Question: I am a Canadian citizen not residing in Canada, and would like to apply for a TN. However, I’ve adopted a child here who is not a Canadian citizen. How does this child qualify for a TD visa?

Answer: To qualify for a TD visa (necessary for spouses and children who are not Canadian or Mexican citizens), an adopted child must qualify as a “child” as defined under INA 101(b) (1) (E). Under this law, to qualify for a TD visa, an adopted child must:

1. Be unmarried and under twenty-one years of age;

1. Have been adopted while under the age of sixteen years; and

1. Have been in the legal custody of, and resided with, the adopting parent(s) for at least two years.

The Foreign Affairs Manual provides further guidance with respect to the custodial and residence requirements. The legal custody requirement may be fulfilled either prior to or after the child’s adoption. See 9 FAM § 40.1 N2.4-1. Legal custody is deemed official at the time the adopting parents are awarded custody of the child, rather than on the date the adoption becomes final. If custody did not exist prior to the adoption, a certified copy of the adoption decree may constitute proof of the custody requirement.

The period of residence for which the adoptive parent(s) and child must have lived together must be at least two years (prior to or after the adoption). 9 FAM § 40.1 N2.4-1. The adoptive parent may accrue the two year residence requirement in the aggregate. The adoptive parents must also establish that they have exercised primary parental control during the two-year residence requirement. Evidence of control may include proof that the adoptive parents have provided financial support and day-to-day care, and have assumed the responsibility for important decisions in the child’s life.

For further guidance on the type of evidence that may be submitted to proove the residence and control requirement, we may refer to the evidence requirements for an immigrant petition submitted on behalf of an adopted child. This regulation provides in pertinent part:

Evidence of parental control may include, but is not limited to, evidence that the adoptive parent owns or maintains the property where the child resides and provides financial support and day-to-day supervision. The evidence must clearly indicate the physical living arrangements of the adopted child, the adoptive parent(s), and the natural parent(s) for the period of time during which the adoptive parent claims to have met the residence requirement. When the adopted child continued to reside in the same household as a natural parent(s) during the period in which the adoptive parent petitioner seeks to establish his or her compliance with this requirement, the petitioner has the burden of establishing that he or she exercised primary parental control during that period of residence. 8 C.F.R. § 204.2 (d)(2)(vii).