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Need help. If anyone is going thru this or can help please reply. My daughter came here from Thailand at 10 years old on a student visa in 2008. Her bio parents asked us to adopt her during her first year in America because they were separating. We retained an adoption and immigration attorney to help. Her adoption was finalized in the family court Feb 2009and we received an adoption decree and a birth certificate (certificate of foreign birth) for her naming us as parents. 2 years later we applied for permanent resident status for her (to comply with the 2 yr custody immigration rule)and immigration tells us that because she was adopted after 2008 we have had to comply with Hague Convention. BOth attorneys were unaware of the Hague Convention and we went with the 2 year custody adoption avenue (the other was the orphan petition) . Because we are not in compliance with Hague, she may get denied permanent resident status and could possibly get deported because her student visa status is no longer valid. She has been with us for 5 years and is our daughter and have a valid parent/child relationship.
Is anyone going thru anything similar? What can be done? WE have not found any competent attorneys who can deal with this matter. She will be 16 in November. We are frightened for her future. She would like to join the Air Force and become a doctor. Please help!!
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Unfortunately, you had no right to adopt a foreign citizen who was in the U.S. on a student visa.
Even if her country of citizenship was not a Hague country, children must be adopted in their country of citizenship or must come to the U.S. under a decree of guardianship from the foreign country, for purposes of adoption (in those countries that do not finalize there). Moreover, anyone who uses a temporary visa, such as a student visa, to try to get to stay in the U.S. permanently is considered, under U.S. law, to be committing visa fraud, a federal crime.
I'm not sure what two year custody rule you are referring to. Normally, if a child overseas does not qualify for an adoption visa -- for example, because she is not legally an orphan under the definition in the US Immigration and Nationality Act -- you would have to live overseas with her for two years, and then apply for a regular dependent visa. That would not have made sense for you, I'm sure, give the fact that you had jobs and lives in the U.S.
So, yes, you have a quandary. You have legal custody because you got an adoption decree in state court, but your daughter will be in violation of her student visa if she no longer is a student, and she will not have any other legal right to stay in the U.S. And, yes, she could be deported.
You do need a good attorney, one who knows of similar cases and how they have been resolved. And, yes, there have been other cases. I remember hearing about one where a young man, brought to this country on a visitor's visa and then adopted by relatives, did not know that he was illegal until he tried to go to college and was asked to produce proof of citizenship or legal residence, though I do not know how it was resolved. I will send you a PM with the name of an outstanding attorney with experience in your type of problem. She is both an adoption and an immigration lawyer. She is a nationally recognized expert on the Hague Convention. She teaches immigration and adoption law to lawyers and law students. She speaks at conferences of adoption professionals. And so on and so on. She's also an adoptive parent and compassionate human being, who is experienced in dealing with visa denials, etc. Frankly, if she can't help you, I don't think anyone can.
Sharon
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