When it comes to U.S. immigration, adopted children have many of the same rights as biological children. The procedure for obtaining a green card through adoption depends at which stage the adoption took place and the immigrant visa was filed.

Non-Orphan

A non-orphan is a child who has already been adopted. His adoption must have occurred before the child reached the age of 16 years. (If the child’s sibling has already been adopted, then the second sibling may be adopted before he reaches the age of 18 years.) He must have been residing with his adoptive parents for 2 years either before or after adoption. The adoptive parents may either be U.S. citizens or Lawful Permanent Residents. Homosexuals may serve as petitioners of an adopting child. Finally, the adoptive parents must have two years of legal custody. Legal custody requires either a final adoption decree or an official document awarding custody to the adoptive parent(s). Unlike the adoption of an orphan, the age of a single adopting parent is irrelevant. An adopted child who obtained lawful permanent residence as a result of adoption cannot confer immigration benefits on his natural parents.

Prior to the adoption, the adopting parents must be investigated by their state’s public agency or a private adoption agency licensed by their state’s government. The investigation includes a home study to analyze the adopting parents’ living conditions and their abilities to parent the child. The adoptive parents’ background will be searched for any history of substance abuse, sexual or child abuse and domestic violence. If the child is already adopted and residing in the United States, unlike an orphan who must be under 16 when the visa petition is filed, the non-orphan may be petitioned for a green card at any age.

Orphan

An orphan is a child whose natural parents are either deceased or have permanently and legally abandoned the child. Abandonment requires that both parents give up all parental rights. The child must be living outside the United States. Orphans do not have to meet the two-year legal custody or residence requirements. An orphan must show that he was adopted by U.S. citizens (not Lawful Permanent Residents) outside the United States before the age of 16. If the adopting parent is single, she must be at least 25 years of age to petition the orphan for permanent residence. If the parents are married there is no age requirement. Homosexuals may serve as petitioners of an adopting child. Orphans may be petitioned for a green card either before or after the completion of the legal adoption but must be under the age of 16 when the visa petition is submitted. An adopted orphan who obtained lawful permanent residence as a result of adoption may not petition his natural parents.

Advance Processing of Unidentified Orphan

A particular child need not be identified before the immigration paperwork begins. If you are the adopting parents and you know that you will be adopting a child from a certain country but have not yet selected the child, you need to satisfy pre-adoption requirements in your state, including a home study and an analysis of your background history. For adoption of children from Haiti, Honduras, Philippines, Poland and Sierra Leone, USCIS has adopted an “Adjudicate Orphan Status First” pilot program which allows them to determine whether the child meets the legal definition of “orphan” before the final adjudication of the orphan status petition.