Who can be Adopted

Last Updated: October 2013

Intercountry adoptions are governed by three different sets of laws:  U.S. federal law, the laws of the prospective adoptive child's country of origin, and the laws of your U.S. state of residence.  You can learn more about specific countries' eligibility requirements for children in our Country Information pages.  The federal agency responsible for adjudicating immigration petitions filed on behalf of a child intending to immigrate to the United States through adoption is U.S. Citizenship and Immigration Services (USCIS).

Convention Adoptees (Convention Countries)

A child habitually resident in a country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention), must qualify as a Convention adoptee under U.S. immigration law in order to immigrate to the United States through intercountry adoption. Prospective adoptive parent(s) file a Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, with USCIS for a child who habitually resides in a Convention country. The Form I-800 petition and supporting evidence are required to determine the child’s eligibility for classification as a Convention adoptee under U.S. immigration law. In order to file a Form I-800 petition with USCIS, you must have an approved, valid Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country. For more information about filing Form I-800A, including suitability and eligibility requirements for prospective adoptive parents, see our eligibility requirements for prospective adoptive parents webpage and the Form I-800A instructions available on the USCIS website.

There are five primary elements to the Convention adoptee classification.  In addition to other applicable country-specific requirements, all of the following must be true for a child to be eligible for the Convention adoptee classification:

  1. The child is under the age of 16 at the time Form I-800 is filed on his or her behalf (taking into account special rules on filing dates for children aged 15-16), or the child is under the age of 18 and is a sibling of a child (under the age of 16) who has been or will be adopted by the same adoptive parents;
  2. The child will be adopted by a married U.S. citizen and spouse jointly or by an unmarried U.S. citizen at least 25 years of age, habitually resident in the United States, whom USCIS has found suitable and eligible to adopt (Form I-800A approval) with the intent of creating a legal parent-child relationship. (Note: at this stage, the child must not have been adopted yet);
  3. The Central Authority of the child’s country of origin has determined that the child is eligible for intercountry adoption and has proposed an adoption placement which has been accepted, and the child has not yet been adopted or been placed in the custody of the prospective adoptive parents;
  4. The child's birth parents (or parent, if the child has a sole or surviving parent), or other legal custodian, individuals, or entities whose consent is necessary for adoption have freely given their written, irrevocable consent to the termination of their legal relationship with the child and to the child's emigration and adoption; and
  5. If the child's last legal custodians were two living birth parents who signed the irrevocable consent to adoption, those parents must be incapable of providing proper care for the child.

Generally, if the above requirements have been met, USCIS will provisionally approve the Form I-800 petition. After the adoption is completed, a consular officer at the U.S. Embassy or Consulate in the child’s country of origin will complete the final adjudication of the petition. Generally, if the consular officer determines that the adoption was completed in accordance with the laws of the child’s country of origin and with Convention requirements, and there are no visa ineligibilities, the consular officer will issue final approval of the Form I-800 petition, issue either a Hague Adoption Certificate or Hague Custody Certificate, and an immigrant visa to the child.

Orphan Status (Non-Convention Countries)

Children being adopted from non-Convention countries must meet the definition of orphan under the Immigration and Nationality Act (INA) before they can immigrate to the United States. U.S. prospective adoptive parent(s) file a Form I-600, Petition to Classify Orphan as an Immediate Relative, with USCIS to finalize the immigration process for a child from a non-Convention country. The Form I-600 petition and supporting documentation are required to determine the child’s eligibility for classification as an orphan under U.S. immigration law.

Like Convention adoptions, to immigrate a child as an orphan, USCIS must also find the prospective adoptive parent(s) eligible to adopt. To be found eligible to adopt, you may file a Form I-600A, Application for Advance Processing of Orphan Petition, with USCIS before you file the Form I-600. Alternatively, in certain circumstances, you may file a Form I-600 petition without an approved, valid Form I-600A at the time you file; in this scenario, USCIS will require the necessary Form I-600A supporting documentation to assess your eligibility and suitability to adopt before adjudicating the Form I-600 petition. Note: Petitioners residing in the United States who plan to file a Form I-600 overseas must have a valid approved Form I-600A on record before they can file a Form I-600 petition abroad. For comprehensive information about filing Form I-600A, see our eligibility requirements for prospective adoptive parents and the Form I-600A instructions available on the USCIS website.

To qualify as an orphan under the INA, a child must meet the definition of an orphan under U.S. immigration law. In addition to other applicable requirements, all of the following must be true for a child to be eligible for the orphan classification:

  1. The child must be under the age of 16 at the time the Form I-600 petition is filed on his or her behalf, or be under the age of 18 and a sibling of a child (under the age of 16) who has been or will be adopted (by the same adoptive parents);
  2. The child must either have no parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents; or have a sole or surviving parent who is incapable of providing proper care for the child and has, in writing, irrevocably released the child for emigration and adoption;
  3. The adopting parents must have completed a final adoption in the child’s country of origin or obtained legal custody of the child for purposes of emigration and adoption in the United States; and
  4. The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship.

Prospective adoptive parents should be aware that not all children in orphanages or children’s homes are adoptable. In many countries, birth parents place their child(ren) temporarily in an orphanage or children’s home due to financial or other hardship, intending that the child return home when this becomes possible. In such cases, the birth parent(s) have rarely relinquished their parental rights or consented to their child(ren)’s adoption.

Please be aware that some jurisdictions where the Hague Adoption Convention is not in force participate in a Pre-Adoption Immigration Review (PAIR) program with the United States. Such participation may affect the order in which the adoption and immigration processes occur for intercountry adoption from those jurisdictions. Please refer to our Country Information Sheets for more information.

Important: Parents are urged to seek advice about the possibility that an adopted child might not qualify as an orphan under U.S. immigration law before obtaining a final adoption or grant of legal custody. If a child adopted from a non-Convention country does not qualify as an orphan, the child’s ability to immigrate to the United States could be limited. Adoption service providers involved in intercountry adoption, USCIS and the Department of State have information that may assist you in addressing this serious concern.

In some countries, it is advisable to have the child examined by a physician of your choice before accepting a referral. A number of medical universities and hospitals have international adoption clinics that can be found online. This examination, along with its report, supporting documents, tests, and videos, can be reviewed by a U.S.-based physician trained to evaluate such information. Such an exam is separate from the routine medical examination required after completion of the adoption for visa purposes.

Children in Conflict Areas or Natural Disasters

The Department of State receives inquiries from U.S. citizens concerned about the plight of children in war zones and in countries afflicted by natural disasters such as hurricanes, earthquakes, and tsunamis. Our office shares this concern for children in conflict areas and we understand that some U.S. citizens want to respond by offering to open their homes and adopt these children in need.

It can be extremely difficult in such circumstances to determine whether children who appear to be orphans truly are eligible for adoption and immigration under U.S. laws. Children may be temporarily separated from their parents or other family members during a conflict or natural disaster and their parents may be looking for them. It is not uncommon in dangerous situations for parents to send their children out of the area, for safety reasons, or for families to become separated during an evacuation. Even when it can be demonstrated that a child’s parents have died, children are often taken in to be cared for by other relatives.

During times of crisis, it can also be exceptionally difficult to fulfill the legal requirements for intercountry adoption of both the U.S. and the child's country of origin. This is especially true when civil authority breaks down. It can be very difficult to gather documents necessary to establish that the child meets the requirements of U.S. immigration law, so prospective adoptive parents may wish to consult with an experienced immigration attorney and take extra caution when considering adopting or caring for a child under these circumstances.

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