Chapter 5 - Qualifying Adoptive or Custodial Relationship

A prospective adoptive parent (PAP) must have one of the following for a child to be classified as a Convention adoptee:

• A final adoption in the Convention country; or
• Legal custody of the child under the law of the Convention country for purposes of emigration and adoption in the United States.^[1]

A. Final Adoption

A child may qualify as a Convention adoptee based on a final adoption if:

• The adoption meets USCIS requirements for a final adoption (is valid under the law of the country of origin, creates a legal permanent parent-child relationship,^[2] and terminates the prior legal parent-child relationship); and
• The petitioner (and spouse, if married) adopted the child.

If these requirements are met, the child may qualify for an IH-3 visa^[3] based on a valid final adoption. USCIS considers an adoption that meets these requirements to be a final adoption.

A child does not, however, have a final adoption if only one parent of a married couple adopted the child. USCIS may, however, consider the foreign adoption by one parent in a married couple to have established legal custody for purposes emigration and adoption, and the child may be eligible for an IH-4 visa.^[4]

B. Legal Custody for Emigration and Adoption

Not all countries grant what USCIS considers a final adoption abroad for immigration purposes.^[5] A child may, however, be eligible based on legal custody for the purpose of emigration and adoption if the following criteria are met:^[6]

• The PAP secured legal custody in accordance with the laws of the country of origin;
• The person, organization, or competent authority that has legal custody or control over the child irrevocably released the child for emigration and adoption;^[7]
• The PAP has complied with any pre-adoption requirements; and
• If there was an adoption abroad that did not meet the requirements for a final adoption, the child’s proposed jurisdiction of residence allows re-adoption or provides for judicial recognition of the foreign adoption.

If the child meets these requirements, the child may qualify for an IH-4 visa to come to the United States for adoption.^[8]

Footnotes

[^ 1] Some countries will not allow a child to emigrate without a final adoption decree. To determine a Convention country’s specific laws, see the U.S. Department of State (DOS)’s Country Information webpage.

[^ 2] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].

[^ 3] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child from a Convention country adopted abroad by a U.S. citizen.

[^ 4] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child from a Convention country coming to be adopted in the United States by a U.S. citizen.

[^ 5] For example, guardianships, simple adoptions, or Kafala orders in countries that follow traditional Islamic law generally do not qualify as a final adoption abroad. Such guardianship, Kafala, or other custody orders may, however, be sufficient to establish that the PAP has secured legal custody of the child. If the legal custody is for emigration and adoption and all other requirements are met, such an order could support approval of a petition. See 8 CFR 204.313(h)(1)(ii)(A).

[^ 6] See the definition of custody for purposes of emigration and adoption at 8 CFR 204.301.

[^ 7] The Central Authority of the country of a child's habitual residence must have, by a judicial or administrative act, expressly authorized the petitioner, or an individual or entity acting on the petitioner's behalf, to take the child out of the child's country of habitual residence and bring the child to the United States for adoption in the United States. See 8 CFR 204.301.

[^ 8] See Volume 5, Adoptions, Part F, Citizenship for Adopted Children [5 USCIS-PM F] for information on citizenship for adopted children. A PAP needs to take additional steps to secure U.S. citizenship for a child entering with an IH-4 visa because the adoption of the child has to be finalized in the United States or recognized by operation of law, unlike in cases of children entering with IH-3 visas on the basis of a final adoption.