Adopting Haiti Orphan

The U.S. Citizenship and Immigration Services (USCIS) recently provided information to help Haiti orphans to immigrate to the United States.

Under normal circumstances, a child immigrating to the United States from Haiti as the adopted orphan child of a U.S. citizen is adopted before leaving Haiti, and is then admitted to the United States with an immigrant visa for Lawful Permanent Residence (LPR) status. The adopted child then acquires citizenship upon entry as specified in section 320 of the U.S. Immigration and Nationality Act (INA).

In light of the devastating earthquakes in Haiti, the Secretary of the Department of Homeland Security authorized Haitian children, who were adopted or were in the process of being adopted by American families prior to the earthquake, to be paroled into the United States. “Category 1” parolees are Haitian orphans who were already legally adopted in Haiti. “Category 2” parolees are certain Haitian orphans whose cases had not yet resulted in final adoptions.

To determine what steps to take next, it is most important to understand where you were in the adoption process in Haiti, regardless of the category you believe your child fell within at the time of parole. The following is provided for informational purposes to U.S. citizen adoptive parents and prospective adoptive parents.

Category 1: The adoption process was completed in Haiti before the child was paroled into the United States

The next steps to obtain legal status for the child in the U.S. are as follows:

After U.S. Customs and Border Protection (CBP) or the U.S. Department of Health and Human Services (HHS) has released the child into your physical custody, you should file the following forms BEFORE the child’s 16th birthday.

These forms can be filed together to significantly reduce the processing time.

• Form I-600, Petition to Classify Orphan as an Immediate Relative, and
• Form I-485, Application to Register Permanent Residence or Adjust Status.

After USCIS approves the form I-485, you may file an Application for Certificate of Citizenship (form N-600), to obtain evidence of citizenship for the child, or apply for a U.S. passport.

You may file a form I-600 after the child’s 16th birthday but before his or her 18th birthday, only if:

• You legally adopted the child’s birth sibling before his or her 16th birthday, or you filed a Form I-600 for the birth sibling before his or her 16th birthday, and
• The birth sibling immigrated to the United States based on your legal adoption of him or her, or for the purpose of your legal adoption of the birth sibling.

Category 2: The child was paroled into the United States, but there was no actual adoption or grant of legal custody from a Haitian court

The next steps to obtain legal status for the child in the U.S. are as follows:

If you did not legally adopt the child in Haiti, you must decide whether to seek legal permanent resident status for the child as an “orphan” under the INA section 101(b)(1)(F) or as an “adopted child” under INA section 101(b)(1)(E).

Orphan case

DHS regulations, at 8 CFR 204.3(k)(3), allow for approval of a Form I-600 on behalf of a child in the United States in parole status. Under the DHS regulation, however, you must still adopt the child in Haiti. As of publishing of this information it is not unknown when Haiti will be able to resume normal processing of adoption cases, or whether Haiti would require the child to return to Haiti for an adoption proceeding.

Adopted child case

Instead of following the form I-600 process, you may adopt the child in the United States, under resident state laws and then wait to file a form I-130. This means that you can file the form I-130 only after you have lived with the child for at least two years and have had legal custody of the child for at least two years. Note that the U.S. federal government’s release of the child into your physical custody is not legal custody for purposes of the adoption requirements for immigration as an adopted child.

After the child has been released into your physical custody, you should file a petition to adopt the child with the proper court in your home state, which will establish that you are legally the child’s parents and that you have legal custody of your child. The adoption process should be started in your home state as soon as possible, because you must obtain the adoption decree before the child’s 16th birthday.

If the child is age 16 when you adopt the child, then you will not be able to use the form I-130 route under INA section 101(b)(1)(E). Filing a form I-600 before the child’s 16th birthday does not meet the requirement of INA section 101(b)(1)(E) that the child must be adopted before the child’s 16th birthday.

If the child is already age 16, you will need to wait until Haiti resumes processing of adoption cases, and obtain approval of your form I-600 after you adopt the child in Haiti, provided that the form I-600 was filed before the child turned age 16 (as in an ‘orphan’ case). There are few points to the situation in this category:

• The only exception to this is for a child whom you legally adopted after his or her 16th birthday but before his or her 18th birthday, if:
  • The child is the birth sibling of another child who was legally adopted by you, if you adopted or filed a Form I-600 for the birth sibling before his or her 16th birthday, and
  • The birth sibling obtained LPR status based on adoption by you.
• After you have had legal custody of the child and have resided with the child for two full years you should file both form I-130 and form I 485.
• The period of legal custody will generally begin on the date of the adoption unless a state court in the United States grants you legal custody before the actual adoption.
• The form I-130 and form I-485 can be filed together to significantly reduce the processing time.
• After the form I-485 is approved, you may file Form N-600 to obtain a Certificate of Citizenship or apply for a U.S. passport for the child.