Saturday, June 28, 2008

U.S. Families Advice:

Over the past few weeks I have received several emails from U.S. families whose I-600 applications were denied by USCIS.

If this happens, you only have 30 days to appeal the decision of USCIS. This appeal is done in writing and there is no court-hearing of sorts. If, following the appeal, your I-600 remains denied (i.e. the previous decision is not overturned during the appeal), you have no remaining remedy.

Here is my advice to you: If you receive an I-600 denial from USCIS, consult with an immigration attorney who knows what they are doing. You get "one shot" at overturning that USCIS decision, do not try to do it on your own.

If you have adopted a child and your I-600 or the I-604 (orphan investigation) was denied for whatever reason, you appealed and that appeal was denied, the only option you have (if you have a legal adoption) is to live with the child for two years - in country, and then to apply for a visa for a family member. That is done via an I-130 form.

(Additional Information)

According to U.S. law, a child to be brought to the U.S. pursuant an adoption must meet the definition of "orphan".

The child must be under the age of 16* at the time an I-600 Petition is filed with the USCIS or a consular officer on his or her behalf;

The child meets the U.S. immigration law definition of “orphan” because:

1. The child has no parents due to the death or disappearance of, abandonment or desertion by, or separation from or loss of both parents; or (See U.S. Law Definitions below)

2. The sole or surviving parent is incapable of providing proper care and has, in writing, irrevocably released the child for emigration and adoption**;

3. The adopting parents must have completed a full and final adoption of the child or must have legal custody of the child for purposes of emigration and adoption in the U.S.; and

4. The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship.

*A child adopted at age 16 or 17 will also qualify, provided he or she is a natural sibling of a child adopted, or who will be adopted, under the age of 16 by the same adopting parents.

**Prospective adopting parents should note that the terms “disappearance,” “abandonment,” “desertion,” “separation,” “loss,” and “sole” and “surviving” parent all have specific legal meanings, as defined in section 204.3(b) of Title 8 of the U.S. Code of Federal Regulations. Whether a child qualifies as an orphan is determined by reference to the U.S. regulatory definitions and not by any local (foreign) law designations that may be used to identify a child as orphaned. In some countries it is possible to adopt a child who is not an “orphan” as defined by U.S. immigration law. Parents are urged to seek advice about the possibility that an adopted child would not be considered an orphan and therefore would not be able to accompany his or her adopting parents to the United States. Immigration attorneys, reputable adoption agencies involved in international adoption, DHS/CIS and the Department of State officials all have information that will assist you in addressing this serious concern.

Title 8 - Sec. 204.3(b):
Definitions. As used in this section, the term:
Abandonment by both parents means that the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s).

Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrending such rights, obligations, claims, control, and possession.

A relinquishment or release by the parents to the prospective adoptive parents or for a specific adoption does not constitute abandonment.

Similarly, the relinquishment or release of the child by the parents to a third party for custodial care in anticipation of, or preparation for, adoption does not constitute abandonment unless the third party (such as a governmental agency, a court of competent jurisdiction, an adoption agency, or an orphanage) is authorized under the child welfare laws of the foreign-sending country to act in such a capacity.

A child who is placed temporarily in an orphanage shall not be considered to be abandoned if the parents express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child. A child who has been given unconditionally to an orphanage shall be considered to be abandoned.

Please also refer to:

* This posting is not intented as "legal advice".*


Anonymous said...

What reasons is USCIS giving for denying the I600s?

Anonymous said...

Is this for the country of Haiti?

Melanie said...

I would also like to know what reasons there would be for an i600 denial. Someone please answer this. said...

I cannot post specifics about different cases because of privacy reasons of the families.

Read the requirements (the U.S. Law) the cases did not meet one of the requirements and the U.S. Embassy made the determination that the child did not meet the "orphan" definition of the Immigration Law. Therefore, the children were denied visas.