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New Interpretation of Habitual Resident

By Charles Wheeler

The USCIS has recently modified its interpretation of a provision of the Hague Adoption Convention that had made it difficult for U.S. citizens to immigrate an adopted child from a Hague Convention country.  Regulations interpreting and implementing the Intercountry Adoption Act restrict U.S. citizens from immigrating an adopted child who is considered a “habitual resident” of another Hague country unless special procedures are followed.  A child who is a citizen of another Hague country, but who is residing in the United States, is presumed to be a habitual resident of that home country until the Central Authority of that home country makes a formal determination.  This created a problem, because the Central Authority in some Hague countries, most notably Mexico, refused to respond to inquiries and requests for these determinations.  Thus, for example, a U.S. citizen couple who wanted to adopt and then immigrate a Mexican child residing in the United States faced an almost insurmountable hurdle, because the child would be considered a habitual resident of Mexico and the adoption and subsequent petition process would need to comply with strict – and impractical – Hague rules.

The USCIS issued a policy memo that provides more flexibility in determining when a child is to be considered a habitual resident.  If the child is a citizen of a Hague country and residing in the United States, he or she is still presumed to be a habitual resident of that home country.  But the presumption can be overcome by showing that the child has been residing in the United states for a “substantial period of time” and that the intending adopting parent has properly notified the Central Authority of the pending adoption proceeding.  Children physically present in the United States for two years or more will be presumed to have “compelling ties” in this country and to have demonstrated the necessary period of time here.  Absent such a presumption, USCIS adjudicators can look at a variety of factors showing that the child has compelling ties to the United States. Notification to the Central Authority must be made at least 120 days prior to the adoption in order to allow the Central Authority to object to the proceeding.  Evidence of the Central Authority’s non-objection must be incorporated into the language of the adoption decree. A final requirement is that the child must have entered the United States for reasons other than adoption.

The memo was published in “interim” form, meaning that it took effect on the date of issuance, or January 3, 2014.  The agency will accept comments for a two-week period, until January 17, 2014.

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