EACH - Equality for Adopted Children

Frequently Asked Questions

What federal agencies are currently involved in inter-country adoption? How would ICARE change that?

Under the current process, three federal agencies are involved in international adoption. The Department of Health and Human Services advises the states regarding the licensing of agencies that conduct home studies and facilitate child placement. The Department of State is chiefly responsible for overseas processing, including background investigations and issuing the visas to adopted children. The INS (now Department of Homeland Security) regulates the petition process: pre-approving parents for adoption, approving children for adoption and inspecting adopted children when they enter the US.

ICARE proposes to consolidate all three functions into a specially created Office of Inter-Country Adoptions within the Department of State. This would allow for better communication, the development of expertise, consolidation of records and greater accountability.

Would the consolidation of international adoption processing result in a slow down of the process?

Under the current process, prospective adoptive parents submit their paperwork and supporting documentation to the closest of the 33 USCIS District offices or their regional sub-offices. Following the paperwork approval in the U.S., information is then forwarded (by post or by fax) to the U.S. consular office in the child’s country of residence. Subsequent investigation, interviews and medical exams are all conducted oversees.

Two major problems result from this bifurcated process. First, the waiting time and quality of services vary greatly between USCIS district offices. This variance is often associated with the number of applications processed. District Offices and Consular Offices that receive and process a large number of applications (i.e., Chicago, China) are often more educated on current law and practice but at the same time suffer from understaffing and a large backlog. Meanwhile, smaller, less trafficked offices can process cases quicker but too often deny eligible cases or misadvise constituents because of their inexperience.

Secondly, the information received by the USCIS office in the U.S. and the USCIS approval are forwarded by post or by fax to the appropriate consular office. In some cases, paperwork is lost or destroyed in the transmission process. If paperwork has expired or is deficient, families are often not told until they arrive in country causing unnecessary delay and expense.

The ICARE bill calls for the establishment of a central processing unit in the United States and would encourage the use of electronic filing and information databases. This would relieve the burden placed on the regional and oversees offices and help eliminate the opportunity for error. It would also correct for the current disparities in service that exist from region to region. If anything, these improvements should result in a more efficient and expedited process

What is the current process by which an adopted child can gain entry into the United States? How would the ICARE bill change this process?

There are two ways to bring a foreign adopted child into the United States. The fastest and easiest way is to adopt an orphan who automatically becomes eligible to enter the United States with an immediate relative visa. Only U.S. citizens are eligible to immigrate a child as an orphan. The second way is to adopt a child and reside with that child abroad for two years prior to petitioning for a visa for the child to enter the United States as an immediate relative. U.S. citizens and lawful permanent residents may immigrate a child with whom they have lived for two years. Upon legal entry into the US, a child who has been legally adopted by a U.S. citizen is eligible for automatic citizenship.

Unlike the conference of citizenship to a child born abroad to a U.S. citizen, citizenship for adopted children does not attach until they set foot on U.S. soil. The ICARE act proposes to eliminate the visa process for two important reasons. First, doing so promotes equity by affording children adopted by U.S. citizens the same rights and privileges as children born abroad to U.S. citizens. Secondly, it eliminates the unnecessary burden and cost of having parents obtain an immigrant visa for a plane ride. Citizenship can and should attach at the point of adoption, the functional equivalent for birth for all other legal rights.

What is the “orphan” definition and why does it need to be updated?

The immigration and nationality act defines an orphan as “a child under the age of 16 at the time the petition is filed… and 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 and has in writing irrevocably released the child for emigration and adoption.” This language was inserted into the INA in 1965 and very much describes the circumstances which left children orphaned, particularly in war-torn countries.

The circumstances in which children are orphaned in the year 2004 have changed. As a result, children who by a common language definition are “orphans” and have spent a considerable part of their life, if not all, in an orphanage, are left outside the outdated INA definition. What’s worse, the current practice does not require that a child’s eligibility for adoption under the “orphan” definition be determined prior to the completion of a full and final adoption. Therefore, many parents each year find that they have adopted a child who they can not bring home with them to the U.S because the child is ineligible for adoption under our current “orphan” definition.

The ICARE bill proposes to address both of these problems by modernizing the definition and moving the point of determination of orphan status to before, rather than after, the adoption. Many of these changes were made to the orphan definition in the Inter-country Adoption Act of 2000 (IAA), but apply only to Hague signatory countries. ICARE attempts to make these improvements more uniform by having them apply to Hague and Non-Hague adoptions alike.

Why do we need an Ambassador at Large?

The Inter-Country Adoption Act of 2000, designated the U.S. State Department as the Central Authority, who was to act as the liaison and official representative in all international matters of adoption. The State Department was charged not only to establish an internal structure through which to assure that adoption agencies were acting in a professional and ethical manner, but they were also charged with working with other Hague countries to establish an international adoption system that protected the best interests of the child. Since the passage of the IAA, the Office of Children’s Issues, a sub-office of the office of Consular Affairs, has been carrying on the day to day functions of the central authority.

Foreign nationals continue to express frustrations about the current structure. Since international adoption is just one of the many consular issues under the purview of the Assistant Secretary of Consular Affairs, it is often not the first priority. While their sub-office, the Office of Children’s Issues, is able to give the issue more of its time and attention, they have a very small staff and are often not on the same diplomatic level as their foreign counterparts. As a result, foreign governments find themselves talking to state officials about quality control issues and Members of Congress about policy concerns.

ICARE proposes to close the gap in diplomatic representation by appointing an ambassador at large whose main function will be to represent the United States and to work with other countries to improve the system of international adoption worldwide.

Will the ICARE bill conflict with changes made by The Hague Treaty and the Inter-country Adoption Act?

No. In fact, it is drafted in such a way as to complement and support the reforms initiated by that act in 2000. As stated previously, the IAA designated the State Department as the central authority under The Hague but did not create an infrastructure under which the State Department could carry out that responsibility. The ICARE bill attempts to fill in those gaps. ICARE re-enforces the reporting requirements established under the IAA and perfects the acquisition of automatic citizenship by adopted children. Finally, it extends the changes to the orphan definition made by the Inter-country Adoption Act to Hague and Non-Hague countries.

As the State Department moves toward the actual implementation of the accreditation process, the streamlined process put in place by ICARE, as well as the additional expertise and resources such consolidation brings, will enable them to ensure that the best interests of the children are being served both at home and abroad.

Will the Department of State have sufficient staff and resources to accept the new responsibilities?

Yes. ICARE calls for all of the funds and other resources currently employed by other federal agencies, such as USCIS, to carry out the transferred functions should be transferred to the U.S. Department of State. What’s more, Title III of the ICARE bill authorizes the Secretary of State to provide the Ambassador at Large with the funds necessary to staff the office, conduct thorough investigations, and cover other necessary expenses associated with carrying out the act.

How will the State Department elicit information and cooperation from other countries in implementing the Hague Treaty and the requirements of the ICARE Act?

ICARE calls on the newly appointed Ambassador at Large to work with foreign countries through the appropriate diplomatic channels to establish open and transparent adoption procedures by which information can be shared and children can be placed with waiting families. For the most part, this type of negotiation and interchange is taking place now on a more informal level. The establishment of a dedicated diplomatic representative will allow the U.S. State Department to take a more proactive role in assisting and advising developing countries in establishing a transparent and fraud-free foreign adoption process.

The law does not specifically direct the OIA or the foreign government on what procedures must be established or how to establish such cooperation. That is left up to the State Department and the Foreign Governments to decide. It does, however, require that census information and needs assessments be gathered by the State Department and reported to Congress. Similar information is already gathered for other important human rights concerns, such as trafficking and asylum.


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