LEGAL GUIDE
Written by attorney Brian David Lerner | Nov 30, 2010

Petition for an Adopted Child Overview

An “adopted child" is defined as one who is adopted before his or her 16th birthday, and who has been in the joint legal custody of, and has resided with, the qualifying adopting parents or parent for at least two years. These provisions apply to children who already have been adopted, provided that the adoption was finalized prior to the child’s 16th birthday.

When both the legal custody and residence requirements have been satisfied, the adoptive parent(s) can file an I-130 visa petition and supporting documentation with U.S. Citizenship and Immigration Services (USCIS). If the adoptive parent wishes to file for more than one child, a separate I-130 petition must be filed for the other child. If the child is physically present in the United States and otherwise eligible to adjust status, then the adjustment forms and the I-130 can be filed concurrently.

Although the two-year legal custody and two-year joint residency prerequisites may run concurrently, such is not a requirement. The required custody and residency may take place before or after the adoption, as long as the two years for both have accrued before the filing of the I-130. It is also important to note that the joint residency may be interrupted, provided that the aggregate period of time amounts to two years or more.

The adoption must have been finalized before the child turns 16 for the child to be eligible for this type of petition. In other words, the adoption decree granted to the petitioners must predate the child’s 16th birthday.

INA §101(b)(1)(E) provides an exception when a child between the age of 16 and 18 is still otherwise eligible as the beneficiary of a petition for an adopted child and his or her natural sibling is adopted before the age of 16. Traditionally, an adoption of an older sibling takes place concurrently with, or after, the adoption of the younger sibling.

If the adoption is not finalized before the child’s 16th birthday, the court may, under limited circumstances, amend the adoption decree to reflect that the adoption should have been finalized prior to the child’s 16th birthday. This procedure is referred to as nunc pro tunc adoption. In Messina v. USCIS, the district court held that USCIS must recognize an adoption nunc pro tunc to a date prior to child’s 16th birthday.

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