by some potential parents.

With respect to immigration matters of the child who is adopted by U.S. permanent resident parents, only after meeting certain criteria can the adoptive parent(s) file an I-130 family-based immigration petition for her/him.  For more information on filing a Form I-130, please click here for detailed information.

For more detailed information about Adoption, please visit on one of the following relevant links:

• US Based Adoption
• Adoption Abroad
• Adoption & Immigration
• The Definition of a Child according to U.S. Immigration Law