Wayzata World Factbook 1996/The World Factbook - 1996 Edition - Wayzata Technology (3079) (1996).iso/pc/text/trvltops/adopt.top

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INTERNATIONAL ADOPTIONS
(Consular Affairs Topics)




DISCLAIMER:  THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL
REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR
CASE.  QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS
SHOULD BE ADDRESSED TO FOREIGN ATTORNEYS OR FOREIGN GOVERNMENT OFFICIALS

SUMMARY

The subject of international adoptions has become an issue of considerable
concern to the Department of State and its embassies and consulates
abroad in recent years.  There has been an increasing incidence of
illicit activities in the area of international adoptions by intermediaries
and adoption agencies both in the foreign countries involved and
in the United States.

The Department considers adoptions to be private legal matters within
the judicial sovereignty of the nation where the child resides.
U.S. authorities, therefore, have no right to intervene on behalf
of an individual American citizen with the courts in the country
where the adoption takes place.  However, while we cannot become
directly involved in the adoption process, we do receive requests
for assistance and information from American citizens who wish to
adopt in foreign countries.  Requests cover a broad range of subjects
from the legal procedures involved to the expeditious issuance of
immigrant visas to adopted children, or children being brought to
the United States for the purpose of adoption.  The information in
this brochure is intended to provide a general overview of international
adoptions and to warn prospective adoptive parents about problems
they might encounter.

DEPARTMENT ASSISTANCE

The Department of State can offer assistance in several important
ways.  We can provide information on the details of the adoption
process in the foreign country; make inquiries on behalf of adoptive
parents regarding the status of their cases before foreign tribunals;
assist in the clarification of documentary requirements; provide
information on the U.S. visa application and issuance process; and
endeavor to ensure that Americans are not discriminated against by
foreign authorities and courts.

ANTICIPATING DIFFICULTIES

American citizens who desire to adopt foreign children should be
aware of the numerous problems and pitfalls which may beset them
in the natural course of the tedious process of foreign adoptions.
Generally, adopting parents may expect to be temporarily frustrated
by some of the vagaries of transnational bureaucracies, but in the
long run adherence to procedures established by the laws and regulations
of the country where the adoption is taking place and avoidance of
short-cuts will save time, effort, and heartache.

One crucial fact which must be understood at the outset of any adoption
is that the child is a national of the country of its origin (and
remains so even after the adoption process is completed) and is subject
to the jurisdiction of the foreign courts.  Consequently, parents
should be certain that the procedures they follow in arranging for
such an adoption strictly comply with local (foreign) law.  This
is usually accomplished by dealing with a reputable, licensed international
adoption agency which has experience in arranging adoptions in the
particular foreign country, or, in the case of a private adoption,
with a local attorney who has routinely handled successful adoptions.

Adopting parents should be wary of any agency or attorney who claims
to be able to streamline established procedures.  If it sounds too
good to be true, it probably is.  Procedural irregularities which
sometimes result from an intermediary's desire to speed up the process
can result in the foreign government's determination that the adoption
is illegal and the refusal of that government to finalize the adoption.

GENERAL PROCEDURES

1.  Foreign Adoption Practices and Procedures

The majority of countries require that the child who is placed for
adoption be legally recognized as an orphan or, in the case where
a parent is living, be legally and irrevocably released for adoption
prior to any legal activity leading to final adoption of the child.
Nowadays, most countries have enacted legislation which requires
the full scale adoption of the child through the foreign court after
the child has been declared an orphan.  Some countries do allow "simple"
"adoption", which means that the adopting parent(s) are granted guardianship
of the child by the foreign court, thus permitting the child to leave
the foreign country to be adopted in country of the adopting parent(s)'
nationality.  Some countries may accept the properly authenticated
home study of the prospective adoptive parent(s) on its face.  Other
countries may require the personal appearance of the adoptive parent(s)
before the foreign court.  This could involve a protracted stay in
the foreign country until the court approves the adoption.

2.  U.S. Immigration Requirements

In addition to the foreign adoption requirements, prospective adoptive
parents must comply with U.S. immigration procedures.  It is not
possible, for example, to simply locate a child in a foreign country,
then go to the U.S. embassy and obtain a visa for the child.  Visa
procedures in this area are complex, and designed with many safeguards
to ensure that children adopted abroad or brought to this country
for adoption are truly orphans and will go to healthy homes in the
U.S.  Contact the U.S. Immigration and Naturalization Service (INS)
office having jurisdiction over your place of residence in the U.S.
for information early in the process.  One area which has been a
source of confusion to prospective adoptive parents is whether a
child identified in a foreign country actually meets the definition
of orphan under U.S. immigration laws.

A.  Does the Child Meet the Definition of Orphan?

Under Section 201(b) of the Immigration and Nationality Act (INA),
foreign children may gain entry into the United States as "immediate
relatives" of U.S. citizens.  In this connection, the INA defines
the term "orphan" as a "child under the age of 16 ... who is an orphan
because of the death or disappearance of, abandonment or desertion
by, or separation or loss from, both parents, or for whom the sole
surviving parent is incapable of providing the proper care (proper
care has been ruled as proper care according to the local (foreign)
standard of living, not the U.S. standard of living) and has in writing
irrevocably released the child for emigration and adoption."  (8
U.S.C. 1101(b)(1)(F)).  This means that a child who has been abandoned
by both parents may meet the definition of orphan, for example, if
the child has been unconditionally abandoned to an orphanage or legally
documented as abandoned by a competent legal authority in the child's
country of origin.

B.  Orphan Petitions for U.S. Immigration

The procedures for adopting a child abroad or bringing a child to
the U.S. for adoption must in all cases be initiated with INS.  An
orphan cannot be brought to the U.S. without a visa based on an INS
approved petition (form I-600).  If an adoptive parent(s) simply
appears at a U.S. embassy or consulate asking for a visa for an adopted
child with no prior processing and approval by INS, the visa cannot
be issued immediately.  The matter must be referred to INS.  It could
take a considerable period of time before INS could approve such
a petition since a home study of the adoptive parent(s), fingerprint
check, and any state pre-adoptive requirements would have to be completed.
We urge all prospective adoptive parents to contact INS and initiate
the requisite procedures before going abroad to look for a child.

There are two separate procedures for the adjudication of orphan petitions.

(1)  Specific Child Identified and I-600 Petition Fully Approved By
     INS

If the adoptive parent(s) has identified the child when beginning
U.S. immigration processing, it is necessary to file petition form
I-600 with the appropriate office of the U.S. Immigration and Naturalization
Service (INS) in the United States.  In that case, INS adjudicates
all aspects of the I-600 petition -- the suitability of the adoptive
parent(s), compliance with any state pre-adoption requirements (if
the child is to be adopted after entry into the U.S.), and the qualification
of the child as an orphan within the meaning of Section 101(b)(1)(F)
of the Immigration and Nationality Act.  INS will send the approved
I-600 to the U.S. embassy or consulate in the country where the child
will be adopted.  If requested, INS will also send notification of
their approval via telegram (the "visas 38" (adopted abroad) or "visas
39" (coming to the U.S. to be adopted) procedure) to help speed-up
issuance of the U.S. visa.

In the case of a fully approved I-600 petition, the consular officer
at a U.S. embassy or consular abroad must verify that the facts alleged
about the child in the approved petition are correct.  Information
casting doubt upon the child's eligibility as an orphan or disclosing
a medical consideration not identified in the approved petition requires
return of the petition to the approving INS office for reconsideration.

(2)  No Specific Child Identified and I-600A Approved by INS

If prospective adoptive parent(s) in the United States intend(s)
to go abroad to locate a child for adoption the adoptive parent(s)
should file an application on form I-600A for an advance determination
of suitability as adoptive parent(s).  This application is filed
at the appropriate INS office in the United States with jurisdiction
over the adoptive parent(s) place of residence.  INS will evaluate
the suitability of the prospective adoptive parent(s) in the same
manner as would be done if the parent(s) had filed an I-600 petition
(see above) and will, if requested, forward the approved I-600A to
the appropriate U.S. consular office or overseas office of INS.
The INS office will, if requested, send notification of their approval
via telegram (the "visas 37" procedure) to help speed-up the issuance
of the U.S. visa.  This message will also state whether the adoptive
parent(s) have fulfilled applicable pre-adoption procedures in their
state of residence.  Prospective adoptive parent(s) who file and
have approved a form I-600A, once having located the child to be
adopted, must file a petition I-600 with the appropriate U.S. consular
officer or INS office abroad or with their local INS office in the
United States if more convenient.

When prospective adoptive parent(s) file a petition form I-600 with
a U.S. consular officer abroad after the approval of an I-600A application,
the consular officer has the authority by delegation from INS to
adjudicate the I-600, relying upon the approval of the I-600A for
elements relating to the suitability of the parent(s) and establishing
the eligibility of the child as an orphan, and compliance with any
state pre-adoption requirements.  If any doubt exists as to whether
the petition may be approved, the consular officer must refer the
petition to the appropriate overseas INS office for adjudication.
A petition is clearly approvable only where primary documentation
is presented which establishes the elements of eligibility.  In orphan
cases, there are certain possible circumstances which inherently
cannot be documented by primary evidence.  This could include issues
such as the identity of the child, death of parent or parents, abandonment
by parent or parents, disappearance or loss of, or separation from
parent or parents and unconditional release by sole or surviving
parent.  A consular officer cannot approve an I-600 petition unless
it is supported by primary evidence of all claimed elements of the
eligibility of the child in question as an orphan within the meaning
of section 101(b)(1)(F) of the Immigration and Nationality Act.
An I-600 petition supported, in whole or in part, by secondary evidence
must be referred by the U.S. consular officer to the appropriate
overseas INS office for adjudication.

C.  Child Who Does Not Meet the Definition of Orphan

If the child does not meet the definition of orphan under the INA,
the child may qualify to enter the U.S. under section 101(b)(1)(E)
of the INA based on an adoptive relationship if the child was adopted
before the age of 16 and if the child has been in the legal custody
of, and has resided with, the adopting parent(s) for at least two
years.  The two year legal custody and residence period requirement
may take place either before or after the adoption but must take
place before issuance of a visa permitting the child to enter the
U.S.  This procedure should not be confused with the procedure for
orphan petitions which has completely different requirements.

D.  "Proxy Adoptions"

There are no provisions in INS regulations for approving petitions
signed by agents with powers of attorney.  In addition, a petition
cannot be approved if a married petitioner signs the I-600 on behalf
of his/her spouse (even with a power of attorney).  A signature on
a blank I-600 later completed when the child is located abroad is
invalid, and no such petition can be approved.

E.  Procedures for Issuance of Immigrant Visa

Once petition procedures listed above have been completed and foreign
adoption requirements taken care of, an immigrant visa application
appointment will need to be scheduled by the U.S. consular officer
at the U.S. embassy or consulate abroad.  The officer will provide
adoptive parent(s) with a list of visa requirements.  Among other
requirements, adopting parent(s) should be aware of the medical examination
fee and the U.S. $150.00 immigrant visa fee (which must be paid either
in local currency or U.S. dollars in cash or money order, cashiers
check, or certified check).

VALIDITY OF FOREIGN ADOPTION IN UNITED STATES

In most cases the formal adoption of a child in a foreign court is
accepted as lawful in the United States.  In some instances, it will
be necessary to re-adopt the child in the United States.  For example,
if the adoptive parent(s) did not see the child prior to or during
the full adoption proceedings abroad, the child must be brought to
the U.S. to be adopted here (IR-4).  In the case of a married couple,
both parents must see the child before the U.S. visa can be issued
if the child is to be considered "adopted abroad".  Otherwise, the
parent(s) must be able to meet the pre-adoption requirements of their
state of residence in order for the child to qualify for a U.S. visa
to come to U.S. to be adopted here.  This is true even if a full
final adoption decree has been issued in the foreign country.  Adoptive
parents should determine in advance the requirements of their own
particular state of residence.  Some states do not recognize foreign
contracted adoptions, while others have a post-registration requirement
to confer legality on the adoption.  The office of the state Attorney
General in the state capital can provide such information.  If no
formal adoption is required by the country of the child's origin
it will definitely be necessary for the child to be adopted in the
state where the parents intend to reside with the child.  Of course,
a child brought to the U.S. for the purpose of being adopted here,
rather than a child legally adopted abroad, must be adopted in accordance
with state law.

ADOPTION FRAUD

The Department of State refers to INS for investigation all petitions
for children whose adoptions have been arranged through private or
organizational "facilitators" motivated by undue personal gain or
improper profit, or other irregular practices.  This policy flows
from our general obligation to respect host country laws and is based
on a strong desire on the part of the United States not to promote
abuse of adoption procedures ("baby-selling", kidnapping, etc.),
and not to permit its officials to engage in conduct that might cause
a host country to prohibit altogether further adoptions of host country
children by U.S. citizens.  To this end, the Department of State
has consistently expressed its support for measures taken by foreign
states to reduce adoption abuses.

Adoption fraud has recently been on the rise.  Fraud can be perpetrated
by the facilitator handling the adoption in the foreign country,
especially if it is a private adoption, or by the facilitator or
adoption agency in the United States.  Unfortunately for adoptive
parents, there exists a substantial black market trade in adoptive
children.  International adoptions have become a lucrative business
in part because of the huge demand for adoptive infants in the United
States.

The lack of state regulatory requirements for international adoption
agencies has permitted unscrupulous individuals to set up businesses,
often without prior experience or expertise in the area of adoptions.
Exorbitant fees in the tens of thousands of dollars have been extorted
from prospective adoptive parents desperate to adopt.  Abuses perpetrated
by these agencies and individuals have included offering for adoption
a supposedly healthy child who is later found to be seriously ill,
or obtaining prepayment for adoption of a child who does not actually
exist.  (In some countries, it is advisable to have a child considered
for adoption examined by a doctor before completing adoption procedures.)
Many states in the U.S. have experienced problems with such unscrupulous
practitioners.  Some states have moved to revoke licenses or prosecute
the individuals connected with these activities after receiving complaints
from adoptive parents who have been defrauded.

It should be noted, however, that by far, the majority of adoption
agencies practicing in the United States are legitimate professional
organizations with a wealth of experience in domestic and international
adoptions.  It is the continuing rise of unscrupulous practitioners,
who act in violation of regulatory requirements, which taints international
adoptions.

Any problems experienced by American citizens in dealing with foreign
attorneys or adoption agencies who employ these foreign attorneys
should be reported to the American embassy or consulate or to the
Office of Citizens Consular Services at the Department of State in Washington.

Any problems experienced with agencies or intermediaries in the United
States should be reported immediately to the appropriate state authorities,
i.e., Health and Human Services office, police, District Attorney,
Better Business Bureau, or state Attorney General's office.  The
United States Immigration and Naturalization Service should also
be notified of these activities.

FREQUENTLY ASKED QUESTIONS

- What Can You Do To Avoid Adoption Problems?

Contact the local office of the Immigration and Naturalization Service
early in the adoption process.  Request a copy of the INS publication
M-249Y (Revised, 1990) "The Immigration of Adopted and Prospective
Adoptive Children".

Contact the Department of State, Office of Citizens Consular Services
in Washington or the U.S. embassy or consulate in the country from
which you desire to adopt to obtain information on adoption practices
and procedures and ascertain if there are any particular problems
of which you should be aware in connection with adoption from that country.

Demand an accounting of the services for which you are paying an
agency or intermediary.

Find out if adoption agencies/intermediaries must be licensed in
your state, and if so, whether the one you are working with is licensed.
You might also check with the Better Business Bureau, Consumer Affairs
Office, or similar office of your District Attorney or Attorney General's
office to obtain information about the past record of the agency/intermediary
you have chosen to use.

-  What Can You Do About Problems Concerning an Orphan Petition for
Immigration To the United States?

If your problem concerns the adjudication of an orphan petition (I-600
or I-600A), discuss the matter with the INS examiner assigned to
your case.  If he/she is unable to assist you, ask to speak with
the INS supervisory examiner.  If the supervisor is unable to help,
ask to speak with the next line supervisor/manager until you have
reached the District Director or Officer-in-Charge.  If the local
INS office is unable to assist you, contact the Regional Office that
has jurisdiction over the office handling your case.

-  Does an Adopted Child Automatically Acquire U.S. Citizenship?

No.  However, there does exist a mechanism by which the child can
be expeditiously naturalized as a citizen of the United States.
As of November 14, 1986, Section 341 of the Immigration and Nationality
Act (INA) was amended to add subsections (b)(1) and (b)(2) which
permit an adopting parent or parents to apply to the Attorney General
of the United States for a Certificate of Citizenship for an alien
adopted child.  Pursuant to Subsection (b)(1), the Attorney General
shall issue a Certificate of Citizenship and the adopted child shall
then automatically become a naturalized U.S. citizen if the following
conditions have been established:

(1)  the adopting parent (and spouse, if married) are U.S. citizens.

(2) the child meets the qualifications of Section 341(c)(2) of the
INA.  This Section defines "child" for the purposes of naturalization.
The required criteria are (a) the child be under the age of 18,
(b) the child was adopted before the age of 16 by a U.S. citizen
parent, and (c) is residing in the United States in the custody of
the adopting parent(s) pursuant to lawful admission for permanent residence.

(3)  the child is in the United States.

How to Apply

The administrative process requires that INS Form N-643 Application
for Certificate of Citizenship in behalf of an Adopted Child, be
filed with the INS before the child is 18 years of age.  The child
is not a citizen until the Form N-643 is approved and the certificate
of citizenship is issued.  For information, contact the INS office
nearest you.

- Are There Any International Agreements on Adoption?

The United States is not a signatory to any international agreement
or convention relating to international adoptions.  The only existing
international agreement on adoption is the HAGUE CONVENTION ON JURISDICTION,
APPLICABLE LAW AND RECOGNITION OF DECREES TO ADOPTION of November
15, 1965 which entered into force on October 10, 1978.  It is only
in force in the United Kingdom, Austria and Switzerland.

The Organization of American States (OAS) is in the process of drafting
the INTER-AMERICAN CONVENTION ON THE ADOPTION OF MINORS.  This draft
provides in part that the courts of a nation in which the adopting
parents are habitually resident may grant an adoption decree and
that the adopted child's country of origin should not prevent the
child from leaving the country after an adoption is granted in the
absence of a public order or for police reasons.  We do not expect
the convention to be completed or in effect until well after 1992.

Forty nine countries, many of them countries from which children
have been adopted, and ten international organizations, participated
in the June 11-21, 1990 Hague Conference on Private International
Law preliminary session in preparation for the drafting of a multilateral
CONVENTION ON INTERNATIONAL COOPERATION IN INTERCOUNTRY ADOPTIONS.
The June 1990 meeting was the first of four sessions aimed at adoption
of the text of a convention for signature and ratification by States
(countries) by spring 1993.

- From which countries are children available for adoption?

The availability of children for adoption from particular countries
can change very rapidly.

PROBLEMS

For information about procedures in specific countries,
please contact the appropriate geographic division of the Department
of State, Office of Citizens Consular Services:

Europe and Canada Division              [phone]

Inter-American Division            [phone]

East Asia and Pacific Division        [phone]

Near Eastern and South Asia Division    [phone]

Africa Division                         [phone]

General recorded information about visa procedures is available from
the Department of State's Visa Office at [phone].

For questions about U.S. visa petition procedures, contact the nearest
office of the U.S. Immigration and Naturalization Service located
in the Federal Government section of your telephone book under Department
of Justice.


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