The 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).