Bring an adopted child to the U.S. by filing an orphan petition

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Q. How can I bring my adopted daughter to the United States? When my brother passed away, I adopted my niece. The adoption was complete before her 16th birthday. I want to petition for her, but I read that the laws requires that we have to be together for two years under the same roof. Must I go to my country and stay with her? Or can I bring her here for two years to meet this requirement?

V., Clifton, N.J.

A. If your adopted daughter is an orphan and you are a married U.S. citizen or at least age 25, you can bring her here by filing an orphan petition. That’s true despite her not having lived with you.

Note that special rules apply to countries covered by a treaty called the “Hague Convention.” You must file the petition for your daughter before she turns 16. Immigration law defines an orphan as a child whose parents are deceased or whose parents are unwilling or incapable of caring for the child.

For more information on intercountry adoptions and convention rules, go to bit.ly/367EkKI. If your daughter doesn’t qualify as an orphan, you have a chance, though slim, of bringing her here under humanitarian parole rules.

Q. A friend came here using someone else’s passport. The passport had a genuine visitor’s visa, but the owner’s photo was replaced with my friend’s. He is married to a U.S. citizen and wants permanent residence. What are his chances of getting a green card?

Name Withheld, Queens

A. Your friend has a good chance to get permanent residence (green card status) despite his fraudulent entry. As part of the application process, he’ll need a fraud waiver. His fraud makes him ineligible for permanent residence without the waiver.

To get the waiver, your friend must prove that his U.S. citizen or permanent resident parent or spouse will suffer extreme hardship if he doesn’t get residence. He can file his waiver application using USCIS form I-601, Application for Waiver of Grounds of Inadmissibility, with his application for permanent residence. USCIS commonly grants fraud waivers in U.S. citizen spouse cases. Still, your friend will benefit from expert legal assistance.

Allan Wernick is an attorney and senior legal adviser to City University of New York’s Citizenship Now! project. Email questions and comments to questions@allanwernick.com. Follow him on Twitter @awernick

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