Non-Hague Convention Adoption – Orphan Adoption Process
While the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) is an international treaty intended to aid the overseas adoption process, not all countries are signatories of the Hague Convention. As a result, the Hague adoption process is not applicable to adoptions in all countries. If the country from which you will be adopting a child is not a party to the Hague Convention, a distinct process known as the orphan adoption process is applicable. This process is different from the Hague process in a number of key ways.
The following outlines the process for adopting a child from a non-convention country through the orphan adoption process:
- Choose a Licensed Adoption Service Provider
- Apply to be Found Eligible to Adopt
- Ensure Child Meets Definition of an Orphan
- Adopt the Child
- Apply for the Child to be Found Eligible for Immigration to the United States
- Obtain an Immigrant Visa for the Child
Choose a Licensed Adoption Service Provider
To initiate the process, most couples usually choose an attorney or agency to assist them throughout the adoption process. Take care in ensuring that the adoption service provider is licensed in the state in which it is located.
Apply to be Found Eligible to Adopt
The U.S. Citizenship & Immigration Services (USCIS) is responsible for determining the parents’ eligibility to adopt. To be found eligible, parents file immigration form I-600A (Application for Advance Processing of Orphan Petition) with USCIS. Form I-600A should be filed before a child has been identified, although it can be done if a child has already been identified, in which case the USCIS can make a determination as to both the suitability of the adoptive parents and the child’s status as an orphan at the same time. Along with this form, adopting parents must establish their ability to provide proper parental care by submitting a home study to USCIS that includes in-depth information about health, finances, home, background, and more. The adopting parents, as well as any other adult members in the household, will also have to be fingerprinted at a local USCIS office once the I-600A form has been filed.
Ensure Child Meets Definition of an Orphan
Once a child has been identified, it is necessary to determine the child’s status as an orphan, taking into consideration 1) the laws of the country in which the child resides and 2) the definition of orphan under U.S. immigration law. Even if found to be eligible for adoption in his or her home country, the child may not be considered an orphan under U.S. law. The Department of State or USCIS will conduct an investigation to verify the child’s orphan status. Under U.S. immigration law, an orphan is a foreign born child who has lost both parents or has one living parent who is unable to care for the child and who has forfeited all parental rights.
Adopt the Child
Most countries require the full adoption of the child in the foreign court. Some countries do allow simple adoption, which grants the adopting parents guardianship so that the child may be permitted to leave the foreign country to be adopted in the United States. While a few countries allow adoptive parents to adopt through a third party without actually traveling to that country, others require a personal appearance before their court or even a period of residence by the parents in the child’s home country.
Apply for the Child to be Found Eligible for Immigration to the United States
After the adoption process has been finalized in the child’s country of residence, the adopting parents can file Form I-600 with USCIS to determine if the child is admissible to enter the U.S. The most common ground for inadmissibility of children is medical inadmissibility due to certain diseases, lack of required vaccinations, or other medical issues. The I-600 form can be filed with the USCIS office having jurisdiction over the parents' place of residence, or with a Department of Homeland Security or Consular Officer overseas, depending on the circumstances. When submitting a form I-600, you will be required to submit, the child's birth certificate, a final decree of adoption or proof of legal custody; proof of "orphan" status; proof that any pre-adoption requirements have been met, and evidence that adopting parents have seen the child prior to or during adoption proceedings. It should be noted that the process may vary depending on whether it is filed with a USCIS office in the United States or at a Consular Office overseas.
Obtain an Immigrant Visa for the Child
If the I-600 application is approved and there are no legal bars to visa issuance, the child will be granted an IR-3 or IR-4 immigrant visa depending on whether the parents saw the child during the adoption process and whether a full and final adoption took place in the child’s country of residence. The visa will appear either as a cover sheet or will be placed in the child's passport. It should be hand-carried with the child when travelling to the U.S. It is important to note that the envelope with the supporting documents should not be opened. The visa is valid for 180 days from the date when it was issued, and the child must enter the U.S. during that time.
The orphan adoption process is complex and the requirements can vary depending on the child’s country of residence and the circumstances of the adoption. As with other adoption proceedings, it is recommended that parents work with an experienced immigration attorney, who can help them successfully complete the process with the least amount of complication and worry.
If you are contemplating or have begun the process of adopting a child overseas, contact Maryland immigration attorney Van T. Doan and let our knowledge, skills, and experience guide you and your family.
 For a list of Hague Convention countries visit http://adoption.state.gov/hague_convention/countries.php.
Categories: Immigration Law