Travel.State.Gov > Intercountry Adoption > Adoption Process > Before You Adopt > Adoption by Non-U.S. Citizens living in the U.S.
Foreign-born children adopted by non-U.S. citizens cannot immigrate to the United States through the Hague or orphan intercountry adoption processes. Non-U.S. citizens living in the United States seeking to bring an adopted child to the United States must petition for the adopted child through the immediate relative petition process.
Each year, the Office of Children’s Issues learns of cases in which lawful permanent residents (LPRs) of the United States have legally adopted a child in another country but later learn that the child cannot join them in the United States. An LPR may bring an adopted foreign-born child to the United States based on an approved Form I-130, Petition for Alien Relative in the family based second preference immigrant category "F2A" if the adopted child meets the definition of "child" in Section 101(b)(1)(E) of the Immigration and Nationality Act (INA). This section of law 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. This type of visa is known as a “family preference immigrant visa.” 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. An LPR may travel outside the United States; however, if the LPR remains outside of the United States for an extended period of time, s/he may be deemed to have abandoned his or her LPR status.
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.
If an LPR in the United States becomes a U.S. citizen through naturalization, he or she may be able to use the orphan or Hague intercountry adoption processes, to bring the child to the United States, depending on the child’s country of origin. Questions about the different adoption-related immigration processes should be directed to the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), which is the federal agency responsible for the adjudication of all adoption-related immigration applications and petitions.
A foreign-born adopted child will generally not be entitled to U.S. derivative nonimmigrant visa status. In practice, this means U.S. nonimmigrant visa holders cannot adopt overseas and immediately bring the child back to the United States with a nonimmigrant visa of the same classification as that of the adoptive parent(s). There is an exception for an unmarried son or daughter (which would include an adopted child) of a principal nonimmigrant alien entitled to "A" (diplomatic and other foreign government officials) or "G" (foreign government representative to international organization) nonimmigrant status.
Questions about an adopted child’s eligibility for U.S. derivative nonimmigrant visa status should be addressed to the Nonimmigrant Visa Unit of the U.S. Embassy or Consulate where the child is a citizen or regularly resides.
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.
In most cases, U.S. lawful permanent residents (LPRs) who adopt children in the United States do so under domestic state adoption laws.
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.
A non-U.S. citizen prospective adoptive parent who is temporarily admitted to the United States (i.e., not a U.S. lawful permanent resident) and who wishes to apply to adopt a U.S. citizen child should first thoroughly research the immigration and adoption laws of his/her country of citizenship and permanent residence for information about the eligibility of an adopted U.S. citizen child to legally enter and reside in that country with the adoptive parent(s) when they leave the United States.
If you have questions about anything in this entire section, please write to Adoption@state.gov.
Disclaimer: This information is intended as a general overview of the circumstances and requirements described. It is not a substitute for the actual Immigration and Nationality Act and its implementing regulations, nor is it a comprehensive summary of the individual provisions discussed. In the case of any inconsistencies between this document and U.S. immigration law and regulation, the law or regulation governs, as appropriate.