Not satisfied with cutting the number of international adoptions from “Hague” countries in half, the US has now turned its attention to the Non-Hague countries. This is a shame when you consider that the non-Hague countries are primarily the ones that did not have enough resources to plough into setting up a centralized adoption authority or keep track of the miles of red tape such a system creates.  The non-Hague countries are the ones that have bigger problems than the tens of thousands of orphans they are home too; bigger problems than sex trafficking, bigger problems than the dowry system, honor killings and the mass infanticide of baby girls. Think Pakistan. Think Afghanistan. Think Iraq. Think Syria.  Yet arguably, the children from these countries are the ones most in need of families. They do not enjoy the comfort and protection of well run foster homes, social services and legal protections.


The Hague convention, as mentioned above, was a major contributor to the decrease in international adoptions. Adoption service providers could not afford to become accredited. Adoptive parents could not navigate the adoption systems alone, were no longer allowed to represent themselves and could not afford to hire the adoption service providers they were required to use.


So now we find ourselves faced with the UAA, the Universal Accreditation Act. After an enormous delay, we finally have interim (and not final) guidance on the matter.


What is a primary provider? A primary provider is an accredited agency that will be responsible for any of the 6 listed adoption services which occur in any given adoption, unless those adoption services are provided in a country that allows adoptive parents to proceed privately, without the mandated use of specific providers or they are provided by a public authority, like a court.  Under Hague procedure, if you are the only accredited provider working on a case, you become the primary provider. Nobody has come out and said it but the same will likely happen in non-Hague cases. The big difference between Hague and non-Hague cases is what the provider will be responsible for and how they go about meeting the new requirements.


The interim memo states as follows:


Under 22 CFR Part 96, a primary provider is responsible for:

1. Ensuring that all six adoption services defined at 22 CFR 96.2 are provided consistent with applicable laws and regulations;

2. Supervising and being responsible for supervised providers where used (see 22 CFR 96.14); and

3. Developing and implementing a service plan in accordance with 22 C.F.R 96.44.


“A primary provider helps to ensure that orphan adoption services are provided with the same standards of practice and ethical conduct as Hague Adoption Convention cases.”




Primary providers have received no firm statement as to whether or not they will be designated the primary provider for an entire case if they


The Federal Register announcement from July 14, 2014 is replete with references to Hague and UAA procedure in the same sentence.  It’s easy to see why some adoption service providers read this to mean, “Hague rules now apply to Non-Hague cases.”


Before writing this blog, I considered carefully whether or not I would be offended if somebody said “Lawyers are not social workers and cannot competently carry out home studies, assess couples for suitability to adopt or assist couple with any of the myriad of social-work-related issues that arise in an adoption.” I would not.  So I say now with the following with the deepest respect to social workers.  (Adoption service providers- if you want to complain, my e-mail address is Don’t hold back.)


The vast majority of adoption service providers have a background in social work. I checked out “social workers” in the Occupational Outlook Handbook. For those of you that don’t know, the Occupational Outlook Handbook is the resource that USCIS and the State Department use to determine what an individual does when they adjudicate employment based immigration petitions- it’s essentially “The Big Book of Job Descriptions.” Nowhere in the job description, educational background or skill set, for social workers, did I find “Conduct research and analysis of legal problems, Interpret laws, rulings, and regulations for on behalf of other individuals. Provide legal advice. Decide if the procedure is being conducted according to the rules and law.” And I certainly did not find   “Guarantee that procedure is being conducted according to the rules and law of foreign countries. Interpret law in far off jurisdictions and provide legal advice accordingly.” Yet that is what many adoption service providers think they are being required to do under the UAA.


The vast majority of adoption service providers have found themselves in a position, where they assume (incorrectly), that they are now responsible for assuring that the legal procedures in a foreign country have been adhered to, that is, they assume that Hague procedure now applies to non-Hague cases.  And who could blame then when Hague procedures require the primary providers are responsible for all of the adoption services overseas and the guidance we have could easily be described as obscure?


They have received minimal guidance from USCIS about what exactly they are supposed to be doing, and what they are responsible for. Immigration law is a highly complex area of the law. It is almost impossible for anyone but an immigration lawyer who specializes in international adoptions to figure out what USCIS is telling us.


Of course adoption service providers are reticent about signing up for something that, in their minds, could result in them ultimately losing their accreditation. Keep in mind that Adoption Service Providers typically have programs in the US and Hague Accredited countries.  These programs generate the vast majority of the agency’s work. In their minds, if they make a mistake over a complex adoption issue arising from an adoption that occurred in a remote area of Pakistan, Afghanistan, Iraq etc., that they have very little experience in, they could lose their accreditation which typically results in the agency closing its doors. Who could blame them for wanting to stand back?


I’ve been told by a number of adoptive parents who want to adopt from Pakistan and Syria that they can’t even get an agency to do their home study. Families are calling me every day telling me that it’s happening.  Others are telling me that agencies will do the home study but only if the family agrees to sign up to one of their programs and they can “switch country” later on if it becomes clear how to adopt in the country that they really want to adopt from. Yet these programs involve significant fees- and by significant I am talking upwards of $30,000.  I have two couples who called me within the past week in hysterics telling me that they paid for home studies, home studies were completed, and somewhere during the process they were (mis-) advised by their home study providers to wait for UAA guidance/ regulations to finalize everything, only to have the home study providers refuse to certify the home study once we received the guidance because the providers in question are unsure about what the interim guidance means. They don’t want to be primary providers.  One family has been matched with a baby girl and is about to finalize in court. Had they pushed ahead months ago, the UAA would not have impacted their case at all.  Questionable legal advice (albeit given with the best of intentions due to lack of guidance from our government) placing the families in terrible positions.  E-mail my awesome assistant Mayra, who has been fielding these types of calls all week if you don’t believe me.


And again, I am not blaming the adoption service providers here. Yes, they are misinformed, but USCIS has made it difficult for them to get informed. Do I, as a lawyer, want to be responsible for providing a psychological evaluation of a sex offender confirming that he will not reoffend? No.  Do I, as a lawyer, want to interpret building plans and confirm that a building meets a safety code? No, I’d rather leave that up to a building inspector. Do I, as a lawyer, want to give someone a hair cut? Only if they promise they won’t get mad at me.  And I certainly wouldn’t want to do any of these things if my license to practice law was on the line.  So I get it. I understand that adoption service providers are worried. They don’t want to lose their accreditation doing something that they have no idea how to do.


Now we have a domino effect- a poorly thought out law, followed by delayed and hazy guidance coupled with adoption service providers who now think they have to apply Hague procedures  across the board to Non-Hague cases is making it very difficult for parents to move forward.


I’m sure we’ll get there with the UAA.  Eventually we will have firm guidance and a clear and established procedure. The little guidance we have received indicates that the powers that be know what the issues are. They are seeking comment from the public on their interim guidance and believe me I’ll be commenting! So for the next few weeks and months, I’ll be drafting my comments, the adoption service providers will be scrambling to understand what’s required of them, adoptive parents will be searching for primary providers and USCIS adjudicators will be issuing Request for Evidence. The sad thing is that while we are doing this, there are babies in orphanages who will give up crying because they no that nobody is coming any time soon.