International Adoptions: Legal Permanent Residents and Intercountry Adoptions

Only US citizens may petition for the immediate immigration of foreign adopted children. There is no provision in US immigration law for the entry of newly adopted children of legal permanent residents (green card holders) and long term nonimmigrant visa holders. Legal permanent residents who do adopt abroad can only expect frustration in trying to bring their adopted children to the US. 

The United States Department of State reports cases each year of non-citizen parents who have legally adopted a child internationally and then find that the child cannot join them in the United States. The parents and child face only anguish and heartbreak. The best solution is for legal permanent residents to first naturalize as US citizens and for long term nonimmigrant visa holders to return to their home countries before adopting. 

The problem lies in the definition of "child" in the Immigration and Nationality Act (INA). Long term nonimmigrant visa holders and legal permanent residents can bring their spouses and children with them when they enter the United States or have them enter later. The INA divides the definition of "child" into several sub-groups: natural born children, step-children, and adopted children. The INA recognizes as a "child" one who has been adopted before the age of sixteen and who has resided with, and been in the legal custody of, the parent for two years. What this means is that a child born overseas to the principal applicant after his or her entry to the US may receive the appropriate dependent visa immediately. A child adopted overseas by a non-citizen must first meet the two year co-residence requirement. The INA does not provide any way for the child to enter the US to satisfy this requirement. 

The following example illustrates the problem: An Australian researcher in the US on a J-1 Exchange Visitor visa adopts a baby girl from the People's Republic of China. The child has not lived with the researcher for two years. She does not meet the definition of "child." The US consulate cannot issue her a J-2 visa (dependent of exchange visitor) to join her parent. If the researcher leaves the US and lives with his adopted daughter for two years, she can then receive a J-2 visa for future exchange visits to the US.