USCIS Policy for Determining Habitual Residence in the U.S. for Children from Hague Convention Countries

In November 2017, we issued a final policy memorandum titled Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries. The policy memorandum provides guidance on how USCIS determines whether an adoptive child from another Hague Convention Country can be considered to be habitually resident in the United States. 

In 2014, we published an interim policy memorandum that addressed this issue in instances when the Central Authority in the child’s country of origin (COO) could not or would not take a position on whether the child is still habitually resident in the COO.

The final policy memorandum generally adopts the interim policy guidance as final USCIS policy with certain changes.

Who Is Affected

Parents who want to file Form I-130, Petition for Alien Relative for their adopted child who lives in the United States but is a citizen of a Hague Convention Country or last habitually resided in a Hague Convention Country.

Key Points from the Final Policy Memorandum

The country where a child is considered to be habitually resident will determine what adoption process the adoptive parent must go through. If a child lives in the U.S. but is considered to be habitually resident in their COO, adoptive parents must generally go through the Hague process in order to adopt and obtain U.S. immigration status for their child. If the child is considered to be habitually resident in the U.S., the adoptive parents do not need to go through the Hague process and may file a Form I‑130 for the child.

USCIS may determine that the Hague process does not apply to a case when the child living in the U.S. is considered habitually resident in the U.S., if the adoptive parent either:

• Obtains a statement from the COO’s Central Authority stating that the child is not habitually resident in the COO and the statement is incorporated into the adoption order (or amended adoption order) submitted to USCIS; or
• Provides evidence that:
  • He or she tried to obtain a habitual residence statement from the COO’s Central Authority but either the COO Central Authority informed the parent in writing it will not provide a statement or the parent could not obtain one within 120 days, or
  • The Department of State confirms that the COO’s Central Authority has a policy of not issuing statements of habitual residence, and
  • Meets the other criteria outlined in the policy memorandum.

Read the final policy memorandum for complete information on:

• The intent, actual residence, and notice criteria that applicants must also meet;
• What timeframes apply and what evidence to submit to show whether a child is habitually resident in the U.S.;
• What criteria apply when an adoption took place before February 3, 2014;
• When an amended adoption order is required; and
• How this guidance extends to children who are paroled into the United States based on humanitarian or significant public benefit reasons under section 212(d)(5) of the Immigration and Nationality Act.

You can also find the updated information in the Adjudicator’s Field Manual.