Long Beach Hague Convention Adoption Lawyers & Attorneys
Since April 2008 a new process applies to children adopted from countries that are party to the Hague Adoption Convention. Convention procedures "front-load" the immigrant visa petition and application processes. The goal is to protect children and families by identifying problems that could bar a child from immigrating to the United States before the adoption or grant of custody. This ensures that children adopted abroad (or brought to the United States for final adoptions) by U.S. citizen adoptive parents will be able to enter and reside permanently in the United States.
WARNING: A consular officer at a U.S. Embassy or Consulate must determine that the child qualifies for the visa before you adopt or obtain legal custody of the child. Do not adopt or obtain custody of the child until the consular officer issues an "Article 5 Letter." Read on for more information.
U.S.Law and the Definition of Convention Adoptee
The Immigration and Nationality Act (INA), as amended by the Intercountry Adoption Act of 2000 (IAA), defines a child residing in a Convention country who is eligible for intercountry adoption as a Convention adoptee. This definition is broader than the definition of "orphan." This definition includes five key elements:
- The child must be under the age of 16 at the time the immigrant visa petition (Form I-800) is filed on his or her behalf (taking into account special rules on filing dates for children aged 15-16), unmarried, and live in a Convention country.
- The child has been adopted or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, habitually resident in the United States, whom USCIS has found suitable and eligible to adopt (by approving Form I-800A), with the intent of creating a legal parent-child relationship.
- The child's birth parent(s) or other legal custodian, individuals, or entities whose consent is necessary for adoption, have given freely their written, irrevocable consent for the termination of their legal relationship with the child and to the child's emigration and adoption. A "sole" parent may be either a mother or a father.
- In the case of a child who has two living birthparents who were the last legal custodians, who signed the irrevocable consent to adoption, were determined to be incapable of provding proper care for the child.
- The child has been adopted or will be adopted in the United States or in the Convention country according to the rules and procedures of the Hague Adoption Convention and the IAA.
Visa Types for Hague Adoptions
- Children adopted in Convention countries receive IH-3 or IH-4 visas.
- IH-3 visas are for children who are adopted in a Hague Convention country. Children who are under 18 automatically acquire U.S. citizenship upon entry to the United States on an IH-3 visa. In such cases, USCIS automatically sends Certificates of Citizenship without requiring additional forms or fees.
- IH-4visas are for children coming from a Convention country who will be adopted in the United States. IH-4 recipients do not automatically acquire U.S. citizenship, but are lawful permanent residents until the adoption is full and final. See web page on the Child Citizenship Act for more information.
Steps in the Hague Convention Adoption Process
1) Choose an Accredited ASP
First, select an adoption service provider from the State Department's list of accredited providers. The adoption service provider will guide you through the adoption process and provide services such as performing the home study.
2) File Form I-800A with USCIS
USCIS must find that you are eligible and suitable to adopt a child from a Convention country. Submit Form I-800A (Application for Determination of Suitability to Adopt a Child from a Convention Country) to USCIS along with your home study and other documents. As part of the review, prospective adoptive parents submit their fingerprints to be checked against criminal and child abuse registries. See the USCIS website for more information on fingerprinting. Once approved, you or your adoption service provider transmits the I-800A and supporting documents to the country from which you plan to adopt.
3) Convention Country Matches You with a Child
The Convention country where you plan to adopt reviews the I-800A and accepts you as a prospective adoptive parent. The country then matches you with a child and sends a report on the child's medical and social history-called an Article 16 Report-through the adoption service provider. You have at least two weeks to accept the match.
4) File Form I-800 with USCIS
To accept the match, file Form I-800 (Petition to Classify Convention Adoptee as an Immediate Relative) and the Article 16 Report with USCIS. USCIS reviews Form I-800 to determine whether the child qualifies as a Convention adoptee. If needed, submit any waiver applications to cover known or suspected visa ineligibilities at this time as well. USCIS then provisionally approves the I-800 and any waiver applications and sends the file to the Department of State.
The INA identifies ineligibilities, or reasons that disqualify a foreign national from receiving a visa. In some cases, a visa applicant may apply to USCIS for a waiver of ineligibility. See the USCIS website for more information on waivers and filing Form I-601 (Application for Waiver of Ground of Inadmissibility).
Visa process steps:
5) Submit Visa Application (Form DS-230) to the U.S. Embassy or Consulate
The National Visa Center will notify you by letter when your case has been assigned to a U.S. Embassy or Consulate abroad. The Embassy or Consulate will provide instructions on the next steps including submission of the immigrant visa application (Form DS-230) to the Embassy or Consulate. (Certain cases require the nonimmigrant visa application, Form DS-156, instead; check with your ASP.) At this stage, a consular officer reviews the application to determine whether the child appears to qualify for the visa.
REQUIRED DOCUMENTS- At the time of the initial interview, the application packet for Convention cases must include:
a) Visa application (Form DS-230 parts I and II);
b) Child's birth certificate;
c) Photographs of child (three full frontal photographs);
d) Police, military, or prison records, if required (very rare).
If possible, the visa application packet should include the following documents as well. These documents are not mandatory at this stage, but they will be required for final adjudication of the visa application.
a) Passport of the Convention adoptee;
b) Results of panel physician's medical exam.
REQUIRED FEES-Pay visa processing fees at this time.
6) Consular Officer Sends Article 5 Letter to Foreign Central Authority
After reviewing the visa application, the consular officer sends the Convention country's Central Authority notification-called an Article 5 Letter-that you are a suitable adoptive parent and that the child will be able to enter and reside permanently in the United States. (The Central Authority is the entity designated by each Convention member country to serve as the central point of contact for Convention adoptions. For the United States, the Central Authority is the Department of State.)
7) Adopt or Obtain Legal Custody of the Child
With the issuance of the Article 5 Letter, you may adopt or obtain legal custody of the child.
8) Convention Country Issues Article 23 Certificate or Equivalent
The Convention country certifies that the adoption or grant of custody complies with the Convention by issuing an Article 23 Certificate. This may take the form of the adoption or custody decree and may be sent directly to the consular officer at the Embassy or Consulate.
9) Final Visa Interview at the Embassy or Consulate
Once the child's file is complete, the Embassy or Consulate will schedule the final visa interview. The child must appear before the consular officer if he or she did not do so at the time of the initial visa application review. During the interview, present the valid adoption or custody decree.
10) Embassy or Consulate issues Hague Certificate, Approves I-800, and Issues the IH-3 or IH-4 Visa
At the final visa interview the consular officer issues you a Hague Certificate to certify that the adoption or grant of custody meets the requirements of the Convention and the IAA, grants final approval of the I-800 petition, and issues your child the IH-3 or IH-4 visa.
Adoption Tax Credit
An Adoption Tax Credit is now available to adoptive parents to help them offset the costs of adoption - including legal fees! For the 2007 tax year Adoptive Families with modified adjusted gross incomes of up to $170,820. should be eligible to receive the full $11,390.00 Adoption tax credit. Furthermore, any unused credit may be carried forward for up to five years. The tax credit completely phases out for families with modified adjusted gross incomes exceeding $210,820.