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BIA Rules on Effective Date of Adoption for Immigration Purposes

Adoption SymbolThe federal Immigration and Nationality Act (INA) gives several specific and distinct meanings to the word “child.” A person petitioning for an immigrant visa for their child must establish that the intended beneficiary meets a statutory definition of “child.” In cases of adoption, this can be complicated. The Board of Immigration Appeals (BIA) ruled on an adoptive parent’s appeal of a rejected visa petition. It found that, although the adoption occurred after the statutory cut-off date, the adoption decree’s retroactive effect placed the beneficiary within the INA’s definition of a “child.” Matter of Huang, Int. Dec. #3844, 26 I&N Dec. 627 (BIA 2015).

The “immediate relatives” of a U.S. citizen, including children, are not subject to any numerical limitation under the INA. 8 U.S.C. § 1151(b)(2)(A)(i). The INA defines “child,” in part, as “a child adopted while under the age of sixteen years.” Id. at § 1101(b)(1)(E)(i). Immigration regulations state that “the child must have been under 16 years of age when the adoption is finalized.” 8 C.F.R. § 204.2(d)(2)(vii)(C). Neither the statute nor the regulation defines “finalized.” This has led to confusion in cases in which the adoption process began before the child turned 16 but was not completed until after their 16th birthday.

The BIA gave the “sixteen years old” provision a “literal interpretation” in Matter of Cariaga, 15 I&N Dec. 716, 717 (BIA 1976). The petitioner in that case filed adoption paperwork after the beneficiary turned 18. The court, however, made the adoption decree retroactive to 12 years earlier, when the beneficiary was about six years old. The BIA held that this did not meet the INA’s definition. It affirmed its literal reading of the statute in Matter of Drigo, 18 I&N Dec. 223 (BIA 1982).

The petitioner in Huang is a naturalized U.S. citizen. The beneficiary, who came to the U.S. from China in 2002, when she was about 14 years old, is the petitioner’s niece. The petitioner initiated adoption proceedings shortly before the beneficiary’s 16th birthday. A judge granted an adoption decree shortly after she turned 16 but gave it retroactive effect to the filing date. The government denied the beneficiary an immigrant visa on the ground that she was not a “child” under the meaning of the INA, and therefore she was not an immediate relative.

The BIA ruled in the petitioner’s favor, distinguishing this case from its rulings in Cariaga and Drigo. It noted in Cariaga that Congress’ intent in limiting immigration by adopted children was to prevent “spurious adoptions, effected in order to circumvent statutory restrictions” on people who are not immediate relatives. Huang, 26 I&N Dec. at 629, quoting Cariaga at 717. While those two cases held that “retroactive and nunc pro tunc orders of adoption were always invalid for immigration purposes,” the BIA found that the regulations allow “a more measured approach.” Huang at 630. It held that “the blanket rule” of Cariaga and Drigo “is too limiting in that it does not allow us to adequately consider the interests of family unity.” Id. at 631. Adoptions filed before the child’s 16th birthday and given retroactive effect may meet the INA’s definition of “child.”

Samuel C. Berger is a family immigration lawyer who practices in the greater New York City area. We represent immigrants and prospective immigrants, as well as family members and employers of prospective immigrants. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation to discuss your case.

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Photo credit: Martin Strachoň (Own work) [GFDL or CC BY-SA 3.0], via Wikimedia Commons.