I-600 Orphan Petition Process

FALL 2009 PHILADELPHIA REGIONAL IMMIGRATION CONFERENCE
SPONSORED BY THE CHESTER COUNTY BAR ASSOCIATION, WEST CHESTER, PENNSYLVANIA.

Changes in International Adoption & immigration
BY: C.J. Lyford, Esq.
Date of presentation: October 30, 2009

Prepared by C.J. Lyford, Esquire
632 Germantown Ave.
Lafayette Hill, PA 19444
610-260-4055
lyfordesq@aol.com
www.lyfordlaw.com

Examples of sending countries in which I-600 process is still applicable (ie., Hague Convention is not in effect): Russia, Ethiopia, South Korea, Ukraine, Kazakhstan, Liberia, Haiti, Taiwan, Nigeria, and Nepal.

I. WHO CAN ADOPT

A. U.S. IMMIGRATION LAW:

  1. At least one parent must be a U.S. Citizen (USC)
  2. Single parent OK, at least 25 years old

B. FOREIGN COUNTRY LAW

Must also meet particular foreign country requirements re age, health, marital status, family status, religion, etc.; for example India gives preference to parents paps of Indian origin, Korea has marriage requirement and limits family size and gender, Russia and Ethiopia allow singles to adopt.

II. WHO CAN BE ADOPTED

A. U.S. IMMIGRATION LAW:

  1. Child must meet CIS definition of "orphan", basically defined as either:
    • Child without any parents b/c parents died, disappeared, or abandoned child to orphanage, or because of separation from or loss of each parent. OR
    • Child with a sole or surviving parent who is unable to provide for child's basic needs, consistent with the local standards of the country, and who has irrevocably released the child for emigration and adoption.
  2. In practice this basically means that a child with two living parents will not meet the definition even if they are unable to care for child and willing to release child.
  3. Must be under the age of 16 when the I-600 Petition (not I-600A Application) is filed, unless it is covered by the sibling exception. If so, adoption can still take place after child turns 16.
  4. Can involve an identified or relative child if child can meet above orphan definition.

B. FOREIGN COUNTRY LAW:

Depends. For example, some countries require that child be over a certain age and/or offered domestically before international adoption; some limit children available for adoption to "special needs" (for example, Taiwan). Some allow the adoption of biological siblings (Ukraine, Liberia)

HOW IS IT DONE, THE PROCESS

A. U.S. IMMIGRATION LAW

  1. USCIS FORMS.
    • I-600A Application: (information about parent for CIS to determine that adoptive parent is suitable to adopt) with pre-placement home study report; I-600 must be filed within 18 months or must reapply. I-600 Petition (information for CIS evaluation of child's orphan status, etc.)
    • Can file I-600A first then I-600 later when child ID'ed or I-600A and I-600 together.
  2. U.S. Pre-Placement Home Study by is required for all adoptions and content must meet CIS requirements: Involves U.S. state child abuse & FBI fingerprint clearances, etc; home study must be updated every six months. Must be prepared by individual who is licensed in parent's state of residence.
  3. U.S. Adoption Placement Agency
    • Using a U.S. placement agency is not required but is usually involved. If agency is used, it has to be licensed to place children in the state of parent's residence.
  4. Independent adoption (that is without a U.S. adoption placement agency) and adoption of identified or relative child is allowed if orphan and age requirements are met. (Home Study is still required.)
  5. I-604 Investigation performed abroad to ensure that child is an orphan, consents were freely given, etc. Very rigorous in certain countries because of potential for fraud.
  6. Visas
    • If adoption is final in the foreign country, DOS issues an IR3 Visa. Child becomes a USC automatically when U.S. is entered based on the CCA and CIS will issue a COC
    • If adoption is not final in foreign country (for example, Korea), or adoption abroad by proxy (both parents did not see child before or during adoption), DOS will issue an IH4 visa. Child will not become a USC at entry to U.S.; Will not be a USC until adoption finalized in U.S. state, or as applicable, child is readopted. CIS will not automatically issue a COC and will have to apply for COC through the N-600 Application.

B. FOREIGN COUNTRY LAW PROCESS: Depends on country involved.

  1. Whether adoption is final in the country abroad.
    • In most countries, adoption is completed abroad (For example, China, Russia)
    • In some countries, parent or U.S. placement agency receives guardianship of child and adoption is completed in the U.S. (for example, Korea)
    • Some countries allow adoption by proxy through a power of attorney on behalf of parent, and parents are not required to be present in country for the adoption (for example, Guatemala, China: doesn't require that both parents be present).
  2. Some countries require that at least one of the parents travel (China); Some require two or more trips (Ukraine, Kazakhstan, Russia); some allow child to be escorted to the U.S. (Korean, Liberia, Ethiopia)
  3. In some countries, for example, Korea, the birth parent rights are terminated but the adoption is not completed abroad; and the child travels to the U.S. for the adoption to be finalized under a guardianship arrangement.
  4. Examples of other foreign country requirements: some countries will only let parents adopt if they have used a U.S. adoption placement agency from an approved list (Russia, Korea); others will let parents adopt without an agency (Ukraine).

C. U.S. STATE LAW (PA)

  1. If adoption is completed abroad, not an adoption by proxy, and child is issued IR3 visa, foreign adoption can be registered in the local country court of the parent's residence and PA birth certificate can he obtained. 23 PACSA sec. 2908. Readoption is optional.
  2. If adoption not completed abroad and IR4 visa issued:
    • Must comply with Interstate Compact on Placement of Children (ICPC) and certification is required before child can come to U.S.
    • Adoption must be finalized in U.S. (in local country court where parent resides or PA country where placement agency has its place of business) to become a USC and get PA birth certificate.
    • Finalization of foreign adoption is based on Pennsylvania Adoption Act but process and requirements for foreign country finalization will depend on the PA County where the adoption is finalized. Child is a USC on date that adoption is finalized but to document child's U.S. citizenship, must apply for Certificate of Citizenship (COC) through N-600 (and/or U.S. Passport.).
  3. If the child was adopted abroad by proxy, and IR4 visa issued:
    • Must comply with ICPC.
    • Child must be "readopted" (in local country court where parent resides or PA country where placement agency has its place of business) to become a USC and get PA birth certificate. The readoption is based on the Pennsylvania Adoption Act but process and requirements for foreign country readoption will depend on the PA County where readoption is brought.
    • Child is a USC date of readoption but to document child's citizenship, must apply for COC through N-600 (and/or U.S. Passport.)

DOS Department of Consular Affairs issues IR3 or IR4 visa

POST ADOPTION HOME STUDY REPORTS OR OTHER FOLLOW-UP

A. U.S. IMMIGRATION LAW

Not specifically required by CIS.

B. FOREIGN COUNTY LAW

Post adoption home study reports or follow-up: whether required, how many and how often will depend on the county involved.

C. U.S. STATE LAW (PA)

Whether required, how many and how often will depend on the PA county involved.

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