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Overseas Adoption: The Hague Process
The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) is an international treaty that is designed to facilitate overseas adoptions and safeguard the interests of children, birth parents, and adopting parents. For U.S. citizens who reside in the U.S. and intend to adopt a child from another country that is a party to the Hague Convention, a distinct adoption process, known as the Hague process, is applicable. The Hague Convention became effective in the United States on April 1, 2008. Any parents, seeking to adopt a child who resides overseas in a country that is a party to the Hague Convention, after that date, must follow the Hague process.
The Hague Convention provides a framework for member countries to work together and implement safeguards to ensure children are placed in permanent, loving homes. One such safeguard is the establishment of a Central Authority responsible for overseeing the adoption process and providing parents with accurate information. In the U.S., the Department of State acts as the Central Authority. The following outlines the framework which has been established for adopting a child under the Hague Convention:
1. Choose a Hague Accredited ASP.
An Adoption Service Provider (ASP) must be accredited or otherwise authorized to provide services in connection with a Hague adoption. The ASP will assist parents in:
- Identifying a child for adoption and arranging the adoption;
- Securing the consents to terminate parental rights;
- Conducting an adoption home study and background report on the child;
- Making a determination of a child's best interest and whether an adoptive placement is an appropriate match;
- Monitoring the case after the child has been placed until the adoption is finalized;
- Assuming custody of a child in the case of a disruption.
It is also encouraged that parents choose an attorney, at this point, who can assist them through the rest of the process. Adoption service providers cannot provide legal advice or legal services to the adopting parents or represent them before the U.S. Citizenship and Immigration Services.
2. Obtain a home study from someone authorized to complete a Hague adoption home study.
The home study must be carried out by an individual or agency that is authorized to conduct home studies for Hague adoption cases. The home study preparer will conduct personal interviews and home study visits. This includes at least:
- One interview in person;
- One home visit with the adopting parent/s; and
- One interview in person with each adult member of the adopting parents' household.
The home study preparer will gather information on and assess the suitability of the adopting parents based on their background, family and medical history, social environment, financial status, reasons for adoption, ability to undertake an overseas adoption, and the characteristics of the child or children for whom they would be qualified to care.
3. Apply to USCIS before adopting a child or accepting a placement for a determination that one is suitable for intercountry adoption.
Upon completion of the home study, parents must file Form I-800A with the U.S. Citizenship and Immigration Services. The purpose of this form is to determine the eligibility and suitability of the parent/s to adopt a child from a Hague Adoption Convention country. In order to be eligible to file Form I-800A, parents must be U.S. citizens and must live in the U.S. For married couples, both spouses must sign the adoption forms and must intend to adopt the child. For people who are not married and intend to adopt a child, they must be at least 24 years of age when filing the Form I-800A.
4. Once USCIS approves the application, work with the adoption service provider to obtain a proposed adoption placement.
After the USCIS has approved Form I-800A, the parents may apply to the Central Authority of the other country for a specific adoption placement. Once the Central Authority has proposed placing a child with the parents for adoption, but before they actually adopt the child, the parents must file Form I-800 on behalf of the child to be adopted.
5. File Form I-800 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.
Parents must submit Form I-800 to determine the child's eligibility as a Convention Adoptee. This Form must be filed with the USCIS before adopting or obtaining legal custody of the child. For married couples, both spouses must sign the adoption form and intend to adopt the child. For people who are not married and intend to adopt a child, they must be at least 25 years of age when filing Form I-800. For a child to be classified as a Hague Convention Adoptee, the child must meet the following criteria:
- Be under the age of 16 at the time of filing Form I-800;
- Habitually reside in a Convention Country; and
- Determined to be eligible for intercountry adoption by the Central Authority of that country and have obtained all necessary consents for adoption.
6. Adopt the child, or obtain custody of the child in order to adopt the child in the United States.
Parents have a choice whether to adopt the child in the child's home country or to bring the child back to the U.S. for adoption. There are, however, important legal implications, such as in applying for a visa, if the parents choose one option over the other.
7. Obtain an immigrant visa for the child.
After the USCIS provisionally approves the I-800 application, parents may apply for a visa for the child at the appropriate U.S. consular office abroad. The child is considered an immediate relative, which eliminates any waiting time, and parents may immediately apply for either an IR-3 or IR-4 visa for the child depending on the situation. To qualify for an IR-3 visa, there must have been a final adoption in the child's home country and both parents must have seen the child prior to or during the adoption. An IR-4 visa is applicable in situations where there was not a final adoption prior to entry in the U.S. or where one or both parents did not see the child before the adoption. If a child enters the U.S. with an IR-4 visa, it is necessary then for the parents to adopt or re-adopt the child once s/he enters the U.S. In order to apply for either visa, it is necessary to submit the required documentation to the USCIS, including the child's birth certificate, passport, medical examination report, passport style photographs, evidence of orphan status, evidence of adoption, and the applicable immigration forms.
8. Bring the child to the United States for admission with the visa.
Once a child gains lawful entry into the U.S., s/he will automatically acquire U.S. citizenship under the Child Citizenship Act if:
- At least one of the child's parents is a U.S. citizen;
- The child is under 18;
- The child lives in the legal and physical custody of the American citizen parent;
- The child is admitted into the United States as an immigrant for lawful permanent residence; and
- The adoption is final.
Because of the Child Citizenship Act, many parents no longer need to apply separately for a child's naturalization. However, it is advisable to seek legal counsel if there is any question as to the child's citizenship status.
The Hague process can be challenging, and it is recommended that parents work with an experienced immigration attorney, who can help them to successfully complete the process with minimal burden on the parents and child. If you are contemplating or have begun the process of adopting a child from overseas, contact Maryland immigration attorney Van T. Doan guide you and your family.
Categories: Immigration Law
