International adoption immigration laws can lead to citizenship surprises

Washington resident Adam Crasper talks to media after a deportation hearing last year. He’s one of 16% of South Korean adoptees who were never naturalized in the U.S. (Video by Jessica Greif / OregonLive)

Adopting children from other countries is nothing new for American citizens. The likes of Angelina Jolie, Halle Berry and other celebrities have made foreign adoption look quick and easy.

But the process of international adoption is actually a lengthy and difficult one. It requires consistent follow up, determination and money. Not everyone follows through on all the steps — and the results of that negligence can be tragic.

Last year the story surfaced of 40-year-old Vancouver, Wash. resident Adam Crasper, who was detained by ICE for being undocumented and is now being held in the Northwest Detention Center in Tacoma facing deportation back to South Korea. He was adopted by U.S. citizens when he was a baby and lived with two different sets of adoptive parents in Oregon. But they never completed his paperwork.

Unfortunately his shocking story is not all that unique.

Max’s story

As an immigration attorney, I see such devastating cases frequently. One such person is a client of mine who I’ll call Max. Max’s adoptive American parents brought him to the U.S. when he was only a few months old. Soon after arriving, they legally adopted him. But did not take any steps to apply for his green card.

Max, now in his mid-twenties, never had reason to think he was not a U.S. citizen. But one day at work his employer told him that his information could not be found on the e-Verify system.  Confused, he asked his parents and that is how it came to light that he is not a U.S. citizen. In fact, he is not even a green card holder. In essence, he is without status.

Federal laws changed with the introduction of the Child Citizenship Act effective February 27, 2001. Prior to 2001, Max would have acquired automatic citizenship only if his green card or legal permanent resident (LPR) application was made on his behalf before he arrived in the U.S.

The new law, essentially tried to make the process simpler and allowed automatic citizenship if certain requirements were met. Max’s parents could have applied for a Certificate of Citizenship, and thus automatic citizenship, if he was duly adopted abroad before the age of 16.

Unfortunately, the law was not retroactive, and Max was brought to the U.S. before 2001, so he can’t benefit from this sensible change.

Max and Adam are just two examples of many people who find themselves in this situation. So what are their options?:

Deferred Action for Childhood Arrival:

President Obama created a new program in 2012 for children who arrived in the U.S. before the age of 15 and who were under 31 when the program began. It just reached its fourth anniversary last week. DACA, as it’s called, does not provide a green card but allows participants to have a work permit. Max could apply for DACA, solving his immediate problem of getting authorized to work. Adam cannot as he is over the age limit.

So what are his options?

The Supreme court is currently deciding on further executive action on DACA, which eliminates age limit altogether. Should the Supreme Court rule in favor of DACA plus (as it has been called) then Adam could apply for it and obtain a work permit. That ruling is expected any day now.

If the Court rules against it, then an immigration reform bill that included work authorization or a path to citizenship for undocumented people would likely be Adam’s only hope. (Adam’s case is further complicated by a felony conviction that automatically qualifies him for deportation, but let’s set that aside for now since it’s a whole other topic)

Congressional Action:

One other way that both Adam and Max can resolve their situations is if the law for automatic citizenship were changed, either through comprehensive immigration reform or a separate bill. To that extent, our very own Congressman Adam Smith (D-WA) together with Congressman Trent Franz (R-AZ) introduced the Adoptee Citizenship Act of 2016 (ACA), also known as H.R.5454, on June 10^th.

The bill would retroactively grant all international adoptees automatic U.S. citizenship as well as allow those have been deported to return to the U.S. While the effort of this bill commendable, Congress is unlikely to pass anything on immigration before the election. So, unfortunately, this is probably not an immediate option.

Relative Petition:

Another option in both cases might be for the adoptive U.S. citizen parents apply for a relative petition using Form I-130.

While the petition is an option, it likely would still mean great difficulties in obtaining a green card. U.S. immigration laws have preference categories — since Adam and Max are both over 21, they are not minors and would not be considered “immediate relatives” of their parents.

Furthermore, anyone who has spent time in the U.S. without status while an adult, as they both have, cannot get a green card easily, even if the parents apply for them.

Still, it might be a good idea to have the relative petition application on file, in case laws changed in the future. For example, the Comprehensive Immigration Reform bill of 2013 had provisions that would have cut off applications for children over 31.

This filing wouldn’t come without risks unfortunately.  By filing such an application, the DHS would now have information on their whereabouts. In reality, because of this risk, few people opt to apply for an I-130 in this situation.

Love and marriage:

If someone were to fall in love and marry a U.S. citizen, the citizen could apply for legal permanent status for them. If they had initially entered the U.S. legally, as both Adam and Max did, they could get a green card and rectify the past lapsed status in that way.

If they did not enter legally, the U.S. citizen could still apply for LPR status for the spouse, but he or she would have to leave the country and attend an interview in his or her home country.  By stepping outside the U.S., the person would have triggered a 10 year bar from reentering and thus would need a waiver to reenter. The waiver would be based upon the U.S. citizen spouse’s hardship, which will have to be ‘extreme’ defined as “unusual or beyond that which would normally be expected.”

Standards of such extreme hardship are very high, and save for medical challenges suffered by the U.S. citizen, cases are difficult to win.

So what’s our takeaway here?

If you were adopted to the U.S. prior to 2001, confirm your citizenship status! Were you adopted abroad? Did your parents apply for a green card for you before you entered the U.S.? What was your status at the time of entry into the U.S.? To find all this out, you will probably have to go so far as to ask your parents and see your passport entry stamps.  

If you’re under 21, there’s still a chance to get sponsored by your parents. And if you are under 16 and have lived with your parents for at least 2 years, you may be a citizen already.

Remember: No international adoption is truly complete until parents have secured citizenship for their child.

This post has been updated since it was first published to include new information about H.R.5454

Tahmina Watson

Tahmina Watson is an immigration attorney and founder of Watson Immigration Law in Seattle Washington. She was a practicing barrister in London, UK, before immigrating to the United States herself. While her practice includes family-based and employment-based immigration, she has a strong focus on immigrant entrepreneurs and start-up companies. She is a frequent speaker, author, and blogger on immigration law matters. You can reach her at tahmina@watsonimmigrationlaw.com and visit www.watsonimmigrationlaw.com to learn more.