ICARE

Please see the new version of this bill under FACE Act and FFO Act links to the left.

The InterCountry Adoption Reform Act (ICARE) is designed to reform United States laws and practice governing intercountry adoptions and to establish an Office of Intercountry Adoptions within the U.S. Department of State. The purposes of the Act are to ensure that international adoptions are carried out in a manner that is in the best interests of the child, that foreign-born children adopted by U.S. citizens are treated in the same way as foreign-born biological children of U.S citizens, and to improve the intercountry adoption process so that it is more “citizen friendly and focused on the protection of the child.”

In the 108th Congress, ICARE was introduced in the Senate on November 23, 2003 and in the House of Representatives on March 4, 2004. It was revised and reintroduced on December 7, 2004 in the Senate. In the 109th Congress, in May of 2005, ICARE was introduced as an amendment to the comprehensive immigration reform bill, S. 2611. The amendment was adopted by voice vote and passed the full Senate as a part of S. 2611. However, S. 2611 never became law. In the 110th Congress, ICARE was reintroduced on February 2, 2007 in the House of Representatives. Action is still pending on ICARE.

In brief, ICARE seeks to consolidate and streamline the federal government processes involved in foreign adoptions by American citizens while maintaining safeguards to protect birth families, orphans and adoptive families from fraud and abuse. Beyond these process changes, the bill establishes that children adopted in a foreign country by Americans will receive the same treatment and documentation as do children born to American parents abroad. In other words, the Government will no longer view adoption as an immigration process but rather as an American family adding a dependent child or children and then returning home. In practical terms, this means the end to the practice of attaining an immigration visa for an adopted child. Instead, each child will be issued a U.S. passport and consular report of birth (equivalent to a birth certificate) by the nearest U.S. Embassy, which is what is currently done for biological children of American parents who give birth overseas.

The Act would establish an Office of Intercountry Adoptions (OIA) in the U.S. Department of State. The Act would remove the Department of Homeland Security, specifically Citizenship and Immigration Services, from the process of intercountry adoption and transfer these functions to the OIA in the Department of State. Foreign-born adopted children are not immigrants, but children coming to the United States as immediate family members of U.S. citizens. Foreign adoptions by American citizens should not be handled by the Department of Homeland Security. What does adoption have to do with homeland security? The Department of State, which assists American citizens overseas and in their interactions with foreign governments, is a much more appropriate agency to help Americans through the process of a foreign adoption.

The OIA would be headed by an Ambassador at Large for Intercountry Adoptions. This person would provide oversight and guidance to the process of intercountry adoptions and report directly to the Secretary of State. The OIA would be responsible for approving the eligibility of a U.S citizen to adopt a child born in a foreign country, to adjudicate that the child is an “adoptable child,” to provide assistance to families experiencing problems in the intercountry adoption process and to track such difficulties, to advise and support the Ambassador regarding appropriate policy development in child protection and intercountry adoption, to investigate any improprieties regarding intercountry adoption (including issues related to child protection, birth family protection, and consumer fraud), and to perform administrative functions related to legal issues, congressional liaison, and public affairs. Federal employees in this office would be specially trained in issues related to laws and processes of intercountry adoption and cultural, medical, emotional, and social issues of intercountry adoption and adoptive families. In contrast, federal employees in DHS/CIS are largely responsible for issues related to legal immigration and homeland security.

The Act would have several effects that would reform U.S. laws governing intercountry adoption. Like biological children born to U.S. citizens while in a foreign country, foreign-born adopted children of U.S citizens would automatically acquire U.S. citizenship on the date of the full and final adoption, provided that the adoptive parent is a U.S. citizen, that the child is determined to be an adoptable child by the U.S. government, that the child’s adoption has been fully and finally decreed by a foreign government or a U.S. court, and the child is under the age of 18. Under ICARE, citizenship would attach immediately when the afore mentioned criteria is met rather than when the adopted child enters the U.S. as is required under current law. Therefore, under ICARE, children who have been fully and finally adopted by U.S. citizens would receive a U.S. passport and a Consular Report of Birth, and would not require a visa, affidavit of support, or immigration medical exam to enter the U.S. (Agencies would be required to allow prospective adoptive parents to conduct an independent medical examination and review medical records and to provide for full disclosure of any medical conditions of the child.) Since biological children of U.S. citizens are not denied entry because of medical reasons, neither should adopted children be denied.

Through ICARE, the prospective adoptive parent’s approved petition to adopt would be granted through the OIA rather than DHS/CIS and would be valid for 24 months, with a simplified and expedited process for families whose approval has expired. The Act would define an Adoptable Child as “an unmarried person under the age of 18 whose biological parents or parent or other persons or institutions that retain legal custody of the child have freely given their written irrevocable consent to the termination of the legal relationship with the child, are unable to provide proper care for the child as determined by the appropriate governmental authority of the child’s residence or have voluntarily relinquished the child to the government authorities pursuant to the law of the child’s residence.”

The current term “orphan,” used to determine eligibility for adoption has not been revised since it was written 50 years ago. This definition is also more consistent with the language of the Hague Convention for Intercountry Adoption. The Act will also ensure that the Secretary of State is satisfied that the child will be provided with proper care, that the purpose of the adoption is to form a bona fide parent-child relationship, that the parent-child relationship of the child and the biological parents has been terminated, that the Secretary of State (in consultation with the Secretary of Homeland Security) is satisfied that the person is not a security risk, and that the child’s adoption and emigration to the U.S. has been approved by the competent authority of the country of the child’s place of birth or residence.

The Act would introduce a new type of visa for children traveling to the U.S. for the purpose of being adopted by an American citizen who has been approved to adopt (a “W” visa). Currently, children who are not adopted overseas prior to their entry into the U.S. are allowed entry using an immigrant visa. These children are not immigrants. They are being brought to the U.S. at the request of a U.S. citizen, to become a member of their family. Authorized admission under this section terminates on the date the adoption is finalized, or four years after the date of admission, if the adoption has not been finalized. Until the child is adopted, the child will receive temporary treatment as a legal permanent resident.

Before issuing a nonimmigrant visa for a child coming to the U.S. to be adopted, or prior to a full and final adoption decree being issued, the OIA will obtain from the competent authority of the country of the child’s residence certification, with documentary support, that the child sought to be adopted is an adoptable child as defined in this bill. This determination must be made within 30 days of receipt of the certification. The OIA will work with the authorities of the child’s country of residence to establish a uniform, transparent and efficient process for the exchange of the certification and documentary support required. If the OIA finds that the certification or the documentary support is not sufficient and additional information or investigation is necessary, the Office will notify the competent authority of the Office’s intent to deny the adoption and allow the competent authority an opportunity to address the insufficiencies.

The overall purpose of ICARE is to provide clear accountability and oversight of the intercountry adoption process, to streamline the process for children and families, and to treat foreign-born children adopted by U.S. citizens the same way as biological foreign-born children of U.S. citizens.