Understanding the Hague Treaty on Intercountry Adoption

Are you considering adopting internationally? You need to listen to this interview about the laws and processes that you will be required to follow. We'll be talking with Kelly Dempsey, a partner with Fox Rothschild, who specializes in adoption and assisted reproduction. She is a fellow in the Academy of Adoption & Assisted Reproduction Attorneys and an adoptive parent through both international and domestic adoptions.

In this episode, we discuss:

1. Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption 
   1. Purpose 
      1. Key Elements of the Hague Treaty:
         1. Central Authority 
         2. Determining the child’s eligibility for intercountry adoption
         3. Accredited or Approved Adoption Agencies
         4. Transparency
2. The Immigration and Nationality Act (INA) 
   1. INA 101(b)(1)(F) I-600 “Orphan Route” 
      1. Child must qualify as an orphan under US definition
      2. Only one parent – incapable of providing support
      3. Deadlines: I600A before child’s 16th birthday -- only have 180 days to file the I-600, after USCIS approves the I-600 
   2. INA 101(b)(1)(G) I-800 “Convention Route”
      1. Work with CA Art 12, Art 16
      2. Eligibility decided by CA COO, but if consulate does an I-604 investigation that disqualifies child, then case will be denied
      3. Deadlines: Must file I-800A before age 16 and within 180 days of the approval of the I-800A, must file the I-800 (even w/o Art 16)
      4. Children adopted from other countries must first obtain a U.S. visa before they can travel or move to the United States. Visas are issued at the U.S. Embassy or Consulate in the foreign country where a child resides. Since a child being adopted abroad by a U.S. citizen parent(s) will usually be brought to live in the United States, that child will need an immigrant visa.
3. International Accreditation Act
4. Process When Adopting from a Hague Country. 
5. Process When Adopting from a Non-Hague countries. 
   1. Must qualify as orphans as defined by the Immigration and Nationality Act (INA) before they can be considered for U.S. permanent residence or citizenship.
   2. Get more information at the State Department - Adoption Process/Non-Hague Visa Process. 
6. More information on the Hague Convention and other applicable Federal regulations 
   1. US State Department - International Adoption
   2. US Citizenship and Immigration Services (USCIS)  
7. US Department of State has a section on their website on “Understanding the Hague Convention” 
8. US Department of State has a section on their website on “

Transcript

Please pardon any errors. This is an automated transcript.

Welcome everyone to Creating a Family. Talk about Foster, Adoptive and Kinship Care.
I am Dawn Danuport. I am the host of this show, but also the soon -to -be -ex
director of the nonprofit Creating a Family dot org. And just a warning to
everybody, we are not a warning, I guess, a shout out. We are now on YouTube. So
if you want to see us in person, pop over to our YouTube channel under Creating a
Family, and you can watch us as well as listen to us. Today,
we're going to be talking about the Hague Treaty on Intercountry Adoption, as well
as all the laws that are backed up in the United States to support that treaty. We
will be talking with Kelly Dempsey. She is a partner in the firm Fox and
Rothschild, and she specializes in adoption and assisted reproduction. She is also a
fellow in the Academy of Adoption and Assisted Reproduction Attorneys, which means she
is a true expert in this area. And perhaps, as I told her, her crowning
qualification is that she is an adopted parent through both international adoption as
well as domestic adoption. So, welcome Kelly to creating a family to helped us
better understand the Hague Treaty. It's actually the full name is the Hague
Convention on the Protection of Children and the Cooperation in Respect to
International Adoption. Sometimes referred to as a convention, but for those of us in
the international adoption field, we call it the Hague Treaty. So today we will most
likely always be referring to it as the Hague Treaty. So, welcome, and can you give
us some background? First of all, the United States signed this one in back in '94,
but we did not actually enter into force in the United States until 2008.
But give us some background, like why was an international treaty even needed, and
why did it take so long for us to implement? So the Hague Convention has been
around a long, long time, and it was born of the UN Convention on the Rights of a
Child. The United States has still not signed that treaty. We're one of the last in
the world to have failed to sign that. But the Hague Convention was intended to
create sort of a reliable system for inter -country adoption where all of the
different countries who were performing incoming and outgoing intercountry adoptions
could plug in with a similar framework and agreed upon process to streamline the
experience for all the players and the participants, the families and children. The
idea was that it would remove some of the obstacles and it would promote
transparency, trust and cooperation and collaboration among the partner countries.
It was intended to promote both permanency for children and protection for children.
So, it was intended at its highest level to be a treaty that served vulnerable
children around the world. To provide permanency. To provide permanency. That's exactly
right. And so, I guess, had a dual function, I suppose, and one would be the best
interests of the children. And the second one, I think that it was one of the
underlying goals was to eliminate fraud. And the reality was that it was the wild
west at the beginning when international adoption first began. And this treaty and
the reason it had to be a treaty is that we needed both the sending and the
receiving countries. And it's not just the United States, but other receiving
countries and certainly other sending countries, including the United States, which
also is a sending country. That's right. To be on the same page as far as the
elimination of frauds and then they set up a framework in order to eliminate fraud
and to provide permanency for children. So let's talk about some of the key elements
of the treaty as it was drafted and as we as a country a signatory to has as one
of the participants for the treaty? Sure. The treaty started by sort of enunciating
its goals and those are the things we've just talked about. The promotion of
permanency, the protection of the child in the process and collaboration and
cooperation between the countries. That's a tongue twister. And then the mechanism by
which that was going to happen was going to be a designated entity in each of the
countries known as the Central Authority. And the Central Authority was supposed to
be the clearinghouse for all of the information about the adopting parents and the
identified child. And it was to verify both the suitability of the parents to adopt
and the eligibility of the child to be adopted. and to create and foster a sense
of trust among the countries that everything was being done in the best interests of
the children, honorably, ethically, and above board. The notion was that governmental
involvement would remove it from the Wild West, right, that there would be a place
in the government, and I would just want to footnote that the place we was in the
United States is the Department of State, which is our diplomatic house and largely
has law enforcement functions around the world. And every other country chose their
health and human services or child welfare houses. We are the only country to have
made the decision not to host our central authority in health and human services.
But the creation of central authorities around the world was a novel concept.
And it created a requirement that countries enact new laws and requirements and
regulations, not just ours, but everyone. - And often created new entity because it
may be housed in a department, but there was nothing that was in that department
that was set up to be the central authority. - That's exactly right. And then In
addition to the creation of the central authority, it promulgated a process by which
all of the countries would agree to proceed with an international adoption.
And there are a number of factors and layers and steps, and each country gets to
determine who is eligible to adopt and who is eligible to be adopted.
So that is not outlined, but there is a broad framework for how those decisions are
made and more importantly when those decisions are made. So the Hague process was
something that everybody had to adhere to and running a fowl of that process can be
fatal to a Hague adoption. Absolutely. And we're going to get to the process in
just a minute, but before we do that something else that the Hague Convention set
up was an approval of accredited adoption. They call it agencies,
not entities. That's right. Adoption service providers, ASPs. Yeah. And that was new
as well. So you had to be, if you're adopting under the Hague,
you have to work with an accredited or approved adoption agency or adoption service
provider. And then there were a lot of requirements set up for what those adoption
service providers had to provide, what type of training had to happen with their
employees, what type of reporting, what type of record keeping. So there was a whole
host of things set up for them as well. That's exactly right. And that is also
unique to the United States. There are other countries who have similar delegated
authority, But the Department of State is our central authority, but we have
delegated many of the central authority functions in the United States to adoption
service providers, international adoption agencies, and then regulation and oversight
responsibility to an entity that was created specifically for the purposes of
providing oversight to agencies to make sure that they follow all of those rules and
requirements. - And there's a transparency requirement. They have to disclose their
fees, and I think that has to be in writing. They have to disclose total cost or
estimated total cost, things such as that. Let me interrupt this interview for just
a moment to tell you or actually to remind you that we have another podcast called
Weekend Wisdom where we answer your questions. In order to answer your questions, we
need you to send them to us. So please send us your questions about adoption,
foster care or kinship care to info @creatingafamily .org.
And we will select the ones we're going to answer on Weekend Wisdom and you can
listen and get your question answered. So now back to this interview.
So when we're talking about, we've talked about the Hague, and we've also gone down
and talked about some of the implementing laws created in the United States in order
to function under the Hague. Then, if we're speaking of the receiving country,
the United States, we also have to talk about the Immigration and Nationality Act,
INA. Why do we have to talk about that? We've got this whole convention and all
these laws that were to allow the convention, the treaty to be functioned here in
the United States. Why do we also now have another law that we have to talk about,
the Immigration and Nationality Act? An international adoption is a bifurcated process.
So you really think about it in terms of two discrete legal paths that have to be
pursued. And the first is the adoption process itself. And that is happening in the
foreign country largely and under the laws of the foreign country. But once that has
been completed, the family wants to bring that child home to live in the United
States. And so the Immigration and Nationality Act does the second process, and
that's the immigration of the child. So the INA created the legal mechanism by which
children can come home once they've been adopted through a Hague adoption process. So
it's sort of a part do, but equally rigorous, equally important, and equally complex
portion of the process for families. Otherwise, if the adoption and the vast majority
of international adoptions, the adoption itself, the becoming the legal parent of the
child happens in the country, the country of the child's birth. You could be the
legal parent, but you have to also be able to bring the child, immigrate the child
back to the United States and it's not just a matter of saying I have adopted this
child. That's right. Therefore, I have the right to bring this child back. You then
have to jump through the hoops set out by the Immigration and Nationality Act. There
are two basic ways to get children into the United States that have been either
adopted or or you're trying to adopt. These are not necessarily the best names, but
one would be called the Orphan route, which is also known as I -600.
So that's the Orphan route. And that's in contrast to I -800. Guys, we're talking
law, so we're going to have a lot of these numbers and things like that. Yes. And
that's called the convention route or the route under the treaty. Convention is just
another word for treaty. All right, can you explain the difference between the two
and then under each one, it can give us an idea of what is required? - Yeah,
that's gonna be a lot, so bear with me. I feel like I'm getting ready to get
really in the weeds. The I -600 process, the orphan process, applies when the sending
country or the child's country of origin, the place from where you are adopting your
child is not a party to the Hague convention. So if you are dealing with a non
-Hague country, you will pursue the orphan path to immigrate your child.
The orphan path in the United States has a lot of the same protections and
requirements of the Hague path. And that is true because we passed another federal
law called the International Accreditation Act, which said that adoption service
providers had to be compliant with the Hague, regardless of the country of origin
status. And so the exact process isn't the same,
meaning the steps you go through and the sequence you comply with those steps. But
for the orphan process, essentially, once the child has been adopted and the parents
have been deemed suitable, they seek to immigrate the child by filing the I -600A.
There are not as many requirements will distinguish the HIG process shortly,
but the I -600 process requires that the petitioners, the adoptive parents,
prove to USCIS that the child isn't orphan. Orphan doesn't mean that the parents are
dead necessarily. Orphan means that the child is living in institutional care or
outside of the care of the family of origin through some enunciated mechanism.
The mechanisms are created in the Code of Federal Regulations and those are
abandonment. When I hear the word abandonment, I don't think of it as the way it's
been defined in the federal law. Abandonment under federal law means that a birth
parent has voluntarily surrendered the child to an orphanage, signed a relinquishment,
and said, I choose this ever my parental rights forever. We also have desertion.
Desertion is more of the case of a foundling or a child who's entered institutional
care or court custody because the parents have failed to act.
Abandonment requires an act. Desertion is the failure to act.
Would that also include some of the same reasons that children enter foster care
here, which is the inability of the parents and the state stepping in saying you
can no longer parent because you are neglectful or you're abusive or you're not
providing safety or whatever. - Yes, it can. We have another prong under the orphan
status known as severance, and that is when the parental rights have been terminated
through a judicial process with due process provided notice and an opportunity to be
heard to the parents. We don't see that very much because most foreign countries,
non -Hague foreign countries don't have as robust a system in place to satisfy that
requirement. And death, disappearance if a child's found and we have no idea from
where the child came or who the parents are. There has to be a search,
for example, by a competent authority to locate the parents and then a court must
find that the competent search failed to find the family of origin. - And they have
to have records to show that they attempted a search what they did all that has to
be transparent has to be transparent has to be documented and has to be in many
cases contemporaneously documented with the events that are being recorded for example
a police report that is created two years later to satisfy an immigration requirement
is not as reliable as a police report that was created on the day the search was
done And in many non -hate countries, again, the systems aren't as robust,
and that is the logical fallout of a country that doesn't have the resources to
build a central authority and enact new laws, but they have these very complex
requirements in order to immigrate the child. Mm -hmm. Let me pause here and mention,
you mentioned USCIS, and let me just say that is Citizenship and immigration
services. I just wanted to when we talk about the INA the immigration and
nationality act That is the entity that we are working with. That's right They're
the ones who make the initial determination about suitability of parents and
eligibility of children. Mm -hmm What if the the child has a single parent that
parent is either absent abandonment or they're dead but the child does have a living
parent. Is that child eligible for adoption under the orphan route of the,
which is the form is called I -600? - That's right. Yes, a child with a living
parent and in that living parents care and custody can be deemed an orphan under US
law and immigrate to the United States. However, there are two caveats to that.
The first caveat is that the parent must willingly and unconditionally release the
child for adoption and immigration to the United States. What that means in almost
all of these cases is that parent is going to be brought into the US Embassy and
asked to confirm that they understand they may never see their child again and be
asked to firm that they agree to allow the child to go to the United States and
to be adopted and have their rights terminated. The second piece of that test is
that the sole or surviving parent is incapable of providing care in accordance with
the local standard. That sounds pretty simple, but whether a parent is capable of
providing care under the local standard requires a really complicated examination of
the circumstances both in that country and region, but also in that particular family
structure. So if a family lives below the poverty line, but so does everyone else
in the community, poverty alone may not be sufficient to prove they're incapable of
providing care below the community standard. If they have a medical condition,
terminal illness, for example, that is more likely to prove incapable of providing
care. But the test isn't, are they going to be incapable of providing care one day?
Are they incapable today of providing care for that child? And so we see this
happen, this has happened frequently in cases, particularly in family settings,
where an adoptive parent's sibling has lost a spouse or an adoptive parent's parents
have taken care and custody of a child because parents have been deceased or had
suffering from addiction or, you know, any sort of complicated family structure. What
we would call kinship adoption. The aunts and the uncle or the older sibling is
living in the United States and they want to adopt their brother or their niece or
their nephew, whatever, exactly. And a desire to adopt your relative does not mean
that it will be possible. I spend a lot of time talking to families who want to
provide a better opportunity for their nieces and nephews and I have to explain to
them why it's probably not going to happen under this rubric. It's a hard part of
your job. We jokingly say that it's the dream killer.
I'm just like, I have to tell people it's not going to be possible. It's too bad.
Yeah. All right. So we've talked about that is the orphan route. Also,
let's just quickly mention that the child has to be, you have to submit the form,
which is the under A before the child's 16th birthday. - That's right.
- So that's just one to throw that. That's another complicating factor for the orphan
route. Now we're talking about immigration under and after the adoption has been
finalized under the Immigration and Nationality Act. We've talked about the two
routes. One is what we call the orphan route and the form is the I -600A. Now
going to be talking about the other route and that is what's called the convention
route or the route under the treaty and the form is the I -800. So you sometimes
hear it referred to the I -800 route. Okay, take us down that route. This route is
on its face simpler and objectively faster.
That's one thing I wanted to note. USCIS, the Immigration Authority who processes the
cases, notes on the website processing times for each phase of this adoption process.
And for the I -600A, which is the suitability determination of parents, it is
currently listed as of today at six and a half months. If you juxtapose that with
the I -800A, that is at four and a half months. So It's moving a little faster.
Here's where it really makes a big difference. When you are filing to have the
immigration of the child approved, the I -600 is what you file and that is taking
28 .5 months, so over two years. What I think is important for families to
understand is there is a child waiting in a foreign country for this entire time.
This is not an abstract process. This is a real family trying to come together.
28 .5 months is the reported timeframe right now. You compare that with the I -800
process and that is coming in at four months. So huge difference. - Huge difference,
huge difference. - Now, what I think is important to note is it's a little bit
apples to oranges and that is because the I 800 comes far sooner in the process
than the I 600 so let me walk you through the 800 process and then I can explain
what I mean by that okay the first step in an I 800 adoption is to find your
primary provider or your adoption service provider the adoption service provider has
to be what we call Hague accredited has to be approved by the Department of state
and their delegated entity to conduct inter -country adoptions. And that is not an
easy process to go through. Let me tell you, it is the agencies that are providing
this service, they have to go through a lot of hoops in order to do that.
Go ahead. Yeah, and it is expensive and time consuming. And when the US implemented
the Hague in 2008, There were 200 adoption agencies around the United States
providing international adoption services. Today, there are fewer than 25, so there
has been a really, really drastic reduction. And agencies that used to be really
full service, if you wanted to internationally adopt, you had hundreds of agencies to
choose from. Now you may have one or none, because agencies have to be authorized
by the U .S. government in each country they seek to offer services. So knowing that
you want to adopt internationally isn't enough. You have to know which country you
want to adopt from and then you have to find an agency working in that country who
will approve to take your case. So that's step one, find your agency. Step two is
have your home study completed. That home study process is a really rigorous
examination of your suitability to adopt. I say that it's a look under the you know
open kimono is how I describe it to families. It's a warts and all examination of
who you are and how you intend to parent a child. It looks at your upbringing, any
difficulties you've experienced in life and how you've overcome them. It looks at
your finances, your medical history, perhaps your psychological health. - And some of
this is dictated by the placing country, the country of the child's birth.
- Absolutely. - There's differences. They may accept, some will accept no, there are
weight requirements for some. There are, whether or not you could be taken in that
type of present. It is just different. Each country has their own requirements and
that has to be it in the home study and then let me throw out because we are a
training entity, creating a family as it's not just in addition to the open the
kimono and examine you and your family. There is also a component of let us train
you on the things that will help you be a better parent to this child. So that's
also part of the home study process. Not to derail you on your process. I'm very
thankful for you. I just wanted to throw out that that's part of it as well. There
is an educational component to make sure that the family has anticipated and
acknowledged the inherent trauma and difficulty of pursuing an inter -country adoption.
What I commonly say is the best day of your life will also perhaps be the worst
day of somebody else's and the ability to allow both things to be true is really
important in the successful integration of a child into a family. So the home study
process takes typically several months. It requires federal, state background checks,
abuse and neglect, registry checks, reference letters, employment letters,
tax returns. So once your agency is finished with that assessment, they'll prepare a
report. It's often many, many, many pages long, and it will conclude that you are
approved to adopt a child of a certain description, and that description is typically
going to be around age, gender if there's any restriction, race if there's any
restriction, and then special needs. And so the job of the agency is to determine
What types of children could be placed in your home successfully to avoid disruption
or dissolution or further trauma to the child or to your family? Once that step is
completed, you then will submit that document along with other basic documents about
who you are, including your citizenship status, your marriage status, proof of any
prior divorces, etc., to USCIS under the I -800A.
That is that suitability determination. So the I -800A, then once processed,
and again we said that's currently around four and a half months, will generate an
approval. That approval goes to your adoption service provider and to the National
Visa Center. The National Visa Center will communicate it to the embassy and USCIS
will communicate it to your agency who will then communicate it to the central
authority in the country of origin for the child you're seeking to adopt. That
allows the central authority to prepare a match for you to identify a child that is
within the parameters for which you've been approved and to propose that an adoption
be made for a specific child. Many families currently begin the process knowing the
child they want to adopt, not knowing necessarily having spent time with, but many
relative adoptions, many identified children in advance, maybe they've hosted, maybe
they've seen them on a website. And so this matching process is not of an unknown
child necessarily, it can be, but it doesn't have to be. But what happens by the
central authority in the sending country is the preparation of a dossier, a lot like
the adoptive parents dossier, home study, that will give you the social medical
history of the child, the chain of custody history of the child, where are they
living, what is their institutional care situation, when did I meant to care why.
Also, you will get basic medical information that may or may not be all that
reliable. And an interesting thing that the Hague requirement imposes in these
dossiers is an examination of what we call the subsidiarity requirement. And the
subsidiarity requirement is a hierarchy of permanency for children that requires the
central authority demonstrate that other options in country options were examined and
eliminated is not in the best interest of the child. There's not a domestic option
that will serve this child's needs as well as this inter -country adoption and that
has to be articulated in this report. This report is known as the article 16 report
and it is created by the entity, the central authority, and then it is shared with
the adoption service provider who then shares it with the family and gives the
family the opportunity to accept or reject that referral. - Okay, so they have to be
able to show that there is not an option available in country for this child. And
it's not that it's, they're not at that point looking to say that the in country
option doesn't have to be whatever the, I'm using your quotes here equal to the,
in ways there's just that they have to show that they have tried to find a
suitable placement in country. That's right. And typically that requirement is met
through the passage of time. Child's been institutionalized for six months, no family
has come forward to adopt. That is how they eliminate domestic adoption as an
option. In relative cases, they may waive, Unless there is a suitable kinship
alternative, they would prefer a family -based relative placement anywhere other than
placing the child with a stranger in country. Once the referral is accepted,
the Article 16 is approved by the adopting family. The adopting family then goes
back to USCIS to seek approval to move forward with an adoption. So they submit the
article 16 report along with a verification by their adoption agency that it is true
and accurate and complete to USCIS under the cover of the I -800 form.
The I -800 form again as opposed to the I -800A is focused strictly on the
eligibility of the child to adopt. USCIS then takes right now, reporting it four
months, to review that dossier, to do any verification needed,
any investigation needed through its embassy and country. That often is authenticating
the documents, interviewing anybody who they feel they need to talk to, to verify
the information. One of the things I can say at this point is that The reason that
investigation process is streamlined under the Hague is because the system is built
on trust. The US is not supposed to look behind the work of the central authority
or to second -guess the conclusions of the central authority, unless there is a
reason to believe that there's been a breach of protocol, a break in the process,
some evidence of fraud or misconduct. So really if the birth certificate is
authenticated by the foreign government that's it. You believe the contents of the
document and that is different from the I -600 process where we don't have that
layer of trust and so there is a full field investigation of every case and that
is in large part the difference in the processing times that we see. So,
once the authentication and approval has happened at USCIS, there is an article five
letter issued. The article five letter is the family's permission slip to travel to
the foreign country and to complete their lawful adoption process in country.
Now that is not the end of the road, but it is the moment they've all been
waiting for, right? It is the happy, happy day. And so once the Article 5 is
issued, the U .S. adopting parents can take legal custody. The converse of that is
so important for families to understand. You cannot take custody of a child until
you have the Article 5 letter. We see families in the United States often getting
ahead of themselves, particularly where they are, where they have dual nationality. So
if they are also citizens of the foreign country from where they're adopting, they
may circumvent this process, go and get an adoption order, and then try to shoehorn
themselves into a Hague adoption. It cannot be done. Because if you adopt prior to
the issuance of the Article 5 adoption, you have destroyed the integrity of the
Hague process. and it is very unlikely that you'll be given a waiver by both
central authorities to proceed with the immigration. And instead, what is very likely
is you will be required to start again. You will have to have your adoption decree
nullified, set aside, and then you're going all the way back to the beginning. That
is really expensive, really time consuming, and really heartbreaking for families.
- And children, yes. Yes. Yeah, absolutely. To undo the legal family that you've
built so that you may bring a child to the United States would be a bitter pill
for sure. So once the Article 5 is issued and you've traveled to the country to
accept custody, then you go, you adopt the child, and then you apply for your
immigrant visa. And so the I -800 approval is USCIS saying we will allow this child
to immigrate if you complete the adoption and secure an immigrant visa.
So you still have two very important steps left, but they are intended to be
streamlined at this point, meaning without a second examination of all of the
eligibility requirements. The adoption process is governed by the laws of the foreign
country, so they're going to be different in every foreign country. And it's also
very possible that you won't actually be getting an adoption order. There are many
countries that issue custody or guardianship orders with the intent that the placement
will be supervised for a period of time once you've entered the United States prior
to finalizing the adoption. Now that doesn't mean you can't bring the child home. It
just means you have more to do when you get here. So we'll come back to that. The
immigrant visa process, once you've completed your adoption, the family will go to
the embassy for their visa application and interview process. The child will have had
to have a medical exam and certain vaccinations proven to the embassy.
But all of that can happen relatively quickly by a licensed provider authorized by
the US government to provide those medical exams and vaccinations. It's not a local
doctor. It's not just any local doctor. It will be a local doctor, but one who has
entered into a contract with the US government to meet certain standards. We call
them civil surgeons. Once the adoption is complete, you filed for the visa, you've
completed all of the eligibility requirements for the visa, which include an
interview, proof of the adoption or guardianship, the medical exam. If the child is
over the age, it's different in every country, but if you're adopting a child who
has 16, for example, you may have to get a police report to show that they have
no criminal history. And then you get your visa. The type of visa you get for an
I -800 is known as an I -H3 if you've completed the adoption in country or an I -H4
if you will be required to complete the adoption in the United States. My office
has a silly saying that we use for these to keep it straight which is I -H3 home
-free means once you get home your will be a U .S. citizen by operation of law,
your certificate of citizenship will come in the mail, and you are done.
IH4, you must do more. And for those children, they will enter the United States.
They will not be U .S. citizens. Instead, they will be green card holders, legal
permanent residents. And they must be adopted in the United States in order to
secure citizenship. So it's very, very important for families to understand the visa
type and the continuing obligation they may have. It's also important that agencies
make sure they understand. But I get a lot of calls from families whose children
have just been told they can't have a driver's license or student aid because
families failed to follow through. Getting their US citizenship and it is And it's
important for families to know if they're adopting and this, let me just pause here
to say that one thing to keep in mind is your adoption agency is very familiar
with this process and is going to be your guide through this process because as
Kelly is describing it, it is overwhelming. But you have a professional and a
support network that is going to be walking you through, but it's really important
to know that if you're adopting from a country that just gives guardianship, that in
fact, you have to then apply for citizenship. And you must do that for your child
to be a citizen, to be able to get a passport, to be able to enter colleges. And
I mean, with certain colleges, you are not a citizen otherwise. So anyway, it is so
important. And you're sick and tired of paperwork at that point. And it's easy to
think, you know, I've got a five -year -old, what am I, I got time in the future.
You won't get around to it in the future. You just aren't going to. You must do
it then immediately. Absolutely. Okay. That was my plug for, yeah, the importance of
US citizenship papers. That's right. Just to tack on to what you've said, I also
recommend that even if you're home free, meaning even if you've come home under the
IH3, I think there is real value in completing either the domestication of your
foreign adoption decree or a readoption in the state where you live. The reasons are
many, but my top three are that your child will get a state -issued certificate of
foreign birth, so they will have a document that looks like everybody else's document
for the rest of their lives. It other ring at its most basic level.
And I just think that's really important. The second reason is it cures any defects
in the underlying adoption process. It prevents anybody anywhere from ever being able
to challenge the authenticity or validity of that foreign adoption decree. And then
the third and most important, at least for me, is that it allows you to get easily
and quickly additional copies of the paperwork. Most adoptive parents come home with
a single adoption decree and a single birth certificate for their child. And if
something happens to those documents, you are gone, they cannot be replaced. But if
you have completed the domestication process in the United States, you can go to
your courthouse at any time and get additional copies. And as the mother of adopted
children, I can tell you I need those documents regularly, particularly as my kids
have become driving age, college age. Those sorts of life events shouldn't be stymied
by the failure of people to read the foreign language, understand the documents,
or the parents to access the documents. So I just think it's super important for
families to not stop all the hard work and effort at homecoming. There's just a
little bit more to really secure your children's future. Cross that finish line. You
can do it. That's right. Yeah. Before we continue,
I have a favor to ask. We are dependent on you, our listeners, our dear and kind
listeners, for your star reviews and your comments. That is how any of the
podcasting platforms recommend podcasts. They base it on how many star reviews you
have and how many comments you have. So please do us a favor and whatever platform
you are using, hop over to that and give us a star review or if you're feeling
kind, give us a written comment. Let me quickly go through how to do that on the
top ones. First of all, we are on YouTube now and to leave a comment on YouTube,
you just go below and just leave a comment. we read all of them. To give on
Apple, to leave a star review or a comment, you go to the Creating a Family
podcast page, which is where all the episodes are listed, and you go to the bottom
and scroll to the bottom and then you will see where you can put star, click on
the number of stars, and then you can click on, there's a thing it says, to leave
a comment or to leave a review. On Spotify to leave a rating, a star rating,
you can go on the podcast page itself, which is where all the episodes are
listening for the Creating a Family podcast. And that's where you could put a star
rating. To leave a comment on this particular episode, you go to wherever you're
listening to this episode and below on the show notes, there's a place for you to
write a comment. So we would be very appreciative if you do that. Now I'll let us
get back to talking with Kelly about the Hague Treaty.
All right, so is there any other part, have we given the basic outline for adopting
from a Hague country? We have. Okay, that would be the I -800.
Is there anything that's different for when we're adopting from a non -Hague country?
Yeah, so in a non -Hague country, You're not required to go in those specific steps,
meaning suitability determination, submitted to the central authority, referral received,
eligibility determination by USCIS. On the orphan side, the I -600 side,
really you can do any of it in any sequence, and you can even do a concurrent
filing, meaning your suitability to adopt and the eligibility of the adopted child to
immigrate can be determined all at once by USCIS. So there is no requirement that
you take things in this ordered process. We talked about the adoption before the
Article 5 letter being fatal to the Hague process. There's no such bar on the non
-Hague side of the adoption. It is much more relaxed in terms of sequencing and
protocols. However, the ways that it's the same are really important and that is you
must have a licensed agency here in the United States to serve as your primary
provider. You must pass the same scrutiny checks with your home study and suitability
determination. So it is not any less rigorous in terms of the proof you must give
in order to be able to ultimately immigrate this child. It's just that how you get
to that finish line can look a little different. And as I mentioned earlier, it's
going to take a lot longer. And that is because of the basic lack of central
authority systems in place in non -hate countries.
Is it more likely that the US government would not approve because they have to do
the investigation on their own to determine suitability, eligibility for adoption. Is
it more likely that you're going to run into problems where the child is not
eligible? - Absolutely, we see a much, much higher denial rate in non -hate countries.
We also see a lot more allegations of fraud. We see many, many more requests for
evidence or notices of intent to deny. Those are issued once you've submitted your I
-600 or I -800 or I -600A or I -800A. Those are documents that are issued by USCIS
to give you an opportunity to address the problem that they have identified. So if
you receive a request for evidence or a notice of intent to deny, the US government
is saying you have a problem in your case, and they're going to give you one
chance to fix it. And so we see that far more often in non -hate countries than we
do in hate countries. And your adoption service provider, i .e. your adoption agency,
which you must have, is also your guide through this process, I assume. They are
your guide, but I also would suggest that families may want to build a bigger team
at that moment because an immigration attorney is going to be really important to
helping you resolve the specific technical issue that's been identified by the U .S.
government as a bar to bringing that child home. It is often about the insufficiency
of the evidence to prove orphan status or the identity of the child, and I'm not
sure that it's a fair expectation to place on adoption service providers to be able
to navigate the legal requirements in that way. - Would it also be helpful,
this is probably a rhetorical question because I know the answer, would it also be
helpful for the immigration attorney to also understand adoption law because it is an
entirely different beast from the traditional immigration? - It is, yes.
I think it's really important that anybody on the team be familiar with a variety
of laws and requirements. I think everyone needs to have a working familiarity with
the foreign countries adoption laws. The treaty, if there's a, for example,
the Hague treaties involved, what those regulations require, and then also the
immigration laws for the child and the immigration laws for adopted children are
completely different than they are for non -adopted children or any other relative.
And it's a very different process. So yes, you want to find someone with some
international adoption expertise, I think, to assist you in navigating the path.
And it's not necessary if everything's going well. I don't want anyone to
misunderstand what I'm saying, that an immigration attorney ought to be involved in
every international adoption, because that's simply not true. - They would just get in
the way of your adoption service provider, your adoption agency, who especially if
it's an adoption from a Hague country, there is a very set process. They walk this
road all the time. They don't need that. They don't need another hand in the pie.
- That's right. I say that's exactly right. and it will just increase your costs,
increase your timelines. You don't need an attorney unless you need an attorney and
you'll know. And the as far as how to find an attorney that is a unique specialty
I will say it's someone who is immersed in both immigration law and adoption law
and specifically international adoption law. First of all your agency might be able
to recommend somebody. Also, the Academy of Adoption and Assisted Reproduction
Attorneys, I know of a number of fellows of that academy that have that specialty.
Is there a way to search on the, it's all, they go by Quad A Academy of Adoption
and Assisted Reproduction Attorneys. Is there a way to search for both immigration
and international adoption experience on the website, Quad A website? I think you can
only search for international adoption on the QA website, but those are the same
thing. International adoption, any attorney who's participating in international adoption
is really doing it. It's going to have both. Okay. Yeah. Perfect. And that should
yield, you know, I think probably seven or eight attorneys around the country who
are doing this work with any frequency. And you don't have to choose someone who is
local to you in this case. That's case. And quite frankly, most attorneys now are
doing everything via Zoom and online anyway, so it really isn't just keeping that in
mind. You don't have to choose somebody local and quite frankly, this specialty
you're not going to find. It will be rare if you live someplace where you have a
local person, but it might be good to use them if they're local just because you
can meet with them if you want to do that. I would also just want to say that
the same is true for adoption service providers. It's more important to find an ASP
that you like, trust, and that's got experience in the country that you seek to
adopt from than having someone local to you. - I'm so glad you said that. Yes, it
does not have to be local to you. So yes, that's a very good point. Now,
when you finalize your adoption, once you return home, right, you may have to if
you're under the IH4 but if you're under the IH3 you don't have to but as Kelly
has mentioned there are some distinct advantages but any honestly any adoption
attorney can do that and that does have to be somebody who is licensed in your
state. That's exactly right. Let me interrupt one more time you a shout out to the
Jockey Being Family Foundation and their support of both this cast. Yay, thank you.
As well as their support of our free online education that we have,
there are 15 courses on there, they are free and they're just terrific and you can
use them for continuing it if you need it, but you can also just use it to be a
better parent. You can get them at bit .ly /jbfsupport that's bit .ly
support. And now back to Kelly.
All right, I'm going to give out some websites for people to, if they're looking
for more information. Kelly, before I do that, is there anything else you would like
for folks to know about the Abe Treaty on Intercountry Adoption and the implementing
laws that allow us to bring children from abroad home? - I would say that as
critical as I've been, I still believe that some of the best resources are found on
the USCIS website and the Department of State website. I visit the Department of
State website every single day to look at country -specific requirements or to learn
more, but it's a great way to see if the Hague is in effect in a particular
country and who may be authorized to help you and let me that those are the way
let me give those websites sorry did I steal no no not at all you said it much
better than me and I agree with everything you just said the US State Department
website is travel .state .gov and then when you get to that click on international
adoption it's in the horizontal menu and that's where you need to go for the USCIS
website, Citizenship and Immigration Services website, it is USCIS .gov /adoption.
Or honestly, you can just type this into your search engine and you're going to be
able to find it that way as well. There are also sections on both on the US State
Department website that give, and we will include links to those in the show notes,
that walk you through much of the process that we discussed, including links and
things, so I will link to that and the course notes here for everyone to be able
to utilize. Thank you so much, Kelly Dempsey, for, this is not an easy subject to
talk about because it is complex, but It's something that you have to know if you
are wanting to be a permanent home for a child who was born and you want to bring
them to the United States to raise them and to bless your child. So thank you so
much, Kelly Gemsey, for helping us today to understand, like I said, a complex
issue. We truly appreciate it. - It's my pleasure and honor. So thank you so much
for inviting me.