ABCs of Immigration Law: Intercountry Adoption

U.S. citizens have some options when considering overseas adoption. Following is a brief overview of these options.

Hague Convention on Intercountry Adoption and The Intercountry Adoption Act of 2000

The Hague Adoption Convention, also known as the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, is a multinational treaty. The treaty was adopted at The Hague, in Holland, on May 29, 1993. The Convention created certain rules and procedures to be observed by all participating. The goal of the Convention is to protect the children, birth parents, and the adoptive parents involved in intercountry adoptions.

The U.S. delegation to the negotiations, which included adoptive parents, law professors, adoption service providers, public welfare representatives and government officials, sought to ensure that, in addition to setting meaningful norms and procedures, the Convention would remain sufficiently flexible so that only minimal changes to current practice would be necessary for U.S. implementation.

On March 31, 1994, the United States signed the Convention and thereafter began efforts to ratify the convention. In 1998 the Convention was sent to the U.S. Senate for advice and consent to ratification. In June of 1998 the draft of the legislation, entitled “Intercountry Adoption Act,” was sent to both houses of Congress. The Convention and implementing legislation was then forwarded to the Congress for further consideration, study, and Congressional action. On September 15, 2003 the proposed rule was published in the Federal Register.The Hague Adoption Convention entered into force in the United States on April 1, 2008. All cases filed on or after April 1, 2008, seeking to adopt a child who habitually resides in any country outside of the United States that is a party to the Convention must follow the Hague process.

The most important provisions of the Convention can be summarized as follows:

• All signatory countries become parties to the Convention and the Convention will apply to all adoptions between the signatory countries.
• An adoption may take place only if:
  • The country of origin has established that a child is adoptable
  • That an intercountry adoption is in the child’s best interests
  • That after counseling, the necessary consents to the adoption have been given freely
  • The receiving country has determined that the prospective adoptive parents are eligible and suited to adopt
  • That the child they wish to adopt will be authorized to enter and reside in that country
• Every signatory country to the Convention must establish a national government-level central authority to carry out certain non-delegable functions, which include cooperating with other central authorities, overseeing the implementation of the Convention in its country, and providing information on the laws of its country.
• Other functions under the Convention are delegable to public authorities and, in many cases, to adoption agencies and other international adoption service providers.
• Services provided by persons/entities other than adoption agencies are permitted if both the country of origin and the receiving country permit them.
• Persons wishing to adopt a child resident in another member country must apply to a designated authority in their own country.
• The Convention provides that, with limited exceptions, there can be no contact between the prospective adoptive parents and any person who cares for the child until certain requirements are met.
• All adoption service providers must be accredited/approved to provide services under the Convention.

In order to adopt in a Convention-participating country, U.S. citizens must:

• Choose a Hague Accredited Adoption Service Provider (and perhaps also an immigration attorney).
• Obtain a home study from someone authorized to complete a Hague adoption home study.
• Apply to USCIS before adopting a child or accepting a placement for a determination that one is suitable for intercountry adoption.
• Once USCIS approves the application, work with the adoption service provider to obtain a proposed adoption placement.
• File a “petition” with USCIS, before adopting the child, to have the child to be found eligible to immigrate to the United States based on the proposed adoption.
• Adopt the child, or obtain custody of the child in order to adopt the child in the United States.
• Obtain an immigrant visa for the child.
• Bring the child to the United States for admission with the visa.

 

Orphan (Non-Hauge)

In order to immigrate an adopted child through the orphan process, you must:

• Be a U.S. citizen.
• o    If you are married, your spouse must also sign Form I-600 (Petition to Classify Orphan as an Immediate Relative) and must also adopt the child
• If you are not married, you must be at least 25 years old when you file your Form I-600 petition
• Establish that you will provide proper parental care to the child
• Establish that the child whom you have adopted or plan to adopt is an “orphan” as defined in U.S. immigration law
• Establish that either:
• You (and your spouse, if married) have adopted the child abroad, and that each of you saw the child in person before or during the adoption proceeding, OR
• You will adopt the child in the United States after the child arrives in the United States (you must have permission to bring the child out of his or her own country and to the United States for adoption)

 

Back | Index | Next

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.