US immigration, citizenship and adopting children from the Caribbean Loop Jamaica

The content originally appeared on: Jamaica News Loop News

Intercountry adoptions occur when children are adopted from overseas by US parents.

Determining the suitability and eligibility of prospective adoptive parents, as well as determining the eligibility of the child to immigrate to the US, falls to the United States Citizen and Immigration Services (USCIS). 

US Federal law, the law of the country where the child lives, and any law in the state of the US where the prospective adoptive parents live (or the law of the country if they live in a third country) all have a crucial impact on adoption and ensuring that the adopted child can immigrate to the USA.

In some countries, there are private adoption agencies that assist with the adoption of children. In Jamaica, however, it is solely the governmental system that controls adoption, through the relevant state agencies and the judiciary–through the family court. 

Adoptions in many countries are final, Jamaica included.

There have been situations where biological parents consent to adoptions to US citizens, in the hope that these children will be able to petition for them at age 21. The law does not allow that.

When a child is adopted, the adoption is irrevocable, and so all ties with the biological parents are severed. 

In any event, even if such a child were to be able to get an adoption order revoked, it would mean that the child is no longer a green card holder or a US citizen, and so would not be able to petition for a biological parent if they did not get US citizen status by some other means.

In some states of the US, one can access one’s adoption records as the adoption is an open one. This is not the case in Jamaica and several other Caribbean countries, as the system is closed adoption.

For an adoption, one has to check if the country operates as a Hague or non-Hague country, as that will affect several of the specific steps that the US requires. A Hague country means, in brief, that the country follows the protocols of the Hague Convention related to the process of adopting children. 

A home study is needed in most adoption cases, and even in cases where there is none required by USCIS, it has been found that the local country authorities might have that as part of their requirements.

Home studies are conducted to establish the suitability of prospective parents’ home and they most likely will have to undergo an extensive background check. 

Orphans, as defined by the USCIS standard, requires that such children have no parents (because they have died or are otherwise permanently removed from the children’s lives) or that the orphans are children who have one parent who is incapable of providing their basic needs.

It is not enough for a parent to be living in poverty, USCIS requires a high threshold to prove the incapacity.

It is almost as if they must be wholly destitute. The rationale behind this is that to do otherwise would allow persons to use the adoption system as a sham to help friends and family children to immigrate to the US.

Children who are living in institutions (such as those whose parents have had their parental rights terminated or those who were abandoned at an early age) are also available for adoption. 

For the purposes of US adoptions, the children must be 16 or under, unless there are siblings (along with a few other criteria), whereby the adoption can take place by age 18.

There are several immigration forms and evidence needed that must either be completed concurrent with or consecutive to the adoption. It is important to get this section right, because it can have implications for the immigration into the US of the adopted child.

In other adoptions, that is, where the process is neither Hague or non-Hague, the US parents must prove that they resided with the children for two years (it needs not be a consecutive period, as segments of time is allowed).

It is important to note that US citizens can adopt under both Hague and non-Hague. Green card holders can adopt and utilise the family-based process, but they must meet the two-year residency with the children.

In some adoptions, when the children’s immigration documentation have been approved and they arrive in the USA, the US citizen parents can complete the adoption process in their state and should also ensure that they get the children their certificates of citizenship as soon as possible.

If the child is already in the US upon adoption, these parents should also ensure that their adopted children complete their adjustment of status to green card holders and as soon as possible, and thereafter get their certificates of citizenship.

*This article does not constitute legal advice and is intended for informational purposes only.

Nadine C Atkinson-Flowers is admitted to practice in the USA and Jamaica. Her US practice is in the area of immigration, while her Jamaican practice areas include immigration and general legal consultancy. She has been an attorney for over 15 years in Jamaica and has written articles for several legal publications. She is passionate about access to justice issues and volunteers with several legal, business, children and community service organisations in Jamaica and the US. She can be contacted at [email protected]