As long as the adopted child entered the U.S. legally, he will be eligible for adjustment of status, if classified as a “child” (and hence, immediate relative) of a United States citizen. A child adopted after April 1, 2008 must be qualified as an “orphan” under INA 101(b)(1)(G). This requires the adoption to have been done in accordance with the Hague convention on inter-country adoptions – a very complex process. Fortunately, because you adopted before April 1, 2008, your brother may qualify as an adopted child under INA 101(b)(1)(E).
That basically requires that the child was legally adopted before his 16th adoptive parent has exercised both legal and physical custody for 2 years. The 2 years physical custody may be in the aggregate, does not necessarily have to coincide with the 2 years legal custody, and can take place in either country as long as both parent and child were living together, with the US citizen exercising parental care and control.
You do not need a US adoption to file for a green card, but you will need to do a bit of research regarding the type of Mexican adoption: “adopción simple” or “adopción plena” (i.e., a “full” adoption).
A “simple” adoption is not good enough to qualify under the “orphan” route under (b)(1)(G). USCIS has taken the stance that only an “adopción plena” grants complete parental rights to the adoptive parent and severs all ties to the birth parents, and therefore they reject “simple” adoptions.
Before filing anything, you will need to verify that you have documentation establishing all the above time periods and look at the Mexican adoption decree, to verify it was “adopción plena.”
International adoptions present unique and complex issues for the immigration process. This is not an area that should be attempted Immigration matters for adopted children present many unique and exceptionally complex challenges. The assistance of an experienced immigration attorney is valuable in all immigration matters, but in this area, it is absolutely critical. There is too much as stake to just play it by ear and “trial and error.” Even a simple error can destroy – permanently – your chances for obtaining lawful immigration status for your child.
This information does not constitute legal advice and is for general informational purposes only. If you have an adoption-related immigration matter – or any other immigration issue – please contact the Mesa Immigration Professionals at Gunderson, Denton & Peterson, P.C. for more information, and for guidance specific to your unique circumstances.
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