Adopted children may obtain immigration benefits in three different ways. First, under INA 101(b)(1)(E)(i), a US citizen (USC) or lawful permanent resident (LPR) may file an immigrant petition for a child, who was adopted while under the age of sixteen years if the child had been in the legal custody of and had resided with the adopting parent(s) for at least two years. Second, under INA 101(b)(F)(i), a USC may file an immigrant petition for a child who is under sixteen and who is an orphan because of the death or disappearance of both parents or the surviving parent is incapable of providing proper care. Third, cases filed on or after April 1, 2008, which seek to adopt a child who habitually resides in a country outside the US that is a party to the Hague Adoption Convention must follow the Hague process embodied under INA 101(b)(1)(G).
The focus of this article is INA 101(b)(1)(E)(i) and issues related to it such as problems concerning the residence and legal custody requirements and the effects of termination of an adoption.
8 CFR 204.2(d)(2)(vii)(A) defines legal custody as the assumption of responsibility for a minor by an adult under the laws of the state and under the order or approval of a court of law or other appropriate government entity. This provision requires that a legal process involving the courts or other government entity take place. An informal custodial or guardianship document, such as a sworn affidavit signed before a notary public, is insufficient. If the adoptive parent acquired legal custody prior to the adoption, such period may count towards the fulfillment of the two-year legal custody requirement. If custody began only with the issuance of the adoption decree, then the decree would mark the start of legal custody.
8 CFR 204.2(d)(2)(vii)(B), on the other hand, explains that the adoptive parent must show that he resided with his adopted child in a family relationship. The adoptive parent must show that he exercised parental control such as by submitting evidence that the adoptive parent owns or maintains the property where the child resides and provides financial support and day-to-day supervision.
The adoptive parent must also explain the physical living arrangements of the adopted child, the adoptive parent, and the natural parents during this two-year period when the adoptive parent claims to have resided with the adopted child. If the adopted child continued to reside in the home of the natural parents during this two-year period, the adoptive parent must show that he exercised primary parental control during this period. Residence, as well as legal custody, occurring before or after the adoption would satisfy the requirements.
INA 101(b)(1)(E)(i) also prohibits the natural parents of any child adopted under this provision from acquiring any right, privilege, or status under the Immigration and Nationality Act by virtue of such natural parentage. The purpose of this provision is to ensure that a child could be recognized as a child of his natural parents or of his adoptive parents, but not of both. Thus, adoption cuts the natural parent-child relationship. One of the effects of adoption is to prevent the adopted child from filing an immigrant petition for his natural parents. However, if the adoption is subsequently terminated, would it allow the child to petition his natural parents?
In Matter of Li, 21 I&N Dec. 13 (BIA 1995), the Board of Immigration Appeals (BIA) dealt with the question of whether, after the termination of an adoption that satisfies the requirements of INA 101(b)(1)(E), the natural relationship may be recognized again for immigration purposes.
The BIA held that if the adoptive relationship had resulted in immigration benefits under INA 101(b)(1)(E), the natural relationship cannot be recognized again for immigration purposes even if it the adoptive relationship has been terminated.
The BIA also held that a natural parent-child relationship can be recognized again for immigration purposes after the termination of an adoption if the following requirements are met: (1) no immigration benefit was obtained or conferred as a result of the adoptive relationship; (2) a natural parent-child relationship existed before the adoption; (3) the adoption was lawfully terminated under applicable law; and (4) the natural parent-child relationship has been reestablished, either through operation of law or through other legal process.
The important thing to remember about this decision is that it reaffirmed the principle that, for immigration purposes, an alien should be recognized either as a child of his natural
parents or his adoptive parents by barring the recognition of a natural parent-child relationship once an immigration benefit has resulted from an adoptive parent-child relationship.
It should also be emphasized that the BIA did not assume that the natural relationship is
automatically reestablished solely by virtue of the termination of an adoption. The party must show how the natural relationship was restored under the relevant domestic and family laws.