Children adopted through the Hague Convention process
Because both Mexico and the United States are party to the Hague Adoption Convention, intercountry adoptions from Mexico must follow a specific step-by-step process designed to meet the Convention’s requirements. The Hague Adoption Convention applies to the adoption of a child habitually resident in one Convention country (such as Mexico) who is moved to another Convention country (such as the United States) after his or her adoption by adoptive parents habitually resident in the other Convention country. Habitual residence determinations are based on application of the laws of the countries involved to the fact of the case, and can be complex.
U.S. citizens interested in pursuing an intercountry adoption from Mexico must begin the process by identifying a primary adoption service provider that is both accredited and approved in the United States as well as authorized by Mexican authorities to provide adoption services in Mexico. It is important not to begin adoption processing in Mexico until the U.S. Consulate, Ciudad Juarez has reviewed the complete adoption application and given assurances that the child will be eligible to enter and reside in the United States (this assurance is conveyed in an “Article 5 letter”). For detailed information on the Hague Adoption Convention process from Mexico to the United States, please see the Mexico flyer on the Department of State’s adoption website.
Children adopted through a domestic adoption process
Under some exceptional and limited circumstances, U.S. citizens who adopt a Mexican citizen child in Mexico or in the United States through a domestic adoption process may obtain immigration benefits for the child based on an immediate relative I-130 immigration petition for their adopted child. In order to meet the requirements for approval of an I-130 immigration petition and visa, the adoption must be determined to fall outside of the scope of the Hague Adoption Convention. For detailed information on the circumstances under which an adopted child may be the beneficiary of an I-130 immigration petition, please see guidance (PDF, 410KB) on the website of the U.S. Citizenship and Immigration Services (USCIS). In addition, parents seeking an immigrant visa for an adopted child are encouraged to consult with an attorney with immigration and intercountry adoption experience for guidance tailored to their specific circumstances.
The process of applying for an immediate relative immigrant visa for an adoptee begins by filing the I-130 Petition for Alien Relative with USCIS. After the petition is approved, the applicant will be scheduled for an immigrant visa interview in Ciudad Juarez. Consular officers review the petition carefully to ensure that all requirements for the IR2 or FX2 visa category are met, for the protection of the prospective adoptive parents, the biological parents of the child, and the child, and also to ensure that the adoption was not subject to Hague Adoption Convention requirements. Below please find some additional information regarding Mexican adoptions to consider as part of this process:
Requirements that all adoptions of Mexican children must meet in order to be eligible for immigration to the United States through an I-130 immigration petition:
- The child is adopted by a U.S. citizen or lawful permanent resident;
- The final and legal adoption must have been completed by age 16, or by age 18 in situations where the natural sibling is adopted by the petitioner prior to turning 16;
- The adoption has created a permanent parent-child relationship that confers on the child the same rights as a natural born child;
- The parental rights of the biological parents have been irrevocably terminated;
- The adoption was completed in a court competent to complete adoptions;
- The adoptive parents have established joint residency with the child for at least two years,* and
- The child has been in the legal custody of the adoptive parents for at least two years.*
* If the child is habitually resident in a Convention country other than the United States, the two years of legal and physical custody must take placeoutside of the United States. For guidance on the criteria for determining habitual residence in the United States for children from Hague Convention countries, please refer to the published guidance on USCIS’ website (PDF, 410KB).
Please remember these important points that affect I-130 petitions:
- The adoption must be completed before the applicant turns 16 (or 18 in the case of siblings). The immigrant visa process is lengthy, so parents should leave ample time for the visa application to ensure that any issues can be resolved well before the applicant turns 16/18. Please see the exception explained below for siblings adopted by the same parents.
- In Mexico, an adoption decree that complies with the legal requirements for immigrant visa issuance is almost always a plenaadoption rather than a simple adoption. Adoption for immigration purposes establishes a permanent legal parent-child relationship between the child and the adoptive parent and terminates any prior legal parent-child relationship with the former parents. Simpleadoptions—also known as conditional or limited adoptions—are not usually considered adoptions for US immigration purposes. Plenaadoptions do meet the IR2 and FX2 requirement for full and final adoptions, as they are irrevocable.
If the adoption in question is a simple adoption, you may still be able to convert it into a plena adoption and thus qualify for an immigrant visa for your child. However, as with all adoptions, the conversion must be completed before the child turns 16.
Guidance recently published by USCIS (PDF, 410KB) established criteria under which foreign-born children adopted in the United States may be considered habitually resident in the United States and eligible for approval of a Form I-130 in the absence of a written statement from the Central Authority of the country of origin acknowledging that it is aware of the proposed adoption and of the child’s presence in the United States and that it has determined that the child is not habitually resident in the country of origin. In such situations, petitioners must provide evidence that the purpose of the child’s entry to the United States was for reasons other than adoption (intent) and that prior to the adoption, the child actually resided in the United States (actual residence). In the case of an adoption decree issued after February 3, 2014, petitioners must additionally show that the Mexican Central Adoption Authority (the Secretaria de Relaciones Exteriores) was notified of the adoption proceeding and did not object to the proceedings within 120 days of receiving notice — or more, if determined by the U.S. court.
- An exception to the rule that an adoption must be finalized before age 16 exists in the case of siblings. In cases where a child is under 16 at the time of adoption, the natural sibling of the adoptee may qualify for immigrant visa issuance if the sibling is under 18 at the time of adoption and was adopted by the same adoptive parent(s).
Even if the adoption meets the requirements of U.S. immigration law, the child may still have certain ineligibilities that require waivers. The process for applying for waivers could delay the visa application process.
If you have an approved I-130 petition and have been scheduled for an immigrant visa interview, please follow the steps for applying for an immigrant visa on our website.