I-130 - Hague Convention Adoptee

[BlueSkies]

Hello. My wife and I are both Canadian citizens and adopted our daughter from Mexico (Hague Convention country) in 2013. We completed the adoption process as Canadian citizens and our daughter is a Mexican and Canadian citizen. My wife is also a US citizen and we have been habitually residing outside the US since before the adoption.

We are looking to return to the US in a couple of years and my wife would like to file form I-130 to recognize our daughter as an immediate relative. In looking through the form, Part 1, Question 2 seeks to establish the relationship of the person you are filing this form for. For an adopted child, the only option available is "child was adopted (not an orphan or Hague Convention adoptee)". Given that our daughter was adopted from a Hague Convention country, there doesn't seem to be a suitable box we can tick.

A couple of questions. Firstly, are we allowed to use the I-130 for our adopted daughter? If so, which box can be ticked for relationship?

Many thanks.

 

[newacct]

I think you check that box that says "child was adopted (not an orphan or Hague Convention adoptee)". The reason why it says that is that there is a different process for adopting an orphan now (with I-600) or adopting from a Hague Convention country now (with I-800) directly to the US. But you are not doing that -- you have already adopted the child years ago while you were in a different country. Note that to petition an adopted child with I-130, you must have lived adopted child child before age 16, and had legal custody and joint residence with the child for 2 years, but you meet that.

There is a rule that USCIS cannot approve I-130 for an adopted child who is from a Hague Convention country unless you were not habitually resident in the US at the time of the adoption, or the child was not habitually resident in a Hague Convention country at the time of the adoption. Since you were not habitually resident in the US at the time of the adoption, this rule does not apply, and I-130 is allowed to petition your adopted child.

 

[BlueSkies]

I think you check that box that says "child was adopted (not an orphan or Hague Convention adoptee)". The reason why it says that is that there is a different process for adopting an orphan now (with I-600) or adopting from a Hague Convention country now (with I-800) directly to the US. But you are not doing that -- you have already adopted the child years ago while you were in a different country. Note that to petition an adopted child with I-130, you must have lived adopted child child before age 16, and had legal custody and joint residence with the child for 2 years, but you meet that.

There is a rule that USCIS cannot approve I-130 for an adopted child who is from a Hague Convention country unless you were not habitually resident in the US at the time of the adoption, or the child was not habitually resident in a Hague Convention country at the time of the adoption. Since you were not habitually resident in the US at the time of the adoption, this rule does not apply, and I-130 is allowed to petition your adopted child.

Thank you very much. This is extremely helpful.

 

[BlueSkies]

I think you check that box that says "child was adopted (not an orphan or Hague Convention adoptee)". The reason why it says that is that there is a different process for adopting an orphan now (with I-600) or adopting from a Hague Convention country now (with I-800) directly to the US. But you are not doing that -- you have already adopted the child years ago while you were in a different country. Note that to petition an adopted child with I-130, you must have lived adopted child child before age 16, and had legal custody and joint residence with the child for 2 years, but you meet that.

There is a rule that USCIS cannot approve I-130 for an adopted child who is from a Hague Convention country unless you were not habitually resident in the US at the time of the adoption, or the child was not habitually resident in a Hague Convention country at the time of the adoption. Since you were not habitually resident in the US at the time of the adoption, this rule does not apply, and I-130 is allowed to petition your adopted child.

Hi again @newacct . I just had a consultation with a lawyer on this subject (as well as the N600K application that has been pending for more than 3 years). His take on this is that the N600K is likely to be rejected (as would the I-130) because we did not follow the I-800 process for the adoption. Even though we did not adopt via the US (and therefore there was no need for the I-800 back then).

Any thoughts on this?

Many thanks.

 

[newacct]

Here is what I can find. 5 USCIS-PM E.3 says:

USCIS cannot approve a family-based adoption petition filed by a U.S. citizen who is habitually resident in the United States on behalf of an adoptee beneficiary who is habitually resident in a Hague Adoption Convention country unless the petitioner establishes that the Hague Adoption Convention does not apply because either:
* The U.S. citizen adoptive parent is not habitually resident in the United States; or
* The child is not habitually resident in the other Hague Adoption Convention country.

Here, it does not clearly say whether the habitual residence is at time of adoption or now, but the page links to 5 USCIS-PM A.2(A)(1) which says:

The U.S. Hague Adoption Convention process does not apply if:
* USCIS determines that the U.S. citizen petitioner was not habitually resident in the United States at the time of the adoption;
* The child was not deemed to be habitually resident in a Hague Adoption Convention country at the time of the adoption;
* ...

Further down it says:

Habitual Residence Determinations - Prospective Adoptive Parent(s)

In general, for the purposes of petitioning for a Hague Convention adoptee, USCIS considers a U.S. citizen petitioner to be habitually resident in the United States at the time of the adoption unless:
* The petitioner adopted the child outside the United States and completed the 2-year legal custody and 2-year joint residence requirements for a family-based petition by living with the child outside the United States; or
* The petitioner establishes that the petitioner was not domiciled in the United States and did not intend to bring the child to the United States as an immediate consequence of the adoption.

So I think under this definition, you would not be considered to have been habitually resident in the US, under both of those counts.

The regulation is in 8 CFR 204.2(d)(2)(vii)(D) and (E):

(D) On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective date. In the case of any adoption occurring on or after the Convention effective date, a Form I-130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.

(E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen, 8 CFR 204.303 notwithstanding, to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States.

These regulations were part of this rule, which mentioned this example:

For example, a U.S. citizen may have adopted a child from a Convention country while habitually resident in that Convention country, and without any present intention to bring the child to the United States. Some time after the adoption, the adoptive parent may decide to bring the child to the United States. In this situation, the adoption would not be subject to the Convention, since the child's immigration was not directly the result of the child's adoption by someone habitually resident in the United States. If the adoptive parent satisfies the two-year custody and residence requirement of section 101(b)(1)(E) of the Act by living with the child outside the United States, USCIS may approve the parent's Form I-130 for the child. Thus, the child will be eligible for classification under section 101(b)(1)(E) of the Act if the child meets those requirements, and it will not be necessary to comply with the requirements of section 101(b)(1)(G) of the Act.

If the adoptive parent seeks to bring the child to the United States without first satisfying the two-year custody and residence requirement, however, the adoptive parent will need to comply with the Convention, the IAA, and the regulations implementing the IAA, including this interim rule and the rules promulgated by the Department of State.

This example is not exactly the same as yours (they talk about adopting a child from the same country whereas yours was between different countries), there are similarities in that in both cases the child's immigration was not a direct result of the adoption, so you should be able to do I-130 if you satisfy the regular adopted child immigration requirements (including 2 years residing with and legal custody of the child).