I will most likely need to talk to an immigration lawyer, but this community seems like a very good place to start.
Recently, I was granted sole legal custody of a 15 year old who was born in South America. I am trying to plan on how to return to the USA, and what my options are.
A) Would the child be covered by the Child Citizenship Act to be automatically granted citizenship? It is not an adoption, just legal custody.
B) If not - Would a green card be the more appropriate path?
I am not sure where to start even, thanks !
I'm sorry that I missed your post previously.
First off, you will NOT be allowed to get an adoption visa for your child, whether he is from a Hague or non-Hague country in South America, that will permit you to bring him to the U.S.
In order to qualify for an adoption visa, you must have obtained a final decree of adoption from the foreign country's courts, OR you must have acquired a decree of guardianship from the country's courts, indicating that it approves your plan to obtain a final decree of adoption from a court in your American state of residence. A decree that simply gives you guardianship is not generally sufficient, because an adoption visa is granted ONLY to children who have already been adopted or who are being allowed to go to the U.S. for the purpose of adoption.
Also, in addition to the above, you must have gone through the I-600 or I-800 process with the USCIS; the I-600 process is for non-Hague countries, and the I-800 process is for Hague countries. Basically, the USCIS must approve you to bring an orphan into the US as your dependent. It will first want to see a valid homestudy report for you, plus appropriate biometrics and other documents, and then it will want to see some paperwork on the child to ensure that he meets the definition of an "eligible orphan" under the U.S. Immigration and Nationality Act, who has been lawfully adopted or given to you under a decree that permits him to come to the U.S. for adoption. As an example, whether you are doing a Hague or non-Hague adoption, the child cannot have reached his 16th birthday before the "orphan petition" is filed with the U.S. Embassy in the foreign country. The only exception occurs in cases where a family has adopted a biological sibling of the child previously, in which case the new child must not have reached his 18th birthday.
Further, if you are trying to immigrate a non-Hague child, he must be considered an "eligible orphan" under the U.S. Immigration and Nationality Act. If the child was living with two parents when you took guardianship, he is not considered an eligible orphan. A child is an eligible orphan only if any of the following apply:
1. He was living with a single parent who could not support him at a level considered appropriate in his country (NOT according to U.S. standards).
2. He lost both parents to death (death certificates required).
3. He was removed from his parents, whose parental rights were terminated for a cause such as abuse or neglect.
4. He was abandoned by his parents, whose whereabouts are unknown.
5. He was permanently and legally relinquished by his parents and was living in an institution or with a foster care provider.
Moreover, because of the Universal Accreditation Act, you must also have used a Hague-accredited U.S. agency as your primary provider, whether or not you are doing a Hague adoption and whether or not you identified the child or did any steps in the process on your own. The Hague-accredited agency is required to certify that every step in the adoption process met U.S. and foreign legal requirements plus Hague requirements.
Now, under some circumstances, you "may" qualify for an IR-2 visa if you and the child don't meet all of the requirements above, but you would have to live with the boy in the foreign country for two years in order to do so, but if you are thinking of coming home soon, that obviously won't work. And the IR-2 requirements should be carefully reviewed with the U.S. Embassy in the foreign country, to make sure that, even if you lived there for two years with the boy, you could bring him home.
As to your questions about citizenship, there is absolutely no way that the boy would qualify for citizenship under the Child Citizenship Act unless you have a final decree of adoption and unless you immigrated him on an IR-3, IR-4, or IH visa. An IR-3 requires that a non-Hague foreign country granted a final decree of adoption and, if you have a spouse, that both of you saw the boy before the adoption was finalized. An IR-4 can be issued either if a non-Hague country issued a final decree of adoption but either you or your spouse or both did not see the boy before the finalization overseas, or if the non-Hague country issued a decree of guardianship indicating that the boy was being brought to the U.S. for adoption in your state. An IH-3 or IH-4 is issued only by Hague countries, and Hague adoptions have slightly more complex requirements than non-Hague adoptions.
Be aware that if you do a typical "domestic" adoption in a Hague compliant country, a child does NOT qualify for an adoption visa of any kind; you MUST use the Hague procedure. Also be aware that, if your child gets an IR-3 or IH visa, and meets all the other requirements, he would become a U.S. citizen as soon as he entered the U.S. However, if he gets an IR-4 visa, he must be adopted or readopted in your home state before automatic citizenship applies. An IR-2 visa does NOT qualify a child for automatic citizenship; the child must be naturalized.
As far as getting a green card, adopted children who come home under IR-3 or IH visas never get green cards, because they become U.S. citizens as soon as they enter the U.S., and receive Certificates of Citizenship in the mail. Adopted children who come home on IR-4 visas receive green cards immediately; then, when they are adopted or readopted in the U.S., they become automatic citizens and parents need to apply for a Certificate of Citizenship and pay a fee for it. If a child doesn't get an adoption visa, he can't immigrate unless he qualifies for some other type of visa. In most cases, there can be years of waiting for a person to get a visa allowing him to come to the U.S. permanently. So, for example, if the boy reached age 18 and applied for a permanent resident visa, or if he was a minor born to a foreigner applying for a permanent resident visa, he might have to wait several years to come to the U.S. with a green card.
Most other visa categories are temporary visas. As an example, some young people get education visas. An education visa is good only as long as the person remains in the particular school that the USCIS approved; if he graduates, leaves, or gets kicked out, he must go home to his country of citizenship. Basically, to qualify for an education visa, the student must prove that a school on the USCIS list of institutions eligible to serve foreign students has accepted him, and most of those institutions will require testing for English proficiency and for a level of achievement comparable to that of other students at the school. The student must also prove that he has a sponsor who is willing to pay all of his living expenses in the U.S., plus all the costs of his education, though it is also acceptable if the school pays some of the expenses. The student is not permitted to work for pay in the U.S. The student generally cannot attend public schools, such as your local high school, although some may allow the foreign person to attend if the sponsor pays the full cost that the school incurs to educate a student -- often a few thousand dollars. Nowadays, the USCIS also wants the student to prove that he has such strong ties to his country of citizenship that he won't be tempted to overstay his visa and stay in the U.S.; for example, it will want to see evidence that the student has close family ties in the foreign country, owns property in the country, has bank accounts in the country, etc. It will never grant an education visa to someone who hopes to live permanently with someone like you, in the U.S.
Some children also come to the U.S. on medical visas, if they have a serious medical condition that cannot be treated appropriately in their home country. Again, the USCIS will want proof of the nature of the condition, will expect a sponsor to pay then entire costs of the child's treatment and his living expenses, although some hospitals and doctors may take on certain cases at no charge, and will want proof that the child is likely to return home and not be tempted to remain here permanently.
Adults can qualify for work visas. However, they, too are temporary visas. They are usually given only to people who have specialized skills that are in short supply, in some areas of the U.S. As an example, some hospitals in inner city areas have difficulty recruiting well-qualified nurses; they may sponsor qualified foreign nurses, if the USCIS approves. My daughter's boyfriend is Indian and, though he has an MBA, had to agree to work as a fairly low-level supervisor of IT coders, in order to remain in the U.S. on an H1B visa, after he finished grad school here. A work visa must be sponsored by a specific workplace, and if the person doesn't stay at the job, find another job that will sponsor him, or (in some cases) stay long enough to be considered for a green card, he must go home.
All in all, before you assumed guardianship of the boy, you should have consulted with the U.S. Embassy. All too many families find themselves in situations like yours, because they don't seek guidance on the legal requirements of adopting an overseas child. I would suggest that you contact a highly qualified adoption/immigration attorney in the U.S. about the boy's situation, and if you don't know of one, I can recommend a person who is one of the best in the country; if she can't help you, I doubt that anyone can. However, I must tell you that even a good lawyer can't work miracles. As you did not follow the appropriate I-600 or I-800 procedures, did not actually adopt your son legally or get a decree of guardianship specifically for the purpose of bringing him to the U.S., did not use a primary adoption provider who has Hague accreditation, and so on, even the best attorney may not be able to assist you.
A couple of clarifications:
1. Under no conditions will the boy be able to get an adoption visa without a Hague or regular international adoption, or a Hague or regular guardianship decree that explicitly allows you to bring the boy to the U.S. for the purpose of adoption, usually under the oversight of your Hague-compliant U.S. adoption agency. And there are no other IMMIGRANT visas for which your child would qualify that would give him the right to come to the U.S. right away. An immigrant visa would entitle him to a green card, allowing him to stay in the U.S. permanently; other visas are temporary. Temporary visas would allow him to come to the U.S. ONLY for a specified length of time, or for a particular purpose, and would not be issued unless the USCIS felt confident that he would return overseas when they expire. Given the fact that the boy has been living with you, the USCIS would probably refuse to grant him a temporary visa, as it would be clear that he might try to remain in the U.S. when a temporary visa -- tourist, education, medical, or work -- expires.
2. If you try to adopt the boy now or to get guardianship (usually under supervision of your agency) to bring the boy to the U.S. for adoption, it is likely to take more than a year, because you'll need to get a primary provider, have a homestudy, secure mountains of documents and have them authenticated to meet the requirements of the foreign country, get a medical exam for yourself, get police and child abuse clearances for every place you have ever lived, and so on. There will also be some time needed to secure a new birth certificate for boy, listing you as the father; to get a formal copy of the adoption or guardianship decree; to get him a passport; and so on. The "orphan petition" cannot be filed until you have these things. Given that the boy will probably turn 16 before you have everything done, you will NOT be able to get an adoption visa for him, even if you have all the right paperwork, because it must be filed before his 16th birthday.
3. Even if you are willing to spend two years overseas with the boy before bringing him to the U.S, it may be impossible to get an IR-2 visa for him. First off, if he turns 18 before the two years is complete, he will be considered an adult, and not really your dependent; as such, he may be unable to get an IR-2, which is a dependent visa. Check with the U.S. Embassy or an attorney in the U.S., but I think he'd have to apply for a regular immigrant (permanent resident) visa, which could take years to get. If the boy was severely retarded or had other disabilities that made him unable to care for himself, it might be possible to get around this problem, but my sense is that he is just an ordinary teenager right now. Another problem is that Hague countries may not be willing to grant the boy a passport or an exit permit (if they require one), because they may view your activities as efforts to subvert Hague requirements. Latin American countries that are Hague-compliant take the treaty very seriously, and if they won't supply the appropriate paperwork, the U.S. Embassy won't issue a visa of any kind. The U.S. is committed to respecting actions of foreign countries that permit Hague adoptions. And you might have problems, even in non-Hague countries, if you did not go through the I-600 or I-800 process.
4. Many Americans living temporarily overseas,adopt a child using the same adoption process that natives of that country use. SUCH ADOPTIONS DO NOT QUALIFY A CHILD FOR AN ADOPTION VISA. The child must be adopted via a legal process intended for international adoptions, and acceptable to both the U.S. and the foreign government. In the case of Hague countries, adoptions by Americans must use a specific Hague adoption process, put into place by the country's designated Central Authority for adoption.
5. If you live overseas permanently with your child and plan never to bring him/her to the U.S., it doesn't matter whether or not you adopt him or get an appropriate decree of guardianship. Just remember that he will not qualify for U.S. citizenship, even via naturalization, and will probably not be able to visit the U.S. with you on a tourist visa, if you should decide to take him to visit someone.
6. If you live overseas permanently with your child, but want to give him citizenship and the right to come to the U.S. for visits, you need to adopt him. While the status of the adopted children of expats may change, it appears that they do NOT qualify for automatic citizenship, but will have to be naturalized. If you have gone through the I-600 or I-800 process, you may be able to get expedited citizenship for the child by working with the U.S. Embassy. Usually what happens is that you get a visa for your child that entitles him to go to the U.S. with you for the specific purpose of naturalization. You would have an appointment at a particular U.S. Embassy or Consulate that is familiar with expedited naturalizations, complete the while residing in that area for a few weeks, and then return home with your child. Get further information from the Embassy.
I really hate to give you all this bad news, but it always surprises me that most Americans do not understand that adoption and immigration are very complex legal processes. The adoption process is complex, because it is supposed to protect children, their birthparents, and their adoptive families. The Hague treaty, in particular, was put in place to ensure that children were not being bought, stolen, or placed with people who would enslave them or force them into prostitution; that birthparents were not being coerced into placement or misled about the finality of adoption -- yes, they lose their parental rights; and that adoptive parents weren't subjected to manipulation by greedy, unscrupulous providers who pocketed money and didn't give them a child, or who misrepresented a child as healthy when he was very ill, etc. And immigration is complex because the U.S., like most countries, simply cannot accommodate all the folks who want to live here and, also does not want to welcome people who have a record for committing violent crimes or who are likely to put an unreasonable burden on the American welfare system.
If you haven't already found an attorney in the U.S., let me recommend Irene Steffas. I have no personal or professional relationship with her, but I got to know her when I worked in a respected adoption advocacy organization, and found her to be extremely knowledgeable, respected by American and foreign attorneys and government agencies, very successful in representing clients, and very compassionate, even taking some cases pro bono, back when the USCIS was wrongly denying visas to some children from Vietnam and Cambodia. She is an international authority on the Hague Convention, and is also an adoptive parent. She lectures frequently at conferences of attorneys, adoption professionals and medical professionals who care for adopted children. Her contact information is:
Address: 4343 Shallowford Road, H-1, Marietta, Georgia 30062
Phone: 770.642.6075
Fax: 770.642.9162
My best wishes.