Petitioning for Foreign-Born Orphans by United States Citizens

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1395-92]

RIN 1115-AD28

Petitioning for Foreign-Born Orphans by United States Citizens

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This regulation addresses a number of issues that have arisen

in the recent past because of the increased interest by United States

citizens in the adoption of foreign-born orphans. It revises prior

regulations by clarifying language and procedures for prospective

adoptive parents and other interested parties. This regulation also

enhances the ability of the Immigration and Naturalization Service

(Service) to help ensure that children who are eligible for orphan

status will receive proper care.

EFFECTIVE DATE: This rule is effective on September 30, 1994.

FOR FURTHER INFORMATION CONTACT:

Jack Tabaka, Senior Immigration Examiner, Karen Eckert, Supervisory

Immigration Examiner or, Rita A. Arthur, Senior Immigration Examiner,

Immigration and Naturalization Service, 425 I Street, NW., Room 7122,

Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: The word ``orphan'' is defined in many

dictionaries as a child whose parents have both died. Under the

Immigration and Nationality Act (Act), Congress expanded the definition

to include not only children who were orphans because of the death of

both parents, but also children who were orphans because of the

``disappearance of, abandonment or desertion by, or separation or loss

from both parents * * *'' [8 U.S.C. 1101(b)(1)(F)]. Congress also

established additional circumstances under which the child of a sole or

surviving parent could be considered an orphan.

A review of the legislative history leading to the statutory

definition of orphan, as it appears in section 101(b)(1)(F) of the Act,

and a review of the preceding legislation clearly show that Congress

intended the orphan statute to apply to ``homeless'' and parentless

children. The original legislation was drafted after World War II when

there were many children who had been permanently torn from their

parents and homes. In fact, the origin of the legislation can be traced

to the Displaced Persons Act of 1948, Pub. L. 80-7874, Sec. 2, 62 Stat.

1009 (1948).

Amendments to the original statute included raising the age of an

eligible orphan, eliminating the two orphans per petitioner limit,

allowing an unmarried individual to petition for an orphan, and

defining the impact of the Immigration Reform and Control Act of 1986

on section 101(b)(1)(D) of the Act regarding the relationship of an

illegitimate child to its father in an orphan case. Additional

legislation required that a home study be completed in every case

before the prospective adoptive parents are eligible to petition for an

orphan. Throughout these changes, Congress continued to refer to the

orphan statute as pertaining to homeless children, thereby

distinguishing it from the provisions of the adopted child statute

under section 101(b)(1)(E) of the Act.

On November 8, 1993, the Service published a proposed rule in the

Federal Register at 58 FR 59200-59210 to revise the regulations at 8

CFR 204.3 governing the petition for foreign-born orphans. The proposed

rule was drafted to address a number of issues that have arisen in the

recent past because of the increased interest by United States citizens

in the adoption of foreign-born orphans. Public comments were

solicited, and eight letters were received during the comment period.

All comments have been thoughtfully considered. Six of the eight

commenters indicated their overall support or their support in large

measure for the proposed regulations. Since most discussed several

issues, the total number of comments exceeds the number of persons who

commented.

General

It should be noted that the proposed rule was not drafted in

connection with possible United States ratification and implementation

of the Hague Convention on Protection of Children and Cooperation in

Respect of Inter-country Adoption. Rather, the rule was drafted on the

basis of the current provisions of the Immigration and Nationality Act,

as amended, as indicated in the ``Authorities'' section in the preamble

to the proposed rule. One commenter suggested that the Service make it

clear for individuals without legal backgrounds that the rule is not

related to the Hague Convention. The Service agrees with this

suggestion and has included this clarification in the final rule.

Definitions

The Service has received the following comments regarding the

definitions contained in this rule:

(1) One commenter objected to the use of the term ``parental

interest'' used in the definition ``abandoned by both parents.'' The

commenter said the phrase has proven to be ``* * * problematic in

domestic cases.'' It was stated that the term's ``* * * vagueness could

lead to many otherwise eligible orphans being denied the chance for

adoption.'' Although the term ``parental interest'' may have proven to

be problematic in domestic cases, the Service does not believe that the

term's incorporation in the final rule ``* * * could lead to many

otherwise eligible orphans being denied the chance for adoption'', as

stated (emphasis added).

The term ``parental interest'' relates to children who are not

eligible orphans as indicated by the context of the sentence in which

it appeared:

A child shall not be considered to be abandoned if he or she is

placed temporarily in an orphanage, 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

parental interest in the child.

Like ``express an intention to retrieve the child'' and ``contributing

or attempting to contribute to the support of the child,'' the

``parental interest'' test applies only in the case of a child who has

been placed temporarily in an orphanage. Additionally, the ``parental

interest'' test was included in the proposed rule to help differentiate

between a child who is abandoned to an orphanage and a child who is

placed in, perhaps, the same orphanage temporarily because the natural

parents are currently unable to adequately provide for the child.

The Service will retain the term ``parental interest'' in the final

rule. However, review of this comment has pointed to the need to

clarify that this term contemplates continuous interest rather than a

one-time action. Accordingly, this provision in the final rule will be

reworded and the word ``ongoing'' will be added to the definition of

``abandoned by both parents'' to read ``ongoing parental interest.''

(2) The proposed rule requires fingerprint checks and an evaluation

in the home study of each ``adult member of the prospective adoptive

parents' household,'' defined as ``an individual, other than a

prospective adoptive parent, over the age of 18 whose principal or only

residence is the home of the prospective adoptive parents.'' One

commenter asked the Service to ensure that an approved advanced

processing application or orphan petition will not be affected if a

child in the household of the prospective adoptive parents turns 18

during the validity of the approved application or petition.

The Service basically agrees with this recommendation and will

accordingly amend its definition of ``adult member of the prospective

adoptive parents' household'' to exclude such a person unless there is

an articulable and substantive reason for requiring fingerprint checks

and a home study evaluation after the advanced processing application

has been filed.

(3) One commenter welcomed the definition of the ``foreign sending

country'' and the specific exclusion of ``a country to which the orphan

travels temporarily * * *.'' The commenter stated that this language in

conjunction with other language in the rule ``* * * concerning evidence

of custody in accordance with the laws of the foreign sending country

will place a reasonable requirement for evidence that a child has not

been taken across an international border to evade laws designed to

protect the rights and interests of the child.'' The Service agrees

with this evaluation and will retain this definition as presented in

the proposed rule.

(4) The term ``prospective adoptive parents'' is in part defined as

``* * * a married United States citizen of any age and his or her

spouse of any age * * *.'' One commenter asked if this meant a man and

woman married to each other. The term ``prospective adoptive parents''

includes a man and a woman married to each other provided that they

meet all the criteria set forth in the definition.

(5) One commenter indicated that the definition of ``sole parent''

might have an impact on the determination of whether certain children

were orphans under the Act. This definition imposes no new

requirements, and it is simply a codification of longstanding

requirements which are contained in several related portions of the

Act. Accordingly, this definition has not been changed in the final

rule.

(6) One commenter expressed support for the fact that the Service

has provided regulatory definitions for several key phrases. In working

under the prior regulations, most persons have focused on the term

``abandonment'' by both parents in determining whether a child was an

orphan under the Act, and have paid minimal attention to the other ways

in which a child could qualify as an orphan. In drafting this rule, the

Service sought to expand that focus. This has been achieved by

providing definitions for other terms appearing in the Act that allow a

finding that a child is an orphan: ``disappearance'' of both parents,

``desertion'' by both parents, ``separation'' from both parents, and

``loss'' from both parents. Other definitions have also been added for

clarity and consistency.

(7) When the proposed rule was drafted, the Service anticipated

that a revised Form I-130 (Relative Petition), which would include

orphan processing, would be in use by the time the rule became final.

This was reflected in the definitions of ``advanced processing

application'' and ``orphan petition,'' as well as in references to the

Form I-130 listed elsewhere in the proposed rule. However, the revised

Form I-130 is not in use at this time. Accordingly, all references to

the Form I-130 have been eliminated and references to Form I-600A

(Application for Advance Processing of Orphan Petition) and Form I-600

(Petition to Classify Orphan as Immediate Relative) have been inserted,

as appropriate.

Fingerprints

(1) One commenter expressed support for the proposal to fingerprint

adult members of the prospective adoptive parents' household as ``* * *

a good abuse deterrent * * *.''

(2) The final rule eliminates what was proposed as an optional

process under which fingerprint cards could be filed directly with the

FBI. This elimination stems from the fact that the proposed optional

process has proven inconsistent with ongoing efforts to enhance the

existing fingerprint-check process used in a number of types of cases,

including orphan cases. The fingerprint enhancement effort will be

discussed in a forthcoming rule.

Extending the Validity of Approved Advanced Processing Applications

The Service received three comments on extending the validity of

approved advanced processing applications. Two commenters supported the

Service's extending the validity from 12 to 18 months while one

commenter stated that 12 months was sufficient. It is no longer

uncommon for circumstances beyond the control of prospective adoptive

parents to hamper their best efforts to complete an orphan adoption

within 12 months of the approval of their advanced processing

application. In order to better assist prospective adoptive parents in

such circumstances, the Service proposed to extend the validity to 18

months. The extension eliminates the need for a second advanced

processing application at this juncture, when the prospective adoptive

parents are focused on complying with foreign requirements and on

bringing the orphan home.

Nothing in the comment has convinced the Service that it should

eliminate the 18-month validity period from the final rule. Therefore,

the final rule will retain the 18-month validity period.

Petition for an Identified Orphan

(1) The Service received two favorable comments on the fact that

the proposed rule exhibits respect for the law of the orphan's home

country.

The Service considers it vital that the prospective adoptive

parents (or the person or entity working on their behalf) obtain legal

custody of the orphan. Failure to comply with the applicable foreign

requirements could potentially expose prospective adoptive parents to

questionable, if not illegal, practices abroad and could have

detrimental consequences on international adoptions.

(2) One commenter expressed concern over the phrase ``the

prospective adoptive parents, or the adoption agency working on their

behalf'' which appeared twice in the proposed rule. The commenter said

that the express mention of adoption agencies ``* * * may lead to the

interpretation that non-agency adoption providers (e.g., lawyers,

social workers, facilitators) may not be allowed to represent adoptive

parents in an international adoption.''

The Service never intended that the language in question would

exclude non-agency providers. Accordingly, the words ``or the adoption

agency'' will be removed and the words ``or a person or entity working

on their behalf,'' will be substituted.

(3) As part of its review of the proposed rule, the Service has

decided to eliminate the requirement for a separate statement by the

prospective adoptive parents that they intend to adopt the child in the

United States. The Service believes that this intention is adequately

conveyed by the prospective adoptive parents, whose orphan is coming to

the United States for adoption, when they complete and sign Form I-600.

(4) After Service-initiated consultations with three knowledgeable

sources in the adoption community who advised that all States allow

adoption by unmarried persons, the Service has eliminated the

requirement that an unmarried petitioner submit evidence that the state

of the orphan's proposed residence does not preclude adoption by an

unmarried person.

Home Study Requirements

(1) One commenter said that the proposed requirement that the home

study must be submitted to the Service within six months of the filing

date of the advanced processing application ``* * * might cause

needless reapplications or a hasty grind to meet the deadline. We

understand your desire to have materials as timely as possible, but

this seems to create an unnecessary push.'' In light of this comment,

the Service has reconsidered this requirement and will extend the time

for submitting the home study to one year after the filing of the

advanced processing application.

(2) One commenter wanted to know if a statement to the effect that

``the financial resources have been checked and deemed sufficient to

support a child'' would be sufficient to satisfy the financial-ability

requirements set forth in the proposed rule. Since experience has shown

that such a statement does not give the Service sufficient information

regarding the financial ability of the prospective adoptive parents,

such a statement will not be sufficient to satisfy this requirement.

The rule requires a general discussion of the prospective adoptive

parents' finances and a listing of the evidence which the home study

preparer reviewed in making his or her assessment. The Service is not

routinely requiring a detailed financial statement or supporting

financial documents. However, should the need arise, the Service

reserves the right to ask for such detailed documentation. This

requirement will be clarified in the final rule.

(3) In commenting on the proposal that the home study preparer must

ensure that a check has been made with available child abuse

registries, one commenter identified a state which he said does not

maintain a child abuse registry and identified another which he said

precludes a check of such records by private adoption agencies.

Based on this comment, the Service amended this requirement to more

clearly address how various levels of access to such records affect

compliance with this requirement. Failure on the part of the

prospective adoptive parents and/or adult members of the prospective

adoptive parents' household to cooperate in having available registries

checked will be grounds for denial.

(4) One commenter said that while it was clear that any history of

abuse and/or violence had to be disclosed to the home study preparer

and the Service, it was unclear whether any criminal record for other

activities had to be disclosed.

In drafting the proposed rule, it was the Service's intention to

clearly state that the prospective adoptive parents and/or adult

members of their household are required to disclose any criminal record

to the home study preparer and to the Service. Failure to make this

clear was inadvertent. Since the fingerprint checks which are part of

the advanced processing procedure would reveal such records, it makes

no sense for the prospective adoptive parents and/or an adult member of

their household to withhold such information. Indeed, early disclosure

provides the prospective adoptive parents with the best opportunity to

gather and present evidence of rehabilitation or mitigating

circumstances, and it gives the home study preparer and the Service the

opportunity to properly evaluate the criminal record in light of such

evidence.

Such information is eventually disclosed when the fingerprint

checks are received by the Service. Delays may be especially

problematic at this stage. The prospective adoptive parents are usually

well into preadoption proceedings, may have identified a child, and may

even have established travel plans. At times, these travel plans may

have to be rescheduled while the issues raised by the criminal record

are addressed. It is in the best interest of all parties to have any

criminal records disclosed and resolved early in the process.

Accordingly, the Service has clarified this in the final rule.

(5) One commenter suggested that the Service require a finding of

good moral character [as statutorily defined in section 101(f) of the

Act] for any prospective adoptive parent before the advanced processing

application can be approved. The commenter said that a State may

approve a person as a prospective adoptive parent even if he or she has

committed a recent felony as long as it appears he or she would not

abuse the child and would properly provide for the child's needs. The

commenter said that, in one case, a State Court found a prospective

adoptive parent to be suitable when he would fail to meet the good

moral character standard for citizenship or for suspension of

deportation under the Act.

The Service is neither endorsing nor rejecting this suggestion. The

Service notes that this suggestion could not be considered for

incorporation into this rule at this stage of the process because of

its potentially far-reaching impact and the need for extensive study

and consultation.

(6) One commenter evidently believed that the proposed rule was

requiring that each home study specify the country or countries from

which the prospective adoptive parents may adopt. The proposed rule did

not require country-specific home studies. What the proposed rule did

require is that if the home study preparer imposes such a restriction,

it must be clearly stated in the home study report. This requirement

will be retained in the final rule.

(7) One commenter recommended that any specific restrictions such

as the nationality, age, or gender of the orphan as required by the

home study preparer be included in the telegraphic notification to the

overseas site. The Service plans to modify the orphan-related approval

cable formats to include such information.

(8) Unless a home study reflects relatively current conditions, its

value is severely limited or non-existent, regardless of how

conscientiously it was conducted. Since the prior regulation did not

specify a validity period for home studies, some prospective adoptive

parents submitted home studies that were several years old.

To rectify this deficiency and to make the home study a more

valuable tool, the Service will require that the home study be

submitted within six months of its completion. Any home study that is

more than six months old when it is submitted to the Service must be

accompanied by an update which is current, that is, not more than six

months old. Ordinarily, a home study (or a home study and/or update as

discussed above) will not have to be updated after it has been

submitted to the Service unless there is a significant change.

Significant changes would include a change in the residence of the

prospective adoptive parents, marital status, criminal history,

financial resources, and/or the addition of one or more children or

other dependents to the family prior to the orphan's immigration into

the United States. This was not clear to one commenter who evidently

thought that the home study would have to be updated every six months

until the orphan petition was approved. Since this was unclear, the

Service has included clarifying language in the final rule.

In reviewing the proposed rule in light of this commenter's

request, the Service also determined that using the words ``update''

and ``amendment'' (and derivative words from each) may have contributed

to some of the confusion. Therefore, the Service has rewritten that

portion of the rule dealing with home study updates and amendments for

clarity, while retaining the original intent. In doing so, the Service

will use ``update'' (and derivative words) in reference to making an

outdated home study current before it is submitted to the Service. The

Service will use ``amendment'' (and derivative words) in reference to

making a home study reflect any significant changes after it has been

submitted to the Service.

Finally, it should be noted that requiring a home study to be less

than six months old at the time of its submission to the Service is

reasonable in light of the fact that the home study has an additional

``life span'' of 18 months after the approval of the advanced

processing application, which is largely based on the home study. This

means that the home study may be as much as two years old at the time

the orphan petition is filed.

(9) The proposed rule included a provision to require every

stateside home study completed by a home study preparer who is not an

adoption agency to be reviewed and endorsed by an appropriate State

Government agency or an adoption agency. In reviewing the rule for

final publication, the Service decided to strike this proposed

requirement because it added an additional step to the process.

Accordingly, that portion of the proposed rule has been amended to

reflect that a stateside home study (whether prepared by an adoption

agency or a non-agency) must be reviewed and/or endorsed by an

appropriate State Government agency only if such a review is required

by applicable State law and/or regulations. Additionally, such a review

must be made prior to submission of the home study to the Service. The

requirement that any home study for prospective adoptive parents who

reside abroad must receive a favorable recommendation remains in the

final rule, since it is clearly and specifically required by law. It

should be noted that the paragraph title has been changed.

(10) Two commenters stated their overall support for the home study

requirements.

(11) One commenter stated that ``* * * the Service should be able

to refuse to accept Home Study Reports prepared by preparers who have a

pattern or practice of willfully submitting Home Study Reports that do

not contain the required information and disclosures.''

The Service will consider each home study on its individual merits

and will not reject a home study simply because it is authored by a

particular home study preparer. If a home study preparer has a pattern

of submitting questionable home studies, the Service expects the

director to discuss this with the appropriate State authorities as part

of his or her liaison with the State adoption authorities. The Service

believes that control over conduct of home study preparers, including

the institution of adverse actions, is a matter for State Government

authorities. Accordingly, the Service will not accept the commenter's

suggestion.

(12) One commenter suggested that the home study preparer be

required to attach a photograph of the adoptive parents to the home

study. No examples were given, or are known, of incidents in which

photographs of the adoptive parents would have proven beneficial.

Therefore, the Service will not adopt this suggestion at the present

time, but reserves the right to revisit the issue should evidence come

to light which would justify its implementation.

(13) One commenter suggested that a form be developed to assist the

home study preparer in meeting the rule's requirements for home

studies. Since the Service is working to reduce the number of its

forms, this suggestion will not be accepted. However, the Service plans

to include the requirements for home studies in its publication, The

Immigration Of Adopted And Prospective Adoptive Children (Form M-249),

which will be revised to conform with this rule.

(14) A commenter suggested that the home study preparer ``* * *

obtain from the interviewees the names and addresses of two credible

references and that such references be interviewed with respect to

suitability of the prospective adopting parents.'' It is doubtful that

prospective adoptive parents would provide references whose statements

would be detrimental to their prospects for adoption. Additionally, the

suggestion would no doubt extend the time necessary to complete a home

study and add to its cost. Given these factors, the Service will not

adopt this suggestion. It should be noted, however, that if applicable

State law or regulation requires such reference checks, they must be

made.

(15) One commenter suggested that the home study preparer be

required to sign and otherwise execute the home study report under

penalty of perjury. The commenter said this would serve as a

disincentive to unethical and otherwise illegal conduct by certain home

study preparers. The commenter called for criminal liability for such

unethical or illegal conduct in addition to state licensure revocation

proceedings.

The fact that the prospective adoptive parents sign the advanced

processing application and orphan petition under penalty of perjury is

sufficient for the Service's purposes since such proceedings are

between the prospective adoptive parents and the Service. Furthermore,

the Service believes that control over conduct of home study preparers,

including the institution of adverse actions, is a matter for State

Government authorities. Accordingly, the Service will not accept the

commenter's suggestion.

(16) As part of its review of the proposed rule, the Service has

amended the requirement that two copies of the home study be submitted.

The final rule requires that only one copy of the home study be

submitted.

Adjudication

The proposed rule provided for denial of an advanced processing

application and/or an orphan petition if the prospective adoptive

parents or adult members of the prospective adoptive parents' household

fail to disclose an arrest, conviction, or history of substance, sexual

or child abuse, and/or domestic violence.

One commenter suggested that the final rule should also include an

explicit provision to revoke the approval of an advanced processing

application or orphan petition if such failure to disclose comes to

light after the approval. The commenter stated that in many instances

knowledge of such activity is not discovered until an advanced

processing application or an orphan petition has been approved. The

commenter continued: ``This would serve as an expressed disincentive to

hiding or concealing such required disclosures. It would further serve

to protect the physical and emotional well-being of an orphaned child

who has been placed into a home with adoptive parents who have had such

a history.'' The same commenter also suggested that the rule provide

for revocation if a home study update fails to disclose any significant

changes in the prospective adoptive parents' ability to provide proper

care for the orphan.

The Service's authority to revoke an approval is inherent in its

authority to approve and is explicit in section 205 of the Act. To make

this clear, the final rule will reflect the Service's authority to

revoke the approval of an advanced processing application or orphan

petition if the director becomes aware of information that would have

resulted in denial had it been known at the time of adjudication or if

the relationship upon which the petition is based ceases to exist.

Child-Buying as a Ground for Denial

Two parties expressed support for making child-buying a ground for

denial. One commenter called it a ``* * * disgraceful de-humanizing

practice.'' The other commenter noted that the processing time of

suspect cases may be increased. In reviewing the child-buying

preclusion in light of the comments discussed above, the Service noted

that it had inadvertently written this provision so that it could be

read as only applicable to adoptive parents but not to prospective

adoptive parents. To correct this, the words ``prospective adoptive

parents or'' have been inserted before the words ``adoptive parents.''

Telegraphic Notification

One commenter welcomed the establishment of uniform procedures for

sending telegraphic notification and for requesting a change in visa-

issuing posts.

Other Considerations

(1) The Department of State expressed its concurrence with the

paragraphs addressing the I-604 investigations and the authority of

consular officers. Additionally, the Department of State asked that a

sentence be included to encourage direct communication between the

appropriate consular and immigration officers when there are

significant differences between the evidence presented in support of

the approved orphan petition and the evidence uncovered by the I-604

investigation. The Service will comply with this request and

accordingly amend the I-604 provision.

(2) One commenter evidently thought that the paragraph which states

that children in the United States illegally or as nonimmigrants are

ineligible for orphan status is a new provision. This provision was

carried forward from Sec. 204.3(e) of the prior regulation.

Miscellaneous Comments

(1) Pursuant to section 101(b)(1)(F) of the Act, the adoptive

parent(s) must be in compliance with the preadoption requirements of

the State of residence unless both of the parents or the single parent

``* * * personally saw and observed the child prior to or during the

adoption proceedings.''

In several places in the proposed rule the words ``see'' and

``saw'' were used in this context, thereby reflecting the statutory

language. According to one commenter, the use of the words ``saw'' or

``see'' could be interpreted as disqualifying a blind person from

adopting. To the best of the Service's knowledge, no application or

petition in orphan proceedings has ever been denied solely on the basis

of blindness, and the Service has no intention of changing this

practice. Therefore, the recommended change will not be made.

(2) One commenter asked if the Freedom of Information Act will give

adoptive parents the right to obtain their own child abuse records or

clearance.

The Freedom of Information Act (FOIA) (5 U.S.C. 552) and the

Privacy Act (PA) (5 U.S.C. 552a) pertain to records created by U.S.

Government agencies. If such a record were created by a U.S. Government

agency, then a request could be made under FOIA or the PA. Since the

child abuse indices referred to in this rule are State records, the

applicable State law, if any, would govern access to the records.

(3) Two commenters pointed out several typographical errors which

occurred when the proposed rule was prepared for publication in the

Federal Register. The Service has corrected these errors. The Service

also has made some editorial changes for clarity and consistency which

do not have an impact on the intent of the rule.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and by approving it certifies that the rule

will not have a significant economic impact on a substantial number of

small entities for the following reason: the rule primarily affects

applications and petitions in orphan proceedings which can only be

filed by married couples ad individuals, but not by small entities.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory

Planning and Review, and the Office of Management and Budget has waived

its review process under section 6(a)(3)(A).

Executive Order 12612

The regulations proposed herein will not have substantial direct

effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient Federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has assessed this rule in light of the criteria in

Executive Order 12606 and has determined that this regulation will

enhance family well-being: (1) by making the welfare of the orphan the

foremost consideration when screening the prospective adoptive parents

and other adults in the household through the fingerprint checks and

the home study; (2) by providing prospective adoptive parents with

guidelines which are clearer than the previous ones regarding the

adoption of orphans; (3) by ameliorating some of the impact of the

prior regulations without sacrificing the welfare of the orphan; (4) by

providing improved guidelines for home studies which require that the

home study preparer counsel the prospective adoptive parents about the

intricacies of foreign processes with which they will come into

contact; (5) by providing definitions for terms including

``abandonment,'' ``disappearance,'' ``desertion,'' ``separation,'' and,

``loss'' which appear in the Act, thereby expanding the focus for

determining whether a child is an orphan under the Act beyond the term

``abandonment,'' which has been nearly the exclusive focus in the past;

and (6) by requiring the Service's directors to maintain liaison with

the adoption community.

Paperwork Reduction Act

The information collection requirements contained in this rule have

been cleared by the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. Clearance numbers for these

collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 204

Administrative practice and procedure, Adoption, Children, Orphans.

According, part 204 of chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

1. The authority citation for part 204 is revised to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,

1255; 8 CFR part 2.

2. Section 204.3 is revised to read as follows:

Sec. 204.3 Orphans.

(a) General.

(1) Background. This section addresses a number of issues that have

arisen in the recent past because of the increased interest by United

States citizens in the adoption of foreign-born orphans and is based on

applicable provisions of the Act. It should be noted that this section

was not drafted in connection with possible United States ratification

and implementation of the Hague Convention on Protection of Children

and Cooperation in Respect of Inter-country Adoption.

(2) Overview. The processing and adjudication of orphan cases is a

Service priority. A child who meets the definition of orphan contained

in section 101(b)(1)(F) of the Act is eligible for classification as

the immediate relative of a United States citizen. Petitioning for an

orphan involves two distinct determinations. The first determination

concerns the advanced processing application which focuses on the

ability of the prospective adoptive parents to provide a proper home

environment and on their suitability as parents. This determination,

based primarily on a home study and fingerprint checks, is essential

for the protection of the orphan. The second determination concerns the

orphan petition which focuses on whether the child is an orphan under

section 101(b)(1)(F) of the Act. The prospective adoptive parents may

submit the documentation necessary for each of these determinations

separately or at one time, depending on when the orphan is identified.

An orphan petition cannot be approved unless there is a favorable

determination on the advanced processing application. However, a

favorable determination on the advanced processing application does not

guarantee that the orphan petition will be approved. Prospective

adoptive parents may consult with the local Service office on matters

relating to an advanced processing application and/or orphan petition.

(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.

Adult member of the prospective adoptive parents' household means

an individual, other than a prospective adoptive parent, over the age

of 18 whose principal or only residence is the home of the prospective

adoptive parents. This definition excludes any child of the prospective

adoptive parents, whose principal or only residence is the home of the

prospective adoptive parents, who reaches his or her eighteenth

birthday after the prospective adoptive parents have filed the advanced

processing application (or the advanced processing application

concurrently with the orphan petition) unless the director has an

articulable and substantive reason for requiring an evaluation by a

home study preparer and/or fingerprint check.

Advanced processing application means Form I-600A (Application for

Advanced Processing of Orphan Petition) completed in accordance with

the form's instructions and submitted with the required supporting

documentation and the fee as required in 8 CFR 103.7(b)(1). The

application must be signed in accordance with the form's instructions

by the married petitioner and spouse, or by the unmarried petitioner.

Application is synonymous with advanced processing application.

Competent authority means a court or governmental agency of a

foreign-sending country having jurisdiction and authority to make

decisions in matters of child welfare, including adoption.

Desertion by both parents means that the parents have willfully

forsaken their child and have refused to carry out their parental

rights and obligations and that, as a result, the child has become a

ward of a competent authority in accordance with the laws of the

foreign-sending country.

Disappearance of both parents means that both parents have

unaccountably or inexplicably passed out of the child's life, their

whereabouts are unknown, there is no reasonable hope of their

reappearance, and there has been a reasonable effort to locate them as

determined by a competent authority in accordance with the laws of the

foreign-sending country.

Foreign-sending country means the country of the orphan's

citizenship, or if he or she is not permanently residing in the country

of citizenship, the country of the orphan's habitual residence. This

excludes a country to which the orphan travels temporarily, or to which

he or she travels either as a prelude to, or in conjunction with, his

or her adoption and/or immigration to the United States.

Home study preparer means any party licensed or otherwise

authorized under the law of the State of the orphan's proposed

residence to conduct the research and preparation for a home study,

including the required personal interview(s). This term includes a

public agency with authority under that State's law in adoption

matters, public or private adoption agencies licensed or otherwise

authorized by the laws of that State to place children for adoption,

and organizations or individuals licensed or otherwise authorized to

conduct the research and preparation for a home study, including the

required personal interview(s), under the laws of the State of the

orphan's proposed residence. In the case of an orphan whose adoption

has been finalized abroad and whose adoptive parents reside abroad, the

home study preparer includes any party licensed or otherwise authorized

to conduct home studies under the law of any State of the United

States, or any party licensed or otherwise authorized by the foreign

country's adoption authorities to conduct home studies under the laws

of the foreign country.

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.

Loss from both parents means the involuntary severance or

detachment of the child from the parents in a permanent manner such as

that caused by a natural disaster, civil unrest, or other calamitous

event beyond the control of the parents, as verified by a competent

authority in accordance with the laws of the foreign sending country.

Orphan petition means Form I-600 (Petition to Classify Orphan as an

Immediate Relative). The petition must be completed in accordance with

the form's instructions and submitted with the required supporting

documentation and, if there is not an advanced processing application

approved within the previous 18 months or pending, the fee as required

in 8 CFR 103.7(b)(1). The petition must be signed in accordance with

the form's instructions by the married petitioner and spouse, or the

unmarried petitioner.

Overseas site means the Department of State immigrant visa-issuing

post having jurisdiction over the orphan's residence, or in foreign

countries in which the Services has an office or offices, the Service

office having jurisdiction over the orphan's residence.

Petition is synonymous with orphan petition.

Petitioner means a married United States citizen of any age, or an

unmarried United States citizen who is at least 24 years old at the

time he or she files the advanced processing application and at least

25 years old at the time he or she files the orphan petition. In the

case of a married couple, both of whom are United States citizens,

either party may be the petitioner.

Prospective adoptive parents means a married United States citizen

of any age and his or her spouse of any age, or an unmarried United

States citizen who is at least 24 years old at the time he or she files

the advanced processing application and at least 25 years old at the

time he or she files the orphan petition. The spouse of the United

States citizen may be a citizen or an alien. An alien spouse must be in

lawful immigration status if residing in the United States.

Separation from both parents means the involuntary severance of the

child from his or her parents by action of a competent authority for

good cause and in accordance with the laws of the foreign-sending

country. The parents must have been properly notified and granted the

opportunity to contest such action. The termination of all parental

rights and obligations must be permanent and unconditional.

Sole parent means the mother when it is established that the child

is illegitimate and has not acquired a parent within the meaning of

section 101(b)(2) of the Act. An illegitimate child shall be considered

to have a sole parent if his or her father has severed all parental

ties, rights, duties, and obligations to the child, or if his or her

father has, in writing, irrevocably released the child for emigration

and adoption. This definition is not applicable to children born in

countries which make no distinction between a child born in or out of

wedlock, since all such children are considered to be legitimate. In

all cases, a sole parent must be incapable of providing proper care as

that term is defined in this section.

Surviving parent means the child's living parent when the child's

other parent is dead, and the child has not acquired another parent

within the meaning of section 101(b)(2) of the Act. In all cases, a

surviving parent must be incapable of providing proper care as that

term is defined in this section.

(c) Supporting documentation for an advanced processing

application. The prospective adoptive parents may file an advanced

processing application before an orphan is identified in order to

secure the necessary clearance to file the orphan petition. Any

document not in the English language must be accompanied by a certified

English translation.

(1) Required supporting documentation that must accompany the

advanced processing application. The following supporting documentation

must accompany an advanced processing application at the time of

filing:

(i) Evidence of the petitioner's United States citizenship as set

forth in Sec. 204.1(g) and, if the petitioner is married and the

married couple is residing in the United States, evidence of the

spouse's United States citizenship or lawful immigration status;

(ii) A copy of the petitioner's marriage certificate to his or her

spouse, if the petitioner is currently married;

(iii) Evidence of legal termination of all previous marriages for

the petitioner and/or spouse, if previously married;

(iv) Two sets of completed and fully-classifiable fingerprint cards

for each member of the married prospective adoptive couple or the

unmarried prospective adoptive parent. The fingerprints must be

submitted on Form FD-258 (Applicant Fingerprint Card) with the office

code of the Service office having jurisdiction over the petitioner's

place of residence preprinted in the box marked ``ORI''; and

(v) Evidence of compliance with preadoption requirements, if any,

of the State of the orphan's proposed residence in cases where it is

known that there will be no adoption abroad, or that both members of

the married prospective adoptive couple or the unmarried prospective

adoptive parent will not personally see the child prior to, or during,

the adoption abroad, and/or that the adoption abroad will not be full

and final. Any preadoption requirements which cannot be met at the time

the advanced processing application is filed because of operation of

State law must be noted and explained when the application is filed.

Preadoption requirements must be met at the time the petition is filed,

except for those which cannot be met until the orphan arrives in the

United States; and

(vi) Two sets of fingerprint cards which conform to the

requirements in paragraph (c)(1)(iv) of this section for each

additional adult member of the prospective adoptive parents' household.

The Service may waive this requirement when it determines that such an

adult is physically unable to be fingerprinted because of age or

medical condition.

(2) Home study. The home study must comply with the requirements

contained in paragraph (e) of this section. If the home study is not

submitted when the advanced processing application is filed, it must be

submitted within one year of the filing date of the advanced processing

application, or the application will be denied pursuant to paragraph

(h)(5) of this section.

(d) Supporting documentation for a petition for an identified

orphan. Any document not in the English language must be accompanied by

a certified English translation. If an orphan has been identified for

adoption and the advanced processing application is pending, the

prospective adoptive parents may file the orphan petition at the

Service office where the application is pending. The prospective

adoptive parents who have an approved advanced processing application

must file an orphan petition and all supporting documents within

eighteen months of the date of the approval of the advanced processing

application. If the prospective adoptive parents fail to file the

orphan petition within the eighteen-month period, the advanced

processing application shall be deemed abandoned pursuant to paragraph

(h)(7) of this section. If the prospective adoptive parents file the

orphan petition after the eighteen-month period, the petition shall be

denied pursuant to paragraph (h)(13) of this section. Prospective

adoptive parents who do not have an advanced processing application

approved or pending may file the application and petition concurrently

on one Form I-600 if they have identified an orphan for adoption. An

orphan petition must be accompanied by full documentation as follows:

(1) Filing an orphan petition after the advanced processing

application has been approved. The following supporting documentation

must accompany an orphan petition filed after approval of the advanced

processing application:

(i) Evidence of approval of the advanced processing application;

(ii) The orphan's birth certificate, or if such a certificate is

not available, an explanation together with other proof of identity and

age;

(iii) Evidence that the child is an orphan as appropriate to the

case:

(A) Evidence that the orphan has been abandoned or deserted by,

separated or lost from both parents, or that both parents have

disappeared as those terms are defined in paragraph (b) of this

section; or

(B) The death certificate(s) of the orphan's parent(s), if

applicable;

(C) If the orphan has only a sole or surviving parent, as defined

in paragraph (b) of this section, evidence of this fact and evidence

that the sole or surviving parent is incapable of providing for the

orphan's care and has irrevocably released the orphan for emigration

and adoption; and

(iv) Evidence of adoption abroad or that the prospective adoptive

parents have, or a person or entity working on their behalf has,

custody of the orphan for emigration and adoption in accordance with

the laws of the foreign-sending country:

(A) A legible, certified copy of the adoption decree, if the orphan

has been the subject of a full and final adoption abroad, and evidence

that the unmarried petitioner, or married petitioner and spouse, saw

the orphan prior to or during the adoption proceeding abroad; or

(B) If the orphan is to be adopted in the United States because

there was no adoption abroad, or the unmarried petitioner, or married

petitioner and spouse, did not personally see the orphan prior to or

during the adoption proceeding abroad, and/or the adoption abroad was

not full and final:

(1) Evidence that the prospective adoptive parents have, or a

person or entity working on their behalf has, secured custody of the

orphan in accordance with the laws of the foreign-sending country;

(2) An irrevocable release of the orphan for emigration and

adoption from the person, organization, or competent authority which

had the immediately previous legal custody or control over the orphan

if the adoption was not full and final under the laws of the foreign-

sending country;

(3) Evidence of compliance with all preadoption requirements, if

any, of the State of the orphan's proposed residence. (Any such

requirements that cannot be complied with prior to the orphan's arrival

in the United States because of State law must be noted and explained);

and

(4) Evidence that the State of the orphan's proposed residence

allows readoption or provides for judicial recognition of the adoption

abroad if there was an adoption abroad which does not meet statutory

requirements pursuant to section 101(b)(1)(F) of the Act, because the

unmarried petitioner, or married petitioner and spouse, did not

personally see the orphan prior to or during the adoption proceeding

abroad, and/or the adoption abroad was not full and final.

(2) Filing an orphan petition while the advanced processing

application is pending. An orphan petition filed while an advanced

processing application is pending must be filed at the Service office

where the application is pending. The following supporting

documentation must accompany an orphan petition filed while the

advanced processing application is pending:

(i) A photocopy of the fee receipt relating to the advanced

processing application, or if not available, other evidence that the

advanced processing application has been filed, such as a statement

including the date when the application was filed;

(ii) The home study, if not already submitted; and

(iii) The supporting documentation for an orphan petition required

in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of

this section.

(3) Filing an orphan petition concurrently with the advanced

processing application. A petition filed concurrently with the advanced

processing application must be submitted on Form I-600, completed and

signed in accordance with the form's instructions. (Under this

concurrent procedure, Form I-600 serves as both the Forms I-600A and I-

600, and the prospective adoptive parents should not file a separate

Form I-600A). The following supporting documentation must accompany a

petition filed concurrently with the application under this provision:

(i) The supporting documentation for an advanced processing

application required in paragraph (c) of this section; and

(ii) The supporting documentation for an orphan petition required

in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of

this section.

(e) Home study requirements. For immigration purposes, a home study

is a process for screening and preparing prospective adoptive parents

who are interested in adopting an orphan from another country. The home

study should be tailored to the particular situation of the prospective

adoptive parents: for example, a family which previously has adopted

children will require different preparation than a family that has no

adopted children. If there are any additional adult members of the

prospective adoptive parents' household, the home study must address

this fact. The home study preparer must interview any additional adult

member of the prospective adoptive parents' household and assess him or

her in light of the requirements of paragraphs (e)(1), (e)(2)(i),

(iii), (iv), and (v) of this section. A home study must be conducted by

a home study preparer, as defined in paragraph (b) of this section. The

home study, or the most recent update to the home study, must not be

more than six months old at the time the home study is submitted to the

Service. Only one copy of the home study must be submitted to the

Service. Ordinarily, a home study (or a home study and update as

discussed above) will not have to be updated after it has been

submitted to the Service unless there is a significant change in the

household of the prospective adoptive parents such as a change in

residence, marital status, criminal history, financial resources, and/

or the addition of one or more children or other dependents to the

family prior to the orphan's immigration into the United States. In

addition to meeting any State, professional, or agency requirements, a

home study must include the following:

(1) Personal interview(s) and home visit(s). The home study

preparer must conduct at least one interview in person, and at least

one home visit, with the prospective adoptive couple or the unmarried

prospective adoptive parent. Each additional adult member of the

prospective adoptive parents' household must also be interviewed in

person at least once. The home study report must state the number of

such interviews and visits, and must specify any other contacts with

the prospective adoptive parents and any adult member of the

prospective adoptive parents' household.

(2) Assessment of the capabilities of the prospective adoptive

parents to properly parent the orphan. The home study must include a

discussion of the following areas:

(i) Assessment of the physical, mental, and emotional capabilities

of the prospective adoptive parents to properly parent the orphan. The

home study preparer must make an initial assessment of how the

physical, mental, and emotional health of the prospective adoptive

parents would affect their ability to properly care for the prospective

orphan. If the home study preparer determines that there are areas

beyond his or her expertise which need to be addressed, he or she shall

refer the prospective adoptive parents to an appropriate licensed

professional, such as a physician, psychiatrist, clinical psychologist,

or clinical social worker for an evaluation. Some problems may not

necessarily disqualify applicants. For example, certain physical

limitations may indicate which categories of children may be most

appropriately placed with certain prospective adoptive parents. Certain

mental and emotional health problems may be successfully treated. The

home study must include the home study preparer's assessment of any

such potential problem areas, a copy of any outside evaluation(s), and

the home study preparer's recommended restrictions, if any, on the

characteristics of the child to be placed in the home. Additionally,

the home study preparer must apply the requirements of this paragraph

to each adult member of the prospective adoptive parents' household.

(ii) Assessment of the finances of the prospective adoptive

parents. The financial assessment must include a description of the

income, financial resources, debts, and expenses of the prospective

adoptive parents. A statement concerning the evidence that was

considered to verify the source and amount of income and financial

resources must be included. Any income designated for the support of

one or more children in the care and custody of the prospective

adoptive parents, such as funds for foster care, or any income

designated for the support of another member of the household must not

be counted towards the financial resources available for the support of

a prospective orphan. The Service will not routinely require a detailed

financial statement or supporting financial documents. However, should

the need arise, the Service reserves the right to ask for such detailed

documentation.

(ii) History of abuse and/or violence.

(A) Screening for abuse and violence.

(1) Checking available child abuse registries. The home study

preparer must ensure that a check of each prospective adoptive parent

and each adult member of the prospective adoptive parents' household

has been made with available child abuse registries and must include in

the home study the results of the checks including, if applicable, a

report that no record was found to exist. Depending on the access

allowed by the state of proposed residence of the orphan, the home

study preparer must take one of the following courses of action:

(i) If the home study preparer is allowed access to information

from the child abuse registries, he or she shall make the appropriate

checks for each of the prospective adoptive parents and for each adult

member of the prospective adoptive parents' household;

(ii) If the State requires the home study preparer to secure

permission from each of the prospective adoptive parents and for each

adult member of the prospective adoptive parents' household before

gaining access to information in such registries, the home study

preparer must secure such permission from those individuals, and make

the appropriate checks;

(iii) If the State will only release information directly to each

of the prospective adoptive parents and directly to the adult member of

the prospective adoptive parents' household, those individuals must

secure such information and provide it to the home study preparer. The

home study preparer must include the results of these checks in the

home study;

(iv) If the State will not release information to either the home

study preparer or the prospective adoptive parents and the adult

members of the prospective adoptive parents' household, this must be

noted in the home study; or

(v) If the State does not have a child abuse registry, this must be

noted in the home study.

(2) Inquiring about abuse and violence. The home study preparer

must ask each prospective adoptive parent whether he or she has a

history of substance abuse, sexual or child abuse, or domestic

violence, even if it did not result in an arrest or conviction. The

home study preparer must include each prospective adoptive parent's

response to the questions regarding abuse and violence. Additionally,

the home study preparer must apply the requirements of this paragraph

to each adult member of the prospective adoptive parents' household.

(B) Information concerning history of abuse and/or violence. If the

petitioner and/or spouse, if married, disclose(s) any history of abuse

and/or violence as set forth in paragraph (e)(2)(iii)(A) of this

section, or if, in the absence of such disclosure, the home study

preparer becomes aware of any of the foregoing, the home study report

must contain an evaluation of the suitability of the home for adoptive

placement of an orphan in light of this history. This evaluation must

include information concerning all arrests or convictions or history of

substance abuse, sexual or child abuse, and/or domestic violence and

the date of each occurrence. A certified copy of the documentation

showing the final disposition of each incident, which resulted in

arrest, indictment, conviction, and/or any other judicial or

administrative action, must accompany the home study. Additionally, the

prospective adoptive parent must submit a signed statement giving

details including mitigating circumstances, if any, about each

incident. The home study preparer must apply the requirements of this

paragraph to each adult member of the prospective adoptive parents'

household.

(C) Evidence of rehabilitation. If a prospective adoptive parent

has a history of substance abuse, sexual or child abuse, and/or

domestic violence, the home study preparer may, nevertheless, make a

favorable finding if the prospective adoptive parent has demonstrated

appropriate rehabilitation. In such a case, a discussion of such

rehabilitation which demonstrates that the prospective adoptive parent

is and will be able to provide proper care for the orphan must be

included in the home study. Evidence of rehabilitation may include an

evaluation of the seriousness of the arrest(s), conviction(s), or

history of abuse, the number of such incidents, the length of time

since the last incident, and any type of counseling or rehabilitation

programs which have been successfully completed. Evidence of

rehabilitation may also be provided by an appropriate licensed

professional, such as a psychiatrist, clinical psychologist, or

clinical social worker. The home study report must include all facts

and circumstances which the home study preparer has considered, as well

as the preparer's reasons for a favorable decision regarding the

prospective adoptive parent. Additionally, if any adult member of the

prospective adoptive parents' household has a history of substance

abuse, sexual or child abuse, and/or domestic violence, the home study

preparer must apply the requirements of this paragraph to that adult

member of the prospective adoptive parents' household.

(D) Failure to disclose or cooperate. Failure to disclose an

arrest, conviction, or history of substance abuse, sexual or child

abuse, and/or domestic violence by the prospective adoptive parents or

an adult member of the prospective adoptive parents' household to the

home study preparer and to the Service, may result in the denial of the

advanced processing application or, if applicable, the application and

orphan petition, pursuant to paragraph (h)(4) of this section. Failure

by the prospective adoptive parents or an adult member of the

prospective adoptive parents' household to cooperate in having

available child abuse registries in accordance with paragraphs

(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through

(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the

advanced processing application or, if applicable, the application and

orphan petition, pursuant to paragraph (h)(4) of this section.

(iv) Previous rejection for adoption or prior unfavorable home

study. The home study preparer must ask each prospective adoptive

parent whether he or she previously has been rejected as a prospective

adoptive parent or has been the subject of an unfavorable home study,

and must include each prospective adoptive parent's response to this

question in the home study report. If a prospective adoptive parent

previously has been rejected or found to be unsuitable, the reasons for

such a finding must be set forth as well as the reason(s) why he or she

is not being favorably considered as a prospective adoptive parent. A

copy of each previous rejection and/or unfavorable home study must be

attached to the favorable home study. Additionally, the home study

preparer must apply the requirements of this paragraph to each adult

member of the prospective adoptive parents' household.

(v) Criminal history. The prospective adoptive parents and the

adult members of the prospective adoptive parents' household are

expected to disclose to the home study preparer and the Service any

history of arrest and/or conviction early in the advanced processing

procedure. Failure to do so may result in denial pursuant to paragraph

(h)(4) of this section or in delays. Early disclosure provides the

prospective adoptive parents with the best opportunity to gather and

present evidence, and it gives the home study preparer and the Service

the opportunity to properly evaluate the criminal record in light of

such evidence. When such information is not presented early in the

process, it comes to light when the fingerprint checks are received by

the Service. By that time, the prospective adoptive parents are usually

well into preadoption proceedings of identifying a child and may even

have firm travel plans. At times, the travel plans have to be

rescheduled while the issues raised by the criminal record are

addressed. It is in the best interests of all parties to have any

criminal records disclosed and resolved early in the process.

(3) Living accommodations. The home study must include a detailed

description of the living accommodations where the prospective adoptive

parents currently reside. If the prospective adoptive parents are

planning to move, the home study must include a description of the

living accommodations where the child will reside with the prospective

adoptive parents, if known. If the prospective adoptive parents are

residing abroad at the time of the home study, the home study must

include a description of the living accommodations where the child will

reside in the United States with the prospective adoptive parents, if

known. Each description must include an assessment of the suitability

of accommodations for a child and a determination whether such space

meets applicable State requirements, if any.

(4) Handicapped or special needs orphan. A home study conducted in

conjunction with the proposed adoption of a special needs or

handicapped orphan must contain a discussion of the prospective

adoptive parents' preparation, willingness, and ability to provide

proper care for such an orphan.

(5) Summary of the counseling given and plans for post-placement

counseling. The home study must include a summary of the counseling

given to prepare the prospective adoptive parents for an international

adoption and any plans for post-placement counseling. Such preadoption

counseling must include a discussion of the processing, expenses,

difficulties, and delays associated with international adoptions.

(6) Specific approval of the prospective adoptive parents for

adoption. If the home study preparer's findings are favorable, the home

study must contain his or her specific approval of the prospective

adoptive parents for adoption and a discussion of the reasons for such

approval. The home study must include the number of orphans which the

prospective adoptive parents may adopt. The home study must state

whether there are any specific restrictions to the adoption such as

nationality, age, or gender of the orphan. If the home study preparer

has approved the prospective parents for a handicapped or special needs

adoption, this fact must be clearly stated.

(7) Home study preparer's certification and statement of authority

to conduct home studies. The home study must include a statement in

which the home study preparer certifies that he or she is licensed or

otherwise authorized by the State of the orphan's proposed residence to

research and prepare home studies. In the case of an orphan whose

adoption was finalized abroad and whose adoptive parents reside abroad,

the home study preparer must certify that he or she is licensed or

otherwise authorized to conduct home studies under the law of any State

of the United States, or authorized by the adoption authorities of the

foreign country to conduct home studies under the laws of the foreign

country. In every case, this statement must cite the State or country

under whose authority the home study preparer is licensed or

authorized, the specific law or regulation authorizing the preparer to

conduct home studies, the license number, if any, and the expiration

date, if any, of this authorization or license.

(8) Review of home study. If the prospective adoptive parents

reside in a State which requires the State to review the home study,

such a review must occur and be documented before the home study is

submitted to the Service. If the prospective adoptive parents reside

abroad, an appropriate public or private adoption agency licensed, or

otherwise authorized, by any State of the United States to place

children for adoption, must review and favorably recommend the home

study before it is submitted to the Service.

(9) Home study updates and amendments.

(i) Updates. If the home study is more than six months old at the

time it would be submitted to the Service, the prospective adoptive

parents must ensure that it is updated by a home study preparer before

it is submitted to the Service. Each update must include screening in

accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.

(ii) Amendments. If there have been any significant changes, such

as a change in the residence of the prospective adoptive parents,

marital status, criminal history, financial resources, and/or the

addition of one or more children or other dependents to the family, the

prospective adoptive parents must ensure that the home study is amended

by a home study preparer to reflect any such changes. If the orphan's

proposed State of residence has changed, the home study amendment must

contain a recommendation in accordance with paragraph (e)(8) of this

section, if required by State law. Any preadoption requirements of the

new State must be complied with in the case of an orphan coming to the

United States to be adopted.

(10) ``Grandfather'' provision for home study. A home study

properly completed in conformance with the regulations in force prior

to September 30, 1994, shall be considered acceptable if submitted to

the Service within 90 days of September 30, 1994. Any such home study

accepted under this ``grandfather'' provision must include screening in

accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.

Additionally, any such home study submitted under this ``grandfather''

provision which is more than six months old at the time of its

submission must be amended or updated pursuant to the requirements of

paragraph (e)(9) of this section.

(f) State preadoption requirements.

(1) General. Many States have preadoption requirements which, under

the Act, must be complied with in every case in which a child is coming

to such a State as an orphan to be adopted in the United States.

(2) Child coming to be adopted in the United States. An orphan is

coming to be adopted in the United States if he or she will not be or

has not been adopted abroad, or if the unmarried petitioner or both the

married petitioner and spouse did not or will not personally see the

orphan prior to or during the adoption proceeding abroad, and/or if the

adoption abroad will not be, or was not, full and final. If the

prospective adoptive parents reside in a State with preadoption

requirements and they plan to have the child come to the United States

for adoption, they must submit evidence of compliance with the State's

preadoption requirements to the Service. Any preadoption requirements

which by operation of State law cannot be met before filing the

advanced processing application must be noted. Such requirements must

be met prior to filing the petition, except for those which cannot be

met by operation of State law until the orphan is physically in the

United States. Those requirements which cannot be met until the orphan

is physically present in the United States must be noted.

(3) Special circumstances. If both members of the prospective

adoptive couple or the unmarried prospective adoptive parent intend to

travel abroad to see the child prior to or during the adoption, the Act

permits the application and/or petition, if otherwise approvable, to be

approved without preadoption requirements having been met. However, if

plans change and both members of the prospective adoptive couple or the

unmarried prospective adoptive parent fail to see the child prior to or

during the adoption, then preadoption requirements must be met before

the immigrant visa can be issued, except for those preadoption

requirements that cannot be met until the child is physically in the

United States because of operation of State law.

(4) Evidence of compliance. In every case where compliance with

preadoption requirements is required, the evidence of compliance must

be in accordance with applicable State law, regulation, and procedure.

(g) Where to file.

(1) Where to file an advanced processing application. An advanced

processing application must be filed with the Service as follows:

(i) Prospective adoptive parents residing in the United States. If

the prospective adoptive parents reside in the United States, the

application must be filed with the Service office having jurisdiction

over their place of residence.

(ii) Prospective adoptive parents residing in Canada. If the

prospective adoptive parents reside in Canada, the application must be

filed with the stateside Service office having jurisdiction over the

proposed place of residence of the prospective adoptive parents in the

United States.

(iii) Prospective adoptive parents residing in a foreign country

other than Canada. If the prospective adoptive parents reside outside

of the United States or Canada, the application may be filed with the

overseas Service office having jurisdiction over the current place of

residence pursuant to Sec. 100.4(b) of this chapter, or with the

stateside Service office having jurisdiction over the proposed place of

residence of the prospective adoptive parents in the United States.

(2) Where to file an orphan petition when the advanced processing

application has been approved. An orphan petition must be filed with

the appropriate Service office or immigrant visa-issuing post of the

Department of State as follows:

(i) Prospective adoptive parents residing in the United States who

do not travel abroad to locate and/or adopt an orphan. If the

prospective adoptive parents reside in the United States and do not

travel abroad to locate and/or adopt an orphan, the petition must be

filed with the Service office having jurisdiction over the place of

residence of the prospective adoptive parents.

(ii) Prospective adoptive parents residing in the United States,

with one or both members of the prospective adoptive couple, or the

unmarried prospective adoptive parent, traveling abroad to locate and/

or adopt an orphan. If the prospective adoptive parents reside in the

United States, and one or both members of the prospective adoptive

couple, or the unmarried prospective adoptive parent, travel abroad to

locate and/or adopt an orphan, the petition may be filed with the

stateside Service office having jurisdiction over the place of

residence of the prospective adoptive parents in the United States or

at the overseas site. The petitioner may file the orphan petition at

the overseas site only while he or she is physically present within the

jurisdiction of the overseas site. If only one member of a married

couple, which includes an alien, travels abroad to file the petition,

it must be the United States citizen who travels abroad so that the

overseas site will have jurisdiction over the petition.

(iii) Prospective adoptive parents residing outside the United

States. Prospective adoptive parents residing outside of the United

States may file the petition with the overseas site, or with the

stateside Service office having jurisdiction over the proposed place of

residence of the prospective adoptive parents in the United States.

(3) Where to file an orphan petition when the advanced processing

application is pending. When the advanced processing application is

pending, the petition must be filed at the Service office at which the

application is pending.

(4) Where to file an orphan petition concurrently with the advanced

processing application. When the petition is filed concurrently with

the advanced processing application, it must be filed in accordance

with the instruction for filing an advanced processing application in

paragraphs (g)(1)(i) through (g)(1)(iii) of this section.

(h) Adjudication and decision.

(1) ``Grandfather'' provision for advanced processing application

and/or orphan petition. All applications and petitions filed under

prior regulations which are filed before and are still pending on

September 30, 1994, shall be processed and adjudicated under the prior

regulations.

(2) Director's responsibility to make an independent decision in an

advanced processing application. No advanced processing application

shall be approved unless the director is satisfied that proper care

will be provided for the orphan. If the director has reason to believe

that a favorable home study, or update, or both are based on an

inadequate or erroneous evaluation of all the facts, he or she shall

attempt to resolve the issue with the home study preparer, the agency

making the recommendation pursuant to paragraph (e)(8) of this section,

if any, and the prospective adoptive parents. If such consultations are

unsatisfactory, the director may request a review and opinion from the

appropriate State Government authorities.

(3) Advanced processing application approved. If the advanced

processing application is approved, the prospective adoptive parents

shall be advised in writing. The application and supporting documents

shall be forwarded to the overseas site where the orphan resides.

Additionally, if the petitioner advises the director that he or she

intends to travel abroad to file the petition, telegraphic notification

shall be sent overseas as detailed in paragraph (j)(1) of this section.

The approved application shall be valid for eighteen months from its

approval date. During this time, the prospective adoptive parents may

file an orphan petition for one orphan without fee. If approved in the

home study for more than one orphan, the prospective adoptive parents

may file a petition for each of the additional children, to the maximum

number approved. If the orphans are siblings, no additional fee is

required. If the orphans are not siblings, an additional fee is

required for each orphan beyond the first orphan. Approval of an

advanced processing application does not guarantee that the orphan

petition will be approved.

(4) Advanced processing application denied for failure to disclose

history of abuse and/or violence, or for failure to disclose a criminal

history, or for failure to cooperate in checking child abuse

registries. Failure to disclose an arrest, conviction, or history of

substance abuse, sexual or child abuse, and/or domestic violence, or a

criminal history to the home study preparer and to the Service in

accordance with paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of

this section may result in the denial of the advanced processing

application, or if applicable, the application and orphan petition

filed concurrently. Failure by the prospective adoptive parents or an

adult member of the prospective adoptive parents' household to

cooperate in having available child abuse registries checked in

accordance with paragraphs (e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i)

through (e)(2)(iii)(A)(1)(iii) of this section will result in the

denial of the advanced processing application or, if applicable, the

application and orphan petition filed concurrently. Any new application

and/or petition filed within a year of such denial will also be denied.

(5) Advanced processing denied for failure to submit home study. If

the home study is not submitted within one year of the filing date of

the advanced processing application, the application shall be denied.

This action shall be without prejudice to a new filing at any time with

fee.

(6) Advanced processing application otherwise denied. If the

director finds that the prospective adoptive parents have otherwise

failed to establish eligibility, the applicable provisions of 8 CFR

part 103 regarding a letter of intent to deny, if appropriate, and

denial and notification of appeal rights shall govern.

(7) Advanced processing application deemed abandoned for failure to

file orphan petition within eighteen months of application's approval

date. If an orphan petition is not properly filed within eighteen

months of the approval date of the advanced processing application, the

application shall be deemed abandoned. Supporting documentation shall

be returned to the prospective adoptive parents, except for

documentation submitted by a third party which shall be returned to the

third party, and documentation relating to the fingerprint checks. The

director shall dispose of documentation relating to fingerprint checks

in accordance with current policy. Such abandonment shall be without

prejudice to a new filing at any time with fee.

(8) Orphan petition approved by a stateside Service office. If the

orphan petition is approved by a stateside Service office, the

prospective adoptive parents shall be advised in writing, telegraphic

notification shall be sent to the immigrant visa-issuing post pursuant

to paragraph (j)(3) of this section, and the petition and supporting

documents shall be forwarded to the Department of State.

(9) Orphan petition approved by an overseas Service office. If the

orphan petition is approved by an overseas Service office located in

the country of the orphan's residence, the prospective adoptive parents

shall be advised in writing, and the petition and supporting documents

shall be forwarded to the immigrant visa-issuing post having

jurisdiction for immigrant visa processing.

(10) Orphan petition approved at an immigrant visa-issuing post. If

the orphan petition is approved at an immigrant visa-issuing post, the

post shall initiate immigrant visa processing.

(11) Orphan petition found to be ``not readily approvable'' by a

consular officer. If the consular officer adjudicating the orphan

petition finds that it is ``not readily approvable,'' he or she shall

notify the prospective adoptive parents in his or her consular district

and forward the petition, the supporting documents, the findings of the

I-604 investigation conducted pursuant to paragraph (k)(1) of this

section, and any other relating documentation to the overseas Service

office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.

(12) Orphan petition denied: petitioner fails to establish that the

child is an orphan. If the director finds that the petitioner has

failed to establish that the child is an orphan who is eligible for the

benefits sought, the applicable provisions of 8 CFR part 103 regarding

a letter of intent to deny and notification of appeal rights shall

govern.

(13) Orphan petition denied: petitioner files orphan petition more

than eighteen months after the approval of the advanced processing

application. If the petitioner files the orphan petition more than

eighteen months after the approval date of the advanced processing

application, the petition shall be denied. This action shall be without

prejudice to a new filing at any time with fee.

(14) Revocation. The approval of an advanced processing application

or an orphan petition shall be automatically revoked in accordance with

Sec. 205.1 of this chapter, if an applicable reason exists. The

approval of an advanced processing application or an orphan petition

shall be revoked if the director becomes aware of information that

would have resulted in denial had it been known at the time of

adjudication. Such a revocation or any other revocation on notice shall

be made in accordance with Sec. 205.2 of this chapter.

(i) Child-buying as a ground for denial. An orphan petition must be

denied under this section if the prospective adoptive parents or

adoptive parent(s), or a person or entity working on their behalf, have

given or will given money or other consideration either directly or

indirectly to the child's parent(s), agent(s), other individual(s), or

entity as payment for the child or as an inducement to release the

child. Nothing in this paragraph shall be regarded as precluding

reasonable payment for necessary activities such as administrative,

court, legal, translation, and/or medical services related to the

adoption proceedings.

(j) Telegraphic notifications.

(1) Telegraphic notification of approval of advanced processing

application. Unless conditions preclude normal telegraphic

transmissions, whenever an advanced processing application is approved

in the United States, the director shall send telegraphic notification

of the approval to the overseas site if a prospective adoptive parent

advises the director that the petitioner intends to travel abroad and

file the orphan petition abroad.

(2) Requesting a change in visa-issuing posts. If a prospective

adoptive parent is in the United States, he or she may request the

director to transfer notification of the approved advanced processing

application to another visa-issuing post. Such a request shall be made

on Form I-824 (Application for Action on an Approved Application or

Petition) with the appropriate fee. The director shall send a Visas 37

telegram to both the previously and the newly designated posts. The

following shall be inserted after the last numbered standard entry.

``To: [insert name of previously designated visa-issuing post or

overseas Service office]. Pursuant to the petitioner's request, the

Visas 37 cable previously sent to your post/office in this matter is

hereby invalidated. The approval is being transferred to the other

post/office addressed in this telegram. Please forward the approved

advanced processing application to that destination.'' Prior to sending

such a telegram, the director must ensure that the change in posts does

not alter any conditions of the approval.

(3) Telegraphic notification of approval of an orphan petition.

Unless conditions preclude normal telegraphic transmissions, whenever a

petition is approved by a stateside Service office, the director shall

send telegraphic notification of the approval to the immigrant visa-

issuing post.

(k) Other considerations.

(1) I-604 investigations. An I-604 investigation must be completed

in every orphan case. The investigation must be completed by a consular

officer except when the petition is properly filed at a Service office

overseas, in which case it must be completed by a Service officer. An

I-604 investigation shall be completed before a petition is adjudicated

abroad. When a petition is adjudicated by a stateside Service office,

the I-604 investigation is normally completed after the case has been

forwarded to visa-issuing post abroad. However, in a case where the

director of a stateside Service office adjudicating the petition has

articulable concerns that can only be resolved through the I-604

investigation, he or she shall request the investigation prior to

adjudication. In any case in which there are significant differences

between the facts presented in the approved advanced processing

application and/or orphan petition and the facts uncovered by the I-604

investigation, the overseas site may consult directly with the

appropriate Service office. In any instance where an I-604

investigation reveals negative information sufficient to sustain a

denial or revocation, the investigation report, supporting

documentation, and petition shall be forwarded to the appropriate

Service office for action. Depending on the circumstances surrounding

the case, the I-604 investigation shall include, but shall not

necessarily be limited to, document checks, telephonic checks,

interview(s) with the natural parent(s), and/or a field investigation.

(2) Authority of consular officers. An American consular officer is

authorized to approve an orphan petition if the Service has made a

favorable determination on the related advanced processing application,

and the petitioner, who has traveled abroad to a country with no

Service office in order to locate or adopt an orphan, has properly

filed the petition, and the petition is approvable. A consular officer,

however, shall refer any petition which is ``not clearly approvable''

for a decision by the Service office having jurisdiction pursuant to

Sec. 100.4(b) of this chapter. The consular officer's adjudication

includes all aspects of eligibility for classification as an orphan

under section 101(b)(1)(F) of the Act other than the issue of the

ability of the prospective adoptive parents to furnish proper care to

the orphan. However, if the consular officer has a well-founded and

substantive reason to believe that the advanced processing approval was

obtained on the basis of fraud or misrepresentation, or has knowledge

of a change in material fact subsequent to the approval of the advanced

processing application, he or she shall consult with the Service office

having jurisdiction pursuant to Sec. 100.4(b) of this chapter.

(3) Child in the United States. A child who is in parole status and

who has not been adopted in the United States is eligible for the

benefits of an orphan petition when all the requirements of sections

101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in

the United States either illegally or as a nonimmigrant, however, is

ineligible for the benefits of an orphan petition.

(4) Liaison. Each director shall develop and maintain liaison with

State Government adoption authorities having jurisdiction within his or

her jurisdiction, including the administrator(s) of the Interstate

Compact on the Placement of Children, and with other parties with

interest in international adoptions. Such parties include, but are not

necessarily limited to, adoption agencies, organizations representing

adoption agencies, organizations representing adoptive parents, and

adoption attorneys.

Dated: June 10, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-18367 Filed 7-29-94; 8:45 am]

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