Chapter 3 - Hague Restrictions on Family-Based Petitions

There are restrictions on approving a family-based adoption petition if the petitioner is a U.S. citizen and the adoptee beneficiary is from a Hague Adoption Convention country.^[1] USCIS cannot approve a family-based adoption petition^[2] filed by a U.S. citizen who is habitually resident in the United States on behalf of an adoptee beneficiary who is habitually resident in a Hague Adoption Convention country^[3] unless the petitioner establishes that the Hague Adoption Convention does not apply because either:

• The U.S. citizen adoptive parent is not habitually resident in the United States;^[4] or
• The child is not habitually resident in the other Hague Adoption Convention country.^[5]

A. Adoptee Beneficiary in the United States

U.S. regulations state that if a child is a citizen of a Hague Adoption Convention country (other than the United States) and is present in the United States based on an adoption, the child should generally be deemed to be habitually resident in the child’s country of citizenship, even though the child is already in the United States.^[6] Therefore, a U.S. citizen petitioner generally must adopt such child by following the Hague Adoption Convention process for the child to acquire lawful permanent residence based on the adoption.^[7]

A child is generally deemed to be habitually resident in a Hague Adoption Convention country if they are a citizen of that Convention country. A child’s country of citizenship is usually the child’s country of origin. However, a child living outside the country of the child’s citizenship may be deemed habitually resident in the child’s country of actual residence based on a determination by the Central Authority^[8] or another competent authority^[9] of the country where the child actually physically resides.^[10]

USCIS is a competent authority that can make a factual determination of habitual residence when a child is present in the United States. Accordingly, USCIS may determine that a child living in the United States is habitually resident in the United States. If USCIS makes such a determination, the Hague Adoption Convention would not apply to the adoption of the child.^[11]

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. 

USCIS must generally know whether the Central Authority of the child’s country of origin still considers the child habitually resident in that country before USCIS can determine if a child is habitually resident in the United States. USCIS denies any family-based petition filed for an adoptee beneficiary in the United States if the Central Authority of the adoptee beneficiary’s country of origin advises the U.S. government, the petitioner, or the U.S. court with jurisdiction over the adoption that it considers an adoptee beneficiary to remain habitually resident in the adoptee beneficiary’s country of origin, despite the adoptee beneficiary’s presence in the United States.

If the Central Authority of the adoptee beneficiary’s country of origin states that it considers the adoptee beneficiary to be habitually resident in that country, the petitioner(s) must follow the Hague Adoption Convention process.^[12]

If the child is present in the United States, the petitioner may establish the child is not habitually resident in the Hague Adoption Convention country by providing either:

• A written statement from the child’s country of origin indicating the child is no longer deemed habitually resident in that country;^[13] or
• If the petitioner cannot obtain such written statement, evidence that the petitioner meets intent, actual residence, and notice criteria.^[14]

B. Written Statement for Adoptee Beneficiary Physically Present in United States

In order to establish that the child is not habitually resident in the Hague Adoption Convention country, the petitioner may submit:

• An adoption order or an amended adoption^[15] order that expressly states that the Central Authority of the other Hague Adoption Convention country advised the adoption court in the United States in a written statement that the Central Authority is aware of the adoptee beneficiary’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the adoptee beneficiary is not habitually resident in that country; and
• A copy of the written statement from the Central Authority.^[16]

C. No Written Statement for Adoptee Beneficiary Physically Present in United States

A petitioner may be unable to obtain a written statement regarding the adoptee beneficiary’s habitual residence because the Central Authority of the adoptee beneficiary’s country of origin:

• Does not issue statements concerning habitual residence, as confirmed by the U.S. Department of State;^[17]
• Has informed the petitioner in writing that it will not make a determination on habitual residence upon the petitioner’s request; or
• Has not issued a statement of habitual residence for at least 120 days following the petitioner’s request to obtain such a statement.

In these situations, USCIS may approve a family-based petition if:^[18]

• At the time the adoptee beneficiary entered the United States, the purpose(s) of the entry was (or were) for reasons other than adoption (see intent criteria below);
• Before the U.S. domestic adoption, the adoptee beneficiary actually resided in the United States for a substantial period of time, establishing compelling ties in the United States (see actual residence criteria below); and
• For any adoption decrees issued after February 3, 2014,^[19] the decree confirms that the Central Authority of the adoptee beneficiary’s country of origin was notified of the adoption or amended adoption proceedings in a manner satisfactory to the court and that the Central Authority did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (see notice criteria below).

1. Intent Criteria

USCIS reviews the petition to determine whether the adoptee beneficiary entered the United States for adoption purposes.^[20]

Evidence

USCIS considers the following evidence regarding intent:

• An affidavit, made under penalty of perjury, from the petitioning adoptive parent(s), which should include a:
  • Description of the adoptee beneficiary’s circumstances before entering the United States (such as where the adoptee beneficiary lived or went to school, who cared for the adoptee beneficiary, what events led to the adoptee beneficiary’s travel to the United States, and the reason for the adoptee beneficiary’s travel to the United States);
  • List of people who have cared for the adoptee beneficiary since the beneficiary entered the United States and their relationships to the beneficiary;
  • Description of any contact the petitioning adoptive parent(s) had with the adoptee beneficiary, the birth parents, or any adoption or child welfare agency or nongovernmental organization (in the United States or abroad) related to the adoptee beneficiary that took place either before the adoptee beneficiary came to the United States or after the adoptee beneficiary’s arrival but before a court placed the adoptee beneficiary with the petitioning adoptive parent(s); and
  • Petitioning adoptive parent(s)’s declaration that on the date the adoptee beneficiary entered the United States, the petitioner did not intend to adopt the adoptee beneficiary or circumvent the Hague Adoption Convention procedures.
• Evidence establishing the timeline and course of events that led to the adoptee beneficiary’s availability for adoption by the petitioner, which may include one or more of the following:
  • An order from a court with jurisdiction over the adoptee beneficiary that includes express findings related to the adoptee beneficiary’s purpose for entering the United States, such as a finding that the adoptee beneficiary did not enter the United States for the purpose of adoption. (However, this information in a court order is not, by itself, determinative.);
  • Addresses where the birth parents have resided since the adoptee beneficiary’s date of birth (if known), and any time periods the birth parents resided with the adoptee beneficiary;
• Any other evidence to support the statements made in the affidavit (such as informal consent documentation) or to document that the petitioner did not intend to adopt the adoptee beneficiary when the beneficiary entered the United States;
• Method of arrival, as indicated in visa records or other government system checks; specifically, any records related to the adoptee beneficiary’s stated purpose of travel to the United States or whether the adoptee beneficiary had any intent to immigrate;
• Evidence that the adoptee beneficiary was a ward of a U.S. state or state court before the adoption. In such cases, the evidence should establish that the adoptee beneficiary was in state care due to the adoptee beneficiary’s bona fide need for state managed care and was not abandoned in order for the petitioner to adopt the adoptee beneficiary;
• Evidence of the birth parents’ inability to provide proper care for the adoptee beneficiary;
• Evidence to establish one or both birth parents are deceased;
• Evidence to establish any living birth parents freely consented to the proposed adoption or the birth parents’ parental rights were fully and properly terminated; or
• Any other evidence to establish that entry into the United States was for purposes other than adoption.

Adverse Factors

USCIS considers the following adverse factors in determining if the adoptee beneficiary entered the United States for the purpose of adoption:

• A prior adoption of the adoptee beneficiary in the country of origin by the adoptive parent(s) in the United States. (This is a significant adverse factor.)
• Prior contact between the adoptive parent(s) and the adoptee beneficiary. (This could be an adverse factor if the contact was related to the adoption.) USCIS considers present and prior family relationships when reviewing the intent criteria. Prior contact between the adoptive parent(s) and the adoptee beneficiary may not be an adverse factor if the adoptee beneficiary is a relative, but USCIS reviews the case based on the totality of the evidence.
• Any evidence that suggests that the entry was for the purpose of adoption.

2. Actual Residence Criteria

If the adoptee beneficiary was physically present in the United States for 2 years or more before the adoption, USCIS presumes that the adoptee beneficiary has actually and physically resided in the United States for a substantial period of time, establishing compelling ties in the United States prior to the U.S. domestic adoption (and that the adoptee beneficiary meets actual residence criteria). However, if the adoptee beneficiary has been present in the United States for less than 2 years, the officer considers the length of time that the adoptee beneficiary has spent in the United States before the adoption and supporting evidence establishing the adoptee beneficiary’s actual residence and compelling ties in the United States before the adoption.

Evidence

Documentation from the time period before the adoption may include, but is not limited to, the following:

• Evidence of ongoing medical care in the United States;
• Statement from the petitioners explaining the adoptee beneficiary’s social interactions, including family and peer relationships;
• School records;
• Registration for extra-curricular activities;
• Affidavits from knowledgeable people (such as the adoptee beneficiary’s doctor or teacher, day care provider, landlord, or neighbors) attesting to the adoptee beneficiary’s actual residence in the United States;
• Evidence that the adoptee beneficiary’s birth parent(s), guardian, or caretaker resided in the United States;
• An order from a court with jurisdiction over the adoptee beneficiary if that order includes express findings that the adoptee beneficiary actually resided in the United States for a substantial period of time or had compelling ties in the United States before the adoption (The information in a court order does not in itself guarantee that USCIS will determine that the adoptee beneficiary is no longer habitually resident in the country of origin.); or
• Evidence that the adoptee beneficiary was a ward of the state or court before the adoption.

Adverse Factors

If there is evidence that the adoptee beneficiary lived outside of the United States shortly before the adoption, USCIS may consider it as an adverse factor.

3. Notice Criteria

The notice criteria is required in any case where the adoption took place on or after February 3, 2014.

If the petitioner cannot obtain a written statement addressing an adoptee beneficiary’s habitual residence from the Central Authority of the adoptee beneficiary’s country of origin in 120 days, the petitioner still must notify the Central Authority of the adoption in a manner satisfactory to the court. The Central Authority then has an additional 120 days to object to the adoption. 

Notification Process

When notifying the Central Authority in the adoptee beneficiary’s country of origin of the adoption proceedings, the petitioner must follow the court’s rules of procedure or the instructions in a specific order from the court. If permitted by the court, the petitioner can send both the request for a habitual residence statement and the notice of the court proceeding to the Central Authority at the same time. The notification can take the form of a court order or another document authorized by the court. Notice by email or fax is generally not sufficient unless the court rules clearly allow for email or fax notifications. 

The notice must include a copy of the adoption petition or the motion for amended adoption order and must clearly specify:

• The name of the adoptee beneficiary, together with the place and date of birth of the adoptee beneficiary, and the name(s) of the birth parent(s), if known;
• The country of the adoptee beneficiary’s nationality;
• The name of the agency or person who is the Central Authority in the adoptee beneficiary’s country of origin;
• The names of the adopting parents;
• The date of the adoptee beneficiary’s departure from the adoptee beneficiary’s country of origin, if known;
• The date of the adoptee beneficiary’s arrival in the United States, if known;
• The court name and the date, time, and place of the court’s hearing on the adoption petition or motion for amended adoption order; and
• An indication that the Central Authority should notify the court if the Central Authority does not intend to object or requires additional time beyond 120 days.

Both the request for a statement addressing the adoptee beneficiary’s habitual residence (if applicable) and the notice of the court proceeding must be provided directly to the Central Authority. Notice to another competent authority or an embassy or consulate of the country of origin in the United States is generally insufficient. If a country has a different Central Authority for different parts of the country (such as a regional or state Central Authority), the petitioner must provide the request for a statement addressing the adoptee beneficiary’s habitual residence and the notice of the court proceeding to the Central Authority for the place where the adoptee beneficiary last resided in that country.

The petitioner does not need to give 120-day notice of the court hearing on the adoption proceeding more than once. If the Central Authority does not respond to the notice of the court hearing on the adoption proceeding within the 120-day period, there is no need to give additional notice, even if the court grants a continuance in the adoption proceeding and the adoption hearing takes place at a later date than what was stated in the notice provided to the Central Authority. 

Evidence

USCIS considers the following evidence regarding notice:

• Copy of the notice provided to the Central Authority of the adoptee beneficiary’s country of origin informing it of the pending adoption and providing the Central Authority with 120 days to object;
• Any and all responses received from the Central Authority;
• If the Central Authority of the adoptee beneficiary’s country of origin does not reply to the notice, an adoption order (or amended adoption order) containing language regarding the:
  • Petitioner’s request for a statement of habitual residence (if applicable);
  • Indication the Central Authority did not respond to the court notice; and
  • The court’s confirmation that the court required the petitioner(s) and their representatives (if any) to provide all correspondence from the Central Authority to the court, even responses stating the adoptee beneficiary is considered habitually resident in the country of origin; and
• Copies of the request for a statement of habitual residence (if applicable) and court notice in the language used for official proceedings in the adoptee beneficiary’s country of origin and a certified English translation of each document and proof of service in the manner specified by the court.

Central Authority Response

If the Central Authority informs the court in writing that it does not consider the adoptee beneficiary to be habitually resident in that country before the expiration of the 120-day period, there is no need to delay the hearing for the 120-day period. USCIS does not apply the intent, residence, and notice criteria when adjudicating a family-based petition if requirements are met for a written statement from the adoptee beneficiary’s country of origin.

D. Amended Orders

If the petitioner does not obtain a written statement from the Central Authority in the adoptee beneficiary’s country of origin until after the adoption is finalized, the petitioner must submit an amended order that contains the required language and the Central Authority’s written statement.

For purposes of the age, custody, and joint residence requirements,^[21] the date of the adoption is the date of the original order, not the amended order.

If a court amends an order after February 3, 2014 to meet the notice criteria, USCIS considers the amended order not as the adoption order itself, but as a confirmation that the state court had jurisdiction to make the original order when the court did so. The notice and amended order may therefore be issued after an adoptee beneficiary’s 16th birthday as long as the original adoption order took place before the adoptee beneficiary’s 16th birthday (or 18th birthday in the case of a qualifying sibling).

If the petitioner(s) cannot obtain an amended order within the standard Request for Evidence (RFE) response period, the petitioner must:

• Submit all other requested evidence by the RFE response date, including a copy of the written notice provided to the Central Authority of the country of origin; and
• Request in writing that USCIS administratively close the family-based petition for up to 1 year.

USCIS may or may not grant the petitioner’s request, depending on the circumstances of the case and the evidence provided.

If the petition is administratively closed, once the petitioner obtains the amended order, the petitioner may ask USCIS to reopen the case administratively without being required to file a Notice of Appeal or Motion (Form I-290B). If the petitioner does not request to reopen the case within 1 year, USCIS denies the petition.

Footnotes

[^ 1] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage. For general information about determining if the Hague Adoption Convention applies, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2]. For information about determining if the Hague Adoption Convention applies specifically when the adoptee beneficiary is from a Hague Adoption Convention country and is present in the United States based on an adoption, see Section A, Adoptee Beneficiary in the United States [5 USCIS-PM E.3(A)].

[^ 2] See Petition for Alien Relative (Form I-130).

[^ 3] For information on determinations of habitual residence, see 8 CFR 204.303.

[^ 4] For information on habitual residence determinations for U.S. citizens who reside outside of the United States, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].

[^ 5] For information on how and when the petitioner may establish that the Hague Adoption Convention does not apply, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].

[^ 6] See 8 CFR 204.2(d)(2)(vii)(F) and 8 CFR 204.303(b).

[^ 7] See 8 CFR 204.309(b)(4), which specifically provides that a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) can be filed, even if the child is in the United States, if the other Hague Adoption Convention country is willing to complete the Hague Adoption Convention process with respect to the child.

[^ 8] Central Authority means the entity designated as such under Article 6(1) of the Hague Adoption Convention by any Convention country, or, in the case of the United States, DOS. See 22 CFR 96.2.

[^ 9] Competent authority means a court of governmental authority of a foreign country that has jurisdiction and authority to make decisions in matters of child welfare, including adoption. See 22 CFR 96.2.

[^ 10] See 8 CFR 204.303.

[^ 11] If there is a sufficient basis for saying that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country, then USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of the Form I-130.

[^ 12] See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].

[^ 13] See Section B, Written Statement for Adoptee Beneficiary [5 USCIS-PM E.3(B)].

[^ 14] See Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries, PM-602-0095, issued November 20, 2017. See Section C, No Written Statement for Adoptee Beneficiary Physically Present in United States [5 USCIS-PM E.3(C)].

[^ 15] If the petitioner did not obtain a written statement from the Central Authority of the adoptee beneficiary’s country of origin until after the adoption was finalized, the petitioner must submit an amended order that contains the required language.

[^ 16] See 8 CFR 204.303.

[^ 17] Currently, Mexico is the only country DOS has confirmed does not issue such statements. For more information, see DOS’s Mexico webpage.

[^ 18] USCIS denies the petition if these criteria are not met.

[^ 19] The notice criteria applies to adoptions issued on or after February 3, 2014.

[^ 20] Restrictions on approving a Form I-130 for a child from a Hague Adoption Convention country do not apply to children admitted as refugees or in asylee status because the child did not travel to the United States in connection with an adoption, and because children admitted as refugees or granted asylum as they are no longer considered habitually resident in their country of citizenship or residence.

[^ 21] See INA 101(b)(1)(E).