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Legal Issues on Bringing Chinese Earthquake Orphans to U.S. Jian Joe Zhou, Attorney at Law The tragic earthquake in Shichuan, China on May 12, 2008 touched many around the world, and people are offering assistance to those impacted by the disaster. Concern and assistance are especially centered on the hundreds of young kids who lost both parents in the earthquake. Caring people in the United States, including U.S. citizens and non-citizens, are willing to offer those young hearts a new home and are looking to the possibility of adopting these earthquake orphans.. Adopting a Chinese orphan and bringing him/her to the United States involves complicated U.S. and Chinese legal issues. According to the general principle of international private law, the adoption process is controlled by the laws of the country where the adoption is concluded. Therefore, in order to adopt a Chinese earthquake orphan, you must go through the Chinese adoption procedure. According to the new regulations issued by the China Center for Adoption Affairs, foreigners (such as U.S. citizens) who wish to adopt a Chinese child must meet certain criteria. For example, the adoption is limited to married couples that have been married for at least two years, and both of the adopting parents must be within 30-50 years of age. In addition, the adopting couple must meet certain requirements on health conditions, financial resources, education, previous criminal records, existing number of children, and family suitability. Additionally, Chinese law requires that the adoption take place prior to the child’s 14th birthday. In addition to Chinese adoption procedure, US immigration law requires reviewing process for both adopting parent(s) and the adopted orphan. If a beneficiary orphan has been identified, the adopting parent(s) should file form I-600 with supporting documents establishing the eligibility of the adopting parent(s) and the adoptive orphan. A home study is also required for the processing to ensure the suitability for the adoption. In case that an orphan child has not been identified but the prospective adopting parent(s) would like to expedite future processing, a form I-600A Advance Processing of Orphan Petition may be filed. The form I-600A process examines the eligibility of the adopting parent(s) and suitability for adoption. Once an orphan child for adoption is identified, the adopting parent(s) should file I-600 to establish the adopted orphan child’s eligibility under U.S. law. I-600 may be filed concurrently when I-600A is still pending. However, I-600 must be filed before the child reaches his/her 16th birthday. After I-600 is approved, the adopted child needs to go through an immigrant visa application with the US consular overseas. In some cases, an to-be-adopted orphan met all requirements under I-600 Orphan Petition may use a special visa to travel to U.S., and complete the adoption process in the U.S. Only U.S. citizens are qualified to file I-600A and I-600 petitions (the spouse can be non-citizen but must be in lawful immigrant status). U.S. Citizens who adopt non-orphans face more complicated procedures in bringing adopted children to the U.S. In addition to completing Chinese local adoption procedure, U.S. immigration law requires 1) that the adoption must be completed before the child reaches his/her 16th birthday; 2) that the adopting parent has lived physically with the adopted child for two years; and, 3) the adopting parent has had two years of legal custody of the child. The last two requirements can be met at any time (before or after adoption, before or after the 16th birthday of the child). As this category is essentially a family-based immigration petition, form I-130 (Petition for Immediate Relative) needs to be filed. After the approval of the I-130, the adopted child will need to go through consular processing. Upon arrival at a U.S. port of entry, the child will receive permanent residency. I-600A and I-600 petitions do not apply to non-orphan cases. U.S. permanent residents (green card holders) cannot receive the I-600A and I-600 petition benefits even if the adopted child is an orphan. US permanent residents who wish to adopt foreign-born orphans or non-orphans must complete adoption before the child reaches his/her16th birthday and fulfill the two-year co-habitation and two-year custody requirements. Once the adoption is complete, as long as the child is under 21 years of age, the permanent resident can petition for the child using form I-130 under the family based 2A category. Due to the backlog with these petitions, it may take 5 or more years before the adopted child can immigrate to the U.S. If the child is very young, this may not be a problem. However, with the long waiting period, the child runs the risk of “aging out.” In other words, they will lose their eligibility for the 2A category if they turn 21 years old before they receive the immigrant visa. Currently, there is no provision for foreign-born adopted children to enter the U.S. in order to fulfill the co-habitation or custody requirements, making adoption of earthquake victims by permanent residents difficult and lengthy. Permanent residents wishing to adopt foreign-born children are better off waiting to obtain their citizenship status first. Adopted children of non-immigrant visa holders may be eligible for derivative non-immigrant visas. For example, a parent applying for an H-1B can apply for an H-4 for his/her adopted child. To qualify for non-immigrant visa benefits, the law requires that the adoption is completed prior the child’s16th birthday, and the adopting parent has completed two-years co-habitation with the child and has had at least two-years custody over the child. So, it seems there is no expedited process for adopting Chinese children affected by the earthquake. It may take a while for the Chinese government to identify the orphan status of those children who lost parents in the earthquake. In addition, relatives of those orphans may have priority in receiving custodial rights thus increasing the complications for adoption. Furthermore, the U.S. immigration process for international orphan adoptions may take a significant amount of time before it is completed. Those with serious intention of adopting Chinese earthquake orphans or other orphans should consult with experienced attorneys or adoption agencies to avoid potential mishaps in procedure that may prolong the processing time. ------ An attorney’s expertise and experience play a critical role in an NIW green card application. Our attorneys have extensive experience in NIW applications. In the past 12 years, we have successfully handled thousands of NIW applications with an extremely high overall approval rate. If you plan to file an NIW application, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation. Zhang & Associates, PC. (05/21/2008) For more immigration news, please click here |
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