Can a family petition be filed for children or adoptive parents?

In this week's Consulta Migratoria® column I answer the question of a reader who wishes to obtain permanent residency through adoption. 

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

I am 19 years old and I entered the United States illegally in 2017. An American family wants to adopt me in California and help me get permanent residency. is it possible? -Lady Q.

Lady, the U.S. Citizenship and Immigration Services (USCIS) generally does not accept family petitions (Form I-130) in favor of persons adopted after the age of 16.

I recommend that you consult with an immigration attorney to see if there are other immigration options for you. 

For example, if you have suffered abandonment, abuse, or neglect by one or both of your biological parents, you may be able to apply for the special immigrant juvenile status if you meet all the requirements. 

After making an analysis of your situation, a licensed and experienced U.S. attorney can tell you if you are eligible for that or any other benefit and explain in detail the processes and how to proceed.

Who is and who is not eligible for a family adoption petition?

There are cases in which immigration status can be obtained through adoption, but the requirements are very strict, although under certain circumstances, there may be exceptions. 

The general rule for eligibility to file a family petition by adoption requires the following:

1. The child must have been adopted before his or her 16th birthday.

2. The child must be in the custody of the adoptive parents who are citizens of the country of origin.

     or permanent residents of the United States.

3. The child must have lived with adoptive parents for at least two years prior to the date of adoption. 

     submit a petition.

These conditions are necessary for either an adoptive parent to petition for an adoptive child or for a U.S. citizen adoptive child over the age of 21 to petition for an adoptive parent. 

USCIS no accepts family petitions for adoption in the following cases:

Persons adopted after the age of 18.

2. Adoptive parents, citizens or permanent residents of the United States, petitioning for an adopted child:

• if they adopted a child after the child reached 16 years of age
• the adopted child has not been in their legal custody
• the child did not live with the adoptive parents for at least two years before filing the petition.

3. Adopted children, U.S. citizens over the age of 21, petitioning for an adoptive parent:

• if they were adopted after they turned 16 years of age
• if they have not been in the legal custody of adoptive parents
• if they did not live with the adoptive parents for at least two years before filing an application.

There are some exceptions to these rules for family petitions through adoption. For example, there are circumstances under which the child's adoption age may be extended for an additional two years, but before the child turns 18. 

Due to the complexity of immigration law with respect to eligibility in cases of family-based adoption petitions, it is very important to not adopt or take custody of the child within or outside the United States or file a family petition without first consulting with a licensed and experienced U.S. immigration attorney.

Please consult with an immigration attorney before beginning any immigration proceedings.

For more information and immigration tips, visit my website at Immigration Today. 

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions. 

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a former President of the Hispanic National Bar Association and the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. This column may be considered an advertisement under the Rules of Professional Conduct for attorneys in several states, including California and New York. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.