Image Source: allboutphilippines.blogspot.com
Image Source: allboutphilippines.blogspot.com

A typical Filipino family is matriarchal and “close-knit.”  We take care of each other. Even in the midst of poverty, it is not uncommon to raise the child of a sibling or close relative who recently passed away.

The widower (father) may be around to take responsibility for the care of the children, but often, the grandmother or an aunt assumes the influential maternal role. Strong “family ties” sanctions this arrangement.

Once the children are grown, the tendency is always to reciprocate the good deeds of those who raised them. Filing an adoption petition in court is usually  not considered until it becomes necessary. Besides, an adoption proceeding costs money, and in the country where the adopted child usually comes from, there isn’t a lot to spare.

The legal adoption decree becomes important when a US lawful permanent resident (LPR) or a naturalized US citizen decides to petition the informally “adopted child” to live with him/her in the United States through a family-based petition of an adopted child.

Initially, adopted children were not considered as “children” recognized in the 1952 Immigration and Nationality Act (INA) due to the possibility of abuse by encouraging ‘ad hoc’ adoptions as a way to immigrate to the US.  It was only five years later (1957) that Congress reconsidered and amended the law to  include adoptees as children who can be petitioned as long as stringent safeguards are in place to meticulously screen those eligible to come to the US as children of US LPR or citizen parents.

There are three vital requirements,  the absence of any of which will cause the family-based petition of an adopted child to be denied. These requirements are: (1) Court adoption of a child while under 16 years old; (2) Legal custody of the adopted child for two years; and (3) two-year physical custody or residence with the adopted child.

The last one is the most difficult to comply with simply because the adopting parent cannot be in two places at the same time.  As a US LPR, even if the adopting parent wants to physically live with her adopted child, she cannot stay out of the country for more than one year as she is expected to be physically present here in the US and not in the country of her adopted child.

As a US citizen, although she can live outside of the US for a longer time, her livelihood and means of supporting her adopted child are here in the US.  But the Service (USCIS) expects no less.  The petitioning parent should be physically living with the adopted child for two years or more.

On the upside, continuous residence is not required, but at the same time, “periodic visits” to see the adopted child is not accepted as “residence“ as well (Matter of Repuyan, 19 I&N Dec. 119 (BIA 1984).  Also, residence with the adopted child can be before, during or after adoption.

The Service wants to see proof of actual living and residing with the adopted child for two years. These include medical and school records that prove the parental guardianship that exists, health and life plans to show recognition of the relationship that will exist for a long time, actual residence with the adopted child as evidenced by home ownership, correspondence (virtual or postal), utility bills, affidavits of neighbors, etc.  Authentic proof of such physical residence for two years is needed; affidavits alone may not suffice unless corroborated by other evidence.

The reason behind this strict requirement is to ensure that the parent-child relationship is real and  based on a true “parent-child bonding.” The Service intends to preserve the spirit of the law in adoption petitions, i.e., to ensure that family unity is always upheld and the existence of a “real family” is manifested.

If you think about it, the two-year residence requirement is not a lot to ask for when we know that the bonding process between the parent and the adoptee could take a lifetime.

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