Bringing Stepchild (by adoption) to US

[bdglen 31]

I am in a difficult position and seek advice.  I married my husband on a K1 visa and he is now living in the US with me. He arrived June 4, 2019 and we were married July 17, 2019. He is currently being processed for his AOS, EAD & AP with estimated approvals in mid March 2020.  All of his USCIS applications indicated that he had NO children which was legally true. However, he was in the process of adopting a child who is the genetic child of one of his relatives, so there is a genetic familial relationship between them. The adoption has not been finalized yet, but should be soon.  Here is my question:

 

When the adoption is finalized and my husband becomes the legal parent of this child, is the child automatically my stepchild and eligible for an I-130 application? OR, do I have to adopt the child as well and submit an application based on adoption?

 

I cannot find any guidance on a situation like mine. The rules address: 

Step-parent (step-mother or step-father)

A copy of your step-child’s birth certificate issued by civil authorities A copy of your civil marriage certificate to your step-child’s genetic or legal gestational parent

 

but my husband is NOT the genetic or gestational parent, he is the adoptive parent of a genetic family member.

 

AND:

Adoptive parent (adoptive mother or adoptive father)

Copy of child’s original birth certificate Copy of the final adoption decree Evidence that you had 2 years of legal custody (this could have been awarded by a court prior to the final adoption decree) Evidence that you had 2 years of physical custody (this means time during which the child was living with you and you were exercising primary parental control)

 

I have not adopted the child and could not satisfy the two year custody rule. So I am at a loss as to how to proceed.

Advice would be greatly appreciated.

 

[Liam2021 551]

39 minutes ago, bdglen said:

I am in a difficult position and seek advice.  I married my husband on a K1 visa and he is now living in the US with me. He arrived June 4, 2019 and we were married July 17, 2019. He is currently being processed for his AOS, EAD & AP with estimated approvals in mid March 2020.  All of his USCIS applications indicated that he had NO children which was legally true. However, he was in the process of adopting a child who is the genetic child of one of his relatives, so there is a genetic familial relationship between them. The adoption has not been finalized yet, but should be soon.  Here is my question:

 

When the adoption is finalized and my husband becomes the legal parent of this child, is the child automatically my stepchild and eligible for an I-130 application? OR, do I have to adopt the child as well and submit an application based on adoption?

 

I cannot find any guidance on a situation like mine. The rules address: 

Step-parent (step-mother or step-father)

A copy of your step-child’s birth certificate issued by civil authorities A copy of your civil marriage certificate to your step-child’s genetic or legal gestational parent

 

but my husband is NOT the genetic or gestational parent, he is the adoptive parent of a genetic family member.

 

AND:

Adoptive parent (adoptive mother or adoptive father)

Copy of child’s original birth certificate Copy of the final adoption decree Evidence that you had 2 years of legal custody (this could have been awarded by a court prior to the final adoption decree) Evidence that you had 2 years of physical custody (this means time during which the child was living with you and you were exercising primary parental control)

 

I have not adopted the child and could not satisfy the two year custody rule. So I am at a loss as to how to proceed.

Advice would be greatly appreciated.

 

Adopt and immigration are two separate problems. I think you better seek advised from  lawyer.

[bdglen 31]

Understood, but I am not an adoptive parent and could not satisfy the rules even if I was an adoptive parent.  My husband is the parent, thus the question about me being a stepparent.

 

I was hoping for some clarification, advice or suggestions other than "see and Attorney". I know I can and might have to hire an Attorney, but I don't want that to be my FIRST step.

[SusieQQQ 11,584]

13 minutes ago, bdglen said:

Understood, but I am not an adoptive parent and could not satisfy the rules even if I was an adoptive parent.  My husband is the parent, thus the question about me being a stepparent.

 

I was hoping for some clarification, advice or suggestions other than "see and Attorney". I know I can and might have to hire an Attorney, but I don't want that to be my FIRST step.

It’s not even clear to me if your husband fulfills the immigration requirements for adoption, which is probably the first issue (if he doesn’t you definitely don’t). Has he had the child in physical custody for 2 years? There are people who have adopted children, often nieces, nephews, cousins, and not been able to immigrate them.  I ask this because if you don’t fulfil the requirements the plan B should be F2A via your husband, but if he can’t even do that then you are all in a bind. I presume he will not want to leave the child behind if bringing him to the US is impossible right now. How old is the child? What happened to the child’s parents? (Yes, this can matter.)

 

And yes, you are highly encouraged to get an attorney well versed in matters of adoption for immigration to look at the case.

Edited January 23, 2020 by SusieQQQ

[bdglen 31]

40 minutes ago, SusieQQQ said:

It’s not even clear to me if your husband fulfills the immigration requirements for adoption, which is probably the first issue (if he doesn’t you definitely don’t). Has he had the child in physical custody for 2 years? There are people who have adopted children, often nieces, nephews, cousins, and not been able to immigrate them.  I ask this because if you don’t fulfil the requirements the plan B should be F2A via your husband, but if he can’t even do that then you are all in a bind. I presume he will not want to leave the child behind if bringing him to the US is impossible right now. How old is the child? What happened to the child’s parents? (Yes, this can matter.)

 

And yes, you are highly encouraged to get an attorney well versed in matters of adoption for immigration to look at the case.

The child is a 6 year old. He is the genetic/gestational son of my husbands cousin.  My husband's cousin is a drug addict and she abandoned the child shortly after his birth, so for the past 6 years he has been living with my husband and/or my husbands family.  When I met my husband he was already in the process of legally adopting the child in Colombia. The adoption process has not been finalized as of yet, but the anticipation is that it will be finalized sometime in May or June of this year.

[SusieQQQ 11,584]

1 hour ago, bdglen said:

The child is a 6 year old. He is the genetic/gestational son of my husbands cousin.  My husband's cousin is a drug addict and she abandoned the child shortly after his birth, so for the past 6 years he has been living with my husband and/or my husbands family.  When I met my husband he was already in the process of legally adopting the child in Colombia. The adoption process has not been finalized as of yet, but the anticipation is that it will be finalized sometime in May or June of this year.

The “and/or family” doesn't count  - can he prove that the child spent two years in his physical custody?

[SusieQQQ 11,584]

anyway I know this isn’t what you want to hear, but lawyer up. The emotional well-being of a small child who has already been abandoned once is at stake. Imo you not only need to get this sorted out but you need to do so ASAP.

[jan22 2,898]

16 minutes ago, SusieQQQ said:

The “and/or family” doesn't count  - can he prove that the child spent two years in his physical custody?

Physical and legal custody...informal arrangements within the family do not count.

[SusieQQQ 11,584]

Just now, jan22 said:

Physical and legal custody...informal arrangements within the family do not count.

^ duly corrected, thanks 

[bdglen 31]

10 minutes ago, jan22 said:

Physical and legal custody...informal arrangements within the family do not count.

This is the root of the problem isn't it? My husband had physical custody for well over two years, but even today does not have legal custody.  The baby was abandoned and was taken in and raised by my husband, his father and his aunts and uncles.  My husband is from a poor family. They all live in small homes on the same rural property. So it truly is a case of "it takes a village".

 

I don't see any clear cut way to bring the child to the US to be with the only "Father figure" he has ever known.

[jan22 2,898]

4 minutes ago, SusieQQQ said:

^ duly corrected, thanks 

No problem.  Just wanted to make sure OP understood the requirement. 

 

To the OP:  This is, at best, going to be an uphill battle, IMO, and may not end well unless it is handled properly from the beginning.  It is an unlikely area for a DIY forum like this can provide the accurate, detailed advice you need. Thus, the lawyer that has already been suggested -- one well-versed in international adoptions-- may be the best idea.

[SusieQQQ 11,584]

4 minutes ago, bdglen said:

This is the root of the problem isn't it? My husband had physical custody for well over two years, but even today does not have legal custody.  The baby was abandoned and was taken in and raised by my husband, his father and his aunts and uncles.  My husband is from a poor family. They all live in small homes on the same rural property. So it truly is a case of "it takes a village".

 

I don't see any clear cut way to bring the child to the US to be with the only "Father figure" he has ever known.

Is you moving to Colombia an option, at least for the two years it will require to satisfy the conditions?

 

To be blunt - it was the “father figure”’s decision to move before clarity on the immigration of the adoptee had been sorted out. 

Edited January 23, 2020 by SusieQQQ

[Boiler 43,430]

I agree with the Lawyer aspect, he may well qualify to adopt locally, no idea, but it appears and I say appears as the situation to me is not certain that there is no immediate immigration options.

[jan22 2,898]

4 minutes ago, bdglen said:

This is the root of the problem isn't it? My husband had physical custody for well over two years, but even today does not have legal custody.  The baby was abandoned and was taken in and raised by my husband, his father and his aunts and uncles.  My husband is from a poor family. They all live in small homes on the same rural property. So it truly is a case of "it takes a village".

 

I don't see any clear cut way to bring the child to the US to be with the only "Father figure" he has ever known.

I'm sorry, but I'm afraid you may be right. I do not see a way forward from this, but a really good international adoption lawyer may -- it's a long shot, IMO, and would likely be very costly, though. You may want to review the information on International Adoption from Colombia at the following website from the US Department of State:

https://travel.state.gov/content/travel/en/Intercountry-Adoption/Intercountry-Adoption-Country-Information/Colombia.html for an overview of some of the issues.

[jan22 2,898]

I should have included this in my last post, but wanted to note that if you check out the website I provided and look at "Who Can Be Adopted" you will see that Colombia allows for direct relinquishment for adoption to a family member in certain cases (not all countries do). That might be the only way to proceed in this case -- starting a new process that meets all of the requirements for both adoption and immigration to the US.  If your husband does not even have legal custody at this point, it seems that hIs adoption case is not very far long anyway.