Recently, we encountered an interesting question regarding immigration benefits for an adopted adult child.

Jenny is a 22 F-1 undergraduate student in an American university who is about to graduate. She enjoys the American life very much. She studies very hard at school, and has decent grades for most of her courses. During the summer and winter breaks, Jenny travels a lot and explores the beauty of the United States. Now, as graduation approaches, Jenny is concerned about the job market and her immigration status.

Jenny had recently read a news story about adoption, which led her to think about her own situation. The story concerned Olive Watson, the daughter of former IBM CEO, Thomas J. Watson Jr. When Mr. Watson passed away in 1993, he left two multimillion dollar trust funds for his future grandchildren. Now, Olive Watson and her partner, Patricia Spado, were a same-sex couple who had lived together for fourteen years. Olive came up with a great idea to allow Spado to inherit the multimillion dollars from her rich father. In 1991, Olive Watson legally adopted Patricia Spado as her daughter, even though Spado is one year older than her. This made Spado Olive Watson’s legally adopted daughter, and thus, Mr. Thomas J. Watson Jr.’s granddaughter. Spado then petitioned for a share of the multimillion trust, as a grandchild of Mr. Thomas J. Watson. However, her request finally failed in a lawsuit.

Inspired by this story, Jenny spoke with her landlord Ms. Smith, a very nice 56 year old American lady. Having lived together in the same house for more than three years, Ms. Smith really loved Jenny and was willing to adopt her if it would help Jenny legally stay in the US and get a green card. Jenny thus came to our office for a consultation about the viability of this idea.

Of course, Ms. Smith can adopt Jenny as her daughter. In fact, Jenny could adopt Ms. Smith as her daughter, even though Ms. Smith is far older. However, when immigration benefits are involved, things are not that simple.

According to U.S. immigration law, in order to file an immigration petition for an adopted child, the adoption must occur prior to the 16th birthday of the child. Jenny is now 22, too old to be adopted as a child for immigration benefits.

Hypothetically, if Ms. Smith had adopted Jenny prior to Jenny’s 16th birthday, and Jenny later came to the US as an F-1 student and lived with Ms. Smith for two years, Ms. Smith can file an immigration petition (I-130) for Jenny. If Jenny is now under 21, she can simultaneously file an I-485 application with the I-130 petition. However, if Jenny is older than 21, she would have to wait for her immigrant visa number to become current before she can apply to switch to a permanent resident status (I-485). During this waiting period, she would have to independently maintain F-1 status or other valid nonimmigrant status.

After the consultation, Jenny realized adoption by Ms .Smith was not a viable option for immigration benefits. However, because she and Ms. Smith really loved each other, they still decided to finalize the adoption relationship. Jenny then started an active job search, planning to apply for an H-1B visa after graduation.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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*This article is based on the state of the law as of the posting date. It is the responsibility of the reader to verify that the law has not changed by consulting an attorney, although Zhang and Associates will make every effort to ensure that our articles are updated periodically.