Orphan petitions and overseas adoptions
In recent years adopting an orphan from overseas has become more complicated. I will focus on adoption of Orphans from the island of Jamaica. Before you can file and Orphan petition and adopt you need to be aware that there are two sets of laws that are relevant to your case:
- The laws of Jamaica which govern governing the adoptability of proposed adoptive children; and
- The U.S. immigration law governing the immigration of the proposed adoptive children to the United States based on an approved Orphan petition.
Note that the U.S. Citizenship & Immigration Service implemented a new policy in recent years which stipulates that any orphan petition filed with them must be accompanied by a home study report. In private adoption cases this home study report needs to be conducted and prepared by a certified social worker and in agency adoptions the home study report will be conducted and prepared by the agency used in the adoption.
What is the definition of an Orphan for immigration purposes?
For immigration to the United States through an orphan petition the prospective adoptive child would first have to be classified as an “orphan”. The best known and most typical definition of an orphan is a child without parents due to their parents’ death.
The immigration service went further in their classification to include a child who parents abandoned or deserted them, disappeared or was somehow separated from the child. They ventured even further to include children whose parents are found unable to provide for their basic everyday needs, financially and emotionally, and has or will irrevocably release the child for adoption and subsequent emigration to the United States.
Of course, all of the above financial criteria need to be consistent with the Jamaica’s current standard of living. Every prospective adoptive parent seeking to adopt a relative, whether cousin, niece, nephew, grandchild or any other relative, must first ensure that the child meets the U.S. immigration law definition of an orphan.
Are there any time deadlines in effect?
Yes. Once you have identified the orphan for adoption, there is still more criteria to meet before the child can be deemed eligible to be the beneficiary of an orphan petition. In order for the orphan to gain any immigration benefit the orphan petition needs to be filed before the orphan’s sixteenth (16th) birthday.
Now there is an exception to this rule. The exception is only applicable when the orphan is being adopted together with or after a natural sibling by the same prospective adoptive parents. With this type of case the orphan petition will have to be filed before the orphan’s eighteenth (18th) birthday.
Are there any requirements in Jamaica before the proposed adoptive child can emigrate to the United States?
Yes. The Jamaican Adoption Board governs all issues relating to the adoption or proposed adoption of a Jamaican citizen. The adoption laws of Jamaica stipulates that before a Jamaican citizen proposed adoptive child can be taken to the United States to be adopted there, the proposed adoptive parents need to first obtain an Adoption License from the Jamaican Adoption Board.
In cases where the proposed adoptive parent is seeking to obtain an Adoption License it is important to note that there is no Jamaican residential requirement as there is if you want to adopt the orphan in Jamaica. Further, if the orphan is a grandchild, niece or nephew of the proposed adoptive parent then no Adoption License is required, however, the other requirements of the Adoption Board in Jamaica must still be met.
Although there is no residential requirement the proposed adoptive parent will have to physically be present in Jamaica to meet with the Adoption Board and then once more, once the Orphan petition is approved, to accompany the orphan to the U.S. Embassy in Jamaica to obtain their immigrant visa.
Obtaining an Adoption License from the Adoption Board in Jamaica takes approximately 4-6 months and can be processed in conjunction with the precertification of the proposed adoptive parent in the United States.
Who is eligible to file an Orphan petition?
There have been several questions regarding who is eligible to file an orphan petition. This is where the immigration service has no exceptions and the State of New York or the state in which the prospective adoptive parent resides would come into play.
Immigration requires that the petitioner be a U.S. citizen. The petitioner can file the orphan petition as unmarried and at least twenty-five (25) years old whereas if the petitioner is married then there is no specific age requirement but that the married petitioner’s spouse has to be a legal permanent resident or U.S. citizen. The immigration service further requires that the state in which the petitioner resides pre-certify them as a “qualified adoptive parent” prior to filing the orphan petition.
Who is not eligible to file an Orphan petition?
According to the immigration service, the following list of persons are not eligible to file an orphan petition, the list is by no means all inclusive:
- any person residing in the United States as a lawful permanent resident;
- any married couple residing in the United States, where neither is a citizen (both have to be citizens or one has to be a citizen and the other a lawful permanent resident);
- any person residing in the United States unlawfully; or
- any citizen who is separated from their spouse but still legally married (unless both sign the adoption pre-certification petition then none can adopt).
- When, why and how can an Orphan petition be denied?
- if the immigration service makes a finding that the prospective adoptive parent does not have the physical, mental and/or emotional capabilities to be a proper parent to the proposed adoptive orphan;
- if the immigration service makes a finding that the prospective adoptive parent does not have the financial capability to properly care for the proposed adoptive orphan;
- if the immigration service’s investigation or the social worker’s home study report reveals a history of abuse, crime or violence on the part of the proposed adoptive parent;
- if the immigration service’s investigation or the social worker’s home study report reveals unsuitable living conditions for the proposed adoptive orphan; and
- if the immigration service’s investigation leads them to determine that the child does not fit their definition of “orphan” for the purposes of an orphan petition.
- What immigration benefit will the Orphan gain through an Orphan petition?
- Once the adoptive parent is pre-certified by the Family Court in the state where they reside and the Orphan petition is filed and approved, the orphan will be considered an immediate relative of the U.S. citizen adoptive parent and be immediately eligible for their immigrant visa. Just like that, no waiting for a priority date.
It is important to note, however, that the child must still qualify for an immigrant visa just like any other immigrant to the United States and will enter the United States not as a citizen but as a lawful permanent resident. This process generally takes approximately 6-12 months.