IR-2 for Adopted Son

[mejms 0]

Hi everyone,

Yesterday my wife and son had their interview in Ciudad Juarez, Mexico and the visas were approved. My wife had applied for an IR-1 and my son for IR-2.

I've always understood that my adopted son would become an American citizen as soon as he touches U.S. soil, whereas my wife will be a permanent resident until she becomes eligible for citizenship.

Yesterday, however, the consular office in the interview said that my son will not be an American citizen when we arrive to the U.S. because the child must be legally adopted for 2 years before the visa is issued in order for this to apply. Since my son was adopted in April of this year, he isn't eligible for immediate citizenship. The consular officer said that he must go through the same process as my wife for citizenship. What does that even mean?

Let me clarify that this was not an international adoption. In our case, my wife is my son's biological mother and I am the adopted parent, so the issue of legal custody over a period of time doesn't apply.

I've always understood that the 2 year rule applies to child who are adopted by both parents.

Any ideas?

Edited September 22, 2012 by mejms

[calibob 73]

I believe the adoption has to be an international one for the child to be issued a US birth certificate and be a USC. If the adoption was local (in beneficiarys country) then the child has no rights as USC. We ran into the same problem with an adoption of my wife's niece and we're having to go through international Hague adoption to take care of the problem. You'd have to petition as a step son , even though he was adopted locally. Best of luck.

Bob

Edited September 22, 2012 by calibob

[mejms 0]

I don't think that's true at all. Regarding petitioning as a stepson, our visa was already approved as an adopted son through IR-2.

[calibob 73]

Mexico a Hague convention country May want to read up on this. USCIS informed us unless it is a Hague adoption, they wouldn't give any immigration benefits to our NIECE. Since it is your wife's child, the child would be considered a derivative of her and is petitionable in my understanding.

Bob

[calibob 73]

Since you are the USC, you'd be responsible for the two year custody, both physical and legal, since You are the one from whom the benefit of citizenship derives. The USCIS made it clear that is the case for us.

Bob

[mejms 0]

The Hague Convention applies to international adoptions, right?

Mexico and the United States are parties to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Adoption Convention). Therefore, all adoptions between Mexico and the United States must meet the requirements of the Convention and U.S. law and regulations implementing the Convention.

This is certainly not the case for me. I petitioned my son as my son, not as my wife's son and he fell under the IR-2 category.

Although not taken from an authoritative site, this seems to address the situation:

IR-2 Immigrant Visa

An IR-2 visa is issued when the child is adopted overseas and has resided with the US citizen parent(s) for at least two years overseas, with the parent having full legal and physical custody.

It is important to be able to show evidence of "physical and legal custody" of the child. Keep records of when the child entered into your family under your care. With IR-2 visas, a home study is not required. (http://adopt.com/international.html)

I came across this when I first submitted my I-130 petition months ago. The agent at the Embassy said that my son was not yet eligible for the IR-2 and that I would have to wait for 2 years from the date of adoption. However, when she realized that he was my wife's biological son, the 2 year issue was immediately resolved since my marriage could establish that we had had legal custody for that long. It's a bit convoluted I know considering that the marriage doesn't prove my legal custody over my son for 2 years, but as I said the I-130 went through and the IR-2 visa was approved yesterday.

[calibob 73]

Children with IR-2 visas that are:

• under 18 years old automatically acquire U.S. citizenship upon entry to the United States if they reside in the United States with their parents (U.S. government or military personnel residing overseas may qualify as residing in the U.S.).
• over 18 years old become permanent residents and receive a green card.

Children with IR-2 visas who did not automatically acquire U.S. citizenship can apply for naturalization when eligible.

USCIS before your child Immigrates Looks like they gave themselves some wiggle room on the rules. It seems there is some stipulation to citizenship that I can't find for the IR2 visa. The above quote's last sentence sums it up I think.

Bob

[calibob 73]

Best of luck on your case and congratulations on getting your family together!

Bob

[mejms 0]

Thanks, I appreciate that. It's still not cut and dry for me, but I appreciate your feedback.