Immigration: International Child Adoption

Congressional research reportSep 9, 2005

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Order Code RL31769

CRS Report for Congress

Received through the CRS Web

Immigration: International Child Adoption

Updated September 9, 2005

name redacted

Analyst in Social Legislation

Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Immigration: International Adoption

Summary

United States citizens adopt more children from abroad than the citizens of all

other countries combined, and the number of foreign children adopted annually by

U.S. citizens has more than doubled in the last decade from 8,333 to 22,884. Over

the previous five years, the largest number of children adopted have come from

China (28,690), followed by Russia (24,561), and Guatemala (10,938).

Under statute, international adoption is a two-step process. First, the parents’

eligibility to adopt must be verified, and then once the child is identified and the

parents have complied with the laws of the sending country, the adoptive parents

apply for a visa for the child so that the child can legally immigrate to the United

States. The application for the visa triggers an investigation into the child’s

background to confirm that the child has not been bought or stolen, and meets the

definition of orphan under the Immigration and Nationality Act (INA). The

Department of Homeland Security’s Bureau of Citizenship and Immigration Services

(USCIS) verifies the eligibility to adopt while the Department of State (DOS)

processes the visa application for the child. Once the prospective parents have been

deemed eligible to adopt, USCIS policy states they have 18 months to complete the

adoption. If the adoption is not completed in that time, the prospective parents must

restart the application process.

In 2000, the Senate approved the ratification of the Hague Convention on

Protection of Children and Cooperation in Respect of Intercountry Adoption (the

Convention) and Congress enacted the International Adoption Act of 2000 (IAA),

which is the implementing legislation for the Convention. The purpose of the

Convention is to establish uniformity in the standards and procedures for

international adoption, and to achieve this goal, the legislation mandates the

establishment of a central adoption authority in DOS and an adoption accreditation

program. The IAA requires that the child’s eligibility to immigrate be determined

before adoption or placement for adoption in countries party to the Convention. This

is important as there are instances when a child has been adopted in the home country

by U.S. citizen parents and yet is unable to immigrate to the United States because

the child does not meet the definition of an orphan under the INA.

The Convention seeks to alleviate some of the perceived abuses of the

international adoption system. Abuses range from charging exorbitant fees by

“facilitators” in some countries to cases of kidnaping and baby selling. There have

also been cases where deception is used to get parents to relinquish their children.

For example, parents may turn over their children to an orphanage for what they

assume is a limited time period, and when they return to claim their child, the child

has been adopted internationally. Proposed regulations to implement the IAA were

released on September 15, 2003, but DOS has not released the final regulations.

Due to questions about the integrity of adoptions in Cambodia, in December

2001, a moratorium was issued by USCIS on processing adoptions from that country.

In addition, Romania has suspended international adoptions except for those by the

child’s grandparents. This report will be updated to reflect legislative changes.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Hague Convention on Intercountry Adoption . . . . . . . . . . . . . . . . . . . . . . . . 3

International Adoption Act of 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Current Law and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Advanced Processing Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Orphan Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Adoptions in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Procedural Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18-Month Limit for Advanced Processing Applications . . . . . . . . . . . . . . . . 9

Cambodian Adoptions — The U.S. Moratorium . . . . . . . . . . . . . . . . . . . . . 10

Issues in Select Other Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Vietnam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Related Laws and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Adoption Subsidies for International Adoptions . . . . . . . . . . . . . . . . . . . . . 12

Adoption Tax Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Child Citizenship Act of 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

New Entrant Program (Automatic Issuance of Certificates of

Citizenship) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

List of Figures

Figure 1. Orphan Visas Issued FY1989-FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . 1

List of Tables

Table 1. Number of Children Issued Orphan Visas from the Top 10

Sending Countries: FY2000-FY2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Immigration: International Child Adoption

Introduction

United States citizens reportedly account for more than half of all international

adoptions,1 and in the past 10 years the number of children adopted annually from

abroad has more than doubled. (See Figure 1.) There are many reasons why U.S.

citizens adopt children from abroad. One factor that often makes the process

complex is that some prospective parents2 seek to adopt from countries characterized

by extreme poverty and political or social instability.

Figure 1. Orphan Visas Issued FY1989-FY2004

25,000

22,884

21,616

20,099

19,237

20,000

17,718

15,774

16,363

15,000

12,743

10,641

10,000

8,481

8,102

7,093

8,333

8,987

7,377

6,472

5,000

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004

Fiscal Year

Visas Issued

Source: CRS presentation of Department of State data.

[http://travel.state.gov/family/adoption/stats/stats_451.html].

Testimony of Susan Soon-Keum Cox, Holt International Children’s Services, before the

House Committee on International Relations in a hearing on “International Adoptions:

Problems and Solutions,” May 22, 2002. (Hereafter cited as Testimony of Susan Soon-Keum

Cox.)

Although this report uses the term “parents,” single U.S. citizens over the age of 25 are

also eligible to adopt.

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The laws and policies of international adoption are designed to protect children.

They are intended to make sure that all of the children put up for adoption are truly

orphans, and not kidnap victims or are being subjected to trafficking, smuggling, or

other unsavory activities. Concern about child trafficking led most recently to the

suspension of processing of visas for prospective adoptees from Cambodia, pending

reforms in the country and investigation into how the children are being treated.3

Other issues about international adoption concern the expense incurred during

the adoption process, as well as the possibility of fraud and unscrupulous acts in the

adoption field by unregulated facilitators. The fact that adoption facilitators are

unregulated makes it difficult for perspective parents to have any recourse if they are

over-charged or discover fraud in the adoption process.

One of the functions delegated to the new Department of Homeland Security

(DHS) that is not often considered an issue of homeland security is the facilitation

of international child adoptions. The DOS’ Office of Children’s Issues provides

country-specific information about international adoptions, U.S. visa requirements,

attorneys abroad and how to authenticate documents for use in foreign countries. The

DHS’s Bureau of Citizenship and Immigration Services (USCIS)4 receives and

processes applications for international adoption, screens prospective adoptive

parents, determines whether birth parents have consented to intercountry adoptions,

ensures the child meets the statutory definition of an orphan and has been legally

adopted, and processes the immigration and naturalization of the adopted child. The

Department of Health and Human Services works with the states in licensing

adoption agencies.5

Only U.S. citizens (a single citizen over the age of 25 or a married citizen of any

age) may petition for the immediate immigration of foreign adopted children.6 U.S.

immigration law does not allow entry for newly adopted children of legal permanent

residents (LPRs) or long-term nonimmigrant visa holders.7 This report examines the

All adoptions were suspended in Cambodia (no orphan petitions were processed). In

addition, adoptions performed by certain facilitators were not processed in Vietnam.

The Homeland Security Act of 2000 (P.L. 107-296) transfers this function from the

Department of Justice’s Immigration and Naturalization Service (INS) to the Department

of Homeland Security. President Bush’s Nov. 25, 2002, DHSReorganization Plan (available

at [http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf], states that

the transfer of all INS functions will occur on Mar. 1, 2003. This report refers to USCIS

regardless of whether the events occurred prior to the name change.

Testimony of Mary Ryan, Department of State, before the House Committee on

International Relations in a hearing on “International Adoptions: Problems and Solutions,”

May 22, 2002. (Hereafter cited as Testimony of Mary Ryan.)

The spouse of the married citizen may be a noncitizen.

Long term nonimmigrant visa holders and LPRs can bring their spouses or children into

the United States with them. The INA defines an adopted child as one who has been

adopted before the age of 16 and who has resided with or been in the legal custody of the

parent for two years. A newly adopted child would not meet the two-year co-residency

requirement, and the INA does not provide a mechanism for the child to enter the U.S. to

(continued...)

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process by which American citizens adopt children from other countries, including

the procedure for securing a visa so that the newly adopted child can immigrate to the

United States.

Legal Framework

Hague Convention on Intercountry Adoption

On May 29, 1993, 66 countries, including the United States, reached agreement

on the Hague Convention on Intercountry Adoption (the Convention), the first formal

international mechanism to facilitate the process and protect the integrity of

intercountry adoption. The goal is to eliminate confusion and delays caused by

differences among the laws and practices of different countries, and to insure

transparency in adoptions to prevent trafficking and child stealing, or selling. The

Convention requires that:

Certain determinations, such as adoptability of the child, eligibility

to immigrate, parent suitability and counseling, be made before the

adoption can proceed.

Every country establish a national government-level central authority

to carry out certain functions that include cooperating with other

central authorities, overseeing local implementation of the

Convention, and providing access to information on adoption laws.

The Convention specifies that case-specific functions, such as

adoption counseling, matching children with prospective adoptive

parents, preparation of reports on the child and the adoptive parents,

and post-placement services may be performed by the central

authority or adoption agencies and international adoption service

providers.

A child’s welfare be protected throughout the adoption process.

Certified adoptions are recognized in all other countries that are

party to the Convention.

Every country party to the Convention establish a national

government-level process for uniform screening and authorization

of adoption service providers.

Under the Convention, a mechanism will be in place to track outgoing adoption

cases, providing a level of protection previously unavailable to U.S. children taken

abroad for adoption.8

(...continued)

satisfy this requirement. Additionally, LPRs forfeit their status if they reside outside the

United States for two years. Long term nonimmigrant visa holders include E1/E2 Treaty

Traders, F-1 Students, J-1 Exchange Visitors, L-1 Intra-Company transfers, and R-1

Religious Workers.

It is not known how many children who are United States citizens are adopted abroad.

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Table 1. Number of Children Issued Orphan Visas from the Top

10 Sending Countries: FY2000-FY2005

FY2000

FY2001

FY2002

FY2003

China

5,053

4,681

5,053

6,859

7,044

28,690

Russia

4,269

4,279

4,939

5,209

5,865

24,561

Guatemala

1,518

1,609

2,219

2,328

3,264

10,938

S. Korea

1,794

1,870

1,779

1,790

1,716

8,949

Ukraine

659

1,246

1,106

702

723

4,436

Kazakhstan

399

672

819

825

826

3,541

Vietnam

724

737

766

382

2,690

India

503

543

466

472

406

2,390

Romania

1,122

782

168

200

2,329

Colombia

246

266

334

272

287

1,405

Cambodia

402

407

334

124

1,267

Haiti

131

192

187

250

356

1,116

Bulgaria

214

297

260

198

110

1,079

Philippines

173

219

221

214

196

1,023

Ethiopia

158

105

135

289

782

17,718

19,237

20,099

21,616

22,884

101,554

World Total

FY2004 5-Year Total

Source: CRS presentation of Department of State data, [http://travel.state.gov/orphan_numbers.html].

Note: Although there was a moratorium on adoptions from Cambodia beginning in 2002, orphan visas

continued to be processed for orphans whose adoptions had begun before the moratorium was issued.

Similarly, although Romania suspended international adoptions in 2001, and Vietnam suspended

international adoptions in 2003, both countries allowed the adoptions of some “pipeline” cases (i.e.,

cases where prospective parents had already been matched with children.)

Of the four primary countries sending children to the United States (see Table

1), the Russian Federation and China have signed the Convention, while Guatemala

and South Korea have not. In Convention countries the officers who process the

orphan petitions will use the certificate of final adoption or custody issued by the

foreign countries designated central authority together with the original adoption

decree as evidence that the child is eligible to immigrate to the United States.

Implementation is not expected until at least the middle of 2006, and will not change

how the U.S. processes adoptions from countries that have not signed the

Convention.

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International Adoption Act of 2000

The International Adoption Act of 20009 (IAA) provides the domestic

legislation to implement the Convention. The Senate approved ratification of the

Convention on September 20, 2000, the same day that it passed the IAA; however,

the United States has not formally ratified the Convention.10 The proposed rule on

the implementation of the IAA was published in the Federal Register on September

15, 2003,11 and the comment period ended on December 15, 2003. The final

regulations on the IAA have not been published.

The IAA requires the Department of State, through the Secretary of State, to

serve as the central adoption authority of the United States, and outlines

responsibilities of the Secretary, including liaison, information exchange,

accreditation and approval, and other coordination activities relating to the

Convention. The IAA requires the Attorney General to be responsible for the filing

of applications by prospective adoptive parents to the central authority. The act also

requires annual reports from the Secretary to specified congressional committees

describing activities of the central authority during the previous year.

In addition, the law requires the certification of individuals and entities

involved in international adoptions. It also amended the Immigration and Nationality

Act to include (1) under its definition of “child,” a child adopted through the

Convention; and (2) under those eligible for approval to immigrate, a child for whom

the Secretary has certified that a U.S. citizen has effected final adoption under the

rules of the Convention. The IAA requires that the child’s eligibility to immigrate

to the United States be determined before adoption or placement for adoption from

countries party to the Convention. This is important as there are instances when a

child has been adopted in the home country by U.S. citizen parents and yet is unable

to immigrate to the United States because the child does not meet the definition of

an orphan under the INA, or it can not be proven that the child meets the definition.

Thus, under the laws of the sending country, the parents are legally responsible for

the child, but the child is unable to legally immigrate to the United States.

Finally, the IAA authorizes the Attorney General to consider whether there is

a petition pending to confer immigrant status on one or both of such natural parents,

when determining whether the purpose of a particular adoption under the act is to

form a bona fide parent-child relationship.

In response to concerns about the lack of regulation of international adoption

agencies, the IAA requires the establishment of federal standards for the accreditation

of adoption service providers in the United States who provide adoption services in

P.L. 106-279 (H.R. 2909), signed into law on Oct. 6, 2000.

Various implementation procedures must be undertaken by DOS and DHS before the

Convention is formally ratified and subsequently enters into force in the United States. For

more information on the Hague Convention and the IAA, see CRS Report RL30979,

Intercountry Adoption Act of 2000 and International Adoptions, by (name redacted).

Federal Register vol. 68, no. 178, pp. 54064-54119.

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connection with any country that is party to the Convention. There is no uniformity

in state licensing of adoption agencies, and most states lack specific standards

covering international adoptions. It is possible for agencies and individuals to

provide international adoption services without being licensed in any state since the

provider may be located overseas. In addition, it is difficult to hold adoption

agencies and individuals accountable if problems arise because many of the agencies

are located in states other than where the adopting parents reside. Moreover,

agencies cannot be held responsible for the actions of their agents and facilitators

abroad who may be untrained or unlicenced.12

Additionally, international adoption has developed into a lucrative and largely

unregulated business. The expense of adopting a child can range from a few

thousand dollars to more than $30,000.13 Some are concerned that although there are

legitimate expenses associated with adoptions that the large expenses may give the

appearance of child trafficking.14

Current Law and Procedure

International adoption begins essentially as a legal matter between a private

individual(s) and a foreign court. The foreign country must permit adoptions by

foreign nationals, and the prospective parents must comply with the adoption rules

of that country.15 U.S. authorities cannot intervene on behalf of prospective parents

with the courts in the country where the adoption takes place. No United States

government agency is directly involved in the adoption process in another country

or locates children to be adopted. Nonetheless, the perspective parents must meet the

U.S. legal requirements as defined in the Immigration and Nationality Act (INA) to

bring a child adopted abroad into the United States. Under U.S. law, petitioning for

an orphan requires two distinctive determinations: (1) the ability of the prospective

adoptive parents to care for the child; and (2) whether the child meets the definition

of orphan under the INA.

Advanced Processing Application. Parents who wish to adopt a foreignborn orphan and have not located a child to adopt can complete the advanced

processing application (Form I-600A, Application for Advanced Processing of

See Testimony of Mary Ryan.

See Testimony Susan Soon-Keum Cox. Additionally, at the same hearing, Cindy

Freidmutter conservatively estimated an average cost of $10,000 for a finalized adoption for

services provided. (This cost excludes orphanage “contributions,” travel, and home studies.)

Testimony of Cindy Freidmutter, Executive Director of the Evan B. Donaldson Adoption

Institute before the House Committee on International Relations in a hearing on

“International Adoptions: Problems and Solutions,” May 22, 2002.

See Testimony Susan Soon-Keum Cox.

There are instances where countries have prohibited adoption by foreign nationals. For

example, recently Romania stopped allowing foreign adoptions for fear of “losing a

generation.” Also, in the 1980s Guatemala restricted foreign adoptions due to rumors that

adopted Guatemalan children were being killed for their organs.

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Orphan Petition),16 which is adjudicated by USCIS, and is used to determine the

suitability of the parents to adopt a child.17 Importantly, the documentation

supporting the petition (e.g., the home studies and background checks18) must come

from state social services entities and law enforcement agencies. Once the advanced

processing application is approved, the parents may then travel to the country from

which they wish to adopt a child.19

Orphan Petition. When the child is located and guardianship has been

transferred by the foreign country,20 the parents file an orphan petition (Form I-600:

Petition to Classify Orphan As Immediate Relative) at a DHS office in the country

or at an American Consulate or Embassy if there is no DHS office in the country. If

prospective parents locate a child to adopt and have not filed an advanced processing

petition (I-600A), the parents can simply file an orphan petition (I-600), and at that

time complete all the requirements (such as finger printing and a home study)

required for the I-600A. An orphan cannot be brought to the United States without

a visa, which is based upon a DHS approved orphan petition, and issued by DOS.

The orphan petition must be filed before the child’s 16th birthday. The only

exception is when a child is adopted by the same adoptive parents as a sibling under

the age of 16. In this case, the petition must be filed before the child’s 18th birthday.21

A petition to classify an alien as an orphan may not be filed for a child who is

already in the United States unless that child is in parole status and has not been

adopted in the United States. An adopted child who has been in the legal custody of

and has resided with the adopting parents for at least two years is eligible to

immigrate to the United States. The two-year legal custody and residence

requirements may take place before or after the adoption is final. If the child has

been residing with the parents for two years the parents would file a petition for an

USCIS encourages advance processing and contends that the procedure is the fastest way

to complete the paper work.

The application includes a home study completed by a home study preparer who is

authorized to prepare home studies for adoptions under the laws of the state where the child

will reside. If the home study is done abroad, the home study preparer must be licensed in

any state in the United States or by the foreign country. USCIS will not accept a home study

that is more than six months old.

As part of any adoption (international or national), the prospective parents are required

to undergo a criminal background check as well as a home study. Home studies which are

often performed by social workers may include an evaluation of the prospective parents’

ability to care for an adopted child as well as the environment and physical safety of their

home.

When the I-600A is approved, the applicant(s) is sent form I-171H (Notice of Favorable

Determination Concerning Advanced Processing for an Orphan Petition).

In most cases the adoption is finalized in the foreign country. However, some countries

allow for a transfer of guardianship and the adoption is finalized in the United States.

The age that a sibling could be considered a child was changed from 16 years to 18 years

by P.L. 106-139 signed into law on Dec. 7, 1999.

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alien relative (Form I-130), not an orphan petition, to gain immigration benefits (i.e.,

so that the child could immigrate) for the child.22

Approval of the advanced processing application does not guarantee approval

of the orphan petition. Regulations require that all foreign adoptions undergo an

investigation (called an orphan investigation) to guarantee compliance with the laws

of both the U.S. and the child’s birth country.23 Orphan investigations are performed

by the DHS office (or the American Consulate or Embassy if there is no DHS office

in the country). This investigation may cause delays in the adjudication of the case.

Not all children adopted abroad fit the definition of orphan under the INA.24 The

DHS or consular office must complete the Report on Overseas Orphan Investigation

(I-604), which consists of a review of the facts and documents to verify that the child

qualifies as an orphan. The documentation that is required to prove that a child has

not been obtained illegally may be hard to come by in some countries, especially

those with political or social upheaval. If the orphan petition is approved, the child

is immediately eligible for an immigrant visa without being placed on a visa waiting

list; however, the child must still qualify for the immigrant visa.25 For example, the

child may be inadmissable if he or she has a communicable disease that is a threat to

public health.26 Final authority to enter the United States rests with the immigration

inspectors at the port of entry.27

Orphan First Processing Pilot Program. In June 2003, USCIS began a

pilot program that permits prospective parents to obtain a preliminary determination

of whether a child meets the definition of an orphan under the INA (i.e., whether the

child will be eligible to immigrate as an orphan) before the parents travel abroad, and

undergo the adoption process in the foreign country. As discussed above, there have

8 C.F.R.§204.2(d)(vii).

8 C.F.R. §204.3(k).

The INA §101(b)(1)(F) defines a child as an “orphan because of the death or

disappearance of, abandonment or desertion by, or separation or loss from, both parents, or

for whom the sole or surviving parent is incapable of providing the proper care and has in

writing irrevocably released the child for emigration and adoption.” According to this

definition, parents cannot release the child to a specific person for adoption as this would

not meet the definition of abandonment. Once the child has been irrevocably released by

the natural parents, the parents can never gain immigration benefits though the child (i.e, the

child would not be able to petition for the natural parents to immigrate to the United States

under the family preference system).

Regulations for petitions on behalf of orphans can be found in 8 C.F.R. §204.3.

To receive a visa, children are required to undergo a medical examination by a physician

approved by the U.S. embassy or consulate. For the rules of inadmissibility, see INA §212.

In rare circumstances, children deemed ineligible for admission to the United States may

qualify for “humanitarian parole” and gain entry. Only the Attorney General has the

authority to grant parole. (Although it is assumed that this authority will be transferred to

the Secretary of DHS). “Parole” is a term in immigration law that means that the alien has

been granted temporary permission to enter and be present in the United States. Parole does

not constitute formal admission to the United States and parolees are required to leave when

the parole expires, or if eligible, to adjust to a lawful status in the United States.

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been instances where under the laws of the sending country, the parents are legally

responsible for the child, but the child is unable to legally immigrate to the United

States because the child does not meet the definition of an orphan under the INA.

Currently, this program is only available if the child is from Haiti, Honduras, the

Philippines, Poland, or Sierra Leone.

Adoptions in the United States. There are circumstances under which the

foreign child must be adopted/re-adopted in the United States. These situations

include children from countries which allow simple adoptions where the parents are

given guardianship of the child, and countries which allow adoptive parents to adopt

through a third party without traveling to the country. Additionally, the INA

specifies that both adoptive parents must personally see the child prior to the

adoption.28 If the petitioner and his or her spouse, or unmarried petitioner in cases

where a single person is adopting, did not observe the child prior to adoption abroad,

the petitioner (and spouse if married) must submit a statement showing the

petitioner’s willingness and intent to readopt the child in the United States.29 Proof

of compliance with the preadoption requirements of the state of residence must also

be submitted. A child paroled into the United States who meets the definition of

orphan under the INA is also eligible for adoption. Additionally, although formal

adoption of a child in a foreign court is legally acceptable in the United States, state

courts are not required to automatically recognize a foreign adoption decree.30

Procedural Issues

The laws and policies of international adoption are designed to protect children.

They are intended to make sure that all of the children put up for adoption are truly

orphans, and are not kidnap victims or being subjected to trafficking, smuggling, or

other unsavory activities. The laws are also designed to insure that the adoptive

parents can adequately care for their new child, which is the reason why advanced

processing petitions are only valid for 18 months. Additionally, concern about child

trafficking led most recently to the suspension of processing of visas for prospective

adoptees from Cambodia, pending reforms in the country and investigation into how

the children are being treated.

18-Month Limit for Advanced Processing Applications

An orphan petition must be filed within 18 months of the approval of the

advanced processing application. The orphan petition may also be filed while the

INA §101(b)(1)(F)(i).

Children whose adoptions are finalized abroad are issued IR-3 visas, while those who

need to be readopted in the United States are issued IR-4 visas. In 2000, DOS issued 13,195

IR-3 visas, and 5,282 IR-4 visas.

Some adoption agencies recommend that all children adopted abroad be readopted in the

United States since U.S. adoption documents are more easily replaced and more easily

recognized than foreign documents.

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advanced processing application is pending.31 There is nothing in statute that

specifies the length of validity of an advanced processing petition. The time limit

was established in regulation by USCIS.32 Some contend that the 18-month time

limit is too short since finding a child to adopt and going through the adoption

process may take longer than 18 months. This has especially been a problem with

people adopting from China, since processing in China’s centralized adoption system

can take longer than 18 months. However, USCIS contends that a time limit is

necessary to protect both the adoptive child and the parents and that 18 months is a

long time during which the circumstances of the adoptive parents could change.33

USCIS officials also state that China is the only country in which it tends to take

longer than 18 months for the adoption to be completed and that as of now there are

no plans to change the policy.34 Others argue that since China is the primary sending

country of children for adoption and approximately one-fourth of international

adoptions have been from China (see Table 1), the time-limit should be reevaluated.

Cambodian Adoptions — The U.S. Moratorium

In FY2002, there were allegations of baby trafficking in Cambodia, and as a

result, USCIS placed a moratorium on adoptions from Cambodia. USCIS also

created a special Adoptions Task Force to review adoption cases in Cambodia and

to undertake a comprehensive review of the existing USCIS structure for dealing

with International adoptions.35 DOS and DHS have continued to monitor the

situation in Cambodia. In March 2004, these officials visited Cambodia to gather

information on the country’s state of adoptions. The focus of the visit was to

ascertain whether the Cambodian government had made sufficient efforts to establish

laws and procedures to provide safeguards during the adoption process to protect the

interests of children, birth parents and adoptive parents, and eliminate opportunities

for fraud and other abuses. After the visit, the officials did not make any

recommendations regarding the suspension on adoptions.36

James Ziglar, Commissioner of USCIS when the moratorium was enacted,

argued that the obligation to ensure that children are not taken from their birth

parents through fraud, duress, or sale is paramount, and it takes precedence over the

government’s responsibility to help U.S. citizens complete international adoptions.

Nonetheless, some advocates of international adoption are concerned about the

decision to halt processing adoptions from Cambodia. They claim that the

In other words, an I-171H (approval of advanced processing form) is only valid for 18

months.

8 C.F.R. §204.3(b).

The petitions were only valid for 12 months until Aug. 1, 1994.

Personal conversation with Woody Olmstead, USCIS Legislative Relations, Apr. 24,

2002.

Testimony of James W. Ziglar, Commissioner of USCIS before the House Committee on

International Relations in a hearing on “International Adoptions: Problems and Solutions,”

May 22, 2002.

Available at [http://travel.state.gov/family/adoption/notices/notices_479.html].

CRS-11

moratorium was an extreme and hasty reaction to non-specific allegations involving

just a tiny percentage of cases, and as a result children continue to languish in

dangerous situations such as over-crowded, dirty, disease-ridden orphanages.37

Issues in Select Other Countries

Since international adoptions begin as a legal matter between a private

individual(s) and a foreign court, many issues surrounding international adoptions are

country specific. The most up-to-date information on international adoptions from

specific countries can be found on DOS’ website.38 Although the United States has

only placed a moratorium on adoptions from Cambodia, other countries have

enacted policies and laws that prohibit or limit international adoptions of their child

citizens.

Romania. On June 21, 2001, the Romanian government announced a one-year

moratorium on intercountry adoptions, formalizing the suspension of international

adoptions which began in December 2000. The moratorium has been extended

several times, so that the Romanian government has time to pass and implement new

legislation to eliminate corruption in the adoption system. On June 22, 2004, a law

was enacted in Romania that limits international adoption to a child’s grandparents.

The U.S. government expressed concern about the new law, stating that the law

imposes serious obstacles to adoption and creates a system in which children are

forced to remain in orphanages without parents.39 In addition, the United States has

continued to pressure the Romanian government to allow the adoption of children

who had been matched with parents prior to the moratorium.40

Vietnam. In July 2002, the government of Vietnam imposed the requirement,

effective January 2, 2003, that in order for nationals from a foreign country to adopt

a Vietnamese child, the foreign country must enter into an agreement with Vietnam.

This requirement essentially placed a moratorium on U.S. citizens adopting from

Vietnam.41 On June 21, 2005, the United States and Vietnam signed an agreement

on international adoptions, once again allowing U.S. citizens to adopt Vietnamese

children.42

Sen. Mary L. Landrieu, “Landrieu Calls for Immediate Change In International Adoption

Policies,” press release, Apr. 23, 2002. Statement of Congressman Joseph R. Pitts at the

House Committee on International Relations in a hearing on “International Adoptions:

Problems and Solutions,” May 22, 2002.

See [http://travel.state.gov/family/adoption/notices/notices_482.html] and

[http://travel.state.gov/family/adoption/country/country_369.html#].

See [http://travel.state.gov/family/adoption/notices/notices_475.html].

See [http://www.jcics.org/Romania.htm] and

[http://travel.state.gov/family/adoption/country/country_440.html].

When the new rule went into effect, only France had an international adoption agreement

with Vietnam.

See [http://travel.state.gov/family/adoption/notices/notices_2542.html] and

[http://travel.state.gov/family/adoption/notices/testimony_2546.html].

CRS-12

Related Laws and Policies

Adoption Subsidies for International Adoptions

In most cases children adopted internationally do not meet the eligibility

requirements to receive regular adoption assistance payments under the Adoption

Assistance Program authorized by Title IV-E of the Social Security Act. The federal

Child Welfare Policy Manual states:

The Federal adoption assistance program under Title IV-E was intended to

provide permanency for children with special needs in public foster care by

assisting States in providing ongoing financial and medical assistance to the

families who adopt them. As a result, the statutory requirements for Title IV-E

adoption assistance eligibility are geared to needy children in public child

welfare systems and are difficult, if not impossible, to apply to children who are

adopted from abroad. Therefore, although the statute does not categorically

exclude these children ..., it is highly improbable that [they] ... will meet the

criteria ... for Title IV-E adoption assistance eligibility.

One of the eligibility requirements for adoption assistance payments under the

Adoption Assistance Program is that the child was removed from a family who are

eligible for Aid to Families with Dependent Children (AFDC) as the program existed

on July 16, 1996.43 Noncitizen families residing outside the United States are not

able to meet this eligibility requirement.

Although internationally adopted children do not typically qualify for adoption

assistance payments through Title IV-E, they may qualify, at state option, for

reimbursement (up to $2000) of nonrecurring expenses. Nonrecurring expenses

include “reasonable and necessary adoption fees, court costs, attorney fees, and other

expenses which are directly related to the legal adoption of a child with special

needs.”44 According to the North American Council on Adoptable Children

(NACAC), 19 states pay nonrecurring adoption expenses for internationally adopted

children, while in 15 states international adoptees are not eligible for reimbursement.

The other 17 states are silent on the issue.45

Adoption Tax Credit

Adoptive parents of both domestic and international children are eligible to take

a tax credit of up to $10,000 for qualifying expenses46 paid to adopt a child. The

AFDC was the predecessor of Temporary Assistance to Needy Families (TANF). The law

creating TANF was enacted on August 22, 1996 (P.L. 104-193).

See Section 473(b)(6)(A) of the Social Security Act. “Special needs” are defined by the

state and generally include factors thought to make a child more difficult to adopt such as

race or ethnicity, age, a medical condition or physical, emotional, mental disabilities.

See [http://www.nacac.org/subsidyfactsheets/internationaladoption.html].

Qualifying expenses are reasonable and necessary adoption fees, court costs, attorney

(continued...)

CRS-13

credit is not refundable. In 2003, the maximum credit increased to $10,160. This

amount is allowed for the adoption of a special needs child regardless of whether the

taxpayer has qualifying expenses. The credit is subject to a dollar limit ($10,000 for

each child adopted) and an income limit (those with total family incomes over

$190,000 per year will not receive the tax credit).47 Additionally, up to $10,000 paid

or reimbursed by the adoptive parent’s employer under an adoption assistance

program48 may be excludable from the parent’s gross income. Parents may claim

both a credit and an exclusion for expenses of adopting an eligible child. If the child

is not a U.S. citizen or resident, the adoption credit and exclusion can only be taken

after the adoption is final; however, those adopting children who are U.S. citizens or

residents can take the adoption credit and exclusion as expenses are incurred and

even if the adoption never becomes final.49

Child Citizenship Act of 2000

In 2000, Congress passed the Child Citizenship Act,50 which eliminated the need

for adoptive families to apply to naturalize their newly adopted children. The act

grants automatic citizenship to all foreign-born children who are under the age of 18;

who are legal permanent residents; and who are in the legal and physical custody of

at least one parent who is a U.S. citizen. To qualify for automatic citizenship, the

adoption must have been finalized before the child enters the United States.51 Prior

to this act, parents needed to submit an application to have their children naturalized.

Upon the effective date of the act, more than 150,000 children who had previously

been adopted and brought to the United States automatically became United States

citizens. The impetus for this act was a number of cases of adopted children who

committed crimes and were subjected to mandatory deportation under the INA.

These children often had no connection to their birth countries and would be

permanently separated from their adopted families in the United States.52

New Entrant Program (Automatic Issuance of Certificates of

Citizenship). On January 1, 2004, USCIS implemented a program in which

children whose final adoptions were competed abroad (i.e., those entering on IR-3

(...continued)

fees, traveling expenses, and other expenses directly related to the legal adoption of a child.

Those with incomes between $150,001 and $189,999 will receive a reduced credit.

An adoption assistance program is a separate written plan established by an employer to

provide adoption assistance to their employees.

Department of Treasury, Internal Revenue Service Publication 968, “Tax Benefits for

Adoption.”

P.L. 106-395 (H.R. 2883) signed into law Oct. 30, 2000.

The act confers automatic citizenship upon orphans with IR-3 visas upon their admittance

to the U.S., but not on orphans with IR-4 visas. [http://travel.state.gov/state105804.html].

The original bill, introduced by Rep. Delahunt would have permitted children over 18 to

avoid deportation by applying to naturalize. This provision was not included in the final

version of the bill, but the legislation did provide relief from deportation for those who

believed they were citizens and unlawfully voted in U.S. elections.

CRS-14

visas) automatically received Certificates of Citizenship instead of within 45 days of

their entry into the country. Prior to this program, although the child entering the

country automatically became a citizen, the child was issued a Permanent Resident

Card (PRC). The parents had to file an application for a Certificate of Citizenship

with USCIS, and pay the application fee. Processing of these certificates were seen

as low priority by USCIS. There were reports of parents waiting more than a year

and a half for the application to be processed, which affected the parent’s ability to

get a Social Security card for their child. Often it was faster for the parents to apply

for a passport for their child from DOS

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