Chapter 9 - Adjudication
Both USCIS and the U.S. Department of State (DOS) have roles in the adjudication of the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800), but their roles and authorities differ.[1] USCIS may issue:
- A provisional approval;
- A Request for Evidence (RFE) or Notice of Intent to Deny (NOID);
- A final denial;
- A Notice of Intent to Revoke (NOIR); or
- A final revocation.
DOS may issue a final petition approval, but cannot issue an RFE, NOID, NOIR, final revocation, or denial. In the case of a child who will apply for adjustment of status, the USCIS officer with jurisdiction over the adjustment application has authority to grant this final approval upon receiving the Secretary of State's certificate.[2]
A. General Guidelines for Adjudication
The following table outlines the main steps a USCIS officer uses to make a provisional decision on whether a child will qualify as a Convention adoptee.
| General Guidelines for Adjudication of Form I-800 Petitions |
|---|
| Ensure the petition was properly filed.[3] |
| Verify the petitioner has identified an accredited or approved primary adoption service provider.[4] |
| Ensure the prospective adoptive parent (PAP) meets suitability determination and eligibility requirements.[5] |
| Ensure security checks are current.[6] |
| Verify the child’s identity.[7] |
| Determine if the child meets age requirements.[8] |
| Confirm the child matches the characteristics that the PAP has been approved to adopt.[9] |
| Determine if it appears the child likely meets specific requirements for eligibility as a Hague Convention adoptee.[10] |
| Determine if there is evidence of a final adoption or legal custody for emigration and adoption in the United States.[11] |
| Verify there is no material evidence of fraud, improper inducement, other misrepresentation, or non-bona fide intent that impacts eligibility.[12] |
| Ensure the petition does not meet any grounds for denial, such as the PAP not meeting order of adoption and immigration steps requirements.[13] |
| Provisionally approve the petition, issue an RFE, issue a NOID, deny the petition, or refer for investigation.[14] |
| Notify DOS if USCIS provisionally approves the petition, so DOS can determine if final approval is appropriate following the final adoption or grant of legal custody. |
B. Burden and Standards of Proof
In matters involving immigration benefits, the petitioner always has the burden of proving eligibility for the immigration benefit sought.[15] This determination may include questions of foreign law. When a PAP relies on foreign law to establish eligibility for the child, the application of the foreign law is a question of fact, which must be proved by the PAP. The burden of proof is on the PAP to establish that the child is eligible as a Convention adoptee.[16]
The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit.[17] The standard of proof for establishing eligibility for petitions is that of a preponderance of the evidence.[18] The PAP meets this standard if the evidence permits a reasonable person to conclude that the claim that the child is eligible as a Convention adoptee is probably true.[19] The standard of proof for Form I-800 petitions is that of a preponderance of the evidence.[20] The PAP meets this standard if the evidence permits a reasonable person to conclude that the claim that the child is eligible as a Convention adoptee is probably true.[21]
C. Weight and Reliability of Evidence
1. Weight of Evidence
In applying the preponderance of the evidence standard (to determine whether it is more likely than not that the child is eligible as a Convention adoptee), an officer must consider all the evidence and determine eligibility based on the totality of the evidence in the record.
If there are inconsistencies in the record, the officer should request more information[22] to resolve any inconsistencies and give appropriate weight to the evidence in question. The officer must determine whether:
- The court or local authority was aware of any potentially derogatory information;[23]
- Gaps or inconsistencies in the record are material; and
- The inconsistencies are overcome by other evidence in the record indicating the child appears to meet requirements as a Convention adoptee.
| If the inconsistencies or omissions are… | Then they… |
|---|---|
| Minor and not material to the determination of eligibility | Generally do not support a denial or make an otherwise approvable petition not clearly approvable. |
| Not minor (such as multiple inconsistences or omissions) and are material to the determination of eligibility | May lead to a denial or a not clearly approvable[24] finding. |
If additional investigative steps do not reasonably explain a material inconsistency or omission or no plausible explanation exists, then the officer should issue an RFE or a NOID, as appropriate.[25]
Officers should carefully weigh the evidence and may assign differing weight to evidence in the record, depending on the reliability of that evidence.
An officer should consider all evidence regarding the circumstances of the child’s eligibility, including documents from the Central Authority in the child’s country of origin. For example, an officer should consider secondary evidence, such as police reports or administrative or lower court documents that led to the foreign government's decision to terminate parental or custodial rights.
Although USCIS would generally not see a foreign adoption decree at the provisional approval stage, USCIS generally accepts foreign decrees or orders on their face as primary evidence of a determination by a foreign court. Absent specific material information that a court decree is legally invalid[26] or was obtained by fraud, an officer may generally rely on such authentic decrees as evidence of a determination by a foreign government. An officer may, however, question the validity of a decree or order for various reasons, such as:
- Lack of jurisdiction by the foreign court authority;
- Lack of parental or custodial consent to the adoption or legal custody decree;
- No or improper notice of termination of parental or custodial rights;
- Evidence of corruption, fraud, or material misrepresentation;
- Lack of due process or appropriate safeguards in the country or jurisdiction issuing the order; or
- Other credible and probative evidence to question the reliability of the documentation.
If there is reason to doubt the validity of the decree or order, USCIS may request additional evidence.
D. Decisions and Actions
1. Federal Agency Roles
The adjudication of Form I-800 petitions is the exercise of the DHS Secretary's authority, delegated to USCIS.[27] DHS further delegated authority to DOS consular officers to approve petitions.[28] However, consular officers cannot deny or revoke petitions. In addition, a consular officer is not authorized to issue an RFE, a NOID, or a NOIR. If the consular officer believes that a petition is not clearly approvable or recommends revocation, the consular officer must refer the petition to USCIS.[29]
2. Approvals
Provisional Approval
USCIS may provisionally approve a petition if:[30]
- The petition was properly filed;
- The PAP meets suitability determination and eligibility requirements;[31]
- All security checks are current at the time of approval and there is no unresolved derogatory information;[32] and
- The PAP has met the burden of proving by a preponderance of the evidence that the child qualifies as a Convention adoptee.[33]
If the officer provisionally approves the petition, the officer sends a Provisional Approval of Form I-800 notice to:
- The PAP;
- The PAP’s legal representative, if any; and
- The adoption service provider, if the PAP authorized disclosure in the Form I-800, Supplement 1, Consent to Disclose Information (Form I-800, Supplement 1).[34]
The officer forwards the notice of provisional approval and all supporting evidence to DOS.[35]
Final Approval
If USCIS provisionally approves the petition, the PAP may continue on with the next steps in the Hague Adoption Convention process, which include DOS issuance of the Article 5/17 letter,[36] final adoption or custody of the child, and applying for an immigrant visa for the child.[37]
The PAP must submit a legible, certified copy of the adoption decree or legal custody for purposes of emigration and adoption order to obtain final approval of a provisionally approved petition.[38] The PAP submits the order to DOS as part of the visa application process, or to the USCIS officer who has jurisdiction of the child’s adjustment of status application.
As part of the final approval process, DOS issues the Hague Adoption Certificate or Hague Custody Certificate.[39] This certification establishes that the final adoption of the child, or the grant of custody of the child for the purpose of emigration and adoption, was done in accordance with the Hague Adoption Convention and the Intercountry Adoption Act of 2000. Such a certified final adoption is entitled to recognition in the United States as a valid adoption order. DOS may then grant final approval of the petition.[40]
If DOS cannot issue final approval, the consular officer returns the case to USCIS as not clearly approvable.
3. Request for Evidence, Notice of Intent to Deny, and Referral
If USCIS is adjudicating the Convention adoption petition and any of the required evidence to determine the child’s eligibility is missing, deficient, or adverse, or the eligibility requirements have otherwise not been demonstrated, the officer issues an RFE or NOID, as appropriate.[41]
USCIS is required to issue a NOID before denying a Form I-800 petition based on any mandatory denial grounds in 8 CFR 204.309(b).[42]
Referrals for Investigation
If USCIS determines, on the basis of specific facts, that completing an investigation will aid in the provisional or final adjudication of the Form I-800, USCIS can refer a case to DOS for investigation before Form I-800 adjudication.[43]
If the officer suspects fraud beyond the scope of the review conducted by DOS concerning the child’s status as a Convention adoptee, or that national security or public safety concerns exist, the officer should refer the case to the Fraud Detection and National Security Directorate (FDNS).
4. Not Clearly Approvable Cases
For provisionally approved petitions, if derogatory information is subsequently discovered by DOS, DOS returns the petition to USCIS as not clearly approvable. DOS may return a petition as not clearly approvable for various reasons, including:
- The child does not meet the definition of a Convention adoptee;
- The child is not eligible to immigrate to the United States;
- The child does not meet the characteristics that USCIS and the home study preparer approved;
- The child was adopted or a grant of legal custody occurred before the Article 5/17 letter was issued; or
- There is evidence that prohibited payments were made by or on behalf of the applicant or petitioner to directly or indirectly influence decisions related to any stage of the Hague Adoption Convention process.
After USCIS receives the petition, the officer should review all of the information and determine the appropriate next step. The officer may then:
- Issue an RFE;
- Issue a NOID;
- Deny the petition;[44] or
- Affirm the original provisional approval.
If USCIS issues a RFE and either the PAP does not respond or the information is insufficient, the officer may deny the petition or issue a NOID. If the officer issues a NOID, and the PAP does not overcome the reasons for denial, the officer denies the petition. If the officer issues an RFE or NOID and the PAP overcomes the reasons for ineligibility, the provisional approval stands, and the officer returns the petition to DOS for continued processing.
5. Denials
USCIS must deny a petition that does not meet the requirements for a provisional approval.[45] This includes denial if any of the below conditions apply.
- The petitioner completed the adoption of the child or acquired legal custody of the child for purposes of emigration and adoption before the provisional approval of the petition (unless the petitioner meets requirements for this restriction to not apply).[46]
- The petitioner, or any additional adult member of the household, met with, or had any other form of contact with, the child's parents, legal custodian, or other individual or entity who was responsible for the child's care when the contact occurred (unless the contact qualifies as a permitted contact).[47]
- The petitioner, or any individual or entity acting on behalf of the petitioner, engaged in any conduct related to the adoption or immigration of the child that is prohibited as an improper inducement, or that the petitioner has concealed or misrepresented any material facts concerning payments made in relation to the adoption.[48]
- The child is already present in the United States (unless the petitioner meets requirements for this restriction to not apply).[49]
- The petitioner files the petition before the approval of a suitability application, after the denial of a suitability application; or after the expiration of the approval of a suitability application.[50]
- The petitioner is currently barred from filing a petition.[51]
If the officer cannot provisionally approve the petition, the officer must explain in writing the specific reasons for denial.[52] The denial notice must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.
6. Appeals, Revocation, and Withdrawals
Appeals
A PAP may appeal the denial of a petition unless:[53]
- The petitioner filed the petition before USCIS approved a suitability application or after the expiration of the approval of a suitability application; or
- The petition was filed during any period in which the petitioner is barred from filing a petition.[54]
A PAP may choose to file a motion to reopen or reconsider rather than an appeal.[55]
Revocation
USCIS may revoke the provisional or final approval of a petition if there is good and sufficient cause for revocation. Good and sufficient cause exists where information is discovered concerning the child’s status as a Convention adoptee that would have warranted the denial of the petition had it been known at the time of adjudication.[56]
Withdrawals
A PAP (or their attorney or accredited representative of record) may withdraw their petition at any point up until the child is admitted to the United States by submitting a written request to USCIS.
7. Communication and Correspondence
USCIS sends communication of its actions and decisions directly to the PAP for all case-related matters. If a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) or Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) is completed by an attorney or by an accredited representative,[57] the officer also sends a copy of USCIS decision notices to such authorized attorney or accredited representative.[58]
A person representing an organization such as a non-profit or charitable organization must first be accredited by the Board of Immigration Appeals. In general, individuals who work for adoption agencies do not qualify as accredited representatives.
Information about the particulars of any case can only be given to the PAP, or to an attorney or accredited representative with a Form G-28 or Form G-28I on file. The Privacy Act forbids disclosing information about the case to anyone else unless the PAP has signed a written consent[59] to the disclosure or such disclosure is not prohibited by law.[60]
Footnotes
[^ 1] See INA 103(a) and INA 204(b).
[^ 2] See INA 204(d)(2). See 8 CFR 204.313(h)(2).
[^ 3] See Chapter 8, Documentation and Evidence [5 USCIS-PM D.8].
[^ 4] See Chapter 6, Additional Requirements, Section C, Primary Provider [5 USCIS-PM D.6(C)].
[^ 5] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 6] See Part B, Adoptive Parent Suitability Determinations, Chapter 3, Eligibility, Documentation, and Evidence (Hague Process), Section C, Documentation and Evidence, Subsection 5, Biometrics [5 USCIS-PM B.3(C)(5)].
[^ 7] See Chapter 3, Identity and Age [5 USCIS-PM D.3].
[^ 8] See Chapter 3, Identity and Age [5 USCIS-PM D.3].
[^ 9] See Chapter 6, Additional Requirements, Section B, Child Matches Characteristics that Prospective Adoptive Parent is Approved For [5 USCIS-PM D.6(B)].
[^ 10] See Chapter 4, Eligibility Requirements Specific to Convention Adoptees [5 USCIS-PM D.4].
[^ 11] See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM D.5].
[^ 12] See Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM D.6(A)].
[^ 13] See Chapter 7, Required Order of Immigration and Adoption Steps [5 USCIS-PM D.7)].
[^ 14] See Section D, Decisions and Actions [5 USCIS-PM D.9(D)].
[^ 15] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 16] See Matter of Kodwo (PDF), 24 I&N Dec. 479, 482 (BIA 2008) (citing Matter of Fakalata (PDF), 18 I&N Dec. 213 (BIA 1982) and Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973)).
[^ 17] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 18] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).
[^ 19] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of E-M- (PDF), 20 I&N Dec. 77, 80 (Comm. 1989).
[^ 20] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).
[^ 21] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of E-M- (PDF), 20 I&N Dec. 77, 80 (Comm. 1989).
[^ 22] If USCIS is adjudicating the case, see Section D, Decisions and Actions, Subsection 3, Request for Evidence, Notice of Intent to Deny, and Referral [5 USCIS-PM D.9(D)(3)]. If a consular officer is adjudicating the case, see Section D, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM D.9(D)(4)].
[^ 23] If there are any indicators of fraud, see Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM D.6(A)].
[^ 24] See Section D, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM D.9(D)(4)].
[^ 25] For a full discussion on RFEs and NOIDs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 26] An order may be legally invalid if the order was issued by an entity without proper authority to issue such orders or if the court invalidated its order.
[^ 27] See INA 103(a) and INA 204(b).
[^ 28] For information on DOS processing of Form I-800 petitions, see 9 FAM 502.3, Adoption-based Classifications and Processing.
[^ 29] See 8 CFR 204.3(k)(2).
[^ 30] See 8 CFR 204.313(g).
[^ 31] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 32] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 33] USCIS cannot approve a petition if it meets grounds for denial under 8 CFR 204.309(b). For more information, see Subsection 5, Denials [5 USCIS-PM D.9(D)(5)].
[^ 34] For more information on approvals, see Volume 1, General Policies and Procedures [1 USCIS-PM].
[^ 35] If the child will apply for adjustment of status, USCIS retains the record of proceeding. For information on adjustment of status, see Volume 7, Adjustment of Status [7 USCIS-PM].
[^ 36] If DOS determines that the child appears eligible to immigrate to the United States and that the information provided indicates that the adoption process thus far has complied with the Hague Adoption Convention and the Intercountry Adoption Act, DOS notifies the Central Authority of the child’s country of origin by issuing an Article 5/17 letter. The Article 5/17 letter informs the Central Authority that U.S. competent authorities have determined the PAP is eligible and suitable to adopt, that the child may enter and reside permanently in the United States, and that the U.S. Central Authority agrees that the adoption may proceed.
[^ 37] See 22 CFR 42.24.
[^ 38] See 8 CFR 204.313(h)(1).
[^ 39] See INA 204(d)(2).
[^ 40] See 22 CFR 42.24.
[^ 41] See 8 CFR 204.309(c). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 42] See Subsection 5, Denials [5 USCIS-PM D.9(D)(5)].
[^ 43] See 8 CFR 204.313(f).
[^ 44] See Subsection 5, Denials [5 USCIS-PM D.9(D)(5)].
[^ 45] See Subsection 2, Approvals [5 USCIS-PM D.9(D)(2)].
[^ 46] See Chapter 7, Required Order of Immigration and Adoption Steps [5 USCIS-PM D.7].
[^ 47] For information on permitted contacts, see 8 CFR 204.309(b)(2)(i)-(iii).
[^ 48] See 8 CFR 204.304.
[^ 49] See 8 CFR 204.309(b)(4).
[^ 50] See 8 CFR 204.309(b)(5).
[^ 51] There is a 1-year bar for from filing a subsequent adoption petition in certain circumstances. For more information, see 8 CFR 204.307(c). A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition on behalf of any family-based beneficiary. See Adam Walsh Act, Pub. L. 109-248 (PDF) (July 27, 2006).
[^ 52] A DOS consular officer does not have the authority to deny a Form I-800 petition. For more information on denials, see Volume 1, General Policies and Procedures [1 USCIS-PM].
[^ 53] See 8 CFR 204.314.
[^ 54] See 8 CFR 204.307(c).
[^ 55] See Notice of Appeal or Motion (Form I-290B). For more information, see Volume 1, General Policies and Procedures, Part F, Motions and Appeals [1 USCIS-PM F].
[^ 56] See 8 CFR 204.313(f). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].
[^ 57] See 8 CFR 292.2.
[^ 58] See 8 CFR 103.2(b)(19).
[^ 59] See Consent to Disclose Information (Form I-800, Supplement 1).
[^ 60] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a).