Under U.S. immigration law, the rules are fairly simple. A foreign child who is adopted by a U.S. citizen becomes eligible for U.S. permanent residence (“green card”) by virtue of the adoption as long as the child is under the age of sixteen when the decree of adoption is issued. An adopting U.S. citizen parent may petition for U.S. permanent residence for the adopted child as soon as the child has been residing with and in the adoptive parent’s legal custody for at least two years. The two-year requirement can commence before or after the adoption. Interestingly, a U.S. citizen parent can petition for permanent residence for a stepchild immediately after marriage to the stepchild’s parent so long as the stepchild is under the age of eighteen at the time of the marriage; and such a stepchild can also petition for an alien stepparent, when the stepchild turns 21. However, once a child is adopted, he or she cannot convey immigration benefits back to his or her natural parents.
The following are some typical questions we have been asked in this regard:
Q: I am an alien contract worker in the CNMI. Some years ago, my son, who was born in my home country, was adopted by local U.S. citizens. The adoption was filed when he was 15 but the final order was issued when he was three months past his 16th birthday. He remained in the CNMI as an IR of his adoptive parents until he turned 21. He is now 22 and on a student visa. Can he become a U.S. citizen? Can he sponsor me?
A: For purposes of gaining U.S. immigration benefits a child must be adopted before the age of sixteen. Even though the adoption was filed while he was still fifteen, it did not become final until after he was already sixteen. The fact that he was only three months past his sixteenth birthday is irrelevant; the result would be the same if he was three days past his birthday. Therefore, your son has no path to U.S. citizenship through his relationship to his adoptive parents unless there was a decree of adoption issued before he was sixteen. As for him petitioning for your U.S. permanent residence, that door is also closed. He cannot petition for you because he has no path to U.S. citizenship himself. However, even if he did become a U.S. citizen, for example after marrying a U.S. citizen, he could still not petition for you because although you are his natural parent, he has been legally adopted by another. Under U.S. and CNMI law, when a child is adopted, the relationship with the natural parents is permanently severed. A U.S. citizen child, over the age of 21, may petition for U.S. permanent residence for his parents. However, legally, you are no longer your son’s parent. Therefore he cannot petition for you, even if he becomes a U.S. citizen.
Q: My daughter was adopted by local U.S. citizens when she was ten years old. I was not making enough money to keep her here as my dependent so my friends offered to adopt her. She never lived with them and I have since become estranged from the adoptive parents. Can my daughter get a green card?
A: In theory, as the child of a U.S. citizen and adopted prior to the age of sixteen, your daughter is entitled to a green card. There are several serious problems, however. The first one is that part of the application for a green card has to be made by the U.S. citizen relative, in this case one of your daughter’s adoptive parents. Since you are estranged, they may not be willing to do this. If they do not petition for her, her application will not be considered. The second problem is the sham adoption. Even if you reconciled with the adoptive parents, and they were willing to participate in an application for permanent residence for your daughter, the person adjudicating the petition will look into the circumstances of the adoption. There will be a face-to-face interview of the adoptive parents and the adopted child to see if the adoption, which is the basis of the petition, is genuine. This interview is similar to one conducted with the husband and wife when the petition is one based on marriage. Although an adoption in the CNMI cannot be set aside, even in the event of fraud, more than one year after the final decree (8 CMC § 1413[b]), if the adjudicator is not satisfied that the adoption was genuine, regardless of any court decree, the application for permanent residence will be denied. The adjudicator has a great deal of discretion in this matter. Under the circumstances you have described to me, it is reasonably certain that the petition for permanent residency would not be granted.
The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by e-mail to [email protected]. Readers may also e-mail written questions through the Marianas Variety at [email protected]
