[Federal Register Volume 59, Number 146 (Monday, August 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18367]
[[Page Unknown]]
[Federal Register: August 1, 1994]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 204
[INS No. 1395-92]
RIN 1115-AD28
Petitioning for Foreign-Born Orphans by United States Citizens
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This regulation addresses a number of issues that have arisen
in the recent past because of the increased interest by United States
citizens in the adoption of foreign-born orphans. It revises prior
regulations by clarifying language and procedures for prospective
adoptive parents and other interested parties. This regulation also
enhances the ability of the Immigration and Naturalization Service
(Service) to help ensure that children who are eligible for orphan
status will receive proper care.
EFFECTIVE DATE: This rule is effective on September 30, 1994.
FOR FURTHER INFORMATION CONTACT:
Jack Tabaka, Senior Immigration Examiner, Karen Eckert, Supervisory
Immigration Examiner or, Rita A. Arthur, Senior Immigration Examiner,
Immigration and Naturalization Service, 425 I Street, NW., Room 7122,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION: The word ``orphan'' is defined in many
dictionaries as a child whose parents have both died. Under the
Immigration and Nationality Act (Act), Congress expanded the definition
to include not only children who were orphans because of the death of
both parents, but also children who were orphans because of the
``disappearance of, abandonment or desertion by, or separation or loss
from both parents * * *'' [8 U.S.C. 1101(b)(1)(F)]. Congress also
established additional circumstances under which the child of a sole or
surviving parent could be considered an orphan.
A review of the legislative history leading to the statutory
definition of orphan, as it appears in section 101(b)(1)(F) of the Act,
and a review of the preceding legislation clearly show that Congress
intended the orphan statute to apply to ``homeless'' and parentless
children. The original legislation was drafted after World War II when
there were many children who had been permanently torn from their
parents and homes. In fact, the origin of the legislation can be traced
to the Displaced Persons Act of 1948, Pub. L. 80-7874, Sec. 2, 62 Stat.
1009 (1948).
Amendments to the original statute included raising the age of an
eligible orphan, eliminating the two orphans per petitioner limit,
allowing an unmarried individual to petition for an orphan, and
defining the impact of the Immigration Reform and Control Act of 1986
on section 101(b)(1)(D) of the Act regarding the relationship of an
illegitimate child to its father in an orphan case. Additional
legislation required that a home study be completed in every case
before the prospective adoptive parents are eligible to petition for an
orphan. Throughout these changes, Congress continued to refer to the
orphan statute as pertaining to homeless children, thereby
distinguishing it from the provisions of the adopted child statute
under section 101(b)(1)(E) of the Act.
On November 8, 1993, the Service published a proposed rule in the
Federal Register at 58 FR 59200-59210 to revise the regulations at 8
CFR 204.3 governing the petition for foreign-born orphans. The proposed
rule was drafted to address a number of issues that have arisen in the
recent past because of the increased interest by United States citizens
in the adoption of foreign-born orphans. Public comments were
solicited, and eight letters were received during the comment period.
All comments have been thoughtfully considered. Six of the eight
commenters indicated their overall support or their support in large
measure for the proposed regulations. Since most discussed several
issues, the total number of comments exceeds the number of persons who
commented.
General
It should be noted that the proposed rule was not drafted in
connection with possible United States ratification and implementation
of the Hague Convention on Protection of Children and Cooperation in
Respect of Inter-country Adoption. Rather, the rule was drafted on the
basis of the current provisions of the Immigration and Nationality Act,
as amended, as indicated in the ``Authorities'' section in the preamble
to the proposed rule. One commenter suggested that the Service make it
clear for individuals without legal backgrounds that the rule is not
related to the Hague Convention. The Service agrees with this
suggestion and has included this clarification in the final rule.
Definitions
The Service has received the following comments regarding the
definitions contained in this rule:
(1) One commenter objected to the use of the term ``parental
interest'' used in the definition ``abandoned by both parents.'' The
commenter said the phrase has proven to be ``* * * problematic in
domestic cases.'' It was stated that the term's ``* * * vagueness could
lead to many otherwise eligible orphans being denied the chance for
adoption.'' Although the term ``parental interest'' may have proven to
be problematic in domestic cases, the Service does not believe that the
term's incorporation in the final rule ``* * * could lead to many
otherwise eligible orphans being denied the chance for adoption'', as
stated (emphasis added).
The term ``parental interest'' relates to children who are not
eligible orphans as indicated by the context of the sentence in which
it appeared:
A child shall not be considered to be abandoned if he or she is
placed temporarily in an orphanage, if the parents express an
intention to retrieve the child, are contributing or attempting to
contribute to the support of the child, or otherwise exhibit
parental interest in the child.
Like ``express an intention to retrieve the child'' and ``contributing
or attempting to contribute to the support of the child,'' the
``parental interest'' test applies only in the case of a child who has
been placed temporarily in an orphanage. Additionally, the ``parental
interest'' test was included in the proposed rule to help differentiate
between a child who is abandoned to an orphanage and a child who is
placed in, perhaps, the same orphanage temporarily because the natural
parents are currently unable to adequately provide for the child.
The Service will retain the term ``parental interest'' in the final
rule. However, review of this comment has pointed to the need to
clarify that this term contemplates continuous interest rather than a
one-time action. Accordingly, this provision in the final rule will be
reworded and the word ``ongoing'' will be added to the definition of
``abandoned by both parents'' to read ``ongoing parental interest.''
(2) The proposed rule requires fingerprint checks and an evaluation
in the home study of each ``adult member of the prospective adoptive
parents' household,'' defined as ``an individual, other than a
prospective adoptive parent, over the age of 18 whose principal or only
residence is the home of the prospective adoptive parents.'' One
commenter asked the Service to ensure that an approved advanced
processing application or orphan petition will not be affected if a
child in the household of the prospective adoptive parents turns 18
during the validity of the approved application or petition.
The Service basically agrees with this recommendation and will
accordingly amend its definition of ``adult member of the prospective
adoptive parents' household'' to exclude such a person unless there is
an articulable and substantive reason for requiring fingerprint checks
and a home study evaluation after the advanced processing application
has been filed.
(3) One commenter welcomed the definition of the ``foreign sending
country'' and the specific exclusion of ``a country to which the orphan
travels temporarily * * *.'' The commenter stated that this language in
conjunction with other language in the rule ``* * * concerning evidence
of custody in accordance with the laws of the foreign sending country
will place a reasonable requirement for evidence that a child has not
been taken across an international border to evade laws designed to
protect the rights and interests of the child.'' The Service agrees
with this evaluation and will retain this definition as presented in
the proposed rule.
(4) The term ``prospective adoptive parents'' is in part defined as
``* * * a married United States citizen of any age and his or her
spouse of any age * * *.'' One commenter asked if this meant a man and
woman married to each other. The term ``prospective adoptive parents''
includes a man and a woman married to each other provided that they
meet all the criteria set forth in the definition.
(5) One commenter indicated that the definition of ``sole parent''
might have an impact on the determination of whether certain children
were orphans under the Act. This definition imposes no new
requirements, and it is simply a codification of longstanding
requirements which are contained in several related portions of the
Act. Accordingly, this definition has not been changed in the final
rule.
(6) One commenter expressed support for the fact that the Service
has provided regulatory definitions for several key phrases. In working
under the prior regulations, most persons have focused on the term
``abandonment'' by both parents in determining whether a child was an
orphan under the Act, and have paid minimal attention to the other ways
in which a child could qualify as an orphan. In drafting this rule, the
Service sought to expand that focus. This has been achieved by
providing definitions for other terms appearing in the Act that allow a
finding that a child is an orphan: ``disappearance'' of both parents,
``desertion'' by both parents, ``separation'' from both parents, and
``loss'' from both parents. Other definitions have also been added for
clarity and consistency.
(7) When the proposed rule was drafted, the Service anticipated
that a revised Form I-130 (Relative Petition), which would include
orphan processing, would be in use by the time the rule became final.
This was reflected in the definitions of ``advanced processing
application'' and ``orphan petition,'' as well as in references to the
Form I-130 listed elsewhere in the proposed rule. However, the revised
Form I-130 is not in use at this time. Accordingly, all references to
the Form I-130 have been eliminated and references to Form I-600A
(Application for Advance Processing of Orphan Petition) and Form I-600
(Petition to Classify Orphan as Immediate Relative) have been inserted,
as appropriate.
Fingerprints
(1) One commenter expressed support for the proposal to fingerprint
adult members of the prospective adoptive parents' household as ``* * *
a good abuse deterrent * * *.''
(2) The final rule eliminates what was proposed as an optional
process under which fingerprint cards could be filed directly with the
FBI. This elimination stems from the fact that the proposed optional
process has proven inconsistent with ongoing efforts to enhance the
existing fingerprint-check process used in a number of types of cases,
including orphan cases. The fingerprint enhancement effort will be
discussed in a forthcoming rule.
Extending the Validity of Approved Advanced Processing Applications
The Service received three comments on extending the validity of
approved advanced processing applications. Two commenters supported the
Service's extending the validity from 12 to 18 months while one
commenter stated that 12 months was sufficient. It is no longer
uncommon for circumstances beyond the control of prospective adoptive
parents to hamper their best efforts to complete an orphan adoption
within 12 months of the approval of their advanced processing
application. In order to better assist prospective adoptive parents in
such circumstances, the Service proposed to extend the validity to 18
months. The extension eliminates the need for a second advanced
processing application at this juncture, when the prospective adoptive
parents are focused on complying with foreign requirements and on
bringing the orphan home.
Nothing in the comment has convinced the Service that it should
eliminate the 18-month validity period from the final rule. Therefore,
the final rule will retain the 18-month validity period.
Petition for an Identified Orphan
(1) The Service received two favorable comments on the fact that
the proposed rule exhibits respect for the law of the orphan's home
country.
The Service considers it vital that the prospective adoptive
parents (or the person or entity working on their behalf) obtain legal
custody of the orphan. Failure to comply with the applicable foreign
requirements could potentially expose prospective adoptive parents to
questionable, if not illegal, practices abroad and could have
detrimental consequences on international adoptions.
(2) One commenter expressed concern over the phrase ``the
prospective adoptive parents, or the adoption agency working on their
behalf'' which appeared twice in the proposed rule. The commenter said
that the express mention of adoption agencies ``* * * may lead to the
interpretation that non-agency adoption providers (e.g., lawyers,
social workers, facilitators) may not be allowed to represent adoptive
parents in an international adoption.''
The Service never intended that the language in question would
exclude non-agency providers. Accordingly, the words ``or the adoption
agency'' will be removed and the words ``or a person or entity working
on their behalf,'' will be substituted.
(3) As part of its review of the proposed rule, the Service has
decided to eliminate the requirement for a separate statement by the
prospective adoptive parents that they intend to adopt the child in the
United States. The Service believes that this intention is adequately
conveyed by the prospective adoptive parents, whose orphan is coming to
the United States for adoption, when they complete and sign Form I-600.
(4) After Service-initiated consultations with three knowledgeable
sources in the adoption community who advised that all States allow
adoption by unmarried persons, the Service has eliminated the
requirement that an unmarried petitioner submit evidence that the state
of the orphan's proposed residence does not preclude adoption by an
unmarried person.
Home Study Requirements
(1) One commenter said that the proposed requirement that the home
study must be submitted to the Service within six months of the filing
date of the advanced processing application ``* * * might cause
needless reapplications or a hasty grind to meet the deadline. We
understand your desire to have materials as timely as possible, but
this seems to create an unnecessary push.'' In light of this comment,
the Service has reconsidered this requirement and will extend the time
for submitting the home study to one year after the filing of the
advanced processing application.
(2) One commenter wanted to know if a statement to the effect that
``the financial resources have been checked and deemed sufficient to
support a child'' would be sufficient to satisfy the financial-ability
requirements set forth in the proposed rule. Since experience has shown
that such a statement does not give the Service sufficient information
regarding the financial ability of the prospective adoptive parents,
such a statement will not be sufficient to satisfy this requirement.
The rule requires a general discussion of the prospective adoptive
parents' finances and a listing of the evidence which the home study
preparer reviewed in making his or her assessment. The Service is not
routinely requiring a detailed financial statement or supporting
financial documents. However, should the need arise, the Service
reserves the right to ask for such detailed documentation. This
requirement will be clarified in the final rule.
(3) In commenting on the proposal that the home study preparer must
ensure that a check has been made with available child abuse
registries, one commenter identified a state which he said does not
maintain a child abuse registry and identified another which he said
precludes a check of such records by private adoption agencies.
Based on this comment, the Service amended this requirement to more
clearly address how various levels of access to such records affect
compliance with this requirement. Failure on the part of the
prospective adoptive parents and/or adult members of the prospective
adoptive parents' household to cooperate in having available registries
checked will be grounds for denial.
(4) One commenter said that while it was clear that any history of
abuse and/or violence had to be disclosed to the home study preparer
and the Service, it was unclear whether any criminal record for other
activities had to be disclosed.
In drafting the proposed rule, it was the Service's intention to
clearly state that the prospective adoptive parents and/or adult
members of their household are required to disclose any criminal record
to the home study preparer and to the Service. Failure to make this
clear was inadvertent. Since the fingerprint checks which are part of
the advanced processing procedure would reveal such records, it makes
no sense for the prospective adoptive parents and/or an adult member of
their household to withhold such information. Indeed, early disclosure
provides the prospective adoptive parents with the best opportunity to
gather and present evidence of rehabilitation or mitigating
circumstances, and it gives the home study preparer and the Service the
opportunity to properly evaluate the criminal record in light of such
evidence.
Such information is eventually disclosed when the fingerprint
checks are received by the Service. Delays may be especially
problematic at this stage. The prospective adoptive parents are usually
well into preadoption proceedings, may have identified a child, and may
even have established travel plans. At times, these travel plans may
have to be rescheduled while the issues raised by the criminal record
are addressed. It is in the best interest of all parties to have any
criminal records disclosed and resolved early in the process.
Accordingly, the Service has clarified this in the final rule.
(5) One commenter suggested that the Service require a finding of
good moral character [as statutorily defined in section 101(f) of the
Act] for any prospective adoptive parent before the advanced processing
application can be approved. The commenter said that a State may
approve a person as a prospective adoptive parent even if he or she has
committed a recent felony as long as it appears he or she would not
abuse the child and would properly provide for the child's needs. The
commenter said that, in one case, a State Court found a prospective
adoptive parent to be suitable when he would fail to meet the good
moral character standard for citizenship or for suspension of
deportation under the Act.
The Service is neither endorsing nor rejecting this suggestion. The
Service notes that this suggestion could not be considered for
incorporation into this rule at this stage of the process because of
its potentially far-reaching impact and the need for extensive study
and consultation.
(6) One commenter evidently believed that the proposed rule was
requiring that each home study specify the country or countries from
which the prospective adoptive parents may adopt. The proposed rule did
not require country-specific home studies. What the proposed rule did
require is that if the home study preparer imposes such a restriction,
it must be clearly stated in the home study report. This requirement
will be retained in the final rule.
(7) One commenter recommended that any specific restrictions such
as the nationality, age, or gender of the orphan as required by the
home study preparer be included in the telegraphic notification to the
overseas site. The Service plans to modify the orphan-related approval
cable formats to include such information.
(8) Unless a home study reflects relatively current conditions, its
value is severely limited or non-existent, regardless of how
conscientiously it was conducted. Since the prior regulation did not
specify a validity period for home studies, some prospective adoptive
parents submitted home studies that were several years old.
To rectify this deficiency and to make the home study a more
valuable tool, the Service will require that the home study be
submitted within six months of its completion. Any home study that is
more than six months old when it is submitted to the Service must be
accompanied by an update which is current, that is, not more than six
months old. Ordinarily, a home study (or a home study and/or update as
discussed above) will not have to be updated after it has been
submitted to the Service unless there is a significant change.
Significant changes would include a change in the residence of the
prospective adoptive parents, marital status, criminal history,
financial resources, and/or the addition of one or more children or
other dependents to the family prior to the orphan's immigration into
the United States. This was not clear to one commenter who evidently
thought that the home study would have to be updated every six months
until the orphan petition was approved. Since this was unclear, the
Service has included clarifying language in the final rule.
In reviewing the proposed rule in light of this commenter's
request, the Service also determined that using the words ``update''
and ``amendment'' (and derivative words from each) may have contributed
to some of the confusion. Therefore, the Service has rewritten that
portion of the rule dealing with home study updates and amendments for
clarity, while retaining the original intent. In doing so, the Service
will use ``update'' (and derivative words) in reference to making an
outdated home study current before it is submitted to the Service. The
Service will use ``amendment'' (and derivative words) in reference to
making a home study reflect any significant changes after it has been
submitted to the Service.
Finally, it should be noted that requiring a home study to be less
than six months old at the time of its submission to the Service is
reasonable in light of the fact that the home study has an additional
``life span'' of 18 months after the approval of the advanced
processing application, which is largely based on the home study. This
means that the home study may be as much as two years old at the time
the orphan petition is filed.
(9) The proposed rule included a provision to require every
stateside home study completed by a home study preparer who is not an
adoption agency to be reviewed and endorsed by an appropriate State
Government agency or an adoption agency. In reviewing the rule for
final publication, the Service decided to strike this proposed
requirement because it added an additional step to the process.
Accordingly, that portion of the proposed rule has been amended to
reflect that a stateside home study (whether prepared by an adoption
agency or a non-agency) must be reviewed and/or endorsed by an
appropriate State Government agency only if such a review is required
by applicable State law and/or regulations. Additionally, such a review
must be made prior to submission of the home study to the Service. The
requirement that any home study for prospective adoptive parents who
reside abroad must receive a favorable recommendation remains in the
final rule, since it is clearly and specifically required by law. It
should be noted that the paragraph title has been changed.
(10) Two commenters stated their overall support for the home study
requirements.
(11) One commenter stated that ``* * * the Service should be able
to refuse to accept Home Study Reports prepared by preparers who have a
pattern or practice of willfully submitting Home Study Reports that do
not contain the required information and disclosures.''
The Service will consider each home study on its individual merits
and will not reject a home study simply because it is authored by a
particular home study preparer. If a home study preparer has a pattern
of submitting questionable home studies, the Service expects the
director to discuss this with the appropriate State authorities as part
of his or her liaison with the State adoption authorities. The Service
believes that control over conduct of home study preparers, including
the institution of adverse actions, is a matter for State Government
authorities. Accordingly, the Service will not accept the commenter's
suggestion.
(12) One commenter suggested that the home study preparer be
required to attach a photograph of the adoptive parents to the home
study. No examples were given, or are known, of incidents in which
photographs of the adoptive parents would have proven beneficial.
Therefore, the Service will not adopt this suggestion at the present
time, but reserves the right to revisit the issue should evidence come
to light which would justify its implementation.
(13) One commenter suggested that a form be developed to assist the
home study preparer in meeting the rule's requirements for home
studies. Since the Service is working to reduce the number of its
forms, this suggestion will not be accepted. However, the Service plans
to include the requirements for home studies in its publication, The
Immigration Of Adopted And Prospective Adoptive Children (Form M-249),
which will be revised to conform with this rule.
(14) A commenter suggested that the home study preparer ``* * *
obtain from the interviewees the names and addresses of two credible
references and that such references be interviewed with respect to
suitability of the prospective adopting parents.'' It is doubtful that
prospective adoptive parents would provide references whose statements
would be detrimental to their prospects for adoption. Additionally, the
suggestion would no doubt extend the time necessary to complete a home
study and add to its cost. Given these factors, the Service will not
adopt this suggestion. It should be noted, however, that if applicable
State law or regulation requires such reference checks, they must be
made.
(15) One commenter suggested that the home study preparer be
required to sign and otherwise execute the home study report under
penalty of perjury. The commenter said this would serve as a
disincentive to unethical and otherwise illegal conduct by certain home
study preparers. The commenter called for criminal liability for such
unethical or illegal conduct in addition to state licensure revocation
proceedings.
The fact that the prospective adoptive parents sign the advanced
processing application and orphan petition under penalty of perjury is
sufficient for the Service's purposes since such proceedings are
between the prospective adoptive parents and the Service. Furthermore,
the Service believes that control over conduct of home study preparers,
including the institution of adverse actions, is a matter for State
Government authorities. Accordingly, the Service will not accept the
commenter's suggestion.
(16) As part of its review of the proposed rule, the Service has
amended the requirement that two copies of the home study be submitted.
The final rule requires that only one copy of the home study be
submitted.
Adjudication
The proposed rule provided for denial of an advanced processing
application and/or an orphan petition if the prospective adoptive
parents or adult members of the prospective adoptive parents' household
fail to disclose an arrest, conviction, or history of substance, sexual
or child abuse, and/or domestic violence.
One commenter suggested that the final rule should also include an
explicit provision to revoke the approval of an advanced processing
application or orphan petition if such failure to disclose comes to
light after the approval. The commenter stated that in many instances
knowledge of such activity is not discovered until an advanced
processing application or an orphan petition has been approved. The
commenter continued: ``This would serve as an expressed disincentive to
hiding or concealing such required disclosures. It would further serve
to protect the physical and emotional well-being of an orphaned child
who has been placed into a home with adoptive parents who have had such
a history.'' The same commenter also suggested that the rule provide
for revocation if a home study update fails to disclose any significant
changes in the prospective adoptive parents' ability to provide proper
care for the orphan.
The Service's authority to revoke an approval is inherent in its
authority to approve and is explicit in section 205 of the Act. To make
this clear, the final rule will reflect the Service's authority to
revoke the approval of an advanced processing application or orphan
petition if the director becomes aware of information that would have
resulted in denial had it been known at the time of adjudication or if
the relationship upon which the petition is based ceases to exist.
Child-Buying as a Ground for Denial
Two parties expressed support for making child-buying a ground for
denial. One commenter called it a ``* * * disgraceful de-humanizing
practice.'' The other commenter noted that the processing time of
suspect cases may be increased. In reviewing the child-buying
preclusion in light of the comments discussed above, the Service noted
that it had inadvertently written this provision so that it could be
read as only applicable to adoptive parents but not to prospective
adoptive parents. To correct this, the words ``prospective adoptive
parents or'' have been inserted before the words ``adoptive parents.''
Telegraphic Notification
One commenter welcomed the establishment of uniform procedures for
sending telegraphic notification and for requesting a change in visa-
issuing posts.
Other Considerations
(1) The Department of State expressed its concurrence with the
paragraphs addressing the I-604 investigations and the authority of
consular officers. Additionally, the Department of State asked that a
sentence be included to encourage direct communication between the
appropriate consular and immigration officers when there are
significant differences between the evidence presented in support of
the approved orphan petition and the evidence uncovered by the I-604
investigation. The Service will comply with this request and
accordingly amend the I-604 provision.
(2) One commenter evidently thought that the paragraph which states
that children in the United States illegally or as nonimmigrants are
ineligible for orphan status is a new provision. This provision was
carried forward from Sec. 204.3(e) of the prior regulation.
Miscellaneous Comments
(1) Pursuant to section 101(b)(1)(F) of the Act, the adoptive
parent(s) must be in compliance with the preadoption requirements of
the State of residence unless both of the parents or the single parent
``* * * personally saw and observed the child prior to or during the
adoption proceedings.''
In several places in the proposed rule the words ``see'' and
``saw'' were used in this context, thereby reflecting the statutory
language. According to one commenter, the use of the words ``saw'' or
``see'' could be interpreted as disqualifying a blind person from
adopting. To the best of the Service's knowledge, no application or
petition in orphan proceedings has ever been denied solely on the basis
of blindness, and the Service has no intention of changing this
practice. Therefore, the recommended change will not be made.
(2) One commenter asked if the Freedom of Information Act will give
adoptive parents the right to obtain their own child abuse records or
clearance.
The Freedom of Information Act (FOIA) (5 U.S.C. 552) and the
Privacy Act (PA) (5 U.S.C. 552a) pertain to records created by U.S.
Government agencies. If such a record were created by a U.S. Government
agency, then a request could be made under FOIA or the PA. Since the
child abuse indices referred to in this rule are State records, the
applicable State law, if any, would govern access to the records.
(3) Two commenters pointed out several typographical errors which
occurred when the proposed rule was prepared for publication in the
Federal Register. The Service has corrected these errors. The Service
also has made some editorial changes for clarity and consistency which
do not have an impact on the intent of the rule.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and by approving it certifies that the rule
will not have a significant economic impact on a substantial number of
small entities for the following reason: the rule primarily affects
applications and petitions in orphan proceedings which can only be
filed by married couples ad individuals, but not by small entities.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory
Planning and Review, and the Office of Management and Budget has waived
its review process under section 6(a)(3)(A).
Executive Order 12612
The regulations proposed herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has assessed this rule in light of the criteria in
Executive Order 12606 and has determined that this regulation will
enhance family well-being: (1) by making the welfare of the orphan the
foremost consideration when screening the prospective adoptive parents
and other adults in the household through the fingerprint checks and
the home study; (2) by providing prospective adoptive parents with
guidelines which are clearer than the previous ones regarding the
adoption of orphans; (3) by ameliorating some of the impact of the
prior regulations without sacrificing the welfare of the orphan; (4) by
providing improved guidelines for home studies which require that the
home study preparer counsel the prospective adoptive parents about the
intricacies of foreign processes with which they will come into
contact; (5) by providing definitions for terms including
``abandonment,'' ``disappearance,'' ``desertion,'' ``separation,'' and,
``loss'' which appear in the Act, thereby expanding the focus for
determining whether a child is an orphan under the Act beyond the term
``abandonment,'' which has been nearly the exclusive focus in the past;
and (6) by requiring the Service's directors to maintain liaison with
the adoption community.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been cleared by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections are contained in 8 CFR 299.5, Display of Control Numbers.
List of Subjects in 8 CFR Part 204
Administrative practice and procedure, Adoption, Children, Orphans.
According, part 204 of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
2. Section 204.3 is revised to read as follows:
Sec. 204.3 Orphans.
(a) General.
(1) Background. This section addresses a number of issues that have
arisen in the recent past because of the increased interest by United
States citizens in the adoption of foreign-born orphans and is based on
applicable provisions of the Act. It should be noted that this section
was not drafted in connection with possible United States ratification
and implementation of the Hague Convention on Protection of Children
and Cooperation in Respect of Inter-country Adoption.
(2) Overview. The processing and adjudication of orphan cases is a
Service priority. A child who meets the definition of orphan contained
in section 101(b)(1)(F) of the Act is eligible for classification as
the immediate relative of a United States citizen. Petitioning for an
orphan involves two distinct determinations. The first determination
concerns the advanced processing application which focuses on the
ability of the prospective adoptive parents to provide a proper home
environment and on their suitability as parents. This determination,
based primarily on a home study and fingerprint checks, is essential
for the protection of the orphan. The second determination concerns the
orphan petition which focuses on whether the child is an orphan under
section 101(b)(1)(F) of the Act. The prospective adoptive parents may
submit the documentation necessary for each of these determinations
separately or at one time, depending on when the orphan is identified.
An orphan petition cannot be approved unless there is a favorable
determination on the advanced processing application. However, a
favorable determination on the advanced processing application does not
guarantee that the orphan petition will be approved. Prospective
adoptive parents may consult with the local Service office on matters
relating to an advanced processing application and/or orphan petition.
(b) Definitions. As used in this section, the term:
Abandonment by both parents means that the parents have willfully
forsaken all parental rights, obligations, and claims to the child, as
well as all control over and possession of the child, without intending
to transfer, or without transferring, these rights to any specific
person(s). Abandonment must include not only the intention to surrender
all parental rights, obligations, and claims to the child, and control
over and possession of the child, but also the actual act of surrending
such rights, obligations, claims, control, and possession. A
relinquishment or release by the parents to the prospective adoptive
parents or for a specific adoption does not constitute abandonment.
Similarly, the relinquishment or release of the child by the parents to
a third party for custodial care in anticipation of, or preparation
for, adoption does not constitute abandonment unless the third party
(such as a governmental agency, a court of competent jurisdiction, an
adoption agency, or an orphanage) is authorized under the child welfare
laws of the foreign-sending country to act in such a capacity. A child
who is placed temporarily in an orphanage shall not be considered to be
abandoned if the parents express an intention to retrieve the child,
are contributing or attempting to contribute to the support of the
child, or otherwise exhibit ongoing parental interest in the child. A
child who has been given unconditionally to an orphanage shall be
considered to be abandoned.
Adult member of the prospective adoptive parents' household means
an individual, other than a prospective adoptive parent, over the age
of 18 whose principal or only residence is the home of the prospective
adoptive parents. This definition excludes any child of the prospective
adoptive parents, whose principal or only residence is the home of the
prospective adoptive parents, who reaches his or her eighteenth
birthday after the prospective adoptive parents have filed the advanced
processing application (or the advanced processing application
concurrently with the orphan petition) unless the director has an
articulable and substantive reason for requiring an evaluation by a
home study preparer and/or fingerprint check.
Advanced processing application means Form I-600A (Application for
Advanced Processing of Orphan Petition) completed in accordance with
the form's instructions and submitted with the required supporting
documentation and the fee as required in 8 CFR 103.7(b)(1). The
application must be signed in accordance with the form's instructions
by the married petitioner and spouse, or by the unmarried petitioner.
Application is synonymous with advanced processing application.
Competent authority means a court or governmental agency of a
foreign-sending country having jurisdiction and authority to make
decisions in matters of child welfare, including adoption.
Desertion by both parents means that the parents have willfully
forsaken their child and have refused to carry out their parental
rights and obligations and that, as a result, the child has become a
ward of a competent authority in accordance with the laws of the
foreign-sending country.
Disappearance of both parents means that both parents have
unaccountably or inexplicably passed out of the child's life, their
whereabouts are unknown, there is no reasonable hope of their
reappearance, and there has been a reasonable effort to locate them as
determined by a competent authority in accordance with the laws of the
foreign-sending country.
Foreign-sending country means the country of the orphan's
citizenship, or if he or she is not permanently residing in the country
of citizenship, the country of the orphan's habitual residence. This
excludes a country to which the orphan travels temporarily, or to which
he or she travels either as a prelude to, or in conjunction with, his
or her adoption and/or immigration to the United States.
Home study preparer means any party licensed or otherwise
authorized under the law of the State of the orphan's proposed
residence to conduct the research and preparation for a home study,
including the required personal interview(s). This term includes a
public agency with authority under that State's law in adoption
matters, public or private adoption agencies licensed or otherwise
authorized by the laws of that State to place children for adoption,
and organizations or individuals licensed or otherwise authorized to
conduct the research and preparation for a home study, including the
required personal interview(s), under the laws of the State of the
orphan's proposed residence. In the case of an orphan whose adoption
has been finalized abroad and whose adoptive parents reside abroad, the
home study preparer includes any party licensed or otherwise authorized
to conduct home studies under the law of any State of the United
States, or any party licensed or otherwise authorized by the foreign
country's adoption authorities to conduct home studies under the laws
of the foreign country.
Incapable of providing proper care means that a sole or surviving
parent is unable to provide for the child's basic needs, consistent
with the local standards of the foreign sending country.
Loss from both parents means the involuntary severance or
detachment of the child from the parents in a permanent manner such as
that caused by a natural disaster, civil unrest, or other calamitous
event beyond the control of the parents, as verified by a competent
authority in accordance with the laws of the foreign sending country.
Orphan petition means Form I-600 (Petition to Classify Orphan as an
Immediate Relative). The petition must be completed in accordance with
the form's instructions and submitted with the required supporting
documentation and, if there is not an advanced processing application
approved within the previous 18 months or pending, the fee as required
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with
the form's instructions by the married petitioner and spouse, or the
unmarried petitioner.
Overseas site means the Department of State immigrant visa-issuing
post having jurisdiction over the orphan's residence, or in foreign
countries in which the Services has an office or offices, the Service
office having jurisdiction over the orphan's residence.
Petition is synonymous with orphan petition.
Petitioner means a married United States citizen of any age, or an
unmarried United States citizen who is at least 24 years old at the
time he or she files the advanced processing application and at least
25 years old at the time he or she files the orphan petition. In the
case of a married couple, both of whom are United States citizens,
either party may be the petitioner.
Prospective adoptive parents means a married United States citizen
of any age and his or her spouse of any age, or an unmarried United
States citizen who is at least 24 years old at the time he or she files
the advanced processing application and at least 25 years old at the
time he or she files the orphan petition. The spouse of the United
States citizen may be a citizen or an alien. An alien spouse must be in
lawful immigration status if residing in the United States.
Separation from both parents means the involuntary severance of the
child from his or her parents by action of a competent authority for
good cause and in accordance with the laws of the foreign-sending
country. The parents must have been properly notified and granted the
opportunity to contest such action. The termination of all parental
rights and obligations must be permanent and unconditional.
Sole parent means the mother when it is established that the child
is illegitimate and has not acquired a parent within the meaning of
section 101(b)(2) of the Act. An illegitimate child shall be considered
to have a sole parent if his or her father has severed all parental
ties, rights, duties, and obligations to the child, or if his or her
father has, in writing, irrevocably released the child for emigration
and adoption. This definition is not applicable to children born in
countries which make no distinction between a child born in or out of
wedlock, since all such children are considered to be legitimate. In
all cases, a sole parent must be incapable of providing proper care as
that term is defined in this section.
Surviving parent means the child's living parent when the child's
other parent is dead, and the child has not acquired another parent
within the meaning of section 101(b)(2) of the Act. In all cases, a
surviving parent must be incapable of providing proper care as that
term is defined in this section.
(c) Supporting documentation for an advanced processing
application. The prospective adoptive parents may file an advanced
processing application before an orphan is identified in order to
secure the necessary clearance to file the orphan petition. Any
document not in the English language must be accompanied by a certified
English translation.
(1) Required supporting documentation that must accompany the
advanced processing application. The following supporting documentation
must accompany an advanced processing application at the time of
filing:
(i) Evidence of the petitioner's United States citizenship as set
forth in Sec. 204.1(g) and, if the petitioner is married and the
married couple is residing in the United States, evidence of the
spouse's United States citizenship or lawful immigration status;
(ii) A copy of the petitioner's marriage certificate to his or her
spouse, if the petitioner is currently married;
(iii) Evidence of legal termination of all previous marriages for
the petitioner and/or spouse, if previously married;
(iv) Two sets of completed and fully-classifiable fingerprint cards
for each member of the married prospective adoptive couple or the
unmarried prospective adoptive parent. The fingerprints must be
submitted on Form FD-258 (Applicant Fingerprint Card) with the office
code of the Service office having jurisdiction over the petitioner's
place of residence preprinted in the box marked ``ORI''; and
(v) Evidence of compliance with preadoption requirements, if any,
of the State of the orphan's proposed residence in cases where it is
known that there will be no adoption abroad, or that both members of
the married prospective adoptive couple or the unmarried prospective
adoptive parent will not personally see the child prior to, or during,
the adoption abroad, and/or that the adoption abroad will not be full
and final. Any preadoption requirements which cannot be met at the time
the advanced processing application is filed because of operation of
State law must be noted and explained when the application is filed.
Preadoption requirements must be met at the time the petition is filed,
except for those which cannot be met until the orphan arrives in the
United States; and
(vi) Two sets of fingerprint cards which conform to the
requirements in paragraph (c)(1)(iv) of this section for each
additional adult member of the prospective adoptive parents' household.
The Service may waive this requirement when it determines that such an
adult is physically unable to be fingerprinted because of age or
medical condition.
(2) Home study. The home study must comply with the requirements
contained in paragraph (e) of this section. If the home study is not
submitted when the advanced processing application is filed, it must be
submitted within one year of the filing date of the advanced processing
application, or the application will be denied pursuant to paragraph
(h)(5) of this section.
(d) Supporting documentation for a petition for an identified
orphan. Any document not in the English language must be accompanied by
a certified English translation. If an orphan has been identified for
adoption and the advanced processing application is pending, the
prospective adoptive parents may file the orphan petition at the
Service office where the application is pending. The prospective
adoptive parents who have an approved advanced processing application
must file an orphan petition and all supporting documents within
eighteen months of the date of the approval of the advanced processing
application. If the prospective adoptive parents fail to file the
orphan petition within the eighteen-month period, the advanced
processing application shall be deemed abandoned pursuant to paragraph
(h)(7) of this section. If the prospective adoptive parents file the
orphan petition after the eighteen-month period, the petition shall be
denied pursuant to paragraph (h)(13) of this section. Prospective
adoptive parents who do not have an advanced processing application
approved or pending may file the application and petition concurrently
on one Form I-600 if they have identified an orphan for adoption. An
orphan petition must be accompanied by full documentation as follows:
(1) Filing an orphan petition after the advanced processing
application has been approved. The following supporting documentation
must accompany an orphan petition filed after approval of the advanced
processing application:
(i) Evidence of approval of the advanced processing application;
(ii) The orphan's birth certificate, or if such a certificate is
not available, an explanation together with other proof of identity and
age;
(iii) Evidence that the child is an orphan as appropriate to the
case:
(A) Evidence that the orphan has been abandoned or deserted by,
separated or lost from both parents, or that both parents have
disappeared as those terms are defined in paragraph (b) of this
section; or
(B) The death certificate(s) of the orphan's parent(s), if
applicable;
(C) If the orphan has only a sole or surviving parent, as defined
in paragraph (b) of this section, evidence of this fact and evidence
that the sole or surviving parent is incapable of providing for the
orphan's care and has irrevocably released the orphan for emigration
and adoption; and
(iv) Evidence of adoption abroad or that the prospective adoptive
parents have, or a person or entity working on their behalf has,
custody of the orphan for emigration and adoption in accordance with
the laws of the foreign-sending country:
(A) A legible, certified copy of the adoption decree, if the orphan
has been the subject of a full and final adoption abroad, and evidence
that the unmarried petitioner, or married petitioner and spouse, saw
the orphan prior to or during the adoption proceeding abroad; or
(B) If the orphan is to be adopted in the United States because
there was no adoption abroad, or the unmarried petitioner, or married
petitioner and spouse, did not personally see the orphan prior to or
during the adoption proceeding abroad, and/or the adoption abroad was
not full and final:
(1) Evidence that the prospective adoptive parents have, or a
person or entity working on their behalf has, secured custody of the
orphan in accordance with the laws of the foreign-sending country;
(2) An irrevocable release of the orphan for emigration and
adoption from the person, organization, or competent authority which
had the immediately previous legal custody or control over the orphan
if the adoption was not full and final under the laws of the foreign-
sending country;
(3) Evidence of compliance with all preadoption requirements, if
any, of the State of the orphan's proposed residence. (Any such
requirements that cannot be complied with prior to the orphan's arrival
in the United States because of State law must be noted and explained);
and
(4) Evidence that the State of the orphan's proposed residence
allows readoption or provides for judicial recognition of the adoption
abroad if there was an adoption abroad which does not meet statutory
requirements pursuant to section 101(b)(1)(F) of the Act, because the
unmarried petitioner, or married petitioner and spouse, did not
personally see the orphan prior to or during the adoption proceeding
abroad, and/or the adoption abroad was not full and final.
(2) Filing an orphan petition while the advanced processing
application is pending. An orphan petition filed while an advanced
processing application is pending must be filed at the Service office
where the application is pending. The following supporting
documentation must accompany an orphan petition filed while the
advanced processing application is pending:
(i) A photocopy of the fee receipt relating to the advanced
processing application, or if not available, other evidence that the
advanced processing application has been filed, such as a statement
including the date when the application was filed;
(ii) The home study, if not already submitted; and
(iii) The supporting documentation for an orphan petition required
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of
this section.
(3) Filing an orphan petition concurrently with the advanced
processing application. A petition filed concurrently with the advanced
processing application must be submitted on Form I-600, completed and
signed in accordance with the form's instructions. (Under this
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate
Form I-600A). The following supporting documentation must accompany a
petition filed concurrently with the application under this provision:
(i) The supporting documentation for an advanced processing
application required in paragraph (c) of this section; and
(ii) The supporting documentation for an orphan petition required
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of
this section.
(e) Home study requirements. For immigration purposes, a home study
is a process for screening and preparing prospective adoptive parents
who are interested in adopting an orphan from another country. The home
study should be tailored to the particular situation of the prospective
adoptive parents: for example, a family which previously has adopted
children will require different preparation than a family that has no
adopted children. If there are any additional adult members of the
prospective adoptive parents' household, the home study must address
this fact. The home study preparer must interview any additional adult
member of the prospective adoptive parents' household and assess him or
her in light of the requirements of paragraphs (e)(1), (e)(2)(i),
(iii), (iv), and (v) of this section. A home study must be conducted by
a home study preparer, as defined in paragraph (b) of this section. The
home study, or the most recent update to the home study, must not be
more than six months old at the time the home study is submitted to the
Service. Only one copy of the home study must be submitted to the
Service. Ordinarily, a home study (or a home study and update as
discussed above) will not have to be updated after it has been
submitted to the Service unless there is a significant change in the
household of the prospective adoptive parents such as a change in
residence, marital status, criminal history, financial resources, and/
or the addition of one or more children or other dependents to the
family prior to the orphan's immigration into the United States. In
addition to meeting any State, professional, or agency requirements, a
home study must include the following:
(1) Personal interview(s) and home visit(s). The home study
preparer must conduct at least one interview in person, and at least
one home visit, with the prospective adoptive couple or the unmarried
prospective adoptive parent. Each additional adult member of the
prospective adoptive parents' household must also be interviewed in
person at least once. The home study report must state the number of
such interviews and visits, and must specify any other contacts with
the prospective adoptive parents and any adult member of the
prospective adoptive parents' household.
(2) Assessment of the capabilities of the prospective adoptive
parents to properly parent the orphan. The home study must include a
discussion of the following areas:
(i) Assessment of the physical, mental, and emotional capabilities
of the prospective adoptive parents to properly parent the orphan. The
home study preparer must make an initial assessment of how the
physical, mental, and emotional health of the prospective adoptive
parents would affect their ability to properly care for the prospective
orphan. If the home study preparer determines that there are areas
beyond his or her expertise which need to be addressed, he or she shall
refer the prospective adoptive parents to an appropriate licensed
professional, such as a physician, psychiatrist, clinical psychologist,
or clinical social worker for an evaluation. Some problems may not
necessarily disqualify applicants. For example, certain physical
limitations may indicate which categories of children may be most
appropriately placed with certain prospective adoptive parents. Certain
mental and emotional health problems may be successfully treated. The
home study must include the home study preparer's assessment of any
such potential problem areas, a copy of any outside evaluation(s), and
the home study preparer's recommended restrictions, if any, on the
characteristics of the child to be placed in the home. Additionally,
the home study preparer must apply the requirements of this paragraph
to each adult member of the prospective adoptive parents' household.
(ii) Assessment of the finances of the prospective adoptive
parents. The financial assessment must include a description of the
income, financial resources, debts, and expenses of the prospective
adoptive parents. A statement concerning the evidence that was
considered to verify the source and amount of income and financial
resources must be included. Any income designated for the support of
one or more children in the care and custody of the prospective
adoptive parents, such as funds for foster care, or any income
designated for the support of another member of the household must not
be counted towards the financial resources available for the support of
a prospective orphan. The Service will not routinely require a detailed
financial statement or supporting financial documents. However, should
the need arise, the Service reserves the right to ask for such detailed
documentation.
(ii) History of abuse and/or violence.
(A) Screening for abuse and violence.
(1) Checking available child abuse registries. The home study
preparer must ensure that a check of each prospective adoptive parent
and each adult member of the prospective adoptive parents' household
has been made with available child abuse registries and must include in
the home study the results of the checks including, if applicable, a
report that no record was found to exist. Depending on the access
allowed by the state of proposed residence of the orphan, the home
study preparer must take one of the following courses of action:
(i) If the home study preparer is allowed access to information
from the child abuse registries, he or she shall make the appropriate
checks for each of the prospective adoptive parents and for each adult
member of the prospective adoptive parents' household;
(ii) If the State requires the home study preparer to secure
permission from each of the prospective adoptive parents and for each
adult member of the prospective adoptive parents' household before
gaining access to information in such registries, the home study
preparer must secure such permission from those individuals, and make
the appropriate checks;
(iii) If the State will only release information directly to each
of the prospective adoptive parents and directly to the adult member of
the prospective adoptive parents' household, those individuals must
secure such information and provide it to the home study preparer. The
home study preparer must include the results of these checks in the
home study;
(iv) If the State will not release information to either the home
study preparer or the prospective adoptive parents and the adult
members of the prospective adoptive parents' household, this must be
noted in the home study; or
(v) If the State does not have a child abuse registry, this must be
noted in the home study.
(2) Inquiring about abuse and violence. The home study preparer
must ask each prospective adoptive parent whether he or she has a
history of substance abuse, sexual or child abuse, or domestic
violence, even if it did not result in an arrest or conviction. The
home study preparer must include each prospective adoptive parent's
response to the questions regarding abuse and violence. Additionally,
the home study preparer must apply the requirements of this paragraph
to each adult member of the prospective adoptive parents' household.
(B) Information concerning history of abuse and/or violence. If the
petitioner and/or spouse, if married, disclose(s) any history of abuse
and/or violence as set forth in paragraph (e)(2)(iii)(A) of this
section, or if, in the absence of such disclosure, the home study
preparer becomes aware of any of the foregoing, the home study report
must contain an evaluation of the suitability of the home for adoptive
placement of an orphan in light of this history. This evaluation must
include information concerning all arrests or convictions or history of
substance abuse, sexual or child abuse, and/or domestic violence and
the date of each occurrence. A certified copy of the documentation
showing the final disposition of each incident, which resulted in
arrest, indictment, conviction, and/or any other judicial or
administrative action, must accompany the home study. Additionally, the
prospective adoptive parent must submit a signed statement giving
details including mitigating circumstances, if any, about each
incident. The home study preparer must apply the requirements of this
paragraph to each adult member of the prospective adoptive parents'
household.
(C) Evidence of rehabilitation. If a prospective adoptive parent
has a history of substance abuse, sexual or child abuse, and/or
domestic violence, the home study preparer may, nevertheless, make a
favorable finding if the prospective adoptive parent has demonstrated
appropriate rehabilitation. In such a case, a discussion of such
rehabilitation which demonstrates that the prospective adoptive parent
is and will be able to provide proper care for the orphan must be
included in the home study. Evidence of rehabilitation may include an
evaluation of the seriousness of the arrest(s), conviction(s), or
history of abuse, the number of such incidents, the length of time
since the last incident, and any type of counseling or rehabilitation
programs which have been successfully completed. Evidence of
rehabilitation may also be provided by an appropriate licensed
professional, such as a psychiatrist, clinical psychologist, or
clinical social worker. The home study report must include all facts
and circumstances which the home study preparer has considered, as well
as the preparer's reasons for a favorable decision regarding the
prospective adoptive parent. Additionally, if any adult member of the
prospective adoptive parents' household has a history of substance
abuse, sexual or child abuse, and/or domestic violence, the home study
preparer must apply the requirements of this paragraph to that adult
member of the prospective adoptive parents' household.
(D) Failure to disclose or cooperate. Failure to disclose an
arrest, conviction, or history of substance abuse, sexual or child
abuse, and/or domestic violence by the prospective adoptive parents or
an adult member of the prospective adoptive parents' household to the
home study preparer and to the Service, may result in the denial of the
advanced processing application or, if applicable, the application and
orphan petition, pursuant to paragraph (h)(4) of this section. Failure
by the prospective adoptive parents or an adult member of the
prospective adoptive parents' household to cooperate in having
available child abuse registries in accordance with paragraphs
(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through
(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the
advanced processing application or, if applicable, the application and
orphan petition, pursuant to paragraph (h)(4) of this section.
(iv) Previous rejection for adoption or prior unfavorable home
study. The home study preparer must ask each prospective adoptive
parent whether he or she previously has been rejected as a prospective
adoptive parent or has been the subject of an unfavorable home study,
and must include each prospective adoptive parent's response to this
question in the home study report. If a prospective adoptive parent
previously has been rejected or found to be unsuitable, the reasons for
such a finding must be set forth as well as the reason(s) why he or she
is not being favorably considered as a prospective adoptive parent. A
copy of each previous rejection and/or unfavorable home study must be
attached to the favorable home study. Additionally, the home study
preparer must apply the requirements of this paragraph to each adult
member of the prospective adoptive parents' household.
(v) Criminal history. The prospective adoptive parents and the
adult members of the prospective adoptive parents' household are
expected to disclose to the home study preparer and the Service any
history of arrest and/or conviction early in the advanced processing
procedure. Failure to do so may result in denial pursuant to paragraph
(h)(4) of this section or in delays. Early disclosure provides the
prospective adoptive parents with the best opportunity to gather and
present evidence, and it gives the home study preparer and the Service
the opportunity to properly evaluate the criminal record in light of
such evidence. When such information is not presented early in the
process, it comes to light when the fingerprint checks are received by
the Service. By that time, the prospective adoptive parents are usually
well into preadoption proceedings of identifying a child and may even
have firm travel plans. At times, the travel plans have to be
rescheduled while the issues raised by the criminal record are
addressed. It is in the best interests of all parties to have any
criminal records disclosed and resolved early in the process.
(3) Living accommodations. The home study must include a detailed
description of the living accommodations where the prospective adoptive
parents currently reside. If the prospective adoptive parents are
planning to move, the home study must include a description of the
living accommodations where the child will reside with the prospective
adoptive parents, if known. If the prospective adoptive parents are
residing abroad at the time of the home study, the home study must
include a description of the living accommodations where the child will
reside in the United States with the prospective adoptive parents, if
known. Each description must include an assessment of the suitability
of accommodations for a child and a determination whether such space
meets applicable State requirements, if any.
(4) Handicapped or special needs orphan. A home study conducted in
conjunction with the proposed adoption of a special needs or
handicapped orphan must contain a discussion of the prospective
adoptive parents' preparation, willingness, and ability to provide
proper care for such an orphan.
(5) Summary of the counseling given and plans for post-placement
counseling. The home study must include a summary of the counseling
given to prepare the prospective adoptive parents for an international
adoption and any plans for post-placement counseling. Such preadoption
counseling must include a discussion of the processing, expenses,
difficulties, and delays associated with international adoptions.
(6) Specific approval of the prospective adoptive parents for
adoption. If the home study preparer's findings are favorable, the home
study must contain his or her specific approval of the prospective
adoptive parents for adoption and a discussion of the reasons for such
approval. The home study must include the number of orphans which the
prospective adoptive parents may adopt. The home study must state
whether there are any specific restrictions to the adoption such as
nationality, age, or gender of the orphan. If the home study preparer
has approved the prospective parents for a handicapped or special needs
adoption, this fact must be clearly stated.
(7) Home study preparer's certification and statement of authority
to conduct home studies. The home study must include a statement in
which the home study preparer certifies that he or she is licensed or
otherwise authorized by the State of the orphan's proposed residence to
research and prepare home studies. In the case of an orphan whose
adoption was finalized abroad and whose adoptive parents reside abroad,
the home study preparer must certify that he or she is licensed or
otherwise authorized to conduct home studies under the law of any State
of the United States, or authorized by the adoption authorities of the
foreign country to conduct home studies under the laws of the foreign
country. In every case, this statement must cite the State or country
under whose authority the home study preparer is licensed or
authorized, the specific law or regulation authorizing the preparer to
conduct home studies, the license number, if any, and the expiration
date, if any, of this authorization or license.
(8) Review of home study. If the prospective adoptive parents
reside in a State which requires the State to review the home study,
such a review must occur and be documented before the home study is
submitted to the Service. If the prospective adoptive parents reside
abroad, an appropriate public or private adoption agency licensed, or
otherwise authorized, by any State of the United States to place
children for adoption, must review and favorably recommend the home
study before it is submitted to the Service.
(9) Home study updates and amendments.
(i) Updates. If the home study is more than six months old at the
time it would be submitted to the Service, the prospective adoptive
parents must ensure that it is updated by a home study preparer before
it is submitted to the Service. Each update must include screening in
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.
(ii) Amendments. If there have been any significant changes, such
as a change in the residence of the prospective adoptive parents,
marital status, criminal history, financial resources, and/or the
addition of one or more children or other dependents to the family, the
prospective adoptive parents must ensure that the home study is amended
by a home study preparer to reflect any such changes. If the orphan's
proposed State of residence has changed, the home study amendment must
contain a recommendation in accordance with paragraph (e)(8) of this
section, if required by State law. Any preadoption requirements of the
new State must be complied with in the case of an orphan coming to the
United States to be adopted.
(10) ``Grandfather'' provision for home study. A home study
properly completed in conformance with the regulations in force prior
to September 30, 1994, shall be considered acceptable if submitted to
the Service within 90 days of September 30, 1994. Any such home study
accepted under this ``grandfather'' provision must include screening in
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.
Additionally, any such home study submitted under this ``grandfather''
provision which is more than six months old at the time of its
submission must be amended or updated pursuant to the requirements of
paragraph (e)(9) of this section.
(f) State preadoption requirements.
(1) General. Many States have preadoption requirements which, under
the Act, must be complied with in every case in which a child is coming
to such a State as an orphan to be adopted in the United States.
(2) Child coming to be adopted in the United States. An orphan is
coming to be adopted in the United States if he or she will not be or
has not been adopted abroad, or if the unmarried petitioner or both the
married petitioner and spouse did not or will not personally see the
orphan prior to or during the adoption proceeding abroad, and/or if the
adoption abroad will not be, or was not, full and final. If the
prospective adoptive parents reside in a State with preadoption
requirements and they plan to have the child come to the United States
for adoption, they must submit evidence of compliance with the State's
preadoption requirements to the Service. Any preadoption requirements
which by operation of State law cannot be met before filing the
advanced processing application must be noted. Such requirements must
be met prior to filing the petition, except for those which cannot be
met by operation of State law until the orphan is physically in the
United States. Those requirements which cannot be met until the orphan
is physically present in the United States must be noted.
(3) Special circumstances. If both members of the prospective
adoptive couple or the unmarried prospective adoptive parent intend to
travel abroad to see the child prior to or during the adoption, the Act
permits the application and/or petition, if otherwise approvable, to be
approved without preadoption requirements having been met. However, if
plans change and both members of the prospective adoptive couple or the
unmarried prospective adoptive parent fail to see the child prior to or
during the adoption, then preadoption requirements must be met before
the immigrant visa can be issued, except for those preadoption
requirements that cannot be met until the child is physically in the
United States because of operation of State law.
(4) Evidence of compliance. In every case where compliance with
preadoption requirements is required, the evidence of compliance must
be in accordance with applicable State law, regulation, and procedure.
(g) Where to file.
(1) Where to file an advanced processing application. An advanced
processing application must be filed with the Service as follows:
(i) Prospective adoptive parents residing in the United States. If
the prospective adoptive parents reside in the United States, the
application must be filed with the Service office having jurisdiction
over their place of residence.
(ii) Prospective adoptive parents residing in Canada. If the
prospective adoptive parents reside in Canada, the application must be
filed with the stateside Service office having jurisdiction over the
proposed place of residence of the prospective adoptive parents in the
United States.
(iii) Prospective adoptive parents residing in a foreign country
other than Canada. If the prospective adoptive parents reside outside
of the United States or Canada, the application may be filed with the
overseas Service office having jurisdiction over the current place of
residence pursuant to Sec. 100.4(b) of this chapter, or with the
stateside Service office having jurisdiction over the proposed place of
residence of the prospective adoptive parents in the United States.
(2) Where to file an orphan petition when the advanced processing
application has been approved. An orphan petition must be filed with
the appropriate Service office or immigrant visa-issuing post of the
Department of State as follows:
(i) Prospective adoptive parents residing in the United States who
do not travel abroad to locate and/or adopt an orphan. If the
prospective adoptive parents reside in the United States and do not
travel abroad to locate and/or adopt an orphan, the petition must be
filed with the Service office having jurisdiction over the place of
residence of the prospective adoptive parents.
(ii) Prospective adoptive parents residing in the United States,
with one or both members of the prospective adoptive couple, or the
unmarried prospective adoptive parent, traveling abroad to locate and/
or adopt an orphan. If the prospective adoptive parents reside in the
United States, and one or both members of the prospective adoptive
couple, or the unmarried prospective adoptive parent, travel abroad to
locate and/or adopt an orphan, the petition may be filed with the
stateside Service office having jurisdiction over the place of
residence of the prospective adoptive parents in the United States or
at the overseas site. The petitioner may file the orphan petition at
the overseas site only while he or she is physically present within the
jurisdiction of the overseas site. If only one member of a married
couple, which includes an alien, travels abroad to file the petition,
it must be the United States citizen who travels abroad so that the
overseas site will have jurisdiction over the petition.
(iii) Prospective adoptive parents residing outside the United
States. Prospective adoptive parents residing outside of the United
States may file the petition with the overseas site, or with the
stateside Service office having jurisdiction over the proposed place of
residence of the prospective adoptive parents in the United States.
(3) Where to file an orphan petition when the advanced processing
application is pending. When the advanced processing application is
pending, the petition must be filed at the Service office at which the
application is pending.
(4) Where to file an orphan petition concurrently with the advanced
processing application. When the petition is filed concurrently with
the advanced processing application, it must be filed in accordance
with the instruction for filing an advanced processing application in
paragraphs (g)(1)(i) through (g)(1)(iii) of this section.
(h) Adjudication and decision.
(1) ``Grandfather'' provision for advanced processing application
and/or orphan petition. All applications and petitions filed under
prior regulations which are filed before and are still pending on
September 30, 1994, shall be processed and adjudicated under the prior
regulations.
(2) Director's responsibility to make an independent decision in an
advanced processing application. No advanced processing application
shall be approved unless the director is satisfied that proper care
will be provided for the orphan. If the director has reason to believe
that a favorable home study, or update, or both are based on an
inadequate or erroneous evaluation of all the facts, he or she shall
attempt to resolve the issue with the home study preparer, the agency
making the recommendation pursuant to paragraph (e)(8) of this section,
if any, and the prospective adoptive parents. If such consultations are
unsatisfactory, the director may request a review and opinion from the
appropriate State Government authorities.
(3) Advanced processing application approved. If the advanced
processing application is approved, the prospective adoptive parents
shall be advised in writing. The application and supporting documents
shall be forwarded to the overseas site where the orphan resides.
Additionally, if the petitioner advises the director that he or she
intends to travel abroad to file the petition, telegraphic notification
shall be sent overseas as detailed in paragraph (j)(1) of this section.
The approved application shall be valid for eighteen months from its
approval date. During this time, the prospective adoptive parents may
file an orphan petition for one orphan without fee. If approved in the
home study for more than one orphan, the prospective adoptive parents
may file a petition for each of the additional children, to the maximum
number approved. If the orphans are siblings, no additional fee is
required. If the orphans are not siblings, an additional fee is
required for each orphan beyond the first orphan. Approval of an
advanced processing application does not guarantee that the orphan
petition will be approved.
(4) Advanced processing application denied for failure to disclose
history of abuse and/or violence, or for failure to disclose a criminal
history, or for failure to cooperate in checking child abuse
registries. Failure to disclose an arrest, conviction, or history of
substance abuse, sexual or child abuse, and/or domestic violence, or a
criminal history to the home study preparer and to the Service in
accordance with paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of
this section may result in the denial of the advanced processing
application, or if applicable, the application and orphan petition
filed concurrently. Failure by the prospective adoptive parents or an
adult member of the prospective adoptive parents' household to
cooperate in having available child abuse registries checked in
accordance with paragraphs (e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i)
through (e)(2)(iii)(A)(1)(iii) of this section will result in the
denial of the advanced processing application or, if applicable, the
application and orphan petition filed concurrently. Any new application
and/or petition filed within a year of such denial will also be denied.
(5) Advanced processing denied for failure to submit home study. If
the home study is not submitted within one year of the filing date of
the advanced processing application, the application shall be denied.
This action shall be without prejudice to a new filing at any time with
fee.
(6) Advanced processing application otherwise denied. If the
director finds that the prospective adoptive parents have otherwise
failed to establish eligibility, the applicable provisions of 8 CFR
part 103 regarding a letter of intent to deny, if appropriate, and
denial and notification of appeal rights shall govern.
(7) Advanced processing application deemed abandoned for failure to
file orphan petition within eighteen months of application's approval
date. If an orphan petition is not properly filed within eighteen
months of the approval date of the advanced processing application, the
application shall be deemed abandoned. Supporting documentation shall
be returned to the prospective adoptive parents, except for
documentation submitted by a third party which shall be returned to the
third party, and documentation relating to the fingerprint checks. The
director shall dispose of documentation relating to fingerprint checks
in accordance with current policy. Such abandonment shall be without
prejudice to a new filing at any time with fee.
(8) Orphan petition approved by a stateside Service office. If the
orphan petition is approved by a stateside Service office, the
prospective adoptive parents shall be advised in writing, telegraphic
notification shall be sent to the immigrant visa-issuing post pursuant
to paragraph (j)(3) of this section, and the petition and supporting
documents shall be forwarded to the Department of State.
(9) Orphan petition approved by an overseas Service office. If the
orphan petition is approved by an overseas Service office located in
the country of the orphan's residence, the prospective adoptive parents
shall be advised in writing, and the petition and supporting documents
shall be forwarded to the immigrant visa-issuing post having
jurisdiction for immigrant visa processing.
(10) Orphan petition approved at an immigrant visa-issuing post. If
the orphan petition is approved at an immigrant visa-issuing post, the
post shall initiate immigrant visa processing.
(11) Orphan petition found to be ``not readily approvable'' by a
consular officer. If the consular officer adjudicating the orphan
petition finds that it is ``not readily approvable,'' he or she shall
notify the prospective adoptive parents in his or her consular district
and forward the petition, the supporting documents, the findings of the
I-604 investigation conducted pursuant to paragraph (k)(1) of this
section, and any other relating documentation to the overseas Service
office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
(12) Orphan petition denied: petitioner fails to establish that the
child is an orphan. If the director finds that the petitioner has
failed to establish that the child is an orphan who is eligible for the
benefits sought, the applicable provisions of 8 CFR part 103 regarding
a letter of intent to deny and notification of appeal rights shall
govern.
(13) Orphan petition denied: petitioner files orphan petition more
than eighteen months after the approval of the advanced processing
application. If the petitioner files the orphan petition more than
eighteen months after the approval date of the advanced processing
application, the petition shall be denied. This action shall be without
prejudice to a new filing at any time with fee.
(14) Revocation. The approval of an advanced processing application
or an orphan petition shall be automatically revoked in accordance with
Sec. 205.1 of this chapter, if an applicable reason exists. The
approval of an advanced processing application or an orphan petition
shall be revoked if the director becomes aware of information that
would have resulted in denial had it been known at the time of
adjudication. Such a revocation or any other revocation on notice shall
be made in accordance with Sec. 205.2 of this chapter.
(i) Child-buying as a ground for denial. An orphan petition must be
denied under this section if the prospective adoptive parents or
adoptive parent(s), or a person or entity working on their behalf, have
given or will given money or other consideration either directly or
indirectly to the child's parent(s), agent(s), other individual(s), or
entity as payment for the child or as an inducement to release the
child. Nothing in this paragraph shall be regarded as precluding
reasonable payment for necessary activities such as administrative,
court, legal, translation, and/or medical services related to the
adoption proceedings.
(j) Telegraphic notifications.
(1) Telegraphic notification of approval of advanced processing
application. Unless conditions preclude normal telegraphic
transmissions, whenever an advanced processing application is approved
in the United States, the director shall send telegraphic notification
of the approval to the overseas site if a prospective adoptive parent
advises the director that the petitioner intends to travel abroad and
file the orphan petition abroad.
(2) Requesting a change in visa-issuing posts. If a prospective
adoptive parent is in the United States, he or she may request the
director to transfer notification of the approved advanced processing
application to another visa-issuing post. Such a request shall be made
on Form I-824 (Application for Action on an Approved Application or
Petition) with the appropriate fee. The director shall send a Visas 37
telegram to both the previously and the newly designated posts. The
following shall be inserted after the last numbered standard entry.
``To: [insert name of previously designated visa-issuing post or
overseas Service office]. Pursuant to the petitioner's request, the
Visas 37 cable previously sent to your post/office in this matter is
hereby invalidated. The approval is being transferred to the other
post/office addressed in this telegram. Please forward the approved
advanced processing application to that destination.'' Prior to sending
such a telegram, the director must ensure that the change in posts does
not alter any conditions of the approval.
(3) Telegraphic notification of approval of an orphan petition.
Unless conditions preclude normal telegraphic transmissions, whenever a
petition is approved by a stateside Service office, the director shall
send telegraphic notification of the approval to the immigrant visa-
issuing post.
(k) Other considerations.
(1) I-604 investigations. An I-604 investigation must be completed
in every orphan case. The investigation must be completed by a consular
officer except when the petition is properly filed at a Service office
overseas, in which case it must be completed by a Service officer. An
I-604 investigation shall be completed before a petition is adjudicated
abroad. When a petition is adjudicated by a stateside Service office,
the I-604 investigation is normally completed after the case has been
forwarded to visa-issuing post abroad. However, in a case where the
director of a stateside Service office adjudicating the petition has
articulable concerns that can only be resolved through the I-604
investigation, he or she shall request the investigation prior to
adjudication. In any case in which there are significant differences
between the facts presented in the approved advanced processing
application and/or orphan petition and the facts uncovered by the I-604
investigation, the overseas site may consult directly with the
appropriate Service office. In any instance where an I-604
investigation reveals negative information sufficient to sustain a
denial or revocation, the investigation report, supporting
documentation, and petition shall be forwarded to the appropriate
Service office for action. Depending on the circumstances surrounding
the case, the I-604 investigation shall include, but shall not
necessarily be limited to, document checks, telephonic checks,
interview(s) with the natural parent(s), and/or a field investigation.
(2) Authority of consular officers. An American consular officer is
authorized to approve an orphan petition if the Service has made a
favorable determination on the related advanced processing application,
and the petitioner, who has traveled abroad to a country with no
Service office in order to locate or adopt an orphan, has properly
filed the petition, and the petition is approvable. A consular officer,
however, shall refer any petition which is ``not clearly approvable''
for a decision by the Service office having jurisdiction pursuant to
Sec. 100.4(b) of this chapter. The consular officer's adjudication
includes all aspects of eligibility for classification as an orphan
under section 101(b)(1)(F) of the Act other than the issue of the
ability of the prospective adoptive parents to furnish proper care to
the orphan. However, if the consular officer has a well-founded and
substantive reason to believe that the advanced processing approval was
obtained on the basis of fraud or misrepresentation, or has knowledge
of a change in material fact subsequent to the approval of the advanced
processing application, he or she shall consult with the Service office
having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
(3) Child in the United States. A child who is in parole status and
who has not been adopted in the United States is eligible for the
benefits of an orphan petition when all the requirements of sections
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in
the United States either illegally or as a nonimmigrant, however, is
ineligible for the benefits of an orphan petition.
(4) Liaison. Each director shall develop and maintain liaison with
State Government adoption authorities having jurisdiction within his or
her jurisdiction, including the administrator(s) of the Interstate
Compact on the Placement of Children, and with other parties with
interest in international adoptions. Such parties include, but are not
necessarily limited to, adoption agencies, organizations representing
adoption agencies, organizations representing adoptive parents, and
adoption attorneys.
Dated: June 10, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-18367 Filed 7-29-94; 8:45 am]
BILLING CODE 4410-10-M
