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 that 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 (Section 101(b)(1)(E) of the Immigration and Nationality Act) 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.
Legal custody begins when legal custody is awarded to the prospective adoptive parent(s) by a legal process via the courts or an 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 can 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.
This section of law may be used, for example, by a U.S. military family stationed in a foreign country where the child was not an orphan because he or she had two married, living parents. Although not abandoned, the child, nevertheless, lived with and was in the legal custody of the U.S. military family for at least two years and was adopted before the age of 16. This section should not be confused with the law on orphan petitions which has completely different requirements.
In order to gain immigration benefits under this section, a Form I-130, Petition for Alien Relative, must be filed and approved while the adopted child is unmarried and under the age of 21.
Children are not the only persons who can gain immigration benefits under this section. An adult adopted son or daughter or adoptive parent, sister, or brother can also gain benefits through an adoptive relationship as the beneficiary of an I-130 petition. However, all requirements of the law must have been met and the legal adoption must have occurred before the adopted person’s 16th birthday or, in limited situations relating to the adoption of siblings, before the person reaches the age of 18.
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