Is USCIS prejudiced against Filipinos in adoption cases?

by Atty Emmanuel S Tipon

Three of the published leading immigration cases on adoption involved Filipinos. They were all denied, as probably countless others that were unpublished.  One was handled by a well-known Caucasian attorney. Thus, many Filipinos have begun to wonder: Is USCIS prejudiced against Filipinos in adoption cases? Hopefully not, but suspicious, especially of intrafamily adoptions.

Immigration authorities are in a state of denial. In case of doubt, deny. An immigration officer will not get into trouble with the supervisor if the officer denies. But if the officer approves, the supervisor will scrutinize the approval, and the supervisor’s supervisor will review the case, looking for flaws, if the first line supervisor approves. So, how does one succeed? Difficult but doable.

We have a 100% success rate on adoption.  We have published “Ten Commandments on Bringing Your Adopted Child to America.”


KEY ELEMENTS

The three key elements in an adoption case are: (1) adopted child must be under the age of sixteen on the date of issuance of the adoption decision (called “decree” in America), (2) adopting parent and adopted child must have physically resided as parent and child in the same dwelling for at least two years before or after the adoption decision, and (3) adopting parent must have had legal custody of adopted child for at least two years. INA §101(b)(1)(E)  [8 USC § 1101(b)(1)(E)]. Simple. But as the saying goes, “the devil is in the details.”

SWEET SIXTEEN

Some people have adopted a child over sixteen. OK, if you do not intend to petition the child. But a TKO if you intend to bring the child as an immigrant. Why sixteen? Why not twenty one, since that is the rule for natural children? Remember the song “Sweet 16, going on 17”? Maybe the Congress people were humming that when they enacted the law.

LEGAL CUSTODY FOR TWO YEARS

A few “eager beavers” have filed the I-130 petition for the adopted child within two years subsequent to the adoption decree. Premature. The “legal custody” requirement must be fulfilled for two years before filing. Legal custody begins when the adoption decision is issued, unless there is a prior court order awarding custody.

PHYSICAL RESIDENCE FOR TWO YEARS

Physical residence for two years is the most difficult to prove. The adopter and the adoptee must physically reside in the same dwelling as parent and child. Mere visits are unacceptable. It is best if the adopter owns and maintains the residence. The adoptee’s natural parents must not reside in the same dwelling or in the neighborhood. The adopter must provide financial support for the child, provide day-to-day care for the child, assume full responsibility for making important decisions in the child’s life, to the exclusion of the natural parents.

Documents must be submitted – school records, medical records, bank accounts, insurance policies, income tax returns, social security records, census records, entries in family Bibles, wills, pictures, etc. – all showing the names of the adopter and the adoptee in the same document. Affidavits may be submitted but are insufficient. There is a technique for writing credible affidavits.

The petition must contain these documents and be properly packaged. If you really love your adopted child, you must be willing to show your love by spending. How much? Going rate is $3,000 to $5,000.

CAUTION:  Beware of attorneys who “low ball” you by quoting a low fee and later say the case became complicated and you must pay more or else they will withdraw.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)