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FAQ's

 

Adoption of Children from Countries in which Islamic Shari'a law is observed

 

The Department of State has received many inquiries from American citizens who wish to adopt orphans from countries in which Shari’a Law is observed. There is a vast variance in the implications and observance of Shari’a law from country to country. Generally, however, Islamic family law does not allow for adoption as that concept is understood in the United States. Accordingly, it may not be possible for American citizens to adopt an orphan overseas and to obtain an immigrant visa that will allow that orphan to live in the United States. However, some countries in which Shari’a law is observed do allow custody of children to be transferred through guardianship. Prospective parent/guardians frequently have inquired as to whether immigrant visas might be obtained for an orphan through Shari’a recognized guardianship.

 

The Immigration and Nationality Act does allow for the issuance of immigrant visas for orphans to be adopted in the United States. Prospective adoptive parents must first obtain guardianship or custody of the orphan for emigration and adoption in the United States, in accordance with the laws of the sending country. To show this standard has been met, the prospective adoptive parents must provide documentation to establish that the child has been irrevocably released for emigration and adoption. This may take the form of a written release from the Shari’a court or a competent authority, either included on the guardianship decree itself or as a separate document, or a provision of law from the sending country indicating that the guardianship decree implies permission for the child to emigrate and be adopted in another country.

 

Again, the issuance of the immigrant visa in these cases depends on a showing that the underlying Shari’a law or the Islamic courts in the country in question actually allows for the child to be adopted overseas. To this point, in many cases, when the I-600 petition and the guardianship decree are submitted by the prospective adoptive parents, the consular officer reviewing the case might have to contact the Islamic court that issued the decree or work with the U.S. Citizenship and Immigration Service of the Department of Homeland Security to ensure that the guardianship decree meets all U.S. immigration law requirements. Because of this, the I-600 processing time period for these cases may be longer than in other orphan visa cases.

 

It is also important to note that at the time the prospective adoptive parents submit the I-600 application and guardianship decree they will also have to show the consular officer that they have met all the pre-adoption requirements of the state in which they will be adopting the orphan once they return to the U.S. (through documentary evidence, etc.).

 

For further information on this issue, please refer to the specific flyer for the Shari’a law country in question or contact the Department of State’s Office of Children’s Issues at (202) 736-9099.

 

Hague vs Non-Hague Adoption Process

 

Both the Hague Convention Adoption Process (Convention adoptions) and the orphan adoption process, (or non-Convention adoptions) involve two basic U.S. determinations: 1) The suitability of the adoptive parents, and 2) Whether the child's adoption meets eligibility requirements in order for the child to immigrate to the United States.

 

So what's the difference?

 

Below is a chart outlining the differences between the two procedures. In general, prospective adoptive parents receive more protections when adopting from Convention countries.

Please See the Chart, here.

 

Conducting Home Studies for American Citizens Residing Abroad in Incoming/Immigrating Convention Cases

 

Q: Does a home study preparer conducting home studies of American citizens residing abroad in Convention cases have to be authorized to conduct home studies in the United States and/or in the country where the family resides?

 

This guidance applies to home studies prepared abroad in "incoming / immigrating" adoption cases covered by the Hague Adoption Convention (i.e., cases in which a U.S. citizen habitually resident in the United States seeks to adopt a child habitually resident in a Convention country). Provisions of both the U.S. Department of State regulation on accreditation in Convention cases and the USCIS regulation on Convention cases apply to adoption service providers conducting home studies abroad in incoming Convention cases.

 

Under the USCIS regulation, 8 CFR 204.313(b)(2), U.S. citizens serving in the U.S. Armed Forces or with the U.S. Government abroad are considered to be habitually resident in the United States. Under 8 CFR 204.303, there may be other situations in which a U.S. citizen living temporarily abroad can establish that he or she is habitually resident in the United States.

Thus, if a citizen who is living abroad establishes that he or she is habitually resident in the United States, and seeks to adopt a child who is habitually resident in a Convention country, that adoption is covered by the Convention and is considered an "incoming case".

Under the U.S. Department of State's accreditation regulations, an adoption service provider conducting home studies abroad in incoming Convention cases must be either the primary provider or a supervised provider, in accordance with 22 CFR 96.2 and 96.14(c). Unlike adoption service providers conducting home studies in the United States for incoming Convention adoption cases, adoption service providers conducting home studies abroad are not authorized to conduct them as exempted providers. (See 22 CFR 96.2.)

In addition, the accreditation standards provide for adoption service providers conducting home studies abroad to be authorized or licensed to complete a home study under the laws of the States in which they practice, if any, and for supervised providers to be accredited in the Convention country where they are conducting the home study, if such accreditation is required by the laws of the Convention country. See 96.47(c)(2), 96.37(f), and 96.46(a)(5).

Under the USCIS regulation, in addition to being authorized under the accreditation regulations to conduct home studies, the adoption service provider must also be authorized to conduct home studies under the law of the jurisdiction in which the home study is conducted. 8 CFR 204.311(b). (Separately, the Convention requires authorization from the Convention country to act in that country. See Convention, Article 12.)

The USCIS regulation on incoming Convention cases also requires the home study preparer to certify that he or she is authorized under 22 CFR part 96 to complete home studies for Convention adoption cases, and to provide specific details as to the license or authorization. See 8 CFR 204.311(s).

Adoption service providers, in summary, may conduct home studies abroad in Convention adoption cases for American citizens residing abroad if they are authorized to conduct home studies 1) under the accreditation regulations, and 2) under the law of the jurisdiction in which the home study is conducted.

22 CFR 47(c) and 8 CFR 204.311(t) further provide that home studies prepared by supervised providers must be reviewed and approved by an accredited agency, or temporarily accredited agency, before submittal to USCIS for approval.

 

Q: Examples of social work professionals who may conduct home studies abroad in incoming Convention cases when prospective adoptive parents reside abroad in Country X:

 

Example 1: A private social worker of any nationality practicing in Convention Country X who

 

is a supervised provider (foreign supervised provider) who has a written agreement with the primary provider to provide home study services (22 CFR 96.46(b));

is authorized to conduct home studies in Country X; and

is accredited in Country X, if Country X requires such accreditation.

Notes: The home study must be approved by a U.S. accredited or temporarily accredited ASP, usually the primary provider. This example assumes that the social worker does not practice in any U.S. State and is not employed by the primary provider or an accredited entity. If the law of Country X requires it, the home study may also have to be "reviewed by the competent authority" in Country X

 

Example 2: An employee of a U.S. accredited or temporarily accredited agency that

 

is authorized to perform home studies in accordance with the accreditation rule, 22 CFR 96.37(f);

is authorized to conduct home studies in Country X. If the law of Country X requires it, the home study may also have to be "reviewed by the competent authority" in Country X; and

is accredited in Country X, if Country X requires such accreditation.

 

Example 3: A government agency of Country X that is authorized to perform home studies in Country X for U.S. citizens.

 

Notes: Because this agency is a public foreign authority under 22 CFR 96.14(d)(2), it is not subject to supervision. The home study must be approved by a U.S. accredited or temporarily accredited ASP, usually the primary provider (22 CFR 96.46(c)).

 

Example 4: A private social worker of any nationality practicing in the United States and in Convention Country X who

 

is a supervised provider and has a written agreement with the primary provider to provide home study services;

is authorized or licensed to complete a home study under the laws of the States in which the social worker practices;

is authorized to conduct home studies in Country X;

is accredited in Country X, if Country X requires such accreditation.

Notes: This example assumes that the social worker is not employed by the primary provider or an accredited entity. The home study must be approved by a U.S. accredited or temporarily accredited ASP, usually the primary provider.

 

Guidance on Whether a Primary Provider is Needed in Every Convention Case

 

Q: Is every family who is adopting a child from a Convention country required to have an accredited or approved primary adoption service provider?

 

The Hague Adoption Convention accreditation regulations (22 CFR Part 96) establish the central importance and role of primary providers. Section 96.14 provides that "…in each Convention adoption case, an accredited agency, a temporarily accredited agency, or an approved person will be identified and act as the primary provider." Section 96.2 defines a primary provider as "the accredited agency, temporarily accredited agency, or approved person that is identified pursuant to section 96.14 as responsible for ensuring that all six adoption services are provided and for supervising and being responsible for supervised providers where used."

 

Furthermore, DHS (USCIS) regulations governing the I-800A application process and the I-800 petition process require participation by an accredited agency, temporarily accredited agency, or approved person that is acting as the a primary provider at important points in the adoption process, as follows:

 

A home study must be prepared by an individual or agency authorized under 22 CFR Part 96. As provided in 8 CFR 204.311(t)(2), when the home study is not performed in the first instance by an accredited or temporarily accredited agency, then an accredited agency must review and approve the home study in writing per 22 CFR 96.46(c), before the home study is submitted to USCIS;

As part of the I-800 petition, prospective adoptive parents must file a statement from the primary provider indicating that all of the pre-placement preparation and training provided for in 22 CFR 96.48 have been completed. See 8 CFR 204.313(d)(2);

Prospective adoptive parents must also file a statement from the primary provider certifying that the information in the article 16 report on the child is true, correct, and complete. See 8 CFR 204.313(d)(4)(iii);

Prospective adoptive parents must also file a statement from the primary provider detailing the primary provider’s plan for post-placement duties, as specified in 22 CFR 96.50. See 8 CFR 204.313(d)(4)(v);

Finally, before final approval of the I-800 petition, in incoming cases in which the child is to be adopted in the United States and a plan for monitoring the placement until the final adoption was not submitted as part of the I-800A application, a statement from the primary provider must be submitted summarizing the plan under 22 CFR 96.50 for monitoring of the placement until the adoption is finalized. See 8 CFR 204.313(h)(ii)(B).

 

In summary, the U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS) regulations governing the I-800 processes impose duties on a primary provider that may not be accomplished by anyone else. Every family adopting from a Convention country needs a primary provider to perform these duties and functions.

Q: What about U.S. citizen families residing abroad? Do they need to engage a primary provider in their Convention adoption case?

 

U.S. citizen families residing abroad are not exempted from this requirement. They must engage an accredited agency, temporarily accredited agency or approved person to act as the primary provider for the Convention adoption case.

Q: If I am an accredited agency or temporarily accredited agency providing only home study services in a Convention case and mine is the only agency providing services in the case, must I accept the role of primary provider?

 

If your accreditation or temporary accreditation permits you to act as a primary provider, and you are the sole agency providing adoption services in a Convention case, you are obliged to act as the primary provider in the case. See 22 CFR 96.14(a). This provision applies in cases involving U.S. families residing in the United States and abroad.

Q: When these families ask about how to complete the USCIS Form I-800A, Part 3, Question 2, (bottom of page 6), should we tell them to check off box “a.” since we are only responsible for their home study?

 

Unless you are an attorney or accredited representative authorized to appear before USCIS, you may not advise them about how to complete Form I-800 or Form I-800A. 8 CFR 1.1(i), (j) and (k) and 204.302(b). If your role is limited to the preparation of the home study, however, you must, of course, inform them of this fact, which should prompt them to understand that they should check box “a” for this question, and list your agency information in the spaces provided.

Q: My agency provided a home study for a family adopting from a Convention country. No other agency is providing adoption services in the case. When the I-800A is approved, will my agency be responsible for providing the Article 16 report required for submission of the I-800?

 

If you are an accredited agency, temporarily accredited agency, or approved person providing the home study, and your accreditation or temporary accreditation permits you to act as a primary provider, and no other accredited or approved adoption service provider is providing adoption services in the case, you are obligated under section 96.14 to be the primary provider. You cannot opt out of this requirement. For future Convention cases, you could decide not to provide home study services unless another accredited agency, temporarily accredited agency, or approved person has already been identified as the primary provider. If you are not an accredited or temporarily accredited agency or an approved person (or you are, but your accreditation or temporary accreditation does not permit you to act as a primary provider), then you cannot legally act as the primary provider, even though no other accredited or approved adoption service provider is providing adoption services in the case. The prospective adoptive parents will need to secure the services of the accredited or temporarily accredited agency that reviewed and approved the home study, or another accredited or approved adoption service provider, to be the primary provider. You should make this fact clear to prospective adoptive parents before they engage you to conduct the home study.

 

Transition Cases and the Hague Adoption Convention

 

Q: What is a Convention country?

 

A Convention country is a nation, who has signed, and Entered into Force, the Hague Adoption Convention. The Convention governs adoptions between the United States and these nearly 75 other nations.

Q: What happens to a case that was in process when the Hague Adoption Convention entered into force with respect to the United States?

 

An adoption case involving a Convention country already in process when the Convention entered into force for the U.S. did not change into a Hague case at that time. These transition cases will continue to be processed in accordance with the immigration regulations for orphan adoptions which were in effect at the time the case was filed (before the Convention entered into force).

 

There are two types of transition cases: incoming cases (where children are immigrating from another Convention country to the United States) and outgoing cases (where children are emigrating from the United States to another Convention country). The U.S legislation for the Hague Adoption Convention—the Intercountry Adoption Act of 2000 (the IAA)—sets out rules for both types of transition cases.

Q: What happens with respect to an incoming case that was in process before the Hague Adoption Convention entered into force with respect to the United States?

 

For incoming cases, if the Application for Advance Processing of an Orphan Petition (I-600A) or Petition to Classify an Orphan as an Immediate Relative (I-600) was filed before the date the Hague Adoption Convention entered into force with respect to the United States (April 1, 2008), then the Convention and the IAA do not apply to that case.

Q: What does “filed” mean in an incoming case?

 

The Department of Homeland Security’s U.S. Citizenship and Immigration Service (USCIS) considers a case properly filed when it receives an application or petition along with any required filing fee. The filing date is stamped on the application or petition to show the time and date of actual receipt.

Q: What happens with respect to an outgoing or emigrating case involving a U.S. born child that was in process before the entry into force date for the Hague Adoption Convention?

 

For outgoing cases, if the prospective adoptive parent(s) of the child initiated the adoption process in their country of residence by filing an appropriate application before April 1, 2008, then the Convention and the IAA do not apply to that case.

Q: What does “file an appropriate application” mean in an outgoing (emigrating) case?

 

In general, the Department of State (DOS) will treat an application that prospective adoptive parent(s) have submitted to the receiving country’s Central Authority, or any accredited body, as an appropriate application that initiated an outgoing case. DOS plans to work with the most common receiving countries, namely, Canada and Mexico, to determine what constitutes an application to adopt in the receiving country.

Q: What happens if an I-600A was filed before the Hague Convention entered into force, but the child was not adopted before the Convention into force with respect to the United States?

 

As noted above, if the prospective adoptive parent(s) filed the I-600A (Application for Advance Processing of an Orphan Petition) before the date the Hague Adoption Convention entered into force on April 1, 2008, then the Convention and the IAA do not apply to that case, provided that the relevant I-600A remains valid (see question 16). For example, if the prospective adoptive parent filed an I-600A on March 1, 2008, the case is not a Convention case. If the I-600A expires after April 1, 2008, but before the parent files the I-600 petition, the case becomes a Convention case and the prospective adoptive parent must begin the process over again using the appropriate Convention case forms.

Q: May a prospective adoptive parent change a transition case to a Convention case?

 

In order for a prospective adoptive parent to change a transition case to a Convention case, the application and petition process must be started anew. Convention cases have different processing requirements, and an I-600A or I-600 cannot be converted into the form(s) that are for a Convention case, the I-800A and I-800.

Q: I have already filed an I-600, Petition to Classify an Orphan as an Immediate Relative. Does the Hague Convention apply to my case? If so, what does that mean?

 

If you filed the I-600A before April 1, 2008, then the Convention and the IAA do not apply to your case, provided that the I-600A has not expired (see question number 16). If you filed the I-600 after April 1, 2008, the Hague Adoption Convention does apply to your case. If the Convention applies to your incoming case, then your case must be processed in accordance with the IAA, and applicable regulations, including 22 CFR 96 and 22 CFR 42. DHS has issued a separate rule to cover Convention cases.

 

In general, this means that you need to use an accredited adoption service provider for services in connection with your case. You and all accredited/approved adoption service providers must also follow new processing procedures established for Convention cases.

Q: What happens if the case involves a non-Convention country?

 

If the child being adopted is from a non-Convention country, then the Convention does not apply to the case and the adoption will be processed under existing U.S. immigration regulations for orphan adoptions.

Q: What if my fingerprint check approval or I-600A approval expires after the Hague Convention entered into force?

 

The Hague status of a case is not affected if an I-600A expired after April 1, 2008, provided that USCIS extends the approval of the I-600A before the I-600A expires. If USCIS extends the approval of an I-600A that was filed before the Convention entered into force with respect to the United States, the prospective adoptive parent(s) will also be able to file an I-600, after the Convention entered into force, without changing the Hague status of the case.

 

Prospective adoptive parent(s) may be re-fingerprinted as often as needed to keep the clearance current without changing the Hague status of the case. Unlike an I-600A or I-600, a fingerprint check does not open an adoption case, or begin the application/petition process. Should a fingerprint clearance expire after the Convention entered into force with respect to the United States, and while the I-600A or I-600 are valid, the prospective adoptive parent(s) need only submit a request for a new fingerprint clearance in order to continue processing the adoption case under the U.S. immigration regulations in effect at the time the case was filed.

Q: What about Hague Adoption Certificates (HACs) and Hague Custody Declarations (HCDs)? Are they issued for transition or other pre-Convention cases?

 

A Hague document certifies or declares that the adoption or custody case has been processed from beginning to end in accordance with the Hague Convention. HACs and HCDs, therefore, will be issued only in Convention cases.

 

 

 

 

 

 

 

 

Dept. of State Contact Info:

General Questions AskCI@state.gov

Hague Adoption Convention Questions AdoptionUSCA@state.gov

Telephone 1-888-407-4747

Outside the U.S. +1 202-501-4444

Fax +1 202-736-9080

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