Traditionally, adoption abroad, orintercountry adoption, usually happened in a “Closed Adoption” method, namely the adoptive parent(s) would not be informed with any identifying information of the adopted child’s biological parent(s), there would not be any interaction between the adoptive and biological parent(s) either. Nowadays, the trend changes and reasons to adopt become diversified. Most importantly, people would like to adopt a child from whom they knew about, such as from a friend or even relative, which is known as the “Open Adoption”.

However, no matter what the adoption method they would like to use, closed or open, It is fairly safe to say that people with the intentionof adopting a child will want to form a family and live together. Therefore, if the adoptive parent is US citizen or US legal permanent resident, he or she probably hopes to move the adopted child to US after the adoption abroad. Thus, this kind of intercountry adoption will mainly involve 2 steps: the adoption process and later the immigration of the adopted child. First, let’s look into the adoption process.

Introduction to the Hague Adoption Convention

When talking about intercountry adoption, we can’t ignore that the US has joined the Hague Adoption Convention and thus abides by it starting from April 1, 2008. The Hague Convention provides safeguards and higher standardscompared to a given country’sown law in the best interest of the potential adoptee. Based on Article 2 of the Convention, it applies only where

1. a child habitually resides in one Convention country (the country of origin)

2. has been, is being, or is to be moved to US for the purpose of adoption

3. the prospective adoptive parent(s) habitually reside(s) in the US.

Next, let’s figure out the adoption process based on different statuses of the adoptive parent and potential adoptee.

The adoptive parents are US citizens

• The potential adoptee is from a Hague Convention country

Basically, if a US citizen parentwants to adopt a child who is from a Hague Convention country (please find the Hague Convention Country list here), the whole adoption has to comply with Hague Convention standards and process. Since Hague adoption must deal with the ‘Central Authority’ of the adopted child’s country, the adoptive parent has to first find an agency (Accredited Adoption Service Provider) which is designated by the U.S. Department of State and then complete all Hague Convention requirements under the guidance of the Adoption Service Provider.

For example: Mary, US citizen, now living in Texas, wants to adopt a kid from China without any preference regarding to a specific child. Then, if she makes up her mind to proceed, she must first contact with a US Accredited Adoption Service Provider. She may search one in her state here.The Accredited Adoption Service Provider will lead her through all adoption process as well as the immigration process later on.

Bear in mind that the biggest characteristic for Hague Convention adoption, comparing other adoption process, 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 information of the child to you. Then you will be given significant time to decide whether to accept or decline the child.

With respect to details about the immigration matters of the adopted child under this situation, please click here.

However, it should be noted that under certain situations, the adoptive parent might 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.

We discussed the situation when the potential adopted child is in US at the time of the adoption in US based adoption section. The situation when the potential adopted child is in a third country other than US or the country of the child’s origin is very rare for practical matter. Thus we will mainly discuss the situation when the adoptive US citizen parent does not habitually reside in the US.

Based on the Law, 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.” In another word, if the adoptive parent is not domiciled in United States, that is, if he or she does not live in the United States and has no intent to maintain the residence in US for the indefinite future, then he or she will not be deemed habitually reside in US.

For example, Kathy moved to China and lived there for 10 years before she wanted to adopt a kid there. She even decided to live with the adopted child in China until one day if the adopted child wants to immigrate to US. She might not be deemed habitually reside in US thus can disregard the Hague Convention.

In addition, there is still a special rule about the adoptive parent’s habitual residence which states that “the adoptive parent will not be deemed a habitually 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 couple mettheir friend’s childwhen they traveled to China and decided to adopt him. They obtained his custody for two years and lived with him for two years in China. Now, the James couple can ignore the Hague Convention and complete the adoption process complying with China law requirements. Later on, if they plan to move the child to US, the adoption will be recognized by US immigration law and they can file I-130 immigration petition for the adopted child.

With respect to details about the immigration matters of 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 process will have to comply with the law of the country where the potential adoptee is from.

With respect to immigration matters of the adopted child under this situation, the US develops different approacheswhich depend on whether the potential immigrant child will qualify as an orphan as defined by US law. Please click here for detail information for orphan petition or click here for regular petition if the child satisfy some specific qualification.

The adoptive parents are US permanent residents

Strictly in terms of the adoption process, US permanent residents do not have any major deviations from the process that US citizens must use. Generally, if the potential adoptee is from a Hague Convention country and the adoptive parent’s citizenship is a Hague Convention country, there is no doubt the adoption has to comply with theHague Convention standard and process. Otherwise, since the Hague Convention does not explicitly address the citizenship issue of the adoptive parent, the adoption regulation of the child’s country will probably come into play.

Special Circumstance—TheSame Citizenship

There is generally only one situation under which the adoption can do away with the Hague Conventioneven if the potential adoptee is from a Hague Convention country. This is when the US permanent resident has the same citizenship with the potential adopted child, since it is no more an intercountry adoption. Under such a circumstance, the law of their country of the citizenship will apply since it is no more aintercountry adoption.

Example:ChensareUS green card holders. They have no kid while Mr. Chen’s elder brother in China have two, when they traveled back to China, they met Mr. Chen’s elder brother and decide to adopt one of his kids after discussion. Due to their same 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 thus will only be required to satisfy the adoption laws of China.

For immigration matters, a child adopted by the US permanent resident, unlike the US citizen, cannot enjoy the immigration benefit from the Hague Convention which the adopted child can gain the US citizenship immediately. Therefore, even the official stance for recommendation to permanent residents is to first gain their U.S. citizenship before they attempt to adopt internationally. The reason being is that even though you can legally adopt a child in another country, when it comes to the immigration of the adopted child if the adoptive parent wants to do so, there will be some criteria regarding whether the adopted child can be moved to US and a relatively long process both for the adopted child and adoptive parent.However, as we discussed before, there is a big limitation for Convention adoption that the adoptive parent cannot choose a kid specifically, instead, he or she will only have the right to either accept or decline the kid chosen by the central authority of the kid’s country. Under this perspective, non-Convention adoption may have advantages since most of the adoption will be open adoption for practical matters.

With respect to immigration matters of the child who is adopted by US permanent resident parent, only after qualifying certain criteria can the adoptive parent filean I-130 family-based immigration petition for her/him, please click here for the detail information.

For more information on Adoption, please visit the following links:

• US Based Adoption
• Adoption Abroad