Shirley was ten years old when she migrated to the US through the petition of her adoptive parent. When she reached twenty one years old, her adoptive mother passed away. Shirley is single and has no children of her own. At first, she thought of petitioning for her biological mother. Unfortunately, she was told that she could not petition her biological mother because the parental relationship was terminated at the time she was adopted by her US citizen adoptive parent.
As her way of giving back to her family back in the Philippines, Shirley, who is now a US citizen and gainfully employed decided to adopt the two minor children of her brother. She went through the same adoption process in court and an order of adoption was successfully obtained. Thereafter, a petition for her adopted children was filed right away after receiving the adoption decree. The US Citizenship and Immigration Services denied the petition very recently considering that Shirley has not met the two year residency requirement for purposes of petitioning adopted children. Shirley is wondering how she will be able to fulfill this requirement. In the meantime, she had exercised parental control and custody over the minor children by sending them to school and providing for their monthly support.
Adopting A Relative
An adopted child is treated as a child for immigration purposes if (1)the child was adopted while under the age of sixteen years and (2)the child has been in the legal custody of, and has resided with , the adopting parent(s) for at least two years. It is irrelevant whether the legal custody and residence take place before or after the adoption.
Legal custody for two years requires either final adoption decree from the court or any official document in the form of a custody award by a court or recognized governmental entity.
In the case of Shirley, she should be able to prove that the she adopted the children who were under sixteen years old and that she has legal and physical custody of the children for two years.
Proving Physical Custody
Unlike in orphan adoptions, physical custody of the adopted child is required for relative adoption. The two years legal custody and residence must take place either before or after adoption.
The adoptive parent is required to live with the adopted child for at least two years. It is not enough that she lives with the adopted child. It must also be proven that she exercises strong evidence of parental control especially if the adopted child lives in the same household as the biological parent.
Evidence that may be presented to show valid two year physical presence is met include ownership of property where the child resides, provision of financial support and day to day care, assumption of responsibility for important decisions in the child’s life and physical living arrangements.
Physical presence with the adopted child need not be continuous. It could be met also even if there is a break in residence as it is computed in the aggregate. The two year residency requirement must be completed before the adopted child reaches the age of twenty one.
Realities of Compliance
Filipinos are known to have close family ties and extended families. This culture must be taken into account in describing the relationship between the adopted parent and the child. Until the child migrates with the adopted parent, this child usually lives with the biological parents or with relatives. The standard of proving that the adopted parent has primary control over the adopted child in that household is really high. Satisfying this specific requirement of primary control has always been really challenging.
In addition, willing adoptive mothers from the US have extended their generosity in raising children of their siblings or relatives by filing petition for their adoption and their later on for their immigration petitions. No matter what the bona fide intention is for the adoptive mothers, the two years physical requirement remains a bar for them to petition their successfully their adopted children.
During this economic downturn where unemployment rate is at its highest and where many businesses suffer financial loses, more and more employees are finding it difficult to obtain leave or vacation from work. The most that a regular employee may spend for vacation is approximately two to three weeks each year. For them to spend two years off from work in order to meet the two years physical requirement is risking their employment status. Of course, those on retirement or who are unemployed may have no problem meeting the two years physical requirement.
There are many adoptive mothers who find themselves in the same predicament as Shirley. The desire to give their adopted children a better future in the US remains elusive. The current economic crisis affected almost sectors of society including the many mothers who wants to be their adopted children. Not only are the businesses, the homeowners or bankers are affected. Those impacted are also thousands of mothers who are separated from their children not just because of the lengthy process of petitioning relatives but also of their inability to meet the legal requirement of physical residence.
Despite the many challenges, adoptive parents especially the mothers are determined to live with their adopted children and to give them a better future. Their responsibility towards their adopted children was not imposed on them but was a conscious decision from their heart to extend love and care to their adopted children. For this, we commend all adoptive mothers for all the many sacrifices they endure just to better the lives of their children. This goes also to those who played the roles of mothers in their lives to include the single mothers, father-mothers, straight moms, gay moms who have children. To all the mothers who had exhibited unselfish love towards their children, we honor you for all that you do and admire your dedication to improve your children’s lives. Happy Mother’s Day!
(Tancinco may be reached at law@tancinco.com or at (02) 887 7177)
