Only United States citizens may petition for the immediate immigration of foreign adopted children. There is no provision in Immigration law for the entry of newly adopted children of legal permanent residents (green card holders) and long term nonimmigrant visa holders. Legal permanent residents who do adopt abroad can only expect frustration in trying to bring their adopted children to the United States.

The United States Department of State reports cases each year of non-citizen parents who have legally adopted a child internationally and then find that the child cannot join them in the United States. The parents and child face only anguish and heartbreak. The best solution is for legal permanent residents to first naturalize as United States citizens and for long term nonimmigrant visa holders to return to their home countries before adopting.

The problem lies in the definition of "child" in the Immigration and Nationality Act (INA). Long term nonimmigrant visa holders and legal permanent residents can bring their spouses and children with them when they enter the United States or have them enter later. The INA divides the definition of "child" into several sub-groups: natural born children, step-children, and adopted children. The INA recognizes as a "child" one who has been adopted before the age of sixteen and who has resided with, and been in the legal custody of, the parent for two years. What this means is that a child born overseas to the principal applicant after his or her entry to the United States may receive the appropriate dependent visa immediately. A child adopted overseas by a non-citizen must first meet the two year co-residence requirement. The INA does not provide any way for the child to enter the United States to satisfy this requirement.

The following example illustrates the problem: An Australian researcher in the United States on a J-1 Exchange Visitor visa adopts a baby girl from the People's Republic of China. The child has not lived with the researcher for two years. She does not meet the definition of "child." The United States consulate cannot issue her a J-2 visa (dependent of exchange visitor) to join her parent. If the researcher leaves the United States and lives with his adopted daughter for two years, she can then receive a J-2 visa for future exchange visits to the United States.

Long term nonimmigrant visa classes include: E1/E2 Treaty Traders or Investors, F-1 Students, I Journalists, J-1 Exchange Visitors, H, O, or P Visa Temporary Workers, L-1 Intra-company Transfers, and R-1 Religious Workers. Different rules cover diplomats and officials in the United States on A or G visas. The employing embassy or international organization should contact the Department of State for information.

The situation is even more difficult for legal permanent residents. The adopting resident parent must first satisfy the two year co-residence requirement, before he or she can begin the immigration process. At the same time, a resident cannot reside outside the United States making the two year requirement a near impossibility. At the end of two years' co-residence, if the parent could have complied, he or she would file a second family category (child of a legal permanent resident) petition. The family must then wait for the petition to become current: the backlog in this category is now four years. Therefore, a resident faces a wait of six years or more before his or her adopted child may immigrate.

Once a legal permanent resident naturalizes as a United States citizen, he or she may petition for the immediate immigration of an adopted (or to be adopted) orphan. There are strict limits on who may qualify as an orphan but there is no two year co-residence requirement . Other adopted children would still have to meet the two year requirement. A single United States citizen over twenty-five years of age or a married United States citizen of any age may petition. The spouse of a married citizen need not be a United States citizen but he or she must agree to the orphan adoption.