A non-U.S. citizen child cannot immigrate to the United States through the intercountry adoption process (as an orphan or Convention adoptee) based on an adoption by a non-U.S. citizen living in the United States. An intercountry adoption involves an adoption completed in accordance with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention), or the adoption of an “orphan” as defined under U.S. immigration law if from a country not party to the Convention. Below are immigration considerations for lawful permanent residents and non-immigrant visa holders.

Lawful permanent residents (LPRs) may bring an adopted foreign-born child to the United States as a "child" under Section 101(b)(1)(E) of the Immigration and Nationality Act (INA) based on an approved Form I-130, Petition for Alien Relative. This section of the INA requires: 1) the child be adopted while under the age of 16 (or 18 if the sibling exception applies), 2) that the child has been in the legal custody of the adoptive parent for at least two years, and 3) that the child has jointly resided with the adoptive parent for at least two years. These requirements must be satisfied before the LPR adoptive parent(s) may file an immigrant visa petition for the child. The accrual of joint residence does not have to be continuous and multiple periods of time can be added together to fulfill the two year requirement. To establish joint residence, the adoptive parent must demonstrate s/he is exercising primary parental control of the child. Typically, mere visits will not constitute joint residence.

Family preference immigrant visas are subject to numerical limitations, so even after the adoption and the two year joint residence and two year legal custody requirements have been met, there is likely to be an additional waiting period before a visa number becomes available. To see how these requirements apply to your specific circumstances, please consult an immigration attorney and see instructions for the I-130 form here. When an LPR in the United States becomes a U.S. citizen through naturalization, he or she may be able to bring the child to the United States through the immediate relative, orphan or Convention intercountry adoption processes. Information on immigration through intercountry adoption can be found on the website of U.S. Citizenship and Immigration Services (USCIS) and the Department of State intercountry adoption website. 

A nonimmigrant visa holder living and working or studying in the United States, for example - in F, J, H or L nonimmigrant status, would not be able to get a derivative nonimmigrant visa for the child to reside with them unless the child  meets the definition of INA 101(b)(1)(E) as described above. In other words, in order for a nonimmigrant visa holder to bring an adopted child to live in the United States as a derivative of the nonimmigrant status/visa application of the adoptive parent(s), the child  must have 1) been adopted while under the age of 16 (or 18 if the sibling exception applies), 2) been in the legal custody of the adoptive parent for at least two years, and 3) jointly resided with the adoptive parent for at least two years.

The children of diplomats and foreign officials in the United States for official duties are subject to different rules. U.S. law permits the adopted children of individuals in the United States in "A" (diplomatic and other foreign government officials) or "G" (foreign government representative to international organization or employee of an international organization) to seek the same non-immigrant status in the United States as their adoptive parents a nonimmigrant “immediate family” member.  

Information on applying for a derivative nonimmigrant visa for an eligible child (as described above) is available on the website of the of the U.S. Embassy or Consulate where the child regularly resides.

More information on eligibility as immediate family of a foreign official is available at Visas for Diplomats and Foreign Government Officials (state.gov)

You may wish to consult with a U.S. attorney who specializes in immigration if you have additional questions.

U.S. laws and regulations that require anyone providing intercountry adoption services in the United States to be accredited or approved do not apply to the adoption of a child living abroad by non-U.S. citizens living in the United States. This is because adoption by a non-U.S. citizen living in the United States of a child residing in another country does not constitute an “intercountry adoption” as defined in the United States’ intercountry adoption accreditation regulations at 22 CFR Part 96. This is true regardless of whether the child is residing in a Convention country or a non-Convention country. Non-U.S. citizens may choose to use the services of a U.S. accredited or approved adoption service provider (ASP) or may do so at the request of a foreign government or to comply with the requirements of the U.S. state in which they are living.

U.S. intercountry adoption accreditation regulations do not directly govern the work of ASPs in such situations. However, foreign governments may still determine what entities are authorized under their domestic laws to complete a home study report and provide other adoption-related services for non-U.S. citizens living in the United States. In addition, regulatory oversight at the U.S. state level may still be applicable. We recommend you direct questions about country of origin requirements to the Central Authority or adoption authority of that country. Contact information for adoption authorities can be found on our country information pages.

In most cases, U.S. lawful permanent residents (LPRs) who adopt children in the United States do so under domestic state adoption laws. Domestic adoption in the United States is governed by state law. The Department of Health and Human Services’ Child Welfare Information Gateway website provides information about adoption in the United States, including about specific state laws which may be helpful. Please address additional questions to the appropriate State Adoption Manager.

However, an adoption alone will not convey any U.S. immigration status to a child. LPRs who wish to adopt a specific child, who is living in the United States, but who is NOT already a U.S. citizen or U.S. lawful permanent resident, should visit the USCIS website for more information and consider consulting an attorney who specializes in immigration law and intercountry adoptions.

Domestic adoption in the United States is generally governed by state law. However, before proceeding with an adoption, prospective adoptive parents who are citizens of a country that is party to the Convention should consider whether the proposed adoption should be processed pursuant to the Convention with their country of permanent residence as the “receiving country.” A determination of the “habitual residence” of the child and prospective adoptive parents (as required under the Convention) is central to approval of the proposed adoption and the ability of the child to enter and reside in the adoptive parents’ home country. Nonimmigrant visa holders considering the adoption of a child in the United States should carefully review our Guide to Outgoing Convention Cases on our Adoptions from the United States page, particularly the section on identifying an “outgoing” Convention adoption, and may wish to consult an immigration attorney.