Wednesday, March 26, 2008

U.S. Department of State - Regulations

For all the U.S. adoptive parents whose files are "stuck" at the U.S. Consulate in Haiti awaiting visa approval, here is some additional information for you.

Please click on the following link to download the U.S. Department of State Manual that pertains to issuing visas for adopted children, it has 47 pages and you do not need to read all 47 pages.

Of particular interest are the following sections:

Start on page 7:

Pages 14 - 16:

  • 9 FAM 42.21 N13.2-1 Key Elements of Classification

Pages 17 -26:

  • 9 FAM 42.21 N13.2-3 Adoption or Intent to Adopt
  • 9 FAM 42.21 N13.2-4 Statuts of Natural Parents - Introduction
  • 9 FAM 42.21 N13.2-5 Orphan With No Parents
  • 9 FAM 42.21 N13.2-6 Orphan with Sole or Surviving Parent
  • 9 FAM 42.21 N13.2-8 Child Buying, Fraud, Misrepresentation

These are the regulation that the U.S. Visa Dept. is supposed to abide by.

Of particular interest for some of us is the regulation that deals with Sole or Surviving Parent:

9 FAM 42.21 N13.2-6 Orphan with Sole or Surviving Parent

If a child is not an orphan by nature of having no parents, he or she may still be considered an orphan if the child has a sole or surviving parent who is unable to provide proper care and who has irrevocably released the child for emigration and adoption. This is the only circumstance where a child released directly to the adoptive parent(s) can qualify as an orphan.

(1) Sole or surviving parent.

(a) A “surviving” parent is defined as a living parent when the child’s other parent is dead, and the child has not acquired another parent (i.e., a stepparent per definition in INA 101(b)(2)). Primary evidence would be a death certificate in the name of the deceased parent.

(b) A “sole” parent is one who is the mother of the child and whose situation meets all of the following criteria:

(1) The child was born out of wedlock (regardless of whether or not local law deems all children to be legitimate at birth);

(2) The child has not been legitimated under the law of the child’s residence or domicile or under the law of the natural father’s residence or domicile while the child was in the legal
custody of the legitimating parent or parents;

(3) The child has not acquired a stepparent; and

(4) The natural father of the child is unknown, or has disappeared or abandoned or deserted the child, or has in writing irrevocably released the child for emigration and adoption.

(c) Evidence of “sole” parent status would be the birth certificate of the child or other proof of out-of-wedlock status, and documentation per 9 FAM 42.21 N13.2-5 or 9 FAM 42.21
N13.2-6 c on the whereabouts or status of the natural father.

(d) Note that under current DHS regulations, a father may not be considered to be a child’s “sole” parent, and therefore could only release a child for emigration and adoption if he is a
“surviving” parent.

(2) “Incapable of providing proper care” means that a sole or surviving parent is unable to provide for the child’s basic needs, consistent with the local standards of the foreign sending country. A parent could be unable to provide proper care due to a number of reasons, including extreme poverty, mental or emotional difficulties, or longterm incarceration.

(3) The sole or surviving parent’s irrevocable release for emigration and adoption must be in writing, in a language that the parent is capable of reading and signed by the parent. The release must be irrevocable and without stipulations or conditions which would cause custody of the child to revert to the birth parent. The release may, however, identify the person(s) to whom the parent is releasing the child, even if that person is the prospective adoptive parent. If the parent is illiterate, but in an interview satisfies the you that he or she had full knowledge of the contents of the document and understood the irrevocable nature of the release, the officer may also treat the document as evidence of the release required for the orphan classification.

(4) There is no requirement that the irrevocable release be completed in the presence of a consular officer or notary, and in most cases the natural parent’s presence should not be required to process an orphan case. However, when post has serious concerns with a particular case regarding the natural parent’s intent or understanding of the release, you may request an interview of the natural parent. If there are concerns that purported natural parents may not be the biological parents of the child, DNA tests may be used to affirm that the true natural parent is releasing the child for emigration and adoption.

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