ICARE: Why Needed?

Many people are surprised to learn that a child adopted by an American family is not accorded all the same rights and privileges under some state and federal laws as a child born into the same American family. A child born to an American citizen abroad, for example is considered a citizen from birth under U.S. Code Title 8, Section 1401. Parent/s of a birth child simply take their marriage certificate, proof of citizenship and the child’s birth certificate to the American Embassy and walk out with an American passport for their child and a Consular Report of Birth, both of which constitute proof of American citizenship. That child can then travel home immediately without any further questions asked.

Under adoption law, once a child is fully and finally adopted, that child is to be treated as the “natural issue” of their adoptive parents. However, this preeminent tenant of adoption law is not honored where foreign adoptions are concerned. Instead, when an American citizen adopts a child from a foreign country and is given a full and final adoption decree from that country, our laws require that this child be treated as an “immigrant” to the United States. The family must then apply for and receive an immigrant visa before their child can come home with them to America.

Since the foreign adopted child is treated as an “immigrant,” the adoptive parents must prove that they can care for the child financially. This is required even though they have already done so in order to be approved to adopt a foreign child. The child then has to undergo a medical evaluation to make sure they carry no contagious diseases such as HIV that might disqualify them for entry into the U.S. and to make sure that all vaccinations are current. Such an examination is not required of a biological child and moreover, vaccination in the United States is safer and more reliable than in other countries. Next, the adoptive parents must then fill out paper work and pay a fee in order to acquire a visa for their child to enter the U.S. as a permanent resident alien.

Depending on the type of visa an adopted child is given (an IR-3 visa where both parents have seen the child prior to the adoption or an IR-4 visa where the parents did not see the child prior to the adoption) once the child enters the U.S. on an IR-3 visa, he or she becomes an automatic U.S. citizen thanks to the Child Citizenship Act of 2000. Thus, all the paperwork, time and expense that the family goes through to get their foreign adopted child an immigrant visa is simply for an international plane ride home. For those children who enter on an IR-4 visa, they become automatic citizens once they are readopted in the United States. Even then, some government offices and agencies do not recognize the adopted child’s citizenship unless his or her parents pay for and complete paperwork to obtain a Certificate of Citizenship.

In the creation of ICARE, the writers used the following rationale in the preamble of the legislation: “That a child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding. That intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her country of origin. There has been a significant growth in intercountry adoptions. In 1990, Americans adopted 7,093 children from abroad. In 2004, they adopted 23,460 children from abroad. Americans increasingly seek to create or enlarge their families through intercountry adoptions. There are many children worldwide that are without permanent homes. In the interest of children without a permanent family and the United States citizens who are waiting to bring them into their families, reforms are needed in the intercountry adoption process used by United States citizens. Before adoption, each child should have the benefit of measures taken to ensure that intercountry adoption is in his or her best interest and that it prevents the abduction, selling, or trafficking of children. In addition, Congress recognizes that foreign-born adopted children do not make the decision of whether or not to immigrate to the United States. They are being chosen by Americans to become part of their immediate families. As such these children should not be classified as immigrants in the traditional sense. Once fully and finally adopted, they should be treated as children of United States citizens. Since a child who is fully and finally adopted is entitled to the same rights, duties, and responsibilities as a biological child, the law should reflect such equality. Therefore, foreign-born adopted children of United States citizens should be accorded the same procedural treatment as biological children born abroad to a United States citizen. If a United States citizen can confer citizenship to a biological child born abroad, then the same citizen is entitled to confer such citizenship to their legally and fully adopted foreign-born child immediately upon final adoption. If a United States citizen cannot confer citizenship to a biological child born abroad, then such citizen cannot confer citizenship to their legally and fully adopted foreign-born child, except through the naturalization process.”

Currently there are three federal agencies 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 responsible for overseas processing, including background investigations and issuing the visas to adopted children. The Department of Homeland Security (Citizenship and Immigration Services) regulates the petition process: pre-approving parents for adoption, approving children for adoption and inspecting adopted children when they enter the U.S. ICARE will consolidate many of these 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.

Under current law, 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. Because of this, there are major differences in the waiting time and quality of services between USCIS district offices and consular offices overseas. In particular, offices that receive and process a large number of applications are often more educated on current law and practice but also may suffer from understaffing and a large backlog. Smaller or less experienced offices can process cases quicker but may be more likely to deny eligible cases or misadvise constituents because of their inexperience. Having a central processing unit for intercountry adoption would reduce duplication, burden, errors and cost in processing preapproval of prospective adoptive parents and determination of a child’s status of being adoptable.

Children born abroad to U.S. citizens are designated as U.S. citizens and receive a certificate of foreign birth and U.S. passport from the U.S. embassy. However, foreign-born adopted children do not become citizens until they set foot on U.S. soil. Foreign-born adopted children should be treated in the same way as foreign-born biological children. They should not have to go through the expense and paperwork to obtain an immigrant visa simply for a flight to the U.S. Citizenship should be conferred upon the full and final adoption of the child and after the U.S. government has determined that the child is adoptable under U.S. law.

The language for immigration of an “orphan” was written in 1965 and was indicative of the situation of many orphans at the time of the Korean War, although it is less reflective of the situations of adoptable children currently. The determination of “orphan” status by DHS/CIS often occurs after the foreign adoption is completed, and if it is determined that the child does not meet the current definition of “orphan,” adoptive parents are left in a heartbreaking situation of having responsibility for a child adopted in the foreign country but unable to bring the child to the U.S. ICARE will move the point of determination of orphan/ adoptable child 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 will apply these definitions to intercountry adoptions whether or not the affected children are in Hague signatory countries.

By streamlining and improving the process for intercountry adoption by U.S. citizens, ICARE would allow the U.S. to be a more positive model of policies and practices for intercountry adoption and to provide a central point of contact and authorization in the intercountry adoption process. Officials of the Office of Intercountry Adoptions and the Ambassador at Large would be more knowledgeable about international laws and practices, cultural and linguistic customs, and medical, physical, and social implications of intercountry adoption. The Office will be a more direct point of contact for liaison and negotiation with foreign countries, particularly when there are major changes in the country’s policies and procedures for intercountry adoption and when families and children are affected by these changes while in the adoption process.