International Adoption--A Basic Guide to
the Three Visa Categories
[ Immigration & Nationality Law Handbook 364 (2006-07 ed.) ]
by Daniel E. Marcus and Irene A. Steffas, with contributions from Boyd F. Campbell
To cover the broad topic of adoption for immigration purposes, a practitioner must first
look at the Immigration and Nationality Act (INA) 1
at §§101(b)(1)(E)(i), (F)(i), and (G)(i). There is a different definition set forth in each
section. The goal of this piece is to introduce the two main sections, §§101(b)(1)(E)(i)
and (F)(i), currently in use, and a new section now being drafted, (G)(i).
In short, INA §101(b)(1)(E)(i) defines an adopted child as a child who has been residing
with the adoptive parent or parents for two years and has been in their legal custody for
two years. INA §101(b)(1)(F)(i) defines an orphan as a child who lost his or her parents
within the terms of the INA. 2
INA §101(b)(1)(G)(i) defines a child who has been adopted pursuant to the Intercountry
Adoption Act of 2000, also known as the Hague Convention, but will not be in force in
the United States until at least July 2007.
Even an experienced immigration attorney can confuse the requirements and procedures
of the three INA sections. It is imperative to read the INA, the regulations, and the
Foreign Affairs Manual (FAM) when deciding which avenue to pursue.
For a broad picture of international adoption procedures, familiarize yourself with 8
USC §§1101, 1151-54, and 1434. Also become familiar with the regulations in 8
CFR §§204.2(d)(2)(vii) - 8 CFR §204.2(e)(1), 8 CFR §204.2(f)(2)(iv), and 8
CFR §204.3(a) - 8 CFR §204.3(k)(4). There are many twists and turns within each
definition and regulation.
For adoption purposes, INA §101(b)(1)(E)(i) defines child as "an unmarried person under
twenty-one years of age" who is:
a child adopted while under the age of sixteen years if the child has been in the legal
custody of, and has resided with, the adopting parent or parents for at least two years or if