Avoiding the Perils and Pitfalls of Intercountry Adoption from Non-Hague Countries: Considerations for Agencies and Adoptive Parents (Part II)

Best Practices in Choosing International Adoption Partners

Prior to starting on the path to international adoption, do some preliminary research on the agencies recommended to you, including references and statistics – such as the number of years that the agency has worked in the country where you seek to adopt, and the length and quality of its relationship with the orphanage or babies’ home in-country.³ Make sure the agency meets the requirements of the Universal Accreditation Act (insert footnote) and is accredited. Ask persistent, detailed questions about the orphanage(s) with whom the agency works in-country, including:

• Demographics of the Orphanage. How do children arrive in the care of the orphanage? Where do the majority of children come from and who places them in the care of the orphanage? Are they placed there through an official government action such as a “care order” or by a government social worker? Children end up in orphanages for many different reasons. The more information one can find about the circumstances of the child’s placement at the orphanage, the more likely the family is to avoid an issue with a specific orphan’s placement later.
• Background Investigations. What type of background investigation into the child’s parentage or history does the agency or orphanage require, and when is this investigation conducted? In most circumstances, the agency or orphanage should investigate the child’s background immediately upon the child’s arrival. Does the agency pay to have a social worker in-country to do background investigations?
• Authorization. Is the orphanage “authorized” as an orphanage under the child welfare laws of the country where it’s located? Licensure requirements vary country to country, so be sure to confirm proper registration and/or licensure.
• Supporting Documentation. What documentation is in the child’s file at the orphanage? For example, does the agency or orphanage procure a birth certificate, social worker review or report, care orders, etc.? Does the file contain photos, health history or school reports? Sometimes it is necessary to be able to show documentary proof of how long the child has actually been in the orphanage. A more complete file, created before the child was made available for adoption, is always better.
• Adoption Eligibility. What procedures or processes are in place to determine which children are available for adoption? Was a relinquishment of parental rights obtained when the child entered the orphanage? Although it is not a requirement, it is best to obtain a relinquishment of parental rights contemporaneously or as soon as possible once a child is placed in an orphanage if the parent no longer intends to parent the child. Is the agency and orphanage up to speed on what constitutes an orphan under U.S. law?

Advance Processing & Parental Suitability

Initially, adoptive parents prepare and file USCIS Form I-600A, Application for Advance Processing of Orphan Petition. The I-600A assists USCIS in determining whether the prospective adoptive parents meet the minimum standards required to adopt internationally, which requires a review of the adoptive parents’ financial ability to care for the child, a criminal background check, marital status information, family details, information on living arrangements, and other details normally included in a required home study that must be submitted to USCIS with the I-600A. Under the Uniform Accreditation Act, the home study in support of an orphan petition must now meet the same requirements as a home study to support a Hague country adoption.⁴ The adoptive parents must also comply with biometrics (photo and fingerprint), when requested by USCIS, to confirm identity and criminal background.

If USCIS approves the I-600A, the approval is valid for 18 months. The I-600A approval can be extended an additional 18 months with a written request and an updated home study. USCIS extends the I-600A approval one time for free, but most agencies charge to update the home study. The adoptive parents must ask USCIS to extend the I-600A within 90 days of the expiration date. Once the approval expires, the adoptive parents may not extend the I-600A. On the other hand, if an I-600 is filed prior to the expiration date of the I-600A, the filing of the I-600A stops the 18-month clock and the I-600A approval remains valid until USCIS makes a final decision on the I-600.

The adoptive parents’ fingerprints, however, expire in 15 months and must be current in order to permit the child to leave the home country. Accordingly, this deadline, along with the 18-month validity period of the I-600A approval, should be carefully calendared to assure that neither expires during the pendency of the in-country adoption.

If USCIS denies the I-600A, the prospective adoptive parents may not proceed with the adoption, and the process stops until the prospective adoptive parents address the underlying insufficiencies, if curable.

During this stage, the prospective parents must disclose any and all arrests or charges, whether or not the charges resulted in convictions. Failure to disclose arrests -- even juvenile arrests or arrests that have been expunged -- can disqualify a family from adopting due to failure to disclose. The home study preparer must address any arrests and make an affirmative finding that the family is suitable to adopt.

The Adoptive Parent-Orphan Match

Unlike adoptions from a Hague country, a match between a prospective adoptive child and the adoptive parents may occur before, during, or after the parents file the I-600A with USCIS. The family may have met the child in the mission field, or an agency may have referred the child upon completion of a favorable home study.

Before accepting the agency’s referral of a particular child, be sure that you find out from your agency the following things:

• Will your Advance Processing Application (I-600A, demonstrating that you’ve satisfied the preliminary requirements for international adoption from a non-Hague country) be approved?
• Does the child have living parents? If so, confirm that the details of the parents’ release of the child comply with U.S. immigration law -- specifically the orphan definition -- and identify any necessary documents required by the U.S. to meet the orphan definition.
• Does the child have siblings? If there are siblings, are they in need of a permanent family too? Are you that family? If not, then this may not be the child for you. Best practices are to keep siblings together whenever possible.
• Determine whether there is a way to support this child within the child’s biological family so that the child can remain with the family. This is especially important to avoid the often-criticized “poverty adoption” wherever possible, in which parents relinquish one child but not the others because the parent(s) cannot afford to sustain an additional child.
• If parents are “missing” or “unknown,” determine whether anyone has advertised in-country on the radio, newspaper, or television. Use local, native language publications wherever possible to avoid potential USCIS criticism of your methodology. This may not be possible in every country or required.
• Know exactly what documentation was acquired (official or biographical) when the child entered the orphanage.

Do not be afraid to ask questions prior to committing yourself and your family to a course of action involving a particular child. Check the agency’s accreditation status through the Council on Accreditation and ascertain that the agency has met all requirements under the Uniform Accreditation Act (UAA). The UAA, passed in 2013 and fully effective as of July 2014, requires that an agency be accredited by the Department of State prior to providing certain “adoption services” defined by the statute.⁵ This law particularly impacted independent adoptions, in which families elect to forgo the cost and involvement of an agency, by requiring accredited agency involvement for certain adoption services.

Preparing for Court and In-Country Visit

Before you travel, be sure that you’ve taken care of the USCIS logistics. Know the expiration date of your fingerprints, typically 15 months after they are taken the first time, and be aware of the renewal deadline for the I-600A approval (Form I-171H).

Be clear on any special requirements unique to the country you’re adopting from and be sure to comply. For example, PAIR, or pre-adoption immigration review, processes may be required in some countries like Ethiopia or Taiwan. Agencies and other country-specific resources generally make this information readily available.

Research your in-country attorney by references and country-specific adoption listservs. Ascertain the nature of the relationship between the in-country attorney and the orphanage where your matched child is living. Be cautious if the orphanage requires the use of a specific in-country attorney. You should not be required to use a specific attorney in order to adopt from a specific orphanage. Although such an arrangement can be perfectly innocent, it should raise red flags as to who is gaining from the adoption and if the documents prepared by the attorney are truthful.

Prior to arriving in-country, be familiar with the appropriate in-country procedures including any required care or custody orders, necessary legal filings, appropriate licensure, etc. These documents can be critical to your child’s ultimate approval by USCIS. Your agency should already be familiar with these procedures and ensure that the orphanage or in-country attorney follows all rules governing child welfare.

Review all documents for accuracy that the in-country attorney plans to submit to the court before they are submitted. Inquire about any discrepancies, and actively participate in the resolution of any factual issues. Once in country, keep your eyes and ears open for any discrepancies involving the child’s background or living situation.

Do not meet the birth parents until the day of court unless the meeting is incidental to preparation for court, that is, you both happen to be in the in-country attorney’s office at the same time. After your court date, feel free to visit the child’s birth family and gather family history and early photos of the child and their biological family if available, as well as any other items to provide cultural knowledge for the child.

In-Country Legal Process

Concurrently with the filing of the I-600A, some adoptive parents begin to work with an in-country attorney to prepare the necessary documents for the in-country court filing. Depending on the laws of the foreign country where the family is adopting, the filing may be for a full adoption or only guardianship. Usually, the in-country court holds a full hearing under the country’s laws, interviews the birth parents, reviews the in-country filing and any submitted affidavits, and renders a decision. Most in-country courts require the attendance of at least one prospective adoptive parent. Upon determining that all in-country requirements are satisfied, the court issues the appropriate final adoption or guardianship order permanently altering the orphan child’s relationship to his biological parents under that country’s laws.

Orphan Petition Filing

After the in-country proceedings are completed, most adoptive parents or their representative beeline for the U.S. Embassy, adoption file in hand, with a completed I-600, Petition to Qualify Child as an Orphan, in the hopes of ultimately procuring their adoptive child a visa to enter the U.S. Most families file this petition in the child’s home country at the U.S. Embassy. In countries without a USCIS office, the U.S. Embassy acts in its delegated authority from USCIS and makes recommendations on the I-600 petitions that are generally followed by the regional USCIS office absent some irregularity with the adjudication. Lately, some families, acting on the recommendations of their agencies, have filed the I-600 stateside with USCIS. As explained below, where a family files the I-600 affects not only initial processing of the form, but also may impact processing speed if the U.S. Embassy or USCIS issues an unfavorable decision. While filing the I-600 stateside may result in a quick initial approval, if the U.S. Embassy uncovers negative information that undermines the I-600, the Department of State will send the file back to USCIS National Benefits Center to revoke the original approval. See Orphan Decision section below. This may result in unanticipated delays in the processing of the case. If the I-600 petition is filed in-country, any questions that are raised by the U.S. Embassy results in the file being forwarded to the appropriate field or regional USCIS office if there is not a USCIS office located in the country where the petition is filed. Getting the physical file to a field or regional USCIS office takes less time than shipping it back to the National Benefits Center and a decision in the case is generally issued more expeditiously than those sent back to the National Benefits Center.

The Orphan Investigation

As part of the adjudication of the I-600 orphan petition, the U.S. Department of State (in countries without a USCIS office) conducts what is colloquially known as an I-604 orphan investigation. The name itself—I-604—refers to the form number of the checklist used by adjudicating officers “to ensure that key criteria for the orphan classification have been reviewed.”⁶ The form requires that the adjudicating officer “indicate below what happened to each parent as verified by documentary evidence or through a competent authority.”⁷ The form then provides check boxes for each of the enumerated orphan grounds listed in INA § 101(b)(1)(F)(i).⁸ It asks only for the adjudicating officer to “state what became of the parent(s), if known.” The Foreign Affairs Manual is specific that “[c]ompletion of Form I-604 should not be the basis for delays in processing cases [and] … does not trigger a requirement that investigations or field visits be done on each case, although it provides a mechanism for documenting any such reviews deemed necessary by the adjudicating officer to address potential classification of fraud issues.”⁹

In spite of this caveat, the I-604 investigation is listed first among “other considerations” in the regulations to assist an adjudicator in determining whether a child is an orphan.¹⁰ The regulations are clear that, “[d]epending on the circumstances surrounding the case, the I-604 investigation shall include, but shall not be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation.”¹¹

The reality of the I-604 investigation is that the child’s biological parents are almost always interviewed, and prospective adoptive parents should anticipate that the Department of State will ask the biological parents questions about the voluntariness of their relinquishment, the circumstances of their child’s birth, parentage in cases where the Embassy is not interviewing one or both of the birth parents, circumstances of the child’s entry into foster or orphanage care, court processing, and a host of other issues.

I-600 Filing & Visa Interviews

At the I-600 and visa interview stage, an ounce of prevention might actually prevent a pound of cure. In order to understand why this stage of the process is so critical, and how it can go so wrong, it is important to understand the U.S. definition of “orphan” months before you ever arrive at the U.S. Embassy’s doorstep. This is the “gotcha” step in the process, where most families discover what they didn’t know about orphan adoptions and USCIS’ regulations.

If the I-600 is filed in-country, it will be submitted after the in-country court hearing and will result in one or two appointments: an I-604 investigation appointment at which the birth parents will be interviewed, if they are living, and the final visa appointment. Some U.S. Embassies add an initial third “document review” appointment.

At the I-604 investigation, the adoptive parents, with the help of their agency, should be prepared to produce the birth parent(s), other family members, and orphanage personnel if requested. The family should check and double-check the packet to be submitted to Embassy (I-600), and ensure that critical documents are included and extraneous documents have been omitted. Only submit documents that are requested. There is no need to submit an entire court record if not required. Make copies of everything submitted to the Embassy so that you have a paper or electronic record. Months later, you won’t remember whether you provided Embassy personnel with the father’s affidavit or only his relinquishment. And every once in a while, a file goes missing. Having copies of the entire file will save you a lot of headaches if your file gets lost.

The Decision

Following the orphan investigation, there are several possible results. Most favorably, the I-600 is determined to be “clearly approvable,” in which case the Embassy issues a visa for the child and the family returns to their residence in the U.S., first finalizing the adoption in the U.S. if they only have guardianship, and always securing the child’s U.S. citizenship under the automatic acquisition provisions of the Child Citizenship Act.

On the other hand, the family may experience several other results. If the U.S. Embassy determines that the case is “not clearly approvable,” then the U.S. Department of State refers the file back to the regional USCIS office to issue one of several possible decisions: affirmation of a previous approval, a Request for Evidence (RFE), a Notice of Intent to Deny (NOID), or a Notice of Intent to Revoke (NOIR). If the I-600 was filed in the U.S. at the National Benefits Center, then the file will be returned to the NBC with a recommendation for revocation. The National Benefits Center will then issue an RFE or a Notice of Intent to Revoke. If the I-600 was filed at the U.S. Embassy, the file will be sent to the appropriate field or regional USCIS office as “not clearly approvable” and the petition will be reviewed there. At this point, the family should consider retaining competent counsel depending on the nature of the action and the requested proof.

• Request for Evidence (RFE): USCIS issues a Request for Evidence (RFE) in cases in which “not all of the required initial evidence has been submitted or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof.”¹² USCIS should issue an RFE unless the USCIS officer determines that there is no chance that additional evidence might cure the perceived factual deficiency or legal insufficiency regarding the orphan petition. When an RFE is issued, the family’s response is due in 98 days (including mailing). The next decision may be an approval, a Notice of Intent to Deny or a denial.
• Notice of Intent to Deny (NOID): A NOID is not required before denying an I-600, but is issued when derogatory information is uncovered in the course of the adjudication that is not known to the family. USCIS permits the family 33 days to respond to the NOID (including mailing) which makes NOIDs particularly urgent and dire when major corrective action is necessary in such a short time period. From this point, after review of a response, USCIS may approve or deny.
• Notice of Intent to Revoke (NOIR): Notices of Intent to Revoke (NOIR) are required where the family originally filed the I-600 stateside with the National Benefits Center and Department of State sends the file back to the U.S. to ask USCIS to revoke their original approval. The family usually knows that the child’s case will be sent back to USCIS to revoke their decision before they receive the actual NOIR, which is issued because the Department of State (U.S. Embassy) has uncovered some unfavorable evidence calling into question USCIS’ approval.
• Denial: If USCIS denies the I-600, it typically does so after issuance of an RFE or NOID. In the case of a petition filed with the National Benefits Center, a NOIR is typically issued prior to the final revocation. Once denied or revoked, the family may appeal the denial or revocation to the Administrative Appeals Office. Alternatively, the family may file a Motion to Reopen (if there are new factual issues) or Reconsider (where the family believes that USCIS has committed legal error).

How Far to Take the Decision?

The hardest thing a family ultimately has to decide is whether to take the next administrative step when a case encounters problems. The authors favor a simple rubric based on the underlying problems presented by USCIS. Remember, however, that the best time to prevent orphan case problems is before the I-600 is ever filed.

• Get simple factual support for an incomplete file. Most often, simple issues of factual support that occur within the case (failure to provide all the evidence needed for the I-600, or an error on the child’s passport that can be easily cured) do not require private representation or aggressive advocacy. These cases can typically be resolved quickly and readily by the petitioning parent(s) with USCIS.
• Address factual issues that bear on an orphan ground or create a basis of inadmissibility. On the other hand, procedural issues that turn on a question of whether the petition satisfies the orphan ground (see Part I for examples) or questions of legal interpretation resulting in inadmissibility (whether the petitioner meets the support requirements on the I-864 Affidavit of Support) may require a more assertive, professional response.
• Seek assistance sooner rather than later. In nearly every case, it is better for the family (and the agency) to seek assistance regarding any problems in the case sooner rather than later. Most attorneys will engage in an initial conversation with a family or agency for a small consultation fee or for free. Likewise, competent, ethical attorneys who regularly practice within the adoption or immigration arena will be forthright about what they will charge to investigate or evaluate the nature of the issue, and whether that fee will be applied toward a later full representation if the issue warrants advocacy.

Once Child Arrives in the U.S.

Once your child receives a visa to enter the U.S. and the plane lands on American soil, your work still isn’t complete. You must still take a few critical steps to protect your new child:

• Finalized Adoption. If you adopted from a country where you received only a guardianship and not a full and final adoption or in a case where the parent did not travel to meet the child during the adoption proceedings (even with final adoption), then your child will enter on an immediate relative, fourth preference (IR-4) visa. The child will be a lawful permanent resident of the United States (also known as a green card holder) but will not acquire automatic citizenship until the child is fully and formally adopted in the U.S. state where you reside, according to that state’s laws. Most local adoption attorneys are familiar with this process.
• Child Citizenship. In non-Hague adoptions, an IR-3 child is a child who enters after a final adoption and where one parent met the child during the adoption process. When an IR-3 child simply enters the U.S. to reside with the adoptive parents, citizenship is automatically conferred on the child and a Certificate of Citizenship is mailed to the child with no further paper work process. If a child enters on an IR-4, once the child is fully and finally adopted in the state court, citizenship is automatically conferred on the child. However, for an IR-4 child “automatically” does not mean without some effort on your part. Although under the law, the IR-4 child is now a citizen, there is no automatic issuance of a Certificate of Citizenship as in the case of an IR-3 child. After adoption finalization in the state court, the parent must file an Application for Certificate of Citizenship (N-600) to procure the certificate of citizenship. Procurement of this certificate is not required under the law for your child to be considered a U.S. citizen under the law. However, without it, there is no documentary proof that the IR-4 child is a citizen. It is highly advisable that everyone apply for and acquire this document as soon as possible.
• Passport. Either after the child receives the Certificate of U.S. Citizenship, or if preferred, even without applying for the Certificate, the parent should immediately procure the child a U.S. passport. The U.S. passport is also consider proof of U.S. citizenship just like the Certificate of Citizenship and can be acquired more quickly and at less cost. The reason some parents choose to apply for both is because the passport is a decision by the U.S. Department of State that can be rescinded if erroneously issued. Moreover, the passport expires. A Certificate of Citizenship is issued by U.S. Citizenship and Immigration Services, and never expires. The Certificate of Citizenship is never questioned as proof of citizenship whereas some government agencies, such as the Social Security Administration, are not as willing to accept a passport as proof of citizenship for adopted children.
• Social Security Card. It is critical to also immediately apply for your child’s social security number for myriad practical reasons, including health care and tax filings. Your child is eligible for a social security card whether they entered as a lawful permanent resident (IR-4) or as an automatic citizen (IR-3). However, be aware that if you apply for a card prior for your IR-4 child, prior to their becoming a U.S. citizen, after they become a citizen you will need to file a second application to change their citizenship status. Otherwise, they will always come up as a permanent resident alien (green card holder) in the Social Security system and they will be requested to provide proof of citizenship when applying to college, for financial aid, and for some types of employment.
• Protect and Preserve the Child’s Adoption & Immigration Record. Make several copies of all official documents in the child’s adoption file from their birth country and any U.S. issued documents (passport, green card, Certificate of Citizenship, social security card, state issued adoption decree, state issued birth certificate, etc.) and provide them to a trusted relative, friend or attorney or secure in a safe deposit box. It is extremely difficult to reconstruct an entire adoption file if lost, stolen or destroyed by fire or flood. Having copies in multiple places can protect against loss of all vital records that will be needed throughout your child’s life. Also, be sure your child knows where these documents are kept in the event of your death. Many adoptees have not been able to locate these vital documents upon the death of their adoptive parents.
• Provide for Your Child’s Future. Be sure to provide for your child’s care in the event of your death or disability. Contact a competent wills, trusts, and estates attorney to secure necessary documents and directives.
• Post-Placement Reports. Be sure to provide all post placement reports required by your adoption agency or the country where your child was adopted. Frequently countries of origin request yearly reports until a child reaches the age of 18. It is important to comply with these requests to maintain good relations between future adoptive families and your child’s country of origin.
• Keep Your Child Culturally Connected. Moreover, it is also important to keep your child connected to their cultural heritage and country of birth in as many ways as possible. Learn about their country together, visit when possible and appropriate, connect your child with other people from the same country, go to heritage camps, learn how to cook and prepare foods from their birth country, and incorporate some of the unique and special holidays or customs of the country into your family’s traditions. Always encourage their interest in their heritage and culture.
• Constantly Educate Yourself and Others About Adoption Effects. Many children who have been adopted have had difficult experiences. Learn all you can about the impacts of adoption on your child and the potential lifelong impacts. Don’t assume that love and nurture will undo all past trauma or that a child adopted as an infant will not have experienced any trauma. Realize that adoptees face unique issues and be open to professional help when issues arise. Stay connected with other adoptive families and agencies that support adoptive families upon return to the US. Far from being over, the journey to becoming a family is just beginning.

Conclusion

The authors hope that this article provides a survey of not only the legal issues that affect orphan cases, but also the practicalities of orphan adoption. Each orphan case is unique, and the facts of each child’s life present unique challenges. The fact that a visa petition follows three other steps requiring USCIS approval does not guarantee success at the U.S. Embassy during the orphan investigation, and sometimes these cases unravel at the very end. In the authors’ experience, however, absent fraud or egregious manipulation of the facts, most cases are ultimately able to be resolved, even if they come with an additional emotional or financial toll, and with great sacrifice on the part of the adoptive mother and father who are living on opposite sides of the world from their newly adopted child. The more attention that agencies and families give to the nuances of the law at the beginning of an adoption process, the more easily everyone can rest that the adoption is in best interest of the child and the child is truly in need of a family. Such precautions ensure that a child can grow up in a family instead of homeless or in an institution. After all, the goal of all forms of adoption is not “a child for a family” but rather “a family for a child” when that child is no longer being cared for by his or her birth family.