Who can be Adopted?

Adoption laws vary among countries.  A child must qualify for adoption under the laws of his or her country of origin in order to be adopted.  Each country has different requirements for children to be eligible for adoption.  You can learn more about specific countries’ eligibility requirements for children in our Country Information pages.
 
Additionally, children being adopted abroad must be found eligible to immigrate under the U.S. Immigration and Nationality Act (INA) in order to reside in the United States.  Because adoption laws vary from country to country, it is possible to adopt a child abroad who does not qualify for immigration under U.S. law; such children cannot immigrate to the United States. 
 
The federal agency responsible for determining whether a child is eligible to immigrate to the United States in accordance with the INA is U.S. Citizenship and Immigration Services (USCIS).  U.S. law sets different eligibility requirements for adopted children living in Hague Adoption Convention countries (view country list) and those living in non-Convention countries.  Children in Convention countries must meet the INA definition of a Convention adoptee; children in non-Convention countries must meet the INA definition of an orphan.
 
Convention Adoptees (Convention Countries)
 
Children being adopted from a Convention country must qualify as a Convention adoptee in order to immigrate to the United States.  USCIS determines whether a particular child meets the definition of a Convention adoptee.  To apply to USCIS for this determination, you use the following form:

  1. I-800 – Petition to Classify Convention Adoptee as an Immediate Relative
  2. I-800 application instructions

Form I-800 and the required supporting documents are required for USCIS to determine that a child is eligible for classification as a Convention adoptee.  In order to file From I-800 with USCIS, you must have an approved, valid Form I-800A (Application for Determination of Suitability to Adopt a Child from a Convention Country).  See our eligibility requirements for prospective adoptive parents for more information about filing Form I-800A. 
 
There are five primary elements to the Convention adoptee classification.  In addition to other applicable requirements, all of the following must be true for a child to be eligible for the Convention adoptee classification:
 
1.      The child is under the age of 16 at the time the I-800 is filed on his or her behalf (taking into account special rules on filing dates for children aged 15-16), is unmarried, and lives in a Convention country;
 
2.      The child will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, habitually resident in the United States, whom USCIS has found suitable and eligible to adopt (Form I-800A approval) with the intent of creating a legal parent-child relationship.  Note that at this stage the child must not have been adopted yet, unless that adoption has been voided by the country of origin.  (USCIS, in September 2008 FAQs on its website, offered guidance on cases in which the adoption cannot be voided in the country of origin.);
 
3.      The child’s birth parents (or parent if the child has a sole or surviving parent), or other legal custodian, individuals, or entities whose consent is necessary for adoption, freely gave their written irrevocable consent to the termination of their legal relationship with the child and to the child’s emigration and adoption;
 
4.      If the child has two living birthparents who were the last legal custodians who signed the irrevocable consent to adoption, they are determined to be incapable of providing proper care for the child; and
 
5.      The child has been adopted or will be adopted in the United States or in the Convention country in accordance with the rules and procedures elaborated in the Hague Adoption Convention and the Intercountry Adoption Act of 2000 (IAA), including that accredited adoption service providers were used when required, and there is no indication of improper inducement, fraud, misrepresentation, or prohibited contact associated with the case.
 
Orphan Status (Non-Convention Countries)
 
Children being adopted from non-Convention countries must meet the definition of an orphan as defined in the Immigration and Nationality Act (INA) before they can immigrate to the United States.  USCIS determines whether a particular child meets the definition of an orphan.  To apply to USCIS for this determination, you use the following form:
 
I-600 – Petition to Classify Orphan as an Immediate Relative
 
I-600 application instructions
 
 
 
Form I-600, along with its supporting documents, are required for USCIS to determine that a child is eligible for classification as an orphan.  In order to file Form I-600 with USCIS, you should submit Form I-600A (Application for Advance Processing of Orphan Petition) first.  You may submit both forms at the same time, or you may already have an approved, valid Form I-600A when you file Form I-600.  See our eligibility requirements for prospective adoptive parents for more information about filing Form I-600A.
 
According to the INA, a child must meet the following two conditions in order to be considered an orphan:

  1. The child must have no parents; or
  2. The child has a sole or surviving parent who is unable to care for the child and has, in writing, irrevocably released the child for emigration and adoption.

In some countries it is possible to adopt a child who is not an “orphan” as defined by U.S. immigration law.  Whether a child qualifies as an orphan for the U.S. is determined by reference to U.S. laws and regulations, and not by foreign law that may identify a child as orphaned.  In general, a child would be considered to have no parents if both are determined to have died, disappeared, deserted, abandoned or have been lost or separated from the child.  Abandonment requires that the birth parents give up all parental rights, obligations and claims to the child, as well as all control over and possession of the child (without transferring these rights to any specific person).  Under U.S. law, children may not be abandoned, relinquished, or released to a specific prospective adoptive parent for adoption.
 
There are three primary elements to the orphan classification.  In addition to other applicable requirements, all of the following must be true for a child to be eligible for the orphan classification:

  • The child must be under the age of 16 at the time an I-600 petition is filed on his or her behalf with USCIS or a consular officer (a child adopted at age 16 or 17 will also qualify, provided he or she is a birth sibling of a child adopted, or who will be adopted, under the age of 16 by the same adopting parents).
  • The adopting parents must have completed a full and final adoption of the child or must have legal custody of the child for purposes of emigration and adoption in the U.S.; and
  • The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship. 
     

If an I-600A has already been approved, the adopting parent may file an I-600 for one child without any additional fee.  However, if parents are adopting two or more biologically unrelated children, there will be a $670.00 fee for the second child (this fee is waived for siblings).
 
The following documentation must be presented in order for an I-600 petition to be approved:
 
Form I-600, Petition to Classify Orphan as an Immediate Relative;
The child’s birth certificate;
 
A final decree of adoption, if the orphan has been adopted abroad, or proof of legal custody for purposes of emigration and adoption;
Proof of “orphan” status per definition above (e.g., evidence of abandonment, written relinquishment, death certificates, etc. depending on the circumstances);
 
Proof that the pre-adoption requirements, if any, of the state of the orphan’s proposed residence have been met, if the orphan is to be adopted in the United States;
 
Proof that the adopting parents have seen the child prior to or during adoption proceedings.
 
IMPORTANT:  Parents are urged to seek advice about the possibility that an adopted child might not be considered an orphan and therefore would not be able to accompany his or her adopting parents to the United States.  Immigration attorneys, reputable adoption agencies involved in international adoption, USCIS, and Department of State officials all have information that will assist you in addressing this serious concern.
 
Children in Conflict Areas or Natural Disasters
 
The Department of State receives inquiries from American citizens concerned about the plight of children in war zones and in countries afflicted by natural disasters such as hurricanes, earthquakes and tsunamis.  Our office shares this concern for children in conflict areas and we understand that some Americans want to respond by offering to open their homes and adopting these children in need.
 
It can be extremely difficult in such circumstances to determine whether children who appear to be orphans truly are eligible for adoption.  Children may be temporarily separated from their parents or other family members during a conflict or natural disaster, and their parents may be looking for them.  It is not uncommon in a hostile situation for parents to send their children out of the area, or for families to become separated during an evacuation.  Even when it can be demonstrated that children are indeed orphaned or abandoned, they are often taken in by other relatives.
 
During times of crisis, it can also be exceptionally difficult to fulfill the legal requirements for adoption of both the U.S. and the child’s country of origin.  This is especially true when civil authority breaks down.  It can also be very difficult to gather documents necessary to fulfill the legal requirements of U.S. immigration law.  There are still ways in which U.S. citizens can help the children in areas of conflict or natural disaster.  For example, individuals who wish to assist can make a financial contribution to an established NGO working in that country.

http://www.adoption.state.gov/about/how/childeligibility.html

Be Sociable, Share!