Question: I am 36 years old with 2 young children. My mother-in-law currently has U.S. citizenship and is starting the process of sponsoring my family (which includes my spouse, and our two children). I am currently in the process of submitting my application to the U.S. authorities. I have a 16-year-old biological nephew whom I want to adopt with the hope of bringing him with me when I go to the U.S. Will this affect or pose any risks to my family’s sponsorship application? I would greatly appreciate it if Lawyer Phan Thanh Quyen could provide an answer. Thank you very much to Lawyer and TVVN Press (Reader in Tan Phu District, Ho Chi Minh City)
Answer: Thank you for submitting your question to TVVN Press. Based on the information provided, we have forwarded it to Lawyer Phan Thanh Quyen, who is a member of the Ho Chi Minh City Bar Association, for a detailed explanation.
According to the definition in Article 3(1) of the 2010 Foster Care Law, “foster care” refers to the establishment of a parent-child relationship between the foster parent and the foster child. The purpose of foster care is to establish a long-term and sustainable parent-child relationship for the best interests of the foster child, ensuring that the child is nurtured, cared for, and educated in a family environment. Therefore, Vietnamese law sets specific conditions for both the foster parent and the foster child to establish a foster parent-child relationship. These conditions are as follows:”
Regarding the foster child
As stated in Article 8 of the Foster Care Law:
1. Children under 16 years old
2. Individuals aged 16 to under 18 years old if they fall under one of the following cases:
a) Fostered by a stepfather, stepmother, or stepparent;
b) Fostered by an aunt, uncle, great aunt, great uncle, or blood relative.
3. A person can only be a foster child of a single person or a married couple.
4. The state encourages the fostering of orphans, abandoned children, and children with special circumstances.
According to the law, a foster child must be under 16 years old. If the person is aged 16 to under 18 years old, they can only be fostered by a stepfather, stepmother, or stepparent, or by an aunt, uncle, great aunt, great uncle, or blood relative. In your case, the child has already turned 16 years old and is fostered by their aunt, which meets the conditions for being fostered.
Regarding Adoptive Parents:
Under “Article 14. Conditions for Adoptive Parents”
1. Adoptive parents must meet the following conditions:
a) Have full civil capacity;
b) Be at least 20 years older than the adoptive child;
c) Have conditions in terms of health, finance, and housing to ensure the care, nurturing, and education of the adoptive child;
d) Have a good moral character.
2. The following individuals are not eligible to adopt:
a) Those who are currently restricted from some rights of a parent for a minor child;
b) Those who are undergoing administrative sanctions at educational or medical institutions;
c) Those who are currently serving a prison sentence;
d) Those who have not had their criminal records cleared of intentional crimes against the life, health, dignity, or honor of others; abuse or mistreatment of grandparents, parents, spouse, children, grandchildren, or caregivers; coercion, or imprisonment of minors who violate the law; trafficking, exchanging, or kidnapping of children.
3. In the case of stepfathers who adopt their wife’s child, stepmothers who adopt their husband’s child, or aunts, uncles, great-aunts, and great-uncles who adopt their nieces or nephews, the provisions of point b and point c in clause 1 of this article do not apply.
According to the above regulations, as a biological aunt/uncle who adopts a biological niece/nephew as a foster child, you only need to meet the conditions of full legal capacity, and good moral character, and not fall under the cases that are not allowed to adopt. Therefore, you have the right to adopt your biological niece/nephew as a foster child under Vietnamese law. You can go to the local People’s Committee of your permanent residence or the residence of your niece/nephew to submit the adoption
Based on the information you provided, we understand that your family is being sponsored for immigration to the United States under the F3 category. This means that your mother, who is a U.S. citizen, is sponsoring her married son over 21 years old with his own family, including his wife and unmarried children under 21 years old (according to the petition, your husband is the principal beneficiary, and you and your children are derivative beneficiaries). Your mother-in-law is petitioning for her son (who is over 21 years old and married), and as a result, you and your children will be able to immigrate to the United States with your husband. The dependent child who is being sponsored can be biological or adopted but must be under 21 years old and unmarried, with meet certain other requirements under U.S. immigration and nationality law (if applicable).
Based on Section 101(b)(1)(E) of the Immigration and Nationality Act (INA), the term “child is an unmarried individual under 21 years of age” means:
- A child born in wedlock (meaning the child’s parents were married to each other);
- A child born out of wedlock, if the child’s paternity has been established by legitimation before the child’s 21st birthday, or by a court of law at any time before or after the child’s 21st birthday;
- A stepchild, if the child was under 18 years of age at the time the marriage creating the step relationship occurred;
- A child legitimated under the law of the child’s residence or domicile, or the law of the father’s residence or domicile if such law has been or is thereafter enacted;
- A child adopted while under the age of 16 (or 18 if the adoptee is the birth sibling of another adopted child) if the adoption is valid under the law of the child’s residence or domicile, and the child has been in the legal custody and living with the adoptive parent(s) for at least two years (as required by INA 101(b)(1)(E));
- A child who is an orphan, if the child has been adopted abroad by a U.S. citizen, or if a U.S. citizen has traveled to the foreign country where the child resides and has obtained legal custody of the child to bring the child to the United States as an immediate relative (as required by INA 101(b)(1)(F)); or
- A child who is to be adopted in the United States by a U.S. citizen or is coming to the United States to be adopted by a U.S. citizen, under the provisions of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (as required by INA 101(b)(1)(G)).
Based on the regulations, it can be seen that for a foster child to be able to benefit from immigration through their foster parents to the United States, the foster child must meet both conditions. The first condition is that at the time of submitting the sponsorship application, the foster child must be under 21 years of age and unmarried. The second condition is that the foster child must have been legally adopted before turning 16 years old, the adoption must be by the laws of the country where the foster child was adopted, and the foster child must have resided with and been under the legal guardianship of the foster parents for at least two years.
Due to the above reasons, even though the conditions for adopting a child under Vietnamese law have been met, according to U.S. law, your grandchild is already 16 years old and therefore does not meet the conditions to be adopted as a foster child for immigration purposes. Therefore, even if you complete the procedures to adopt your grandchild in Vietnam, you cannot sponsor your grandchild to immigrate to the United States with your family. If you include your grandchild as a beneficiary in your immigration application, the U.S. immigration authorities will reject your application because one of the beneficiaries does not meet the conditions for sponsorship under U.S. immigration and nationality law. This will result in a delay in your family’s immigration process and the need to reapply, which can take a lot of time and effort.
I hope that the explanation provided by Lawyer Phan Thanh Quyen has helped you better understand Vietnamese law as well as the conditions of the U.S. immigration authorities. I wish you and your family a speedy reunion in the United States shortly.
By TVVN Press
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