November 19, 2021

USCIS has published a comprehensive volume to its policy manual regarding adoptions.  The policy manual includes requirements for adoption-based green card applications filed with USCIS.

Significantly, the policy manual discusses restrictions for U.S. citizens filing family-based green card applications for adopted children from Hague Adoption Convention countries when the child is physically present in the United States.  See, USCIS Policy Manual Volume 5, Part E, Chapter 3.

Language in the adoption order alone is not sufficient to establish that the Hague Adoption Convention does not apply to a particular case. Although an adoption order issued by a court in the United States may contain language indicating that the adoptee beneficiary was not habitually resident in the adoptee beneficiary’s country of origin or that the adoption is not governed by the Hague Adoption Convention, such language is not determinative. Only USCIS can determine whether the Hague Adoption Convention applies when adjudicating the family-based petition.

A U.S. citizen cannot use the regular family-based green card petition process for a child that is from a Hague Adoption Convention country unless they can establish that the Convention does not apply. In general, USCIS will deem a child who is present in the United States, but whose habitual residence was in another Hague Adoption Convention country before the child came to the United States, to be habitually resident in the other Hague Adoption Convention country. Therefore, an adoptive parent in this situation must generally follow the Hague Adoption Convention process, even if the child is already in the United States.  The new policy manual volume provides a helpful guide on how this can be avoided.