Immigration benefits may be gained under a section of the U.S. immigration law based on an adoptive relationship if the child was adopted before the age of 16 or, in limited situations relating to the adoption of siblings, before the age of 18. This benefit may be obtained if the child has been in the legal custody of and has resided with the adopting parent(s) for at least two years before the petition is filed.
Legal custody begins when it is awarded to the prospective adoptive parent(s) by a legal process via the courts or other recognized government entity and is evidenced by either an official document in the form of a written award of custody or a final adoption decree. Legal custody and residence are accounted for in the aggregate; therefore, a break will not affect the time already fulfilled.
The natural and adoptive parents may have arranged the adoption privately, but the adoptive parent must demonstrate that they have exercised full parental authority over the child during this two-year period. No home study is required. Children who are blood-relatives of the adoptive parents might not meet the definition of an “orphan”, but they may qualify under the IR-2 category if they have met the two-year legal custody and residency requirement.
All requirements of the law must be met and the legal adoption must occur before the adopted person’s 16th birthday.
For how to file an I-130 petition, please see Family-based Immigration: Filing an Immigrant Petition
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