A. Children Who Live for Two Years With the People Who Adopt
Them
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A. Children Who Live for Two Years With the People Who Adopt
Them
B. Nonpreference
Although most adoptive and prospective adoptive children gain immigration benefits through the section of law on orphan petitions, there are two other sections of law under which immigration benefits may be gained through adoptive relationships. All three sections say specifically that natural parents may not get any immigration benefits through their previous relationship to the child.
At the present time, there is no limit on the number of petitions for adopted and prospective adoptive children which may be approved for any one petitioner.
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Immigration benefits may be gained under section 101(b)(1)(E) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(E)) based on an adoptive relationship if the child was adopted before the age of 16 and if the child has been in the legal custody of , and has resided with, the adopting parent or parents for at least two years. The two year legal custody and residence period requirement may take place either before or after the adoption.
This section was revised by the Immigration and Nationality Act Amendments of 1986 to allow the two-year legal custody requirement to take place either before or after the adoption is final. The legal custody begins when it is awarded to the prospective adoptive parent or parents by a legal process via the courts or other recognized government entity and evidenced by either a Final Adoption Decree or an official document in the form of a written award of custody. Legal custody and residence is accounted for in the aggregate; therefore, a break will not affect the time already fulfilled. Informal custodial/guardianship affidavits signed before a notary public are insufficient evidence for this purpose.
In addition, the legal custody and residence requirements may be satisfied when they have been met by only one of the adopting parent rather than both. In other words, a petition may be granted when only the petitioners spouse has met the requirements, as long as the spouse has also adopted the child. No home study is required by this section of the law. Furthermore, a person petitioning for a child under this section does not have to be a United States citizen, but may be a lawful permanent resident of the United States. In order to gain immigration benefits under this section, Form I-130, Petition for Alien Relative, must be filed and approved.
This section might be used, for example, by a United States military family stationed in a foreign country where the child was not an orphan because he or she had two married, living parents who had not abandoned him or her but the child lived with the military family for at least two years. This section could also be used in a case where the child was adopted before the age of 16, but is now older than 16. This section should not be confused with the section on orphan petitions which has completely different requirements.
Children are not the only people who can gain immigration benefits under this section. An adult adopted son or daughter or adoptive parent, sister, or brother can also gain immigration benefits through an adoptive relationship as the beneficiary of an I-130 petition as long as all the requirements of the law have been met and the legal adoption occurred before the person's 16th birthday. This section simply gives one of the definitions of "child" in immigration law.
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Section 203(a)(7) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(7)) relates to nonpreference classification. Under nonpreference, there must be a favorably recommended home study and an irrevocable release for emigration and adoption in the case of an adopted or prospective adoptive child of a United States citizen or lawful permanent resident. The way a child could get nonpreference classification is by applying for an immigrant visa at an American consulate or embassy or applying for adjustment of status in the United States.
The issuance of an immigrant visa or adjustment of status under nonpreference requires that a visa number be available. That means that the child has to be put on a long visa waiting list with many other applicants. In fact, at this writing, nonpreference visa numbers have not been available in years. It therefore may not be possible for a child to become an immigrant under nonpreference, depending on visa number availability at the time of application. As explained in Section 1, D of this publication, adjustment of status is a procedure for becoming a lawful permanent resident of the United States which is in some ways similar to applying for an immigrant visa in a foreign country .
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