Reuben S. Seguritan

When Retroactive Adoption Is Valid for Immigration Purposes

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There are several ways to bring an adopted child to the U.S.

 

If the child habitually resides in a country outside of the U.S. that is a party to the Hague Convention which took effect in the U.S. on April 1, 2008, the Hague process must be followed. There are currently 92 countries, including the Philippines that are parties to the Convention. Forms I-800A and I-800 are used in order to adopt.

The orphan (non-Hague) process applies to adoptions in non-Hague countries. The process requires the filing of Forms I-600 and/or I-600A.

Another process is the family-based petition route. An adopted child would be considered a “child” for immigration purposes if the adoption took place before the child turned 16 and the adopting parent had legal and physical custody of the child for at least two years. The adopting parent may file an immigrant visa petition (Form I-130) for the child to bring him or her to the U.S.

What if the adoption decree was entered after the child’s sixteenth birthday but made retroactive to a date before the child turned 16? Is it valid for immigration purposes?

In a recent case, the beneficiary was born in China and entered the U.S. as a nonimmigrant visitor when she was nearly 14 years old. The beneficiary’s paternal aunt filed a petition to adopt the beneficiary in Hawaii two months before the beneficiary’s 16th birthday.

The State court judge issued the adoption decree after the beneficiary’s 16th birthday but the effective date of the decree was made retroactive to the date the petition was filed or two months before the beneficiary’s 16th birthday.

When the petitioner naturalized, she filed an immediate relative visa petition for the beneficiary as her adopted child. Although the petition was initially approved, the District Director revoked it, finding that the adoption did not occur before the child turned 16.

The rule established by the Board of Immigration Appeals (BIA) in two previous cases was that a retroactive adoption decree was not valid for immigration purposes.

In the first case, the beneficiary was already 18 years old when the adoption was initiated and the adoption decree was made retroactive to date 12 years prior. The BIA ruled that the adoption was invalid for immigration purposes.

The BIA came to the same conclusion in a subsequent case where it also did not recognize as valid for immigration purposes an adoption decree as being effective as of the date it was entered nunc pro tunc or with “retroactive legal effect.”

The age restriction, according to the BIA, was put in place by Congress to prevent abuses and deter adoptions entered into for the purpose of circumventing immigration laws. The previous rule that the BIA established in the prior cases, however, was too rigid and did not consider the interests of family unity.

The BIA found the need to balance the interest of Congress to foster family unification and established a new rule, finding that as long as the adoption was initiated before the child’s sixteenth birthday and the State which entered the adoption decree expressly permitted the decree to be dated retroactively, the adoption may be recognized for immigration purposes.

 (Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212)695-5281)

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