Family-Based Petition Process
The Hague and orphan processes are special processes for children who are adopted by U.S. citizens and meet the specific requirements of those programs. The family-based petition process provides a third avenue through which an adopted individual is considered the child (or son or daughter) of their adopting parent(s) for immigration purposes.
There are differences between the Hague and orphan processes and the family-based petition process:
- Only U.S. citizens can use the Hague and orphan processes to petition for an adopted child. These processes have different requirements from the family-based petition process.
- Lawful permanent residents and U.S. citizens can use the family-based petition process.
- The family-based petition process is generally not available to children from Hague countries. See the “Children from Hague Adoption Convention Countries” section below for more information.
- The adoptive parent petitioner must have evidence of a full and final adoption and satisfy the 2-year legal custody and joint residence requirements before the adopted child may be considered their “child” for purposes of immigration benefits.
Who is an Adopted Child Under the Family-Based Petition Process?
Under this process, an adopted child is considered to be the child (or unmarried son or daughter under the age of 21) of the adopting parent for immigration purposes if:
- The adoptive parent adopted the child before their 16th birthday (or before their 18th birthday, under certain circumstances as described below) and provides evidence of a full and final adoption; and
- The adoptive parent had legal custody of and jointly resided with the child for at least 2 years while the child was under age 21.
- The legal custody must have been the result of a formal grant of custody from a court or other governmental entity.
- The legal custody and joint residence requirement may be met by custody and residence that preceded the adoption.
- The 2-year time period does not need to be continuous and may be counted in the aggregate.
- If both parents adopted the child, the 2 years of legal custody and joint residence cannot be split between the adoptive parents, but only one adoptive parent needs to meet them.
- The 2-year legal custody and joint residence requirements are waived for certain abused children.
A child is still considered to be an adopted child if they were adopted after their 16th birthday, but before their 18th birthday, if:
- The child is the birth sibling of another child who was adopted by the same parent(s) before the other child’s 16th birthday and immigrated through the family-based petition process; or
- The child is the birth sibling of another child who was adopted by the same parent(s) before the other child’s 16th birthday and who immigrated as an orphan based on an adoption by the same parent(s).
Petitioning Under this Process
U.S. citizens may file a petition for an adopted:
- Child (unmarried and under the age of 21);
- Unmarried son or daughter over the age of 21;
- Married son or daughter; or
- Sibling.
For additional information on filing a petition on behalf of a relative, go to the Green Card page.
Permanent residents may file a petition for an adopted:
Generally, U.S. citizens must follow the Hague Adoption Convention process to adopt a child from a country that is a party to the Hague Adoption Convention. However, under certain circumstances, U.S. citizens may file a Form I-130 for a child from a Hague Adoption Convention (Hague) country if they can establish the Hague Adoption Convention does not apply to the adoption.
Specifically, USCIS may approve the Form I-130 if a U.S. citizen adoptive parent can establish, in addition to other eligibility criteria, that:
- The adoption occurred prior to the country becoming a Hague country;
- They were not a U.S. citizen when the adoption from the Hague country was finalized (and therefore, could not use the Hague process);
- They were not habitually resident in the United States at the time of the adoption (for example by satisfying the 2-year joint resident and legal custody requirements by residing with the child outside the U.S.); or
- The child is/was not habitually resident in a Hague Adoption Convention country.
For additional information, please review the Oct. 21, 2008, Policy Memorandum Intercountry adoption under the Hague Adoption Convention and the USCIS Hague Adoption Convention rule at 8 CFR 204, 213a, and 322 (PDF, 98.67 KB) and the Nov. 20, 2017, Policy Memorandum Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries (PDF, 408.82 KB).
What and Where to File
To begin the immigration process for your adopted relative (as described above), file Form I-130, Petition for Alien Relative. For information about where to file, see the Direct Filing Addresses for Form I-130. For information on what supporting evidence to submit, see the Instructions for Form I-130 (PDF, 277.52 KB).
For more specific information on the legal authorities for this process see Section 101(b)(1)(E) of the Immigration and Nationality Act and Title 8 Code of Federal Regulations 8 CFR 204.2(d)(2)(vii).