Chapter 2 - Eligibility

The following table outlines the main eligibility factors USCIS considers when adjudicating a family-based adoption petition.^[1]

Derivatives

The children and spouse of certain adoptee beneficiaries can accompany or follow to join the adoptee beneficiary.^[3]

A. Age, Marital Status, and Immigration Status Requirements

The adoptee beneficiary must meet requirements for age^[4] and marital status^[5] and the petitioner must meet immigration status requirements.

1. Adoptee Beneficiary Age and Marital Status

Child Beneficiary (Unmarried and Under 21)

To qualify under the definition of an adopted child under immigration law, the adoptee beneficiary must be unmarried and under 21 years of age.^[6] A U.S. citizen or LPR may file a petition on behalf of an adoptee beneficiary who meets the definition of a child under immigration law.^[7]

Son or Daughter Beneficiary (Married or Age 21 or Over)

An adoptee beneficiary who no longer meets the definition of an adopted child (because the beneficiary is currently married or age 21 or over) may still be eligible as a son or daughter, if the beneficiary previously met the definition of adopted child as set forth in immigration law.^[8]

2. Immigration Status of Petitioner

The following persons are eligible to file a petition on behalf of an adoptee beneficiary:

• A U.S. citizen; or

• An LPR of the United States (unless the adoptee beneficiary is married).^[9]

U.S. Citizen Petitioner

A U.S. citizen may file a petition on behalf of an adopted son or daughter who is now 21 years of age or over, or who is currently married, if the adoptee beneficiary previously met the definition of adopted child as set forth in immigration law.^[10]

Lawful Permanent Resident Petitioner

An LPR may file a petition for an adopted son or daughter who is 21 years of age or older, if the adoptee beneficiary previously met the definition of child as set forth in immigration law.^[11] However, USCIS must deny a petition filed by an LPR if the adoptee beneficiary is married at the time of filing or adjudication (unless the beneficiary can demonstrate the marriage was terminated).^[12]

B. Qualifying Relationship

The petitioner must establish that the petitioner has a qualifying adoptive relationship with the adoptee beneficiary. To satisfy the requirements for a qualifying relationship, the petitioner must establish the:

• Adoptee beneficiary’s age at time of adoption; and

• Validity of relationship between the petitioner and the adoptee beneficiary.

1. Age at Time of Adoption

The petitioner must have adopted the adoptee beneficiary while the beneficiary was under the age of 16, unless the sibling exception applies.^[13] This means that the court or other entity must have entered the adoption order before the adoptee beneficiary’s 16th birthday.

Sibling Exception

An adoptee beneficiary who was adopted on or after the beneficiary’s 16th birthday, but before the beneficiary’s 18th birthday, meets the age at time of adoption requirement if the beneficiary is the birth sibling of another child who:

• Was adopted by the same petitioning parent(s) before the beneficiary’s 16th birthday; and

• Immigrated, or is immigrating, as an adopted child or orphan based on an adoption by the same petitioning parent(s).^[14]

Retroactive Adoption Orders

A retroactive adoption order (known as a nunc pro tunc order) entered on or after the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies) does not meet the age at time of adoption requirement unless the petitioner establishes that:

• The petitioner initiated the adoption proceeding before the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies);^[15]

• The law of the jurisdiction where the order was issued expressly permits an adoption decree to be dated retroactively; and

• The court’s order grants the adoption with an effective date before the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies).^[16]

Amended Orders

An order entered to correct an error in an order that actually was entered before the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies) may also establish eligibility. For example, if a court intended to enter an adoption order but mistakenly entered a guardianship order, an amended order correcting the earlier order would support approval of the petition.^[17] In these circumstances, the petitioner should submit both the original order and the later order correcting the original order.

2. Validity of the Relationship

Bona fide Adoption

USCIS assesses whether the adoptive relationship is bona fide. USCIS evaluates the petition to determine if the intent of the adoption was to form a genuine parent-child relationship and not solely for immigration purposes.^[18]

Legal Custody and Joint Residence

In order to establish the validity of the relationship, the petitioner must establish that the adoptee beneficiary has been in the legal custody of and jointly resided^[19] with the adoptive parent(s) for at least 2 years.^[20] The legal custody and joint residence requirement may be met by custody and residence before or after the final adoption, but any pre-adoption custody must be based on a formal grant of custody from a court or authorized governmental entity according to the law of the country where it was obtained.

The 2-year time period does not need to be continuous and multiple periods of time can be added together to accrue the 2 years. The legal custody and joint residence requirements are reviewed independently. If the adoptive parents are a married couple who jointly adopted, the 2 years of legal custody and joint residence cannot be split between the parents. However, only one adoptive parent needs to establish 2 years of legal custody and joint residence. The two years the child was in the legal custody of the adoptive parent do not have to be the same two years the child jointly resided with the adoptive parent.

In order to establish that the adoptee beneficiary jointly resided with the adoptive parent(s) in a familial relationship, the petitioner must establish that the adoptive parent(s) exercised parental control over the adoptee beneficiary.^[21] Specifically, if an adopted child continues to reside in the same household as the birth parent(s) during the period in which the adoptive parent petitioner seeks to establish compliance with this requirement, the petitioner must establish that an adoptive parent exercised primary parental control during that period of residence despite joint residence with the birth parents.

Once the petitioner submits evidence to establish compliance with parental control requirements, USCIS generally presumes the relationship is bona fide,^[22] absent any evidence indicating otherwise.

A petitioner who is a stepparent who adopted the petitioner’s stepchild also has to meet the 2-year legal custody and 2-year joint residence requirements and obtain a final adoption before the child’s 16th birthday (or 18th birthday if the sibling exception applies) before the petitioner can be considered an adoptive parent under immigration law.^[23]

Final Adoption Requirements

In order for an adoption to meet USCIS requirements for a final adoption, the adoption must:

• Be valid under the law of the jurisdiction where it was issued;

• Create a permanent legal parent-child relationship; and

• Terminate the prior legal parent-child relationship.^[24]

Footnotes

[^ 1] See Petition for Alien Relative (Form I-130).

[^ 2] Petitioner refers to the adoptive parent.

[^ 3] See INA 203(d). For more information, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].

[^ 4] There are also requirements related to the age of the adoptee beneficiary at the time of the adoption. See Section B, Qualifying Relationship, Subsection 1, Age at Time of Adoption [5 USCIS-PM E.2(B)(1)].

[^ 5] Unmarried means never been married or has terminated any and all prior marriages.

[^ 6] See INA 101(b)(1)(E). For information on how a beneficiary’s age at the time of filing the petition impacts eligibility for an immigrant visa, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].

[^ 7] See INA 101(b)(1)(E).

[^ 8] See INA 101(b)(1)(E).

[^ 9] See INA 101(b)(1)(E). See INA 203(a)(2)(A). See 8 CFR 204.2(d).

[^ 10] See INA 101(b)(1)(E).

[^ 11] See INA 101(b)(1)(E).

[^ 12] See INA 203(a)(2)(A). See 8 CFR 204.2(d).

[^ 13] See INA 101(b)(1)(E).

[^ 14] See INA 101(b)(1)(E)(ii). See INA 101(b)(1)(F). Note that the sibling exception does not apply to someone whose sibling immigrated as a Hague Convention adoptee.

[^ 15] The petitioner must submit evidence that the adoptive parent filed a formal petition or application to adopt the child with the court or other competent authority to grant the adoption before the beneficiary’s 16th (or 18th) birthday.

[^ 16] Overruling Matter of Drigo and Matter of Cariaga in part, the Board of Immigration Appeals held in Matter of Huang, 26 I&N Dec. 627 (BIA 2015), that a nunc pro tunc adoption can support approval of a Form I-130 if the petitioner establishes that the adoptive parent initiated the adoption proceeding before the adoptee’s 16th birthday; and the law of the forum “expressly” permits the court to give retroactive effect to an adoption decree. In the Fourth Circuit, in Ojo v. Lynch, 813 F.3d 533 (4th Cir. 2016), the court concluded that Matter of Huang is not sufficiently deferential to a court’s authority to determine the scope of its own jurisdiction. The court held that the term “adopted” while under the age of 16 for purposes of INA 101(b)(1)(E) is the date the state court rules the adoption is effective, without regard to the date on which the act of adoption occurred. Therefore, in the Fourth Circuit, Ojo imposes no requirement that the adoption proceeding have been initiated prior to the beneficiary’s 16th or 18th birthday and defers to a state court’s facially valid nunc pro tunc order.  

[^ 17] See Allen v. Brown, 953 F. Supp. 199 (N.D. Ohio 1997).

[^ 18] See Matter of Marquez (PDF), 20 I&N Dec. 160 (BIA 1990). Matter of Marquez rejects a strict statutory interpretation of INA 101(b)(1)(E) and relies instead upon the legislative history of the statute which indicates that Congress did not intend to recognize ad hoc adoptions designed to circumvent the immigration laws. This decision found that an adoptive relationship to be more akin to marital relationships than to step-relationships, and therefore, USCIS may evaluate the bona fides of adoptions.

[^ 19] The legal custody must have been the result of a formal grant of custody from a court or other governmental entity. The regulations incorporate the definitions for both legal custody and joint residence in paragraphs (vii)(A), (vii)(B), and (vii)(C) of 8 CFR 204.2(d)(2).

[^ 20] Exceptions may apply for certain battered children. See INA 101(b)(1)(E)(ii). For more information, see Volume 3, Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D].

[^ 21] See 8 CFR 204.2(d)(2)(vii)(B) for types of evidence of that may be submitted to establish such parental control.

[^ 22] USCIS may further evaluate the bona fides of the relationship. See Matter of Marquez (PDF), 20 I&N Dec. 160 (BIA 1990).

[^ 23] See INA 101(b)(1)(E). Note that 2 years of legal custody and joint residence is not required to establish a qualifying step-relationship under INA 101(b)(1)(B). For information on (non-adoptions based) family-based petitions, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].

[^ 24] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].