Many individuals, both here and in the Philippines, adopt their nieces, nephews or grandchildren when the parents of these children are unable to care for them. If the adoptive parents either immigrate to the United States or are already United States Citizens or Permanent Residents, the logical next step is to file a Visa Petition for the newly adopted child or children so that these children can immigrate as well and live with their new parents. Unfortunately, if the petition is prepared without the assistance of an immigration lawyer competent in this area of immigration practice, experience has shown that more than 95% of these petitions are denied.
In order to bring an adopted child to the United States, the adoptive parents must have adopted the child before the age of sixteen. They must also show either that the child was an “orphan” as that term is defined by the Immigration and Nationality Act, or that they lived with the adopted child for at least two years and that for at least two years the adoptive parents had the primary responsibility for the care of the adopted child.
The least difficult case is, of course, an orphan petition. If the adopted child’s natural parents are dead, missing or have abandoned the child and the petition is filed before the child’s sixteenth birthday, the adopted child qualifies as an “orphan” and the adoptive parents do not have to comply with the two-year residency requirement. The case will be approved as soon as the INS verifies that the child qualifies as an orphan under the Act.
If, however, the petition is not filed before the child’s sixteenth birthday, or the natural parents are still alive and have not abandoned the child, the adoptive parents must comply with the two-year residency requirement described above. They will be required to prove that they lived with the child for at least two years and that they were primarily responsible for the child’s care for at least two years. This is obviously a much more complex case than an orphan petition. Moreover, if the adopted child is also a blood relative of the adoptive parents, and continues living with her natural parents after the adoption, the INS presumes that the adoption is fraudulent and solely for the purpose of avoiding the visa quota system. In order to overcome this presumption, adoptive parents must show “primary parental control” over the adopted child. This is a much higher standard and nearly impossible to meet unless the adopted child has actually lived with the adoptive parents after the adoption for at least two years.
Of course, the easiest way to avoid the fraud presumption is to ensure the adopted child does not continue to live with her natural father or mother after the adoption. However, if this is not possible, the adoptive parent will need to produce comprehensive evidence of their “primary parental control” over the adopted child. This evidence must show not only financial support of the child, but also moral, spiritual and psychological support and counseling during the entire two-year period. Evidence of constant and consistent telephone calls and letter writing to the adopted child and to her doctors, teachers, etc. can be used to meet this burden. However, since these cases are viewed with suspicion, only a small minority are successful. Moreover, adoptive parents who proceed without the help of an attorney experienced in this area are almost certain to fail.
In summary, Any adoptive parent who seeks to bring their child to the United States should, if at all possible, ensure that the adopted child does not stay with his or her natural parents and should try to file their visa petition before the child turns sixteen. The case stands the greatest chance of being approved if both of these goals are accomplished. In any even, these are certainly complex cases, with many traps for the unwary, and should not be attempted without the advice of a qualified immigration attorney.
