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Policy Manual
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Book outline for Policy Manual
  • Policy Manual
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    • Table of Contents
    • Volume 1 - General Policies and Procedures
    • Volume 2 - Nonimmigrants
    • Volume 3 - Humanitarian Protection and Parole
    • Volume 4 - Refugees and Asylees
    • Volume 5 - Adoptions
      • Part A - Adoptions Overview
      • Part B - Adoptive Parent Suitability Determinations
      • Part C - Child Eligibility Determinations (Orphan)
      • Part D - Child Eligibility Determinations (Hague)
        • Chapter 1 - Purpose and Background
        • Chapter 2 - Eligibility
        • Chapter 3 - Identity and Age
        • Chapter 4 - Eligibility Requirements Specific to Convention Adoptees
        • Chapter 5 - Qualifying Adoptive or Custodial Relationship
        • Chapter 6 - Additional Requirements
        • Chapter 7 - Required Order of Immigration and Adoption Steps
        • Chapter 8 - Documentation and Evidence
        • Chapter 9 - Adjudication
      • Part E - Family-Based Adoption Petitions
      • Part F - Citizenship for Adopted Children
    • Volume 6 - Immigrants
    • Volume 7 - Adjustment of Status
    • Volume 8 - Admissibility
    • Volume 9 - Waivers and Other Forms of Relief
    • Volume 10 - Employment Authorization
    • Volume 11 - Travel and Identity Documents
    • Volume 12 - Citizenship and Naturalization
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  2. Policy Manual
  3. Volume 5 - Adoptions
  4. Part D - Child Eligibility Determinations (Hague)
  5. Chapter 5 - Qualifying Adoptive or Custodial Relationship

Chapter 5 - Qualifying Adoptive or Custodial Relationship

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  • Guidance
  • Resources (14)
  • Appendices (0)
  • Updates (3)
  • History (1)

A prospective adoptive parent (PAP) must have one of the following for a child to be classified as a Convention adoptee:

  • A final adoption in the Convention country; or
  • Legal custody of the child under the law of the Convention country for purposes of emigration and adoption in the United States.[1]

A. Final Adoption

A child may qualify as a Convention adoptee based on a final adoption if:

  • The adoption meets USCIS requirements for a final adoption (is valid under the law of the country of origin, creates a legal permanent parent-child relationship,[2] and terminates the prior legal parent-child relationship); and
  • The petitioner (and spouse, if married) adopted the child.

If these requirements are met, the child may qualify for an IH-3 visa[3] based on a valid final adoption. USCIS considers an adoption that meets these requirements to be a final adoption.

A child does not, however, have a final adoption if only one parent of a married couple adopted the child. USCIS may, however, consider the foreign adoption by one parent in a married couple to have established legal custody for purposes emigration and adoption, and the child may be eligible for an IH-4 visa.[4]

B. Legal Custody for Emigration and Adoption

Not all countries grant what USCIS considers a final adoption abroad for immigration purposes.[5] A child may, however, be eligible based on legal custody for the purpose of emigration and adoption if the following criteria are met:[6]

  • The PAP secured legal custody in accordance with the laws of the country of origin;
  • The person, organization, or competent authority that has legal custody or control over the child irrevocably released the child for emigration and adoption;[7]
  • The PAP has complied with any pre-adoption requirements; and
  • If there was an adoption abroad that did not meet the requirements for a final adoption, the child’s proposed jurisdiction of residence allows re-adoption or provides for judicial recognition of the foreign adoption.

If the child meets these requirements, the child may qualify for an IH-4 visa to come to the United States for adoption.[8]

Footnotes


[^ 1] Some countries will not allow a child to emigrate without a final adoption decree. To determine a Convention country’s specific laws, see the U.S. Department of State (DOS)’s Country Information webpage.

[^ 2] 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].

[^ 3] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child from a Convention country adopted abroad by a U.S. citizen.

[^ 4] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child from a Convention country coming to be adopted in the United States by a U.S. citizen.

[^ 5] For example, guardianships, simple adoptions, or Kafala orders in countries that follow traditional Islamic law generally do not qualify as a final adoption abroad. Such guardianship, Kafala, or other custody orders may, however, be sufficient to establish that the PAP has secured legal custody of the child. If the legal custody is for emigration and adoption and all other requirements are met, such an order could support approval of a petition. See 8 CFR 204.313(h)(1)(ii)(A).

[^ 6] See the definition of custody for purposes of emigration and adoption at 8 CFR 204.301.

[^ 7] The Central Authority of the country of a child's habitual residence must have, by a judicial or administrative act, expressly authorized the petitioner, or an individual or entity acting on the petitioner's behalf, to take the child out of the child's country of habitual residence and bring the child to the United States for adoption in the United States. See 8 CFR 204.301.

[^ 8] See Volume 5, Adoptions, Part F, Citizenship for Adopted Children [5 USCIS-PM F] for information on citizenship for adopted children. A PAP needs to take additional steps to secure U.S. citizenship for a child entering with an IH-4 visa because the adoption of the child has to be finalized in the United States or recognized by operation of law, unlike in cases of children entering with IH-3 visas on the basis of a final adoption.

Resources

Legal Authorities

22 CFR 96 - Intercountry adoption accreditation of agencies and approval of persons

8 CFR 204 Subpart C - Intercountry adoption of a Convention adoptee

Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption

INA 101(b)(1) - Definition of child

INA 101(b)(1)(G) - Definition of a child adoptee for Hague Adoption Convention process

INA 101(c) - Definition of child for citizenship and naturalization

INA 201(b) - Immediate relatives

INA 204, 8 CFR 204 - Procedure for granting immigrant status

Pub. L. 106-279 (PDF) - Hague Adoption Convention and the Intercountry Adoption Act

Forms

AR-11, Change of Address

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-800, Petition to Classify Convention Adoptee as an Immediate Relative

I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country

Other Materials

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

No appendices available at this time.

Updates

POLICY ALERT - Hague Adoption Convention Petitions

June 14, 2024

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify requirements for petitions to determine children’s eligibility as Convention adoptees.

Read More
Affected Sections

5 USCIS-PM D.1 - Chapter 1 - Purpose and Background

5 USCIS-PM D.2 - Chapter 2 - Eligibility

5 USCIS-PM D.3 - Chapter 3 - Identity and Age

5 USCIS-PM D.4 - Chapter 4 - Eligibility Requirements Specific to Convention Adoptees

5 USCIS-PM D.5 - Chapter 5 - Qualifying Adoptive or Custodial Relationship

5 USCIS-PM D.6 - Chapter 6 - Additional Requirements

5 USCIS-PM D.7 - Chapter 7 - Required Order of Immigration and Adoption Steps

5 USCIS-PM D.8 - Chapter 8 - Documentation and Evidence

5 USCIS-PM D.9 - Chapter 9 - Adjudication

POLICY ALERT - Adoptions

November 19, 2021

U.S. Citizenship and Immigration Services (USCIS) is publishing a volume in the USCIS Policy Manual regarding adoptions. This guidance incorporates basic requirements for the submission of adoption-based applications and petitions to USCIS.

Read More
Affected Sections

5 USCIS-PM - Volume 5 - Adoptions

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

May 21, 2020

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 322.9 KB) between the AFM and the Policy Manual.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

Archived Content

This content has been superseded by the current version available in the Guidance tab. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The historical versions are provided for research and reference purposes only. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures.

The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at: https://archive.org

Version History:

  • View version archived on November 19, 2024

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