Archives for category: Lawyer commentaries

I often am surprised when clients contact me asking how to read the Department of State Visa Bulletin.

It’s a four-part process.

First, what’s your preference category? What is your priority date? Place of birth? Place of birth of beneficiary’s spouse?

Second, are you doing the interview abroad or in the US? If abroad, look for “Dates for Filing” to figure out when NVC can work on the case. If in the US, check the USCIS page about which chart to use. 

Third, select the right chart. For example, if you are an employment based case “E1”, choose employment category 1 in the “Dates for Filing of Employment-based Visa applications” (which is the chart USCIS is currently using for E1 at the time of this post, and as used by NVC for consular processing cases).

Four, read the chart. In the above example, it would be the 4th table in the visa bulletin. For employment category 1, you would put your hand on that row, and move right to the appropriate “country” column. If the beneficiary was born in mainland China, move along the row to the right to that country. Cases with a priority date BEFORE the written date are currently being processed.

If there is no date listed, e.g. “C”, then all cases are being processed.

If beneficiary’s spouse was born in another country from beneficiary, you can use “chargeability” to change the date used by beneficiary. For example, if a mainland Chinese individual was married to someone from Taiwan, the mainland China beneficiary can use the “All chargeability areas except those listed” category.

Specifics are explained in 22 CFR 42.12(b), (c), (d), and (e), as well as 9 FAM 503.2-4(A) 

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I receive many phone calls from people of Chinese ancestry who are U.S. Legal Permanent Residents or citizens, calling about how to go about adopting their Mainland China relatives (P.R.C.). The short answer?

It’s not possible (with rare exceptions).

Having stated the answer, let me explain why. There are three ways to bring a foreigner into the United States through intercountry adoption:

  • Hague Convention adoption
  • Orphan adoption
  • “Immediate Relative”

The Hague Convention adoption is the typical method by which most people adopt children from abroad. It involves qualifying to adopt children from abroad, working with an adoption service provider and a country’s central authority. The problems comes when it comes times to select the child. In the situation of adopting a relative, you have a specific person in mind – a “private placement”. China’s central authority (China Center for Children’s Welfare and Adoption) simply doesn’t handle this sort of thing. Since China’s central authority won’t do it, you cannot use the Hague process to adopt a relative.

The Orphan adoption process exists only for countries who didn’t sign up for the Hague Adoption Convention. China is part of this Convention, so this is not an option.

The immediate relative process excites most people, which appear to be simple: Adopt a kid before they turn 16 (with exception for related birth sibling) and hold two years of physical and legal custody. Sounds easy, right? But what most people fail to realize is they will NOT succeed in fulfilling the “two year” requirement because of how residency is treated under the Hague Convention!

To illustrate: Suppose a Chinese relative arrives in the US. You “adopt” this child in a U.S. court and this child somehow stays in the US for at least two years. Great! Now stick around for two years and you’ve got physical and legal custody, right? Nope.

USCIS memorandum PM 602-0095 explains how the residency question is decided. A key issue is whether the “Central Authority” of the foreign country considers that child a “habitual resident” of the foreign country. In the adoption proceeding, all adoption decrees after Feb. 3, 2014 must include a note that the Central Authority was notified\asked. China’s COO regularly finds their citizen children to be “habitual residents” and does not cooperate in permitting a US-adoption of a Chinese citizen child to be found a resident in the US. The effect of this Chinese policy?

No adoption permitted.

There are exceptions – theoretically, suppose one adopts under Chinese law, with subsequent two year residency and legal custody created by having lived with this person while abroad. This could potentially qualify. For most people this is not an option since foreigners are not allowed to adopt Chinese children outside of the Hague Convention under Chinese law, thus creating a chicken and egg problem for those wishing to adopt relatives as US citizens. But there are certain cases where this situation occurs, such as involving foreigners married to Chinese nationals working in the China, and it requires an intensive examination of the facts to determine if the option to use immediate relative adoption exists.