Bringing Niece of USC to the US after death of a parent (From Thailand)

[Tmc225usc 1]

Hello all!

I am about to try another visa journey for my niece, and was wondering if I could explain our situation and get some advice on a best plan or course of action to take.

Backstory:

Both my wife and our daughter immigrated to the US after we were married.

My wife took her Citizenship test and is now a USC.

My wife’s niece currently lives in Thailand and is 13 years old.

The parents of our niece were never married.  The father is out of the picture, and has been so since right after the child’s birth.

The mother of the niece, which was my wife’s sister passed away a few years back.

The child now lives with my wife’s mother and father (her grandparents) and attends boarding school.

I can provide for the child and I think her opportunities will be much greater in the US vs staying in Thailand. Her grandparents are also getting older which limits the amount of support she will have there if she were to stay.

So now I’m trying to find out the easiest way to get her here.  I know based on my previous visa adventures, it will be an uphill battle, but I’m willing to put forth the effort and give her a shot at a better life.

I didn’t know if it would be better trying to petition for our niece now that she is a USC in the same manner she would do a petition for a parent? And if so, is it better to have my wife do it, while her current job is just for fun/to keep her busy vs having me do it with my full income and support?

Or would it be better to try to adopt her in Thailand seeing as she truly does not currently have parents, and then once that is done, try to petition for her to come over?

Or option 3, just try to do the adoption thing in total from America?

Any advice or further clarification would be greatly appreciated.  I’m not really sure where to begin. Thank you for your time!

[Roel 7,191]

I don't have all answers but - there is no visa category for nieces. You cannot sponsor her the same way like parents or spouse. 

 

In order to bring her to US you'd need to adopt her first. Which I don't know if it's possible because father is alive and because she's already a teenager. You can't adopt her from America.. that would need to happen in her country. And it's all going to take years, possibly. 

 

But I'm not a specialist in this. I'm sure others will offer more details. 

[Jojo92122 1,924]

1.  There's no path for a USC to petition for a niece.  Your wife can not petition for her niece like she would for a parent.

 

2.  Adoption would require you and your wife to live with your adopted daughter for 2 years in her country before she can qualify for a visa.

 

3.  You can not do an adoption from America for a foreign child.  US courts have no power over a foreign child living in her home country.  You want to adopt a child, then you do in under local courts where the child lives.

 

Sorry for your niece's lost.  Here's the bottom line, there are many of us with nephews and nieces who are in similar situations to your niece.  While one parent has passed, these kids do have another parent . . . even if that parent is absent.  They are not orphans.  The best we can do is provide for their education and care in their home countries.  Perhaps, one day, they can get student visas or some other visas to come here.  That's about all you can do unless you and your wife are willing to move to Thailand to live with your adopted child for 2 years.

Edited June 20, 2018 by Jojo92122

[Tmc225usc 1]

How does a person adopt a child from outside of the US while somehow getting around that living with them abroad for 2 years part?

I figured this would take years and not be cheap, but I didnt think it would be impossible.

 

[Jojo92122 1,924]

3 minutes ago, Tmc225usc said:

How does a person adopt a child from outside of the US while somehow getting around that living with them abroad for 2 years part?

I figured this would take years and not be cheap, but I didnt think it would be impossible.

 

Those are adoptions by strangers under the Hague Convention.  

 

There's a big difference between getting an immigration visa via an adoption by a stranger under international treaties versus the private adoption of a relative so that person can immigrate.

 

If it was possible to adopt a nephew or niece to give them a better life in the US, how many of us do you think would be doing it?  Lots.  That's why there are rules for getting immigration benefits through adoptions.

 

Immigration is not what most Americans think it is . . . you can not petition and bring your entire family over like the Republicans make it out that way.  Immigration is not that easy.  And sometimes, it's impossible.

Edited June 20, 2018 by Jojo92122

[mushroomspore 3,043]

7 minutes ago, Tmc225usc said:

How does a person adopt a child from outside of the US while somehow getting around that living with them abroad for 2 years part?

I figured this would take years and not be cheap, but I didnt think it would be impossible.

 

I think the issue also has to do with her age. I know an American couple who adopted achild from South Korea but the child was 2 years old at adoption and is now 3 years old (they've had him for a year). And as the above person said, there's a difference between adopting a relative for immigration purposes and adopting an unrelated orphan. I don't know if there is a "way around" the 2-year thing. Sounds like from Jojo's post that this is a legal requirement and why risk trying to take a shortcut when considering your niece's future in the US?

 

Unfortunately visa categories for family-based immigration are restricted to immediate parents and sons/daughters/children (who need to be unmarried too). 

Edited June 20, 2018 by mushroomspore

[NigeriaorBust 4,087]

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/adopting-a-relative-for-immigration.html

 

Everything you need to know about adopting a relative.  

[geowrian 22,335]

@Jojo92122 nailed it...there's a massive difference between adopting a non-relative through an adoption agency versus adopting a relative,  at least when it comes to immigration benefits.

 

Edit:

6 hours ago, Tmc225usc said:

I figured this would take years and not be cheap, but I didnt think it would be impossible.

It's not impossible. You just need to live with the child for at least 2 years abroad.

Edited June 21, 2018 by geowrian

[Roel 7,191]

8 hours ago, Tmc225usc said:

How does a person adopt a child from outside of the US while somehow getting around that living with them abroad for 2 years part?

 

 

People on VJ often ask how to get around rules and laws... And I always wonder what kind of answer they expect. Forum members possess some secret immigration knowledge?

[Boiler 43,401]

As you have the funds the obvious option would a Student Visa to study in the US, not a guarantee by any means but the only one that comes to mind.

[jan22 2,897]

2 hours ago, Boiler said:

As you have the funds the obvious option would a Student Visa to study in the US, not a guarantee by any means but the only one that comes to mind.

And highly unlikely in a case like this.  For a student visa, you have to prove your non-immigrant intent and show the reasons you would leave the US at the end of your studies.  It cannot be used to essentially immigrate to the US when you have no other means to do so.

 

OP -- there is "no way around" the two-year legal and physical custody issue.  Even though Thailand is a signator to the Hague Adoption Convention, a Thai domestic adoption cannot be processed under the Convention because of Thai adoption laws and procedures.  Therefore, the only possibility is through the IR category for adopted children.  This category requires, by law, two years of legal and physical custody before the I-130 can be filed.  There are several other issues that can complicate cases.  A big one here, IMO, is that the adoption must be completed prior to the age of 16.  I don't know when your niece will turn 14, or how long the legal adoption process is in Thailand (although I suspect it doesn't move quickly), the final adoption might be difficult to achieve prior to her turning 16.  If it isn't, you are legally her parents in Thailand, but can never petition her for immigration to the US.

[Boiler 43,401]

6 minutes ago, jan22 said:

And highly unlikely in a case like this.  For a student visa, you have to prove your non-immigrant intent and show the reasons you would leave the US at the end of your studies.  It cannot be used to essentially immigrate to the US when you have no other means to do so.

 

OP -- there is "no way around" the two-year legal and physical custody issue.  Even though Thailand is a signator to the Hague Adoption Convention, a Thai domestic adoption cannot be processed under the Convention because of Thai adoption laws and procedures.  Therefore, the only possibility is through the IR category for adopted children.  This category requires, by law, two years of legal and physical custody before the I-130 can be filed.  There are several other issues that can complicate cases.  A big one here, IMO, is that the adoption must be completed prior to the age of 16.  I don't know when your niece will turn 14, or how long the legal adoption process is in Thailand (although I suspect it doesn't move quickly), the final adoption might be difficult to achieve prior to her turning 16.  If it isn't, you are legally her parents in Thailand, but can never petition her for immigration to the US.

I am not suggesting it is likely but can think of no other option.

 

I have seen people post in vaguely similar situations who were able to get a Student Visa, now of course we never see the full case and details can be important.

 

At least if they try they know they have covered all options.

[Coco8 1,039]

 

Here is the source from DOS

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/adopting-a-relative-for-immigration.html

 

Ok. So I was thinking, what if you focus on adopting her first. Once you adopt her, she could eventually come to the US with a student visa and go to school. You can add the years while she is in the US. What I read on DOS does not say that the 2 years have to be abroad. If you file before she is 21, she should get the green card in a year. If you file after, it takes longer. But at least you will have options if you adopt her before he is 16. 

 

Just an idea. Of course, you should consult with a lawyer, because adopting someone gives you obligations and it gives that person rights that you might not have thought through. 

[Jojo92122 1,924]

7 minutes ago, Coco8 said:

 

Here is the source from DOS

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/adopting-a-relative-for-immigration.html

 

Ok. So I was thinking, what if you focus on adopting her first. Once you adopt her, she could eventually come to the US with a student visa and go to school. You can add the years while she is in the US. What I read on DOS does not say that the 2 years have to be abroad. If you file before she is 21, she should get the green card in a year. If you file after, it takes longer. But at least you will have options if you adopt her before he is 16. 

 

Just an idea. Of course, you should consult with a lawyer, because adopting someone gives you obligations and it gives that person rights that you might not have thought through. 

What are the chances that the adopted child of US citizens who do not qualify to bring her to the US on an immigrant visa will be able to get a non-immigrant student visa where she must show her intent to return home after finishing school in the US and is required not to have the intent to immigrate?  Are you seriously suggesting that they could count on using a non-immigrant student visa to enter the US with the intent to immigrate?  How often does this work?  Can you show where this can work?

 

Your idea will leave them with an adopted child with no means of coming to the US.

 

A minor foreign child of a USC has no rights to live in the US.  What rights would adopting this child grant her?

Edited June 21, 2018 by Jojo92122

[geowrian 22,335]

2 minutes ago, Coco8 said:

 

Here is the source from DOS

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/adopting-a-relative-for-immigration.html

 

Ok. So I was thinking, what if you focus on adopting her first. Once you adopt her, she could eventually come to the US with a student visa and go to school. You can add the years while she is in the US. What I read on DOS does not say that the 2 years have to be abroad. If you file before she is 21, she should get the green card in a year. If you file after, it takes longer. But at least you will have options if you adopt her before he is 16. 

 

Just an idea. Of course, you should consult with a lawyer, because adopting someone gives you obligations and it gives that person rights that you might not have thought through. 

I'll just point out the following line from your link:

"If the child is or was habitually resident in a Hague Convention country prior to the adoption and the adoption occurred on or after April 1, 2008, the two-year legal custody and physical residency period generally must be satisfied outside the United States in order for the Form I-130 to be approvable. The rules for this immigration process are discussed in greater detail on the USCIS website at the following link."

 

https://www.uscis.gov/sites/default/files/USCIS/Resources/A3en.pdf

"Can I use the Form I-130, Petition for Alien Relative, if my adopted child is from a Hague Convention Country?

 

Generally, a U.S. citizen parent who adopts a child from a Hague Convention country may not file a Form I-130, Petition for Alien Relative, if the Hague Convention applies to the adoption. A U.S. citizen parent may file a Form I-130 Petition for an adopted child from a Hague Convention country by showing the Hague Convention does not apply to an adoption in the following ways:

• For adoptions that take place in a Hague Convention country, the parent may jointly reside with the child outside the U.S. for two years while having legal custody; or

• For adoptions that take place in the U.S., the parent must show that the child is not habitually resident in the Hague Convention country of origin. The U.S. citizen parent may show the child is not habitually resident in the Hague Convention country by providing a statement from the Central Authority indicating that the Central Authority is aware of the child’s presence in the United States and of the proposed adoption and has determined that the child is not habitually resident in that country. In cases where the written statement from the Central Authority in the child’s country of origin is not obtained until after the adoption was finalized, you must submit an amended order, as well as the written statement from the Central Authority. In cases where the U.S. citizen parent cannot obtain a statement under certain circumstances, the parent may still show the Hague Convention does not apply if the child entered the U.S. for a purpose other than adoption and established compelling ties to the U.S. prior to adoption. If the adoption order is issued after February 3, 2014, the parent must also show that notice of the adoption proceedings was provided to the Central Authority in a manner satisfactory to the court and that the Central Authority did not object to the proceeding"

 

Thailand is a Hague Convention country.

https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/hague-abduction-country-list.html