Citizenship & Immigration Services Issues Policy Memorandum for Determining Habitual Residence in United States for Hague Convention Adoptions

By Melanie Corrin, Senior Attorney

On December 23, 2013 the United States Citizenship & Immigration Services (USCIS) issued a Policy Memorandum, effective immediately, which serves to clarify the criteria adjudicating officers must follow in determining whether or not the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (hereinafter Hague Adoption Convention) applied to the adoption in the United States of a child from a Hague Adoption Country other than the United States.

Effective as of April 1, 2008, The Hague Adoption Convention applies to any United States citizen with a habitual residence in the United States who is the adopting parent of a child from a Hague Convention country. In general, the Code of Federal Regulations states that a child who is a citizen of a Hague Convention Country, other than the United States, who is present in the United States based on an adoption, should generally be deemed to be habitually resident in the child’s country of citizenship, even if the child is already in the United States. However, a child living outside his or her country of citizenship may be deemed habitually resident on the child’s country of actual residence based on a determination by the Central Authority or another competent authority of the country actual residence.

Not surprisingly, this has caused quite a bit of confusion. In an effort to assuage the confusion and issues that arose, USCIS has set forth specific criteria to assist adjudicators in making decisions on I-130; Immigrant Visa Petitions, such that cases are not improperly denied. USCIS indicates that: “It remains USCIS policy that USCIS will determine that…CFR…does not preclude approval of form I-130 if the adoption order expressly states that the Central Authority in the COO advised the adopting court that the Central Authority was aware of the child’s presence in the United States, and of the proposed adoption, and did not consider the child habitually resident in the COO.” This written statement must accompany the Form I-130 and the adoption order.

Hopefully, this guidance will assist adoptive parents who are subject to the confines of the Hague Adoption Convention whose children are present in the United States get to “approval” on their I-130 Petitions when they have followed all of the required protocols. If you have questions or legal issues regarding this matter, please feel free to contact the Joseph Law Firm.