Many immigrants have indicated their desire to adopt either a child who is a relative or an orphan. If the adoptee is a relative he may be classified as an immediate relative child. For this type of relative child adoption, immigration law requires two years of legal and physical custody requirement from the adoptive parent before an immigrant visa is issued to the child. Prospective adoptive parents who are not able to meet the two years physical presence requirement may want to consider adopting a child under the inter-country adoption if they meet the eligibility requirements.
Inter-Country Adoption
Both the Philippines and the United States are signatories to the May 29, 1993 Hague Adoption Convention on the Protection of Children and Co-operation in Respect to Inter-Country Adoption (Hague Adoption Convention). While the United States signed this treaty in 1994, it took effect for the United States only on April 1, 2008.
Central authorities are created for each country signatory to the Hague Adoption Convention. The United States Department of State and the Philippines Inter-Country Adoption Board (ICAB) serve as central authorities for inter-country adoptions.
Different Rules Apply
Prior to 2008, identification and adoption of the orphan child are the first steps toward obtaining an immigrant visa for the orphan or abandoned child. With the Hague Convention or post April 2008, the rules changed. Adopting the child or obtaining legal custody is now the last step. If for any reason the adoption was done first prior to filing the immigration petition, the adoption must be rescinded and the petitioning adoptive parent must begin the process of inter-country adoption again. Orphan adoptions prior to 2008 are not covered by the Hague Adoption Convention and are not to be rescinded.
The Department of State emphasizes that the convention procedures “front load” the immigration process. The eligibility of the child or that of the adoptive parent must be determined first before an immigrant visa is issued and adoption petition is filed and the decree of adoption obtained. This is only done through a Hague accredited agency.
Caveats
Except for relative adoptions, the adoptive parent may not initially choose the child to be adopted and there is a strict prohibition not to contact the child.
When a prospective adoptive parent makes a decision to adopt, they should be warned not to go directly to ICAB-Philippines. Neither should the prospective parent contact an orphanage or adoption agency in the Philippines.
The Process
The sequence of steps to be taken is critical in the adoption and immigration process. A prospective adoptive parent should first contact a Hague accredited agency in the United States, which is also a recognized agency of ICAB-Philippines. The prospective adoptive parent from this recognized agency must obtain a home study report. Thereafter a USCIS Form I-800A is filed with the USCIS Chicago Lockbox address.
As soon as the I-800A is approved, a copy of the approval notice is sent to the ICAB who will then refer an eligible child for adoption. The prospective parent will decide from there whether to accept the child. Another form I-800 is filed if the prospective parent accepts the ICAB referral. If approved, the U.S. Consular officer notifies the ICAB with an Article 5 Letter that the prospective adoptive parent may proceed to obtain an adoption or custody decree. As soon as the Article 5 letter is released, ICAB will issue a temporary legal custody in accordance with the Hague Adoption Convention. This legal custody document and all other supporting documents will be the basis for the issuance of an IH-3 or IH-4 immigrant visa. When the child is issued the visa, the adoption can be completed in the United States.
Number of Visas Issued to Adopted Children
In 2011, the U.S. Department of State reported that there were 9,300 immigrant visas issued to children adopted by U.S. citizen parents. Of these numbers, 2,700 were processed under the Hague Convention. Only 230 adopted children from the Philippines were issued visas compared to 2,589 from China and 1,727 from Ethiopia.
Despite the number of children available for adoption and the fact that there are a significant number of Filipino American prospective parents interested in adopting children of their own identity and culture, only a few Filipino adoptees are issued visas yearly. The seemingly complex process is usually what bars them from initiating the process. The complication of obtaining a U.S. immigrant visa after much expense in undergoing the adoption process may be softened by being aware of the “front loaded” process under the Hague Adoption Convention.
Atty Bernadette Abejo, Executive Director of ICAB, in a message recently sent through GMA Pinoy TV program’s Pusong Pinoy Sa Amerika, encourages prospective adoptive parents who are Filipino Americans to do it the right and legal way. The adoption process under the Hague Adoption Convention establishes a way of providing much-needed permanent homes abroad for many of our orphan or abandoned children.
(Tancinco may be reached at law@tancinco.com or at 721 1963 or 887 7177 )
