Here’s a more in depth review of  the interim guidance memo.

 

The memo states clearly that all adoption service providers operating in the United States are required to be accredited by the central adoption authority. Fine. We already new that.

 

If prospective adoptive parents filed an I-600A or I-600 before July of 2013 then the UAA does not apply.  Similarly, if the prospective adoptive parents file an application with the “competent authority” before July of 2013, then the UAA does not apply.

 

Remember that a “competent authority” is a court or other entity that has statutory authority in the foreign country to make determinations in matters of child welfare INCLUDING ADOPTION.

 

So if a prospective adoptive parent made an application to whichever authority in the foreign country has authority to made custodial determinations (adoptions or guardianship), then they will also be exempt from the UAA.

 

It’s worth considering the following. Most of the countries that did not sign up to the Hague Convention simply do not have the statutory frame work necessary to comply with it’s stringent requirements and they knew it.  Many countries have essentially no statutory framework with the only authority that has the power to make determinations on adoptions/guardians being the court.  It has been and will be all but impossible for the US authorities to mold this legislation to fit these countries.

 

A word about Muslim countries-

 

Muslim countries do not adhere to the western concept of adoption. Muslim countries will typically base their adoption codes on the concepts of Shar’ia with the result that only guardianships are granted, parental rights are not typically terminated during the guardianship/kafala proceedings etc. As a side note, the Muslim concept of adoption correlates most closely to the “modern” position that open adoptions (where the child knows they are adopted and at least something about their adoptive background)  place the child who is subject to the adoption in the best position. The six adoption services which are regulated by the Hague Convention (and now by the UAA)  often do not occur in those countries. If they do occur, you will typically find that they occur in a limited fashion and the only entity that is entitled to carry them out is the court (i.e the body that has statutory authority to made decisions about adoption.) This is not the case in every predominantly Muslim country, but it is the case in most. The reasons for this again are rooted in Shar’ia, the concept of the open adoptions, haram relationships, the sanctity of the family unit etc.

 

Rule of thumb for ASP’s- if the country you are working in has a statutorily established adoption program with entities that have the statutory authority to provide adoption services and prospective adoptive parents are required to use these providers to complete an adoption; you must now have a supervision agreement with these entities. You are responsible for what they do and what they don’t do.  If the foreign adoption service supervisor does something they should not (buys a baby, forges a consent, lies about who a biological parent is), your accreditation is now on the line. Get on a plane, meet the people, review their procedures. Adoption Service Providers must now consult with a competent immigration attorney who can provide guidance on the legal frame work in individual countries.

 

Prospective adoptive parents now have an ongoing duty of candor to disclose any material issues to USCIS/their home study providers. Good!

 

Adoptive Parents are now required to identify an adoption service provider who will be the Primary Provider for their adoption case.

 

What is the Primary Provider responsible for?

 

Some of you will have read the blog I wrote in January of 2014 where I let the State Department know that if this provision was enforced in a similar fashion as the Hague Convention counties, ASP’s in the United States would be placed in the impossible situation of ensuring that the adoption laws in foreign countries had been complied with. Adoptive parents would find it impossible to find agencies willing to put their accreditation on the line to supervise services in countries where there were no real adoption services providers regulated by their own governments.  In fact, I even went so far as to call the State Department to voice my concerns on this issue.

 

It looks like the State Department was paying attention. ASP’s will not be responsible for supervising adoption services provided in countries that do not themselves require the use of statutorily created adoption service providers. Petitioners may act alone without a responsible primary provider if the country in which they are adopting from allows petitioners to act alone. Wise move State Department.

 

Essentially what they are saying is that countries that already require petitioners to adopt under an established framework must now have the adoption services supervised by a US primary provider. Petitioners adopting from countries which do not have a frame work, statutorily established entities etc. will not be required to have their adoption services supervised. Regardless, most of these countries only allow the court to provide adoption services (see explanation about competent authorities above) and  court’s are exempt anyway. There is just no point in USCIS/DOS pushing this issue.  Really, it’s the only reasonable thing that could have been done here.

 

Am I saying primary providers are not required in countries that don’t have an established framework? No, no, no. A primary adoption service provider is required. But as I predicted in my January 2014 post, they will really only be responsible for the home study and for post placement work.

 

The memo states that Petitioners will still have to comply with the law of the child’s home country. Fine. This is nothing new and it’s something I strongly believe in.

 

And then, comes the most important sentence in the memo:

 

“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.”   Really USCIS???  What about all of the fist pounding “adoptions shall be regulated” rhetoric?  I am reading this sentence to mean: “Primary providers are nice. We recognize that nobody can truly supervise what is happening overseas, except for the foreign authorities.”

 

In countries where adoption service providers are already in existence (i.e. regulated by their own governments), the primary provider in the US will be responsible for supervising those service providers.

 

The primary provider is now responsible for issuing a case plan identifying who is responsible for what services. (Limit your liability ASP’s!)

 

At least one adoptive parent must have seen the child they are adopting for an adoption decree to be considered full and final. Big deal.

 

Adoption services provided before July of 2014 will not be fall under the UAA. We already knew that.

 

Home studies must comply with the Hague home study format. I think this is a good thing. All adult members of the household have to be properly vetted and so they should.

 

All in all, there isn’t a whole lot of new information in the memo. Most importantly, it confirms my belief that I may in fact be psychic.  Does anybody know how I can set up one of those call me now psychic lines?

 

 

Questions, comments welcome- gkennedy@kennedyimmigrationfirm.com