Mrs Walker-Huntington,

I have in my custody an infant (one year old) who is being formally adopted. What I would love to know is if an application for a visitor's visa to the United States (US) can be made on his behalf and who would have to make it. The facts are as follows:

His mother gave him up from he was two months old as she is unable to care for him.

My aunt, who is a US citizen, is working with the Child Development Agency to adopt him. However, as she lives overseas, my husband and I have daily care and responsibility for him. We would love for him to accompany us on vacation to the US in December but wonder how we would go about securing the necessary permission.

Thanks.

- K.J.

Dear K.J.,

If you and your husband were adopting this infant, you would obtain a passport for the child once an adoption register certificate was issued listing you and your husband as his adopted parents. You would then make an application for a non-immigrant visa on his behalf.

However, your case is complicated because your US citizen aunt, who lives in America, is attempting to adopt the child. If she will be the listed parent of the child, you would not be able to obtain a non-immigrant visa for the child. In order for your aunt to obtain immigration benefits for the child (a green card), she would have to live with the child for two years either before or after the adoption, and the adoption must take place before the child is 16 years old.

US Citizenship & Immigration Services has very strict rules about adoption that leads to immigration benefits. The rules, unfortunately, keep many families apart where someone in the US is emotionally bonded with a child outside the US, is the person who cares for the child financially and otherwise, but is prevented from adopting the child and having the child migrate to the US to reside with them.

If a child is an orphan - becomes a ward of the state - the two-year residency requirement does not apply. Your aunt needs to investigate her circumstances thoroughly with an experienced attorney before she sets herself up for disappointment. You and your family may also want to explore you and your husband adopting the child instead of your aunt in the US - if she is unwilling or unable to return to Jamaica to live for two years with the child.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal & personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com.