How Do I Apply to Bring a Foreign-Born Orphan to the United States?

Who is Considered an Orphan?

Under U.S. immigration law, a foreign-born child is an orphan if he or she does not have any parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. A foreign-born child is also an orphan if his or her sole or surviving parent is incapable of providing care of the child and has, in writing, irrevocably released the child for emigration and adoption. For such a child to gain immigration benefits, an orphan petition must be filed before his or her 16th birthday. An orphan petition may be filed before the child's 18th birthday, if the child is a natural sibling of an orphan or adopted child, and is adopted with or after that child, by the same adoptive parents.

Who is eligible to file an orphan petition?

A married U.S. citizen and spouse (no special age) or an unmarried U.S. citizen at least 25 years of age may file an orphan petition. The spouse does not need to be a U.S. citizen; however, the spouse must be here legally if living in the United States. To make the adoption process faster, you may apply for advanced processing before you actually find an orphan to adopt. An application for advance processing may be filed by anyone eligible to file an orphan petition. An unmarried U.S. citizen may file an application for advance processing if the U.S. citizen is at least 24 years of age and will be at least 25 when an orphan petition is filed on behalf of an actual child and when the child is adopted.

Other Procedures  Concerning Adopted Children

Although most adopted and prospective adoptive children gain immigration benefits through the section of law on orphan petitions, there is another part of the statute where immigration benefits may be gained through adoptive relationships. Both sections specifically state that the natural parents may not gain 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 or prospective adoptive children which may be approved for any one petitioner.

Children Who Live For Two Years With an Adoptive or Prospective Adoptive Parent(s)

Immigration benefits may be gained under a section of the U.S. immigration law* based on an adoptive relationship if the child was adopted before the age of 16 or, in limited situations relating to the adoption of siblings, before the age of 18 , and if the child has been in the legal custody of and has resided with the adopting parent(s) for at least two years before the petition is filed. The two-year legal custody and residence requirements may take place before or after the adoption is final. The definition of legal custody is described below.

Legal custody begins when it is awarded to the prospective adoptive parent(s) by a legal process via the courts or other recognized government entity and is evidenced by either an official document in the form of a written award of custody or a final adoption decree. Legal custody and residence are 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 met by only one of the adopting parents, rather than both. In other words, a petition may be granted when only the petitioner's spouse has met the requirements, as long as the spouse has also adopted the child. No home study is required . Furthermore, a person petitioning for a child under this section of law does not have to be a U.S. citizen but may be a lawful permanent resident of the United States.

Adoption Tax Credit

An Adoption Tax Credit is now available to adoptive parents to help them offset the costs of adoption - including legal fees! For the 2007 tax year Adoptive Families with modified adjusted gross incomes of up to $170,820. should be eligible to receive the full $11,390.00 Adoption tax credit. Furthermore, any unused credit may be carried forward for up to five years. The tax credit completely phases out for families with modified adjusted gross incomes exceeding $210,820.

Please call our office if you have questions or are interested in adopting a child living in another country.