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My biggest fear with my international adoption is that we will go through the whole process then the US government will decide that the children do not qualify as orphans.
Both parents are alive, but they are willing to certify abandonment. Is that really enough to declare the children orphans in the US, or do other conditions have to be met too?
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The U.S. Immigration and Nationality Act is very clear. A child CANNOT be granted an adoption visa if he/she has been living with two parents prior to the adoption. A child is an eligible orphan if he/she:
a. Has been living with a single parent who cannot support the child according to the normal standard of living in the foreign country where he/she lives (NOT according to U.S. standards). If the single parent is living with a partner other than the other parent, the USCIS will often claim that the partner must be considered a step-parent, making the child ineligible under the orphan definition. It can be appealed, but there are no guarantees.
b. Has no living parent (death certificates usually required).
c. Has been removed from the parental home by an agency of the government, for a reason such as neglect or abuse, with the rights of the parents legally terminated.
d. Has been abandoned, with no one knowing the whereabouts of the parents and no contact between the parents and the child. In some countries, like China, a birthmother search is conducted by the provincial authorities before a child is eligible to be placed for adoption.
e. Has been officially relinquished to an orphanage, foster care provider, etc., with no further involvement between the parent and child. The time frame without contact must be long enough that the government is satisfied that the child was truly relinquished, and not just put in the orphanage temporarily in an attempt to make him/her eligible for a visa. Usually, it's not an issue if the child has been there for a year or so.
Never go through an international adoption unless you are confident that the child will be eligible for immigration. In the situation you outlined, it sounds as if the child is still living with the bio parents, and hasn't been living away from them, without contact, for a signficant period. If so, it's highly unlikely that you will be able to get a visa for the child. If you want to be more sure, talk to the U.S. Embassy in the foreign country or to a highly reputable American immigration attorney.
If a child does not qualify for a visa because of the orphan definition, you can always live overseas with him/her for two years after you adopt in the foreign country, and then apply for an immigrant visa for him/her. Unfortunately, that's not feasible for most people, who have jobs, homes, etc. in the U.S.
Be aware that there could be other issues that keep you from adopting and immigrating the child. Here are just a couple of examples:
a. Some foreign countries do not allow the adoption of relatives, and it sounds as if you may be talking about a relative adoption. Taiwan is one example. Make sure you understand the foreign country's adoption laws. The U.S. won't grant a visa to a child who was not legally adopted in his/her home country. (In a few countries, it is OK if the foreign government sends the child, under a guardianship agreement, to the U.S., for adoption here; however, most countries do not allow this procedure.)
b. Many countries prohibit independent adoption -- that is, where the prospective adoptive parents do not work with an agency licensed in their home country and accredited by the child's country. It sounds as if you are working without an agency, so this could be an issue. The prohibition on independent adoption often exists because, when unethical or illegal practices occur, they are more likely to occur during independent adoptions.
c. If the child's country of citizenship has ratified the Hague Convention on intercountry adoption, then the prospective parents MUST work through a Hague-accredited agency in their home country. And unless they are closely related to the child, they usually cannot be allowed to have personal contact with the birthparents before the adoption. (This provision helps ensure that families do not bribe or coerce women into giving up their children for adoption.)
d. The child has reached his/her 16th birthday. The U.S. will not grant an adoption visa to a child who has reached his/her 16th birthday at the time the I-600 is filed with the USCIS. The only exception is in situations where the same family has already adopted a bio sibling of an over-16 child. In that case, the U.S. will allow issuance of an adoption visa until just before he/she turns 18.
Overall, your best bet right now is to contact either a licensed agency or an immigration attorney, to discuss your concerns.
And if you want people on this board to respond to your concerns, it might be best if you mentioned the foreign country involved, because that could affect whether the child will be adopted and immigrated under Hague or non-Hague rules. It also might be best if you mentioned your relationship to the child and what steps you have already taken towards adopting and immigrating him/her to the U.S.
Sharon
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This is a non-Hague country with fairly lax rules on adoption. (Benin.) The children are brother and sister, ages 9 and 7. They have not lived with their parents for the past two years because their parents are too poor to support them. They have been staying with their aunt. I believe their father saw them a few months ago though. I am their neighbor.Again, I am not too worried by the country's restrictions... the biggest hurdle in my mind right now is whether there is anything we can do to get them to be considered orphans by the US.
I guess I would recommend:
1. Talking to the folks at the U.S. Embassy in Benin.
2. Talking to a U.S. attorney who practices immigration law and has special familiarity with adoptions. I could give you the name of one; although she is, most likely, not in your state, she could, at least recommend someone near you.
Sharon