Chapter 1 - Purpose and Background
A. Purpose
USCIS must find that a prospective adoptive parent (PAP)[1] is suitable and eligible to adopt for a PAP to complete the intercountry adoption process, whether through the Hague Adoption Convention[2] or orphan (non-Hague) process. Congress gave this authority to USCIS to ensure that only people who can provide proper parental care are approved for intercountry adoption.
USCIS has the sole authority to determine the suitability and eligibility of PAPs for intercountry adoption. USCIS makes suitability determinations based on the evidence in the record, including the PAP’s home study and the results of criminal background and security checks.
B. Scope
The guidance in this Part only applies to Hague Adoption Convention and orphan cases. Certain children may be eligible to immigrate based on a family-based adoption petition,[3] which does not require a USCIS determination of the adoptive parent’s suitability.
C. Background
USCIS must be satisfied that the PAP remains suitable and eligible to adopt a child throughout the intercountry adoption process. This involves a USCIS suitability determination at all the following points:
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Before USCIS can approve any suitability application, extension request, request for an updated approval notice, or change of country request;[4]
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Before USCIS (or the U.S. Department of State (DOS), where designated) can approve any intercountry adoption-related petition; and
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Before DOS issues any immigrant visa and the child immigrates to the United States.
Both DHS and DOS have rules that govern home studies for intercountry adoptions. The Intercountry Adoption Universal Accreditation Act of 2012 (UAA),[5] effective July 14, 2014, impacted requirements for home studies in orphan cases, including home study preparation, home study elements, and the duty of disclosure.[6] As a result and unless an exception applies,[7] Hague Adoption Convention and orphan suitability determinations are now very similar.
D. Legal Authorities
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INA 101(b)(1)(F) – Definition of a child for orphan process
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INA 101(b)(1)(G) – Definition of a child for Hague Adoption Convention process
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8 CFR 204.3 – Orphan cases under section 101(b)(1)(F) of the Act (non-Hague cases)
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8 CFR 204 Subpart C – Intercountry adoption of a Convention adoptee (Hague Adoption Convention cases)
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22 CFR 96 – Intercountry adoption accreditation of agencies and approval of persons
Footnotes
[^ 1] In this Part, the term PAP refers to the applicant or petitioner and the PAP’s spouse, if any.
[^ 2] The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption is referred to in this Part as the Hague Adoption Convention.
[^ 3] See Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 4] Extension requests, requests for an updated approval notice, and change of country requests are all requests for action on an approved and valid suitability application. For more information on these types of requests, see Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].
[^ 5] See Pub. L. 112-276 (PDF) (January 14, 2013).
[^ 6] The UAA superseded parts of the orphan regulations at 8 CFR 204.3 and made certain portions of the regulations governing adoptions completed under the Hague Adoption Convention at 8 CFR 204.300 through 8 CFR 204.314 applicable to orphan cases.
[^ 7] See the Intercountry Adoption Universal Accreditation Act of 2012, Pub. L. 112-276 (PDF) (January 14, 2013). For more information on when this Act applies, see The Universal Accreditation Act of 2012 webpage.