[Federal Register Volume 59, Number 146 (Monday, August 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18367]


[[Page Unknown]]

[Federal Register: August 1, 1994]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1395-92]
RIN 1115-AD28

 

Petitioning for Foreign-Born Orphans by United States Citizens

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This regulation addresses a number of issues that have arisen 
in the recent past because of the increased interest by United States 
citizens in the adoption of foreign-born orphans. It revises prior 
regulations by clarifying language and procedures for prospective 
adoptive parents and other interested parties. This regulation also 
enhances the ability of the Immigration and Naturalization Service 
(Service) to help ensure that children who are eligible for orphan 
status will receive proper care.

EFFECTIVE DATE: This rule is effective on September 30, 1994.

FOR FURTHER INFORMATION CONTACT:
Jack Tabaka, Senior Immigration Examiner, Karen Eckert, Supervisory 
Immigration Examiner or, Rita A. Arthur, Senior Immigration Examiner, 
Immigration and Naturalization Service, 425 I Street, NW., Room 7122, 
Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: The word ``orphan'' is defined in many 
dictionaries as a child whose parents have both died. Under the 
Immigration and Nationality Act (Act), Congress expanded the definition 
to include not only children who were orphans because of the death of 
both parents, but also children who were orphans because of the 
``disappearance of, abandonment or desertion by, or separation or loss 
from both parents * * *'' [8 U.S.C. 1101(b)(1)(F)]. Congress also 
established additional circumstances under which the child of a sole or 
surviving parent could be considered an orphan.
    A review of the legislative history leading to the statutory 
definition of orphan, as it appears in section 101(b)(1)(F) of the Act, 
and a review of the preceding legislation clearly show that Congress 
intended the orphan statute to apply to ``homeless'' and parentless 
children. The original legislation was drafted after World War II when 
there were many children who had been permanently torn from their 
parents and homes. In fact, the origin of the legislation can be traced 
to the Displaced Persons Act of 1948, Pub. L. 80-7874, Sec. 2, 62 Stat. 
1009 (1948).
    Amendments to the original statute included raising the age of an 
eligible orphan, eliminating the two orphans per petitioner limit, 
allowing an unmarried individual to petition for an orphan, and 
defining the impact of the Immigration Reform and Control Act of 1986 
on section 101(b)(1)(D) of the Act regarding the relationship of an 
illegitimate child to its father in an orphan case. Additional 
legislation required that a home study be completed in every case 
before the prospective adoptive parents are eligible to petition for an 
orphan. Throughout these changes, Congress continued to refer to the 
orphan statute as pertaining to homeless children, thereby 
distinguishing it from the provisions of the adopted child statute 
under section 101(b)(1)(E) of the Act.
    On November 8, 1993, the Service published a proposed rule in the 
Federal Register at 58 FR 59200-59210 to revise the regulations at 8 
CFR 204.3 governing the petition for foreign-born orphans. The proposed 
rule was drafted to address a number of issues that have arisen in the 
recent past because of the increased interest by United States citizens 
in the adoption of foreign-born orphans. Public comments were 
solicited, and eight letters were received during the comment period. 
All comments have been thoughtfully considered. Six of the eight 
commenters indicated their overall support or their support in large 
measure for the proposed regulations. Since most discussed several 
issues, the total number of comments exceeds the number of persons who 
commented.

General

    It should be noted that the proposed rule was not drafted in 
connection with possible United States ratification and implementation 
of the Hague Convention on Protection of Children and Cooperation in 
Respect of Inter-country Adoption. Rather, the rule was drafted on the 
basis of the current provisions of the Immigration and Nationality Act, 
as amended, as indicated in the ``Authorities'' section in the preamble 
to the proposed rule. One commenter suggested that the Service make it 
clear for individuals without legal backgrounds that the rule is not 
related to the Hague Convention. The Service agrees with this 
suggestion and has included this clarification in the final rule.

Definitions

    The Service has received the following comments regarding the 
definitions contained in this rule:
    (1) One commenter objected to the use of the term ``parental 
interest'' used in the definition ``abandoned by both parents.'' The 
commenter said the phrase has proven to be ``* * * problematic in 
domestic cases.'' It was stated that the term's ``* * * vagueness could 
lead to many otherwise eligible orphans being denied the chance for 
adoption.'' Although the term ``parental interest'' may have proven to 
be problematic in domestic cases, the Service does not believe that the 
term's incorporation in the final rule ``* * * could lead to many 
otherwise eligible orphans being denied the chance for adoption'', as 
stated (emphasis added).
    The term ``parental interest'' relates to children who are not 
eligible orphans as indicated by the context of the sentence in which 
it appeared:

    A child shall not be considered to be abandoned if he or she is 
placed temporarily in an orphanage, if the parents express an 
intention to retrieve the child, are contributing or attempting to 
contribute to the support of the child, or otherwise exhibit 
parental interest in the child.

Like ``express an intention to retrieve the child'' and ``contributing 
or attempting to contribute to the support of the child,'' the 
``parental interest'' test applies only in the case of a child who has 
been placed temporarily in an orphanage. Additionally, the ``parental 
interest'' test was included in the proposed rule to help differentiate 
between a child who is abandoned to an orphanage and a child who is 
placed in, perhaps, the same orphanage temporarily because the natural 
parents are currently unable to adequately provide for the child.
    The Service will retain the term ``parental interest'' in the final 
rule. However, review of this comment has pointed to the need to 
clarify that this term contemplates continuous interest rather than a 
one-time action. Accordingly, this provision in the final rule will be 
reworded and the word ``ongoing'' will be added to the definition of 
``abandoned by both parents'' to read ``ongoing parental interest.''
    (2) The proposed rule requires fingerprint checks and an evaluation 
in the home study of each ``adult member of the prospective adoptive 
parents' household,'' defined as ``an individual, other than a 
prospective adoptive parent, over the age of 18 whose principal or only 
residence is the home of the prospective adoptive parents.'' One 
commenter asked the Service to ensure that an approved advanced 
processing application or orphan petition will not be affected if a 
child in the household of the prospective adoptive parents turns 18 
during the validity of the approved application or petition.
    The Service basically agrees with this recommendation and will 
accordingly amend its definition of ``adult member of the prospective 
adoptive parents' household'' to exclude such a person unless there is 
an articulable and substantive reason for requiring fingerprint checks 
and a home study evaluation after the advanced processing application 
has been filed.
    (3) One commenter welcomed the definition of the ``foreign sending 
country'' and the specific exclusion of ``a country to which the orphan 
travels temporarily * * *.'' The commenter stated that this language in 
conjunction with other language in the rule ``* * * concerning evidence 
of custody in accordance with the laws of the foreign sending country 
will place a reasonable requirement for evidence that a child has not 
been taken across an international border to evade laws designed to 
protect the rights and interests of the child.'' The Service agrees 
with this evaluation and will retain this definition as presented in 
the proposed rule.
    (4) The term ``prospective adoptive parents'' is in part defined as 
``* * * a married United States citizen of any age and his or her 
spouse of any age * * *.'' One commenter asked if this meant a man and 
woman married to each other. The term ``prospective adoptive parents'' 
includes a man and a woman married to each other provided that they 
meet all the criteria set forth in the definition.
    (5) One commenter indicated that the definition of ``sole parent'' 
might have an impact on the determination of whether certain children 
were orphans under the Act. This definition imposes no new 
requirements, and it is simply a codification of longstanding 
requirements which are contained in several related portions of the 
Act. Accordingly, this definition has not been changed in the final 
rule.
    (6) One commenter expressed support for the fact that the Service 
has provided regulatory definitions for several key phrases. In working 
under the prior regulations, most persons have focused on the term 
``abandonment'' by both parents in determining whether a child was an 
orphan under the Act, and have paid minimal attention to the other ways 
in which a child could qualify as an orphan. In drafting this rule, the 
Service sought to expand that focus. This has been achieved by 
providing definitions for other terms appearing in the Act that allow a 
finding that a child is an orphan: ``disappearance'' of both parents, 
``desertion'' by both parents, ``separation'' from both parents, and 
``loss'' from both parents. Other definitions have also been added for 
clarity and consistency.
    (7) When the proposed rule was drafted, the Service anticipated 
that a revised Form I-130 (Relative Petition), which would include 
orphan processing, would be in use by the time the rule became final. 
This was reflected in the definitions of ``advanced processing 
application'' and ``orphan petition,'' as well as in references to the 
Form I-130 listed elsewhere in the proposed rule. However, the revised 
Form I-130 is not in use at this time. Accordingly, all references to 
the Form I-130 have been eliminated and references to Form I-600A 
(Application for Advance Processing of Orphan Petition) and Form I-600 
(Petition to Classify Orphan as Immediate Relative) have been inserted, 
as appropriate.

Fingerprints

    (1) One commenter expressed support for the proposal to fingerprint 
adult members of the prospective adoptive parents' household as ``* * * 
a good abuse deterrent * * *.''
    (2) The final rule eliminates what was proposed as an optional 
process under which fingerprint cards could be filed directly with the 
FBI. This elimination stems from the fact that the proposed optional 
process has proven inconsistent with ongoing efforts to enhance the 
existing fingerprint-check process used in a number of types of cases, 
including orphan cases. The fingerprint enhancement effort will be 
discussed in a forthcoming rule.

Extending the Validity of Approved Advanced Processing Applications

    The Service received three comments on extending the validity of 
approved advanced processing applications. Two commenters supported the 
Service's extending the validity from 12 to 18 months while one 
commenter stated that 12 months was sufficient. It is no longer 
uncommon for circumstances beyond the control of prospective adoptive 
parents to hamper their best efforts to complete an orphan adoption 
within 12 months of the approval of their advanced processing 
application. In order to better assist prospective adoptive parents in 
such circumstances, the Service proposed to extend the validity to 18 
months. The extension eliminates the need for a second advanced 
processing application at this juncture, when the prospective adoptive 
parents are focused on complying with foreign requirements and on 
bringing the orphan home.
    Nothing in the comment has convinced the Service that it should 
eliminate the 18-month validity period from the final rule. Therefore, 
the final rule will retain the 18-month validity period.

Petition for an Identified Orphan

    (1) The Service received two favorable comments on the fact that 
the proposed rule exhibits respect for the law of the orphan's home 
country.
    The Service considers it vital that the prospective adoptive 
parents (or the person or entity working on their behalf) obtain legal 
custody of the orphan. Failure to comply with the applicable foreign 
requirements could potentially expose prospective adoptive parents to 
questionable, if not illegal, practices abroad and could have 
detrimental consequences on international adoptions.
    (2) One commenter expressed concern over the phrase ``the 
prospective adoptive parents, or the adoption agency working on their 
behalf'' which appeared twice in the proposed rule. The commenter said 
that the express mention of adoption agencies ``* * * may lead to the 
interpretation that non-agency adoption providers (e.g., lawyers, 
social workers, facilitators) may not be allowed to represent adoptive 
parents in an international adoption.''
    The Service never intended that the language in question would 
exclude non-agency providers. Accordingly, the words ``or the adoption 
agency'' will be removed and the words ``or a person or entity working 
on their behalf,'' will be substituted.
    (3) As part of its review of the proposed rule, the Service has 
decided to eliminate the requirement for a separate statement by the 
prospective adoptive parents that they intend to adopt the child in the 
United States. The Service believes that this intention is adequately 
conveyed by the prospective adoptive parents, whose orphan is coming to 
the United States for adoption, when they complete and sign Form I-600.
    (4) After Service-initiated consultations with three knowledgeable 
sources in the adoption community who advised that all States allow 
adoption by unmarried persons, the Service has eliminated the 
requirement that an unmarried petitioner submit evidence that the state 
of the orphan's proposed residence does not preclude adoption by an 
unmarried person.

Home Study Requirements

    (1) One commenter said that the proposed requirement that the home 
study must be submitted to the Service within six months of the filing 
date of the advanced processing application ``* * * might cause 
needless reapplications or a hasty grind to meet the deadline. We 
understand your desire to have materials as timely as possible, but 
this seems to create an unnecessary push.'' In light of this comment, 
the Service has reconsidered this requirement and will extend the time 
for submitting the home study to one year after the filing of the 
advanced processing application.
    (2) One commenter wanted to know if a statement to the effect that 
``the financial resources have been checked and deemed sufficient to 
support a child'' would be sufficient to satisfy the financial-ability 
requirements set forth in the proposed rule. Since experience has shown 
that such a statement does not give the Service sufficient information 
regarding the financial ability of the prospective adoptive parents, 
such a statement will not be sufficient to satisfy this requirement. 
The rule requires a general discussion of the prospective adoptive 
parents' finances and a listing of the evidence which the home study 
preparer reviewed in making his or her assessment. The Service is not 
routinely requiring a detailed financial statement or supporting 
financial documents. However, should the need arise, the Service 
reserves the right to ask for such detailed documentation. This 
requirement will be clarified in the final rule.
    (3) In commenting on the proposal that the home study preparer must 
ensure that a check has been made with available child abuse 
registries, one commenter identified a state which he said does not 
maintain a child abuse registry and identified another which he said 
precludes a check of such records by private adoption agencies.
    Based on this comment, the Service amended this requirement to more 
clearly address how various levels of access to such records affect 
compliance with this requirement. Failure on the part of the 
prospective adoptive parents and/or adult members of the prospective 
adoptive parents' household to cooperate in having available registries 
checked will be grounds for denial.
    (4) One commenter said that while it was clear that any history of 
abuse and/or violence had to be disclosed to the home study preparer 
and the Service, it was unclear whether any criminal record for other 
activities had to be disclosed.
    In drafting the proposed rule, it was the Service's intention to 
clearly state that the prospective adoptive parents and/or adult 
members of their household are required to disclose any criminal record 
to the home study preparer and to the Service. Failure to make this 
clear was inadvertent. Since the fingerprint checks which are part of 
the advanced processing procedure would reveal such records, it makes 
no sense for the prospective adoptive parents and/or an adult member of 
their household to withhold such information. Indeed, early disclosure 
provides the prospective adoptive parents with the best opportunity to 
gather and present evidence of rehabilitation or mitigating 
circumstances, and it gives the home study preparer and the Service the 
opportunity to properly evaluate the criminal record in light of such 
evidence.
    Such information is eventually disclosed when the fingerprint 
checks are received by the Service. Delays may be especially 
problematic at this stage. The prospective adoptive parents are usually 
well into preadoption proceedings, may have identified a child, and may 
even have established travel plans. At times, these travel plans may 
have to be rescheduled while the issues raised by the criminal record 
are addressed. It is in the best interest of all parties to have any 
criminal records disclosed and resolved early in the process. 
Accordingly, the Service has clarified this in the final rule.
    (5) One commenter suggested that the Service require a finding of 
good moral character [as statutorily defined in section 101(f) of the 
Act] for any prospective adoptive parent before the advanced processing 
application can be approved. The commenter said that a State may 
approve a person as a prospective adoptive parent even if he or she has 
committed a recent felony as long as it appears he or she would not 
abuse the child and would properly provide for the child's needs. The 
commenter said that, in one case, a State Court found a prospective 
adoptive parent to be suitable when he would fail to meet the good 
moral character standard for citizenship or for suspension of 
deportation under the Act.
    The Service is neither endorsing nor rejecting this suggestion. The 
Service notes that this suggestion could not be considered for 
incorporation into this rule at this stage of the process because of 
its potentially far-reaching impact and the need for extensive study 
and consultation.
    (6) One commenter evidently believed that the proposed rule was 
requiring that each home study specify the country or countries from 
which the prospective adoptive parents may adopt. The proposed rule did 
not require country-specific home studies. What the proposed rule did 
require is that if the home study preparer imposes such a restriction, 
it must be clearly stated in the home study report. This requirement 
will be retained in the final rule.
    (7) One commenter recommended that any specific restrictions such 
as the nationality, age, or gender of the orphan as required by the 
home study preparer be included in the telegraphic notification to the 
overseas site. The Service plans to modify the orphan-related approval 
cable formats to include such information.
    (8) Unless a home study reflects relatively current conditions, its 
value is severely limited or non-existent, regardless of how 
conscientiously it was conducted. Since the prior regulation did not 
specify a validity period for home studies, some prospective adoptive 
parents submitted home studies that were several years old.
    To rectify this deficiency and to make the home study a more 
valuable tool, the Service will require that the home study be 
submitted within six months of its completion. Any home study that is 
more than six months old when it is submitted to the Service must be 
accompanied by an update which is current, that is, not more than six 
months old. Ordinarily, a home study (or a home study and/or update as 
discussed above) will not have to be updated after it has been 
submitted to the Service unless there is a significant change. 
Significant changes would include a change in the residence of the 
prospective adoptive parents, marital status, criminal history, 
financial resources, and/or the addition of one or more children or 
other dependents to the family prior to the orphan's immigration into 
the United States. This was not clear to one commenter who evidently 
thought that the home study would have to be updated every six months 
until the orphan petition was approved. Since this was unclear, the 
Service has included clarifying language in the final rule.
    In reviewing the proposed rule in light of this commenter's 
request, the Service also determined that using the words ``update'' 
and ``amendment'' (and derivative words from each) may have contributed 
to some of the confusion. Therefore, the Service has rewritten that 
portion of the rule dealing with home study updates and amendments for 
clarity, while retaining the original intent. In doing so, the Service 
will use ``update'' (and derivative words) in reference to making an 
outdated home study current before it is submitted to the Service. The 
Service will use ``amendment'' (and derivative words) in reference to 
making a home study reflect any significant changes after it has been 
submitted to the Service.
    Finally, it should be noted that requiring a home study to be less 
than six months old at the time of its submission to the Service is 
reasonable in light of the fact that the home study has an additional 
``life span'' of 18 months after the approval of the advanced 
processing application, which is largely based on the home study. This 
means that the home study may be as much as two years old at the time 
the orphan petition is filed.
    (9) The proposed rule included a provision to require every 
stateside home study completed by a home study preparer who is not an 
adoption agency to be reviewed and endorsed by an appropriate State 
Government agency or an adoption agency. In reviewing the rule for 
final publication, the Service decided to strike this proposed 
requirement because it added an additional step to the process. 
Accordingly, that portion of the proposed rule has been amended to 
reflect that a stateside home study (whether prepared by an adoption 
agency or a non-agency) must be reviewed and/or endorsed by an 
appropriate State Government agency only if such a review is required 
by applicable State law and/or regulations. Additionally, such a review 
must be made prior to submission of the home study to the Service. The 
requirement that any home study for prospective adoptive parents who 
reside abroad must receive a favorable recommendation remains in the 
final rule, since it is clearly and specifically required by law. It 
should be noted that the paragraph title has been changed.
    (10) Two commenters stated their overall support for the home study 
requirements.
    (11) One commenter stated that ``* * * the Service should be able 
to refuse to accept Home Study Reports prepared by preparers who have a 
pattern or practice of willfully submitting Home Study Reports that do 
not contain the required information and disclosures.''
    The Service will consider each home study on its individual merits 
and will not reject a home study simply because it is authored by a 
particular home study preparer. If a home study preparer has a pattern 
of submitting questionable home studies, the Service expects the 
director to discuss this with the appropriate State authorities as part 
of his or her liaison with the State adoption authorities. The Service 
believes that control over conduct of home study preparers, including 
the institution of adverse actions, is a matter for State Government 
authorities. Accordingly, the Service will not accept the commenter's 
suggestion.
    (12) One commenter suggested that the home study preparer be 
required to attach a photograph of the adoptive parents to the home 
study. No examples were given, or are known, of incidents in which 
photographs of the adoptive parents would have proven beneficial. 
Therefore, the Service will not adopt this suggestion at the present 
time, but reserves the right to revisit the issue should evidence come 
to light which would justify its implementation.
    (13) One commenter suggested that a form be developed to assist the 
home study preparer in meeting the rule's requirements for home 
studies. Since the Service is working to reduce the number of its 
forms, this suggestion will not be accepted. However, the Service plans 
to include the requirements for home studies in its publication, The 
Immigration Of Adopted And Prospective Adoptive Children (Form M-249), 
which will be revised to conform with this rule.
    (14) A commenter suggested that the home study preparer ``* * * 
obtain from the interviewees the names and addresses of two credible 
references and that such references be interviewed with respect to 
suitability of the prospective adopting parents.'' It is doubtful that 
prospective adoptive parents would provide references whose statements 
would be detrimental to their prospects for adoption. Additionally, the 
suggestion would no doubt extend the time necessary to complete a home 
study and add to its cost. Given these factors, the Service will not 
adopt this suggestion. It should be noted, however, that if applicable 
State law or regulation requires such reference checks, they must be 
made.
    (15) One commenter suggested that the home study preparer be 
required to sign and otherwise execute the home study report under 
penalty of perjury. The commenter said this would serve as a 
disincentive to unethical and otherwise illegal conduct by certain home 
study preparers. The commenter called for criminal liability for such 
unethical or illegal conduct in addition to state licensure revocation 
proceedings.
    The fact that the prospective adoptive parents sign the advanced 
processing application and orphan petition under penalty of perjury is 
sufficient for the Service's purposes since such proceedings are 
between the prospective adoptive parents and the Service. Furthermore, 
the Service believes that control over conduct of home study preparers, 
including the institution of adverse actions, is a matter for State 
Government authorities. Accordingly, the Service will not accept the 
commenter's suggestion.
    (16) As part of its review of the proposed rule, the Service has 
amended the requirement that two copies of the home study be submitted. 
The final rule requires that only one copy of the home study be 
submitted.

Adjudication

    The proposed rule provided for denial of an advanced processing 
application and/or an orphan petition if the prospective adoptive 
parents or adult members of the prospective adoptive parents' household 
fail to disclose an arrest, conviction, or history of substance, sexual 
or child abuse, and/or domestic violence.
    One commenter suggested that the final rule should also include an 
explicit provision to revoke the approval of an advanced processing 
application or orphan petition if such failure to disclose comes to 
light after the approval. The commenter stated that in many instances 
knowledge of such activity is not discovered until an advanced 
processing application or an orphan petition has been approved. The 
commenter continued: ``This would serve as an expressed disincentive to 
hiding or concealing such required disclosures. It would further serve 
to protect the physical and emotional well-being of an orphaned child 
who has been placed into a home with adoptive parents who have had such 
a history.'' The same commenter also suggested that the rule provide 
for revocation if a home study update fails to disclose any significant 
changes in the prospective adoptive parents' ability to provide proper 
care for the orphan.
    The Service's authority to revoke an approval is inherent in its 
authority to approve and is explicit in section 205 of the Act. To make 
this clear, the final rule will reflect the Service's authority to 
revoke the approval of an advanced processing application or orphan 
petition if the director becomes aware of information that would have 
resulted in denial had it been known at the time of adjudication or if 
the relationship upon which the petition is based ceases to exist.

Child-Buying as a Ground for Denial

    Two parties expressed support for making child-buying a ground for 
denial. One commenter called it a ``* * * disgraceful de-humanizing 
practice.'' The other commenter noted that the processing time of 
suspect cases may be increased. In reviewing the child-buying 
preclusion in light of the comments discussed above, the Service noted 
that it had inadvertently written this provision so that it could be 
read as only applicable to adoptive parents but not to prospective 
adoptive parents. To correct this, the words ``prospective adoptive 
parents or'' have been inserted before the words ``adoptive parents.''

Telegraphic Notification

    One commenter welcomed the establishment of uniform procedures for 
sending telegraphic notification and for requesting a change in visa-
issuing posts.

Other Considerations

    (1) The Department of State expressed its concurrence with the 
paragraphs addressing the I-604 investigations and the authority of 
consular officers. Additionally, the Department of State asked that a 
sentence be included to encourage direct communication between the 
appropriate consular and immigration officers when there are 
significant differences between the evidence presented in support of 
the approved orphan petition and the evidence uncovered by the I-604 
investigation. The Service will comply with this request and 
accordingly amend the I-604 provision.
    (2) One commenter evidently thought that the paragraph which states 
that children in the United States illegally or as nonimmigrants are 
ineligible for orphan status is a new provision. This provision was 
carried forward from Sec. 204.3(e) of the prior regulation.

Miscellaneous Comments

    (1) Pursuant to section 101(b)(1)(F) of the Act, the adoptive 
parent(s) must be in compliance with the preadoption requirements of 
the State of residence unless both of the parents or the single parent 
``* * * personally saw and observed the child prior to or during the 
adoption proceedings.''
    In several places in the proposed rule the words ``see'' and 
``saw'' were used in this context, thereby reflecting the statutory 
language. According to one commenter, the use of the words ``saw'' or 
``see'' could be interpreted as disqualifying a blind person from 
adopting. To the best of the Service's knowledge, no application or 
petition in orphan proceedings has ever been denied solely on the basis 
of blindness, and the Service has no intention of changing this 
practice. Therefore, the recommended change will not be made.
    (2) One commenter asked if the Freedom of Information Act will give 
adoptive parents the right to obtain their own child abuse records or 
clearance.
    The Freedom of Information Act (FOIA) (5 U.S.C. 552) and the 
Privacy Act (PA) (5 U.S.C. 552a) pertain to records created by U.S. 
Government agencies. If such a record were created by a U.S. Government 
agency, then a request could be made under FOIA or the PA. Since the 
child abuse indices referred to in this rule are State records, the 
applicable State law, if any, would govern access to the records.
    (3) Two commenters pointed out several typographical errors which 
occurred when the proposed rule was prepared for publication in the 
Federal Register. The Service has corrected these errors. The Service 
also has made some editorial changes for clarity and consistency which 
do not have an impact on the intent of the rule.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and by approving it certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities for the following reason: the rule primarily affects 
applications and petitions in orphan proceedings which can only be 
filed by married couples ad individuals, but not by small entities.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory 
Planning and Review, and the Office of Management and Budget has waived 
its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulations proposed herein will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this regulation will 
enhance family well-being: (1) by making the welfare of the orphan the 
foremost consideration when screening the prospective adoptive parents 
and other adults in the household through the fingerprint checks and 
the home study; (2) by providing prospective adoptive parents with 
guidelines which are clearer than the previous ones regarding the 
adoption of orphans; (3) by ameliorating some of the impact of the 
prior regulations without sacrificing the welfare of the orphan; (4) by 
providing improved guidelines for home studies which require that the 
home study preparer counsel the prospective adoptive parents about the 
intricacies of foreign processes with which they will come into 
contact; (5) by providing definitions for terms including 
``abandonment,'' ``disappearance,'' ``desertion,'' ``separation,'' and, 
``loss'' which appear in the Act, thereby expanding the focus for 
determining whether a child is an orphan under the Act beyond the term 
``abandonment,'' which has been nearly the exclusive focus in the past; 
and (6) by requiring the Service's directors to maintain liaison with 
the adoption community.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. Clearance numbers for these 
collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 204

    Administrative practice and procedure, Adoption, Children, Orphans.

    According, part 204 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

    1. The authority citation for part 204 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255; 8 CFR part 2.

    2. Section 204.3 is revised to read as follows:


Sec. 204.3  Orphans.

    (a) General.
    (1) Background. This section addresses a number of issues that have 
arisen in the recent past because of the increased interest by United 
States citizens in the adoption of foreign-born orphans and is based on 
applicable provisions of the Act. It should be noted that this section 
was not drafted in connection with possible United States ratification 
and implementation of the Hague Convention on Protection of Children 
and Cooperation in Respect of Inter-country Adoption.
    (2) Overview. The processing and adjudication of orphan cases is a 
Service priority. A child who meets the definition of orphan contained 
in section 101(b)(1)(F) of the Act is eligible for classification as 
the immediate relative of a United States citizen. Petitioning for an 
orphan involves two distinct determinations. The first determination 
concerns the advanced processing application which focuses on the 
ability of the prospective adoptive parents to provide a proper home 
environment and on their suitability as parents. This determination, 
based primarily on a home study and fingerprint checks, is essential 
for the protection of the orphan. The second determination concerns the 
orphan petition which focuses on whether the child is an orphan under 
section 101(b)(1)(F) of the Act. The prospective adoptive parents may 
submit the documentation necessary for each of these determinations 
separately or at one time, depending on when the orphan is identified. 
An orphan petition cannot be approved unless there is a favorable 
determination on the advanced processing application. However, a 
favorable determination on the advanced processing application does not 
guarantee that the orphan petition will be approved. Prospective 
adoptive parents may consult with the local Service office on matters 
relating to an advanced processing application and/or orphan petition.
    (b) Definitions. As used in this section, the term:
    Abandonment by both parents means that the parents have willfully 
forsaken all parental rights, obligations, and claims to the child, as 
well as all control over and possession of the child, without intending 
to transfer, or without transferring, these rights to any specific 
person(s). Abandonment must include not only the intention to surrender 
all parental rights, obligations, and claims to the child, and control 
over and possession of the child, but also the actual act of surrending 
such rights, obligations, claims, control, and possession. A 
relinquishment or release by the parents to the prospective adoptive 
parents or for a specific adoption does not constitute abandonment. 
Similarly, the relinquishment or release of the child by the parents to 
a third party for custodial care in anticipation of, or preparation 
for, adoption does not constitute abandonment unless the third party 
(such as a governmental agency, a court of competent jurisdiction, an 
adoption agency, or an orphanage) is authorized under the child welfare 
laws of the foreign-sending country to act in such a capacity. A child 
who is placed temporarily in an orphanage shall not be considered to be 
abandoned if the parents express an intention to retrieve the child, 
are contributing or attempting to contribute to the support of the 
child, or otherwise exhibit ongoing parental interest in the child. A 
child who has been given unconditionally to an orphanage shall be 
considered to be abandoned.
    Adult member of the prospective adoptive parents' household means 
an individual, other than a prospective adoptive parent, over the age 
of 18 whose principal or only residence is the home of the prospective 
adoptive parents. This definition excludes any child of the prospective 
adoptive parents, whose principal or only residence is the home of the 
prospective adoptive parents, who reaches his or her eighteenth 
birthday after the prospective adoptive parents have filed the advanced 
processing application (or the advanced processing application 
concurrently with the orphan petition) unless the director has an 
articulable and substantive reason for requiring an evaluation by a 
home study preparer and/or fingerprint check.
    Advanced processing application means Form I-600A (Application for 
Advanced Processing of Orphan Petition) completed in accordance with 
the form's instructions and submitted with the required supporting 
documentation and the fee as required in 8 CFR 103.7(b)(1). The 
application must be signed in accordance with the form's instructions 
by the married petitioner and spouse, or by the unmarried petitioner.
    Application is synonymous with advanced processing application.
    Competent authority means a court or governmental agency of a 
foreign-sending country having jurisdiction and authority to make 
decisions in matters of child welfare, including adoption.
    Desertion by both parents means that the parents have willfully 
forsaken their child and have refused to carry out their parental 
rights and obligations and that, as a result, the child has become a 
ward of a competent authority in accordance with the laws of the 
foreign-sending country.
    Disappearance of both parents means that both parents have 
unaccountably or inexplicably passed out of the child's life, their 
whereabouts are unknown, there is no reasonable hope of their 
reappearance, and there has been a reasonable effort to locate them as 
determined by a competent authority in accordance with the laws of the 
foreign-sending country.
    Foreign-sending country means the country of the orphan's 
citizenship, or if he or she is not permanently residing in the country 
of citizenship, the country of the orphan's habitual residence. This 
excludes a country to which the orphan travels temporarily, or to which 
he or she travels either as a prelude to, or in conjunction with, his 
or her adoption and/or immigration to the United States.
    Home study preparer means any party licensed or otherwise 
authorized under the law of the State of the orphan's proposed 
residence to conduct the research and preparation for a home study, 
including the required personal interview(s). This term includes a 
public agency with authority under that State's law in adoption 
matters, public or private adoption agencies licensed or otherwise 
authorized by the laws of that State to place children for adoption, 
and organizations or individuals licensed or otherwise authorized to 
conduct the research and preparation for a home study, including the 
required personal interview(s), under the laws of the State of the 
orphan's proposed residence. In the case of an orphan whose adoption 
has been finalized abroad and whose adoptive parents reside abroad, the 
home study preparer includes any party licensed or otherwise authorized 
to conduct home studies under the law of any State of the United 
States, or any party licensed or otherwise authorized by the foreign 
country's adoption authorities to conduct home studies under the laws 
of the foreign country.
    Incapable of providing proper care means that a sole or surviving 
parent is unable to provide for the child's basic needs, consistent 
with the local standards of the foreign sending country.
    Loss from both parents means the involuntary severance or 
detachment of the child from the parents in a permanent manner such as 
that caused by a natural disaster, civil unrest, or other calamitous 
event beyond the control of the parents, as verified by a competent 
authority in accordance with the laws of the foreign sending country.
    Orphan petition means Form I-600 (Petition to Classify Orphan as an 
Immediate Relative). The petition must be completed in accordance with 
the form's instructions and submitted with the required supporting 
documentation and, if there is not an advanced processing application 
approved within the previous 18 months or pending, the fee as required 
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with 
the form's instructions by the married petitioner and spouse, or the 
unmarried petitioner.
    Overseas site means the Department of State immigrant visa-issuing 
post having jurisdiction over the orphan's residence, or in foreign 
countries in which the Services has an office or offices, the Service 
office having jurisdiction over the orphan's residence.
    Petition is synonymous with orphan petition.
    Petitioner means a married United States citizen of any age, or an 
unmarried United States citizen who is at least 24 years old at the 
time he or she files the advanced processing application and at least 
25 years old at the time he or she files the orphan petition. In the 
case of a married couple, both of whom are United States citizens, 
either party may be the petitioner.
    Prospective adoptive parents means a married United States citizen 
of any age and his or her spouse of any age, or an unmarried United 
States citizen who is at least 24 years old at the time he or she files 
the advanced processing application and at least 25 years old at the 
time he or she files the orphan petition. The spouse of the United 
States citizen may be a citizen or an alien. An alien spouse must be in 
lawful immigration status if residing in the United States.
    Separation from both parents means the involuntary severance of the 
child from his or her parents by action of a competent authority for 
good cause and in accordance with the laws of the foreign-sending 
country. The parents must have been properly notified and granted the 
opportunity to contest such action. The termination of all parental 
rights and obligations must be permanent and unconditional.
    Sole parent means the mother when it is established that the child 
is illegitimate and has not acquired a parent within the meaning of 
section 101(b)(2) of the Act. An illegitimate child shall be considered 
to have a sole parent if his or her father has severed all parental 
ties, rights, duties, and obligations to the child, or if his or her 
father has, in writing, irrevocably released the child for emigration 
and adoption. This definition is not applicable to children born in 
countries which make no distinction between a child born in or out of 
wedlock, since all such children are considered to be legitimate. In 
all cases, a sole parent must be incapable of providing proper care as 
that term is defined in this section.
    Surviving parent means the child's living parent when the child's 
other parent is dead, and the child has not acquired another parent 
within the meaning of section 101(b)(2) of the Act. In all cases, a 
surviving parent must be incapable of providing proper care as that 
term is defined in this section.
    (c) Supporting documentation for an advanced processing 
application. The prospective adoptive parents may file an advanced 
processing application before an orphan is identified in order to 
secure the necessary clearance to file the orphan petition. Any 
document not in the English language must be accompanied by a certified 
English translation.
    (1) Required supporting documentation that must accompany the 
advanced processing application. The following supporting documentation 
must accompany an advanced processing application at the time of 
filing:
    (i) Evidence of the petitioner's United States citizenship as set 
forth in Sec. 204.1(g) and, if the petitioner is married and the 
married couple is residing in the United States, evidence of the 
spouse's United States citizenship or lawful immigration status;
    (ii) A copy of the petitioner's marriage certificate to his or her 
spouse, if the petitioner is currently married;
    (iii) Evidence of legal termination of all previous marriages for 
the petitioner and/or spouse, if previously married;
    (iv) Two sets of completed and fully-classifiable fingerprint cards 
for each member of the married prospective adoptive couple or the 
unmarried prospective adoptive parent. The fingerprints must be 
submitted on Form FD-258 (Applicant Fingerprint Card) with the office 
code of the Service office having jurisdiction over the petitioner's 
place of residence preprinted in the box marked ``ORI''; and
    (v) Evidence of compliance with preadoption requirements, if any, 
of the State of the orphan's proposed residence in cases where it is 
known that there will be no adoption abroad, or that both members of 
the married prospective adoptive couple or the unmarried prospective 
adoptive parent will not personally see the child prior to, or during, 
the adoption abroad, and/or that the adoption abroad will not be full 
and final. Any preadoption requirements which cannot be met at the time 
the advanced processing application is filed because of operation of 
State law must be noted and explained when the application is filed. 
Preadoption requirements must be met at the time the petition is filed, 
except for those which cannot be met until the orphan arrives in the 
United States; and
    (vi) Two sets of fingerprint cards which conform to the 
requirements in paragraph (c)(1)(iv) of this section for each 
additional adult member of the prospective adoptive parents' household. 
The Service may waive this requirement when it determines that such an 
adult is physically unable to be fingerprinted because of age or 
medical condition.
    (2) Home study. The home study must comply with the requirements 
contained in paragraph (e) of this section. If the home study is not 
submitted when the advanced processing application is filed, it must be 
submitted within one year of the filing date of the advanced processing 
application, or the application will be denied pursuant to paragraph 
(h)(5) of this section.
    (d) Supporting documentation for a petition for an identified 
orphan. Any document not in the English language must be accompanied by 
a certified English translation. If an orphan has been identified for 
adoption and the advanced processing application is pending, the 
prospective adoptive parents may file the orphan petition at the 
Service office where the application is pending. The prospective 
adoptive parents who have an approved advanced processing application 
must file an orphan petition and all supporting documents within 
eighteen months of the date of the approval of the advanced processing 
application. If the prospective adoptive parents fail to file the 
orphan petition within the eighteen-month period, the advanced 
processing application shall be deemed abandoned pursuant to paragraph 
(h)(7) of this section. If the prospective adoptive parents file the 
orphan petition after the eighteen-month period, the petition shall be 
denied pursuant to paragraph (h)(13) of this section. Prospective 
adoptive parents who do not have an advanced processing application 
approved or pending may file the application and petition concurrently 
on one Form I-600 if they have identified an orphan for adoption. An 
orphan petition must be accompanied by full documentation as follows:
    (1) Filing an orphan petition after the advanced processing 
application has been approved. The following supporting documentation 
must accompany an orphan petition filed after approval of the advanced 
processing application:
    (i) Evidence of approval of the advanced processing application;
    (ii) The orphan's birth certificate, or if such a certificate is 
not available, an explanation together with other proof of identity and 
age;
    (iii) Evidence that the child is an orphan as appropriate to the 
case:
    (A) Evidence that the orphan has been abandoned or deserted by, 
separated or lost from both parents, or that both parents have 
disappeared as those terms are defined in paragraph (b) of this 
section; or
    (B) The death certificate(s) of the orphan's parent(s), if 
applicable;
    (C) If the orphan has only a sole or surviving parent, as defined 
in paragraph (b) of this section, evidence of this fact and evidence 
that the sole or surviving parent is incapable of providing for the 
orphan's care and has irrevocably released the orphan for emigration 
and adoption; and
    (iv) Evidence of adoption abroad or that the prospective adoptive 
parents have, or a person or entity working on their behalf has, 
custody of the orphan for emigration and adoption in accordance with 
the laws of the foreign-sending country:
    (A) A legible, certified copy of the adoption decree, if the orphan 
has been the subject of a full and final adoption abroad, and evidence 
that the unmarried petitioner, or married petitioner and spouse, saw 
the orphan prior to or during the adoption proceeding abroad; or
    (B) If the orphan is to be adopted in the United States because 
there was no adoption abroad, or the unmarried petitioner, or married 
petitioner and spouse, did not personally see the orphan prior to or 
during the adoption proceeding abroad, and/or the adoption abroad was 
not full and final:
    (1) Evidence that the prospective adoptive parents have, or a 
person or entity working on their behalf has, secured custody of the 
orphan in accordance with the laws of the foreign-sending country;
    (2) An irrevocable release of the orphan for emigration and 
adoption from the person, organization, or competent authority which 
had the immediately previous legal custody or control over the orphan 
if the adoption was not full and final under the laws of the foreign-
sending country;
    (3) Evidence of compliance with all preadoption requirements, if 
any, of the State of the orphan's proposed residence. (Any such 
requirements that cannot be complied with prior to the orphan's arrival 
in the United States because of State law must be noted and explained); 
and
    (4) Evidence that the State of the orphan's proposed residence 
allows readoption or provides for judicial recognition of the adoption 
abroad if there was an adoption abroad which does not meet statutory 
requirements pursuant to section 101(b)(1)(F) of the Act, because the 
unmarried petitioner, or married petitioner and spouse, did not 
personally see the orphan prior to or during the adoption proceeding 
abroad, and/or the adoption abroad was not full and final.
    (2) Filing an orphan petition while the advanced processing 
application is pending. An orphan petition filed while an advanced 
processing application is pending must be filed at the Service office 
where the application is pending. The following supporting 
documentation must accompany an orphan petition filed while the 
advanced processing application is pending:
    (i) A photocopy of the fee receipt relating to the advanced 
processing application, or if not available, other evidence that the 
advanced processing application has been filed, such as a statement 
including the date when the application was filed;
    (ii) The home study, if not already submitted; and
    (iii) The supporting documentation for an orphan petition required 
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of 
this section.
    (3) Filing an orphan petition concurrently with the advanced 
processing application. A petition filed concurrently with the advanced 
processing application must be submitted on Form I-600, completed and 
signed in accordance with the form's instructions. (Under this 
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate 
Form I-600A). The following supporting documentation must accompany a 
petition filed concurrently with the application under this provision:
    (i) The supporting documentation for an advanced processing 
application required in paragraph (c) of this section; and
    (ii) The supporting documentation for an orphan petition required 
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of 
this section.
    (e) Home study requirements. For immigration purposes, a home study 
is a process for screening and preparing prospective adoptive parents 
who are interested in adopting an orphan from another country. The home 
study should be tailored to the particular situation of the prospective 
adoptive parents: for example, a family which previously has adopted 
children will require different preparation than a family that has no 
adopted children. If there are any additional adult members of the 
prospective adoptive parents' household, the home study must address 
this fact. The home study preparer must interview any additional adult 
member of the prospective adoptive parents' household and assess him or 
her in light of the requirements of paragraphs (e)(1), (e)(2)(i), 
(iii), (iv), and (v) of this section. A home study must be conducted by 
a home study preparer, as defined in paragraph (b) of this section. The 
home study, or the most recent update to the home study, must not be 
more than six months old at the time the home study is submitted to the 
Service. Only one copy of the home study must be submitted to the 
Service. Ordinarily, a home study (or a home study and update as 
discussed above) will not have to be updated after it has been 
submitted to the Service unless there is a significant change in the 
household of the prospective adoptive parents such as a change in 
residence, marital status, criminal history, financial resources, and/
or the addition of one or more children or other dependents to the 
family prior to the orphan's immigration into the United States. In 
addition to meeting any State, professional, or agency requirements, a 
home study must include the following:
    (1) Personal interview(s) and home visit(s). The home study 
preparer must conduct at least one interview in person, and at least 
one home visit, with the prospective adoptive couple or the unmarried 
prospective adoptive parent. Each additional adult member of the 
prospective adoptive parents' household must also be interviewed in 
person at least once. The home study report must state the number of 
such interviews and visits, and must specify any other contacts with 
the prospective adoptive parents and any adult member of the 
prospective adoptive parents' household.
    (2) Assessment of the capabilities of the prospective adoptive 
parents to properly parent the orphan. The home study must include a 
discussion of the following areas:
    (i) Assessment of the physical, mental, and emotional capabilities 
of the prospective adoptive parents to properly parent the orphan. The 
home study preparer must make an initial assessment of how the 
physical, mental, and emotional health of the prospective adoptive 
parents would affect their ability to properly care for the prospective 
orphan. If the home study preparer determines that there are areas 
beyond his or her expertise which need to be addressed, he or she shall 
refer the prospective adoptive parents to an appropriate licensed 
professional, such as a physician, psychiatrist, clinical psychologist, 
or clinical social worker for an evaluation. Some problems may not 
necessarily disqualify applicants. For example, certain physical 
limitations may indicate which categories of children may be most 
appropriately placed with certain prospective adoptive parents. Certain 
mental and emotional health problems may be successfully treated. The 
home study must include the home study preparer's assessment of any 
such potential problem areas, a copy of any outside evaluation(s), and 
the home study preparer's recommended restrictions, if any, on the 
characteristics of the child to be placed in the home. Additionally, 
the home study preparer must apply the requirements of this paragraph 
to each adult member of the prospective adoptive parents' household.
    (ii) Assessment of the finances of the prospective adoptive 
parents. The financial assessment must include a description of the 
income, financial resources, debts, and expenses of the prospective 
adoptive parents. A statement concerning the evidence that was 
considered to verify the source and amount of income and financial 
resources must be included. Any income designated for the support of 
one or more children in the care and custody of the prospective 
adoptive parents, such as funds for foster care, or any income 
designated for the support of another member of the household must not 
be counted towards the financial resources available for the support of 
a prospective orphan. The Service will not routinely require a detailed 
financial statement or supporting financial documents. However, should 
the need arise, the Service reserves the right to ask for such detailed 
documentation.
    (ii) History of abuse and/or violence.
    (A) Screening for abuse and violence.
    (1) Checking available child abuse registries. The home study 
preparer must ensure that a check of each prospective adoptive parent 
and each adult member of the prospective adoptive parents' household 
has been made with available child abuse registries and must include in 
the home study the results of the checks including, if applicable, a 
report that no record was found to exist. Depending on the access 
allowed by the state of proposed residence of the orphan, the home 
study preparer must take one of the following courses of action:
    (i) If the home study preparer is allowed access to information 
from the child abuse registries, he or she shall make the appropriate 
checks for each of the prospective adoptive parents and for each adult 
member of the prospective adoptive parents' household;
    (ii) If the State requires the home study preparer to secure 
permission from each of the prospective adoptive parents and for each 
adult member of the prospective adoptive parents' household before 
gaining access to information in such registries, the home study 
preparer must secure such permission from those individuals, and make 
the appropriate checks;
    (iii) If the State will only release information directly to each 
of the prospective adoptive parents and directly to the adult member of 
the prospective adoptive parents' household, those individuals must 
secure such information and provide it to the home study preparer. The 
home study preparer must include the results of these checks in the 
home study;
    (iv) If the State will not release information to either the home 
study preparer or the prospective adoptive parents and the adult 
members of the prospective adoptive parents' household, this must be 
noted in the home study; or
    (v) If the State does not have a child abuse registry, this must be 
noted in the home study.
    (2) Inquiring about abuse and violence. The home study preparer 
must ask each prospective adoptive parent whether he or she has a 
history of substance abuse, sexual or child abuse, or domestic 
violence, even if it did not result in an arrest or conviction. The 
home study preparer must include each prospective adoptive parent's 
response to the questions regarding abuse and violence. Additionally, 
the home study preparer must apply the requirements of this paragraph 
to each adult member of the prospective adoptive parents' household.
    (B) Information concerning history of abuse and/or violence. If the 
petitioner and/or spouse, if married, disclose(s) any history of abuse 
and/or violence as set forth in paragraph (e)(2)(iii)(A) of this 
section, or if, in the absence of such disclosure, the home study 
preparer becomes aware of any of the foregoing, the home study report 
must contain an evaluation of the suitability of the home for adoptive 
placement of an orphan in light of this history. This evaluation must 
include information concerning all arrests or convictions or history of 
substance abuse, sexual or child abuse, and/or domestic violence and 
the date of each occurrence. A certified copy of the documentation 
showing the final disposition of each incident, which resulted in 
arrest, indictment, conviction, and/or any other judicial or 
administrative action, must accompany the home study. Additionally, the 
prospective adoptive parent must submit a signed statement giving 
details including mitigating circumstances, if any, about each 
incident. The home study preparer must apply the requirements of this 
paragraph to each adult member of the prospective adoptive parents' 
household.
    (C) Evidence of rehabilitation. If a prospective adoptive parent 
has a history of substance abuse, sexual or child abuse, and/or 
domestic violence, the home study preparer may, nevertheless, make a 
favorable finding if the prospective adoptive parent has demonstrated 
appropriate rehabilitation. In such a case, a discussion of such 
rehabilitation which demonstrates that the prospective adoptive parent 
is and will be able to provide proper care for the orphan must be 
included in the home study. Evidence of rehabilitation may include an 
evaluation of the seriousness of the arrest(s), conviction(s), or 
history of abuse, the number of such incidents, the length of time 
since the last incident, and any type of counseling or rehabilitation 
programs which have been successfully completed. Evidence of 
rehabilitation may also be provided by an appropriate licensed 
professional, such as a psychiatrist, clinical psychologist, or 
clinical social worker. The home study report must include all facts 
and circumstances which the home study preparer has considered, as well 
as the preparer's reasons for a favorable decision regarding the 
prospective adoptive parent. Additionally, if any adult member of the 
prospective adoptive parents' household has a history of substance 
abuse, sexual or child abuse, and/or domestic violence, the home study 
preparer must apply the requirements of this paragraph to that adult 
member of the prospective adoptive parents' household.
    (D) Failure to disclose or cooperate. Failure to disclose an 
arrest, conviction, or history of substance abuse, sexual or child 
abuse, and/or domestic violence by the prospective adoptive parents or 
an adult member of the prospective adoptive parents' household to the 
home study preparer and to the Service, may result in the denial of the 
advanced processing application or, if applicable, the application and 
orphan petition, pursuant to paragraph (h)(4) of this section. Failure 
by the prospective adoptive parents or an adult member of the 
prospective adoptive parents' household to cooperate in having 
available child abuse registries in accordance with paragraphs 
(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through 
(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the 
advanced processing application or, if applicable, the application and 
orphan petition, pursuant to paragraph (h)(4) of this section.
    (iv) Previous rejection for adoption or prior unfavorable home 
study. The home study preparer must ask each prospective adoptive 
parent whether he or she previously has been rejected as a prospective 
adoptive parent or has been the subject of an unfavorable home study, 
and must include each prospective adoptive parent's response to this 
question in the home study report. If a prospective adoptive parent 
previously has been rejected or found to be unsuitable, the reasons for 
such a finding must be set forth as well as the reason(s) why he or she 
is not being favorably considered as a prospective adoptive parent. A 
copy of each previous rejection and/or unfavorable home study must be 
attached to the favorable home study. Additionally, the home study 
preparer must apply the requirements of this paragraph to each adult 
member of the prospective adoptive parents' household.
    (v) Criminal history. The prospective adoptive parents and the 
adult members of the prospective adoptive parents' household are 
expected to disclose to the home study preparer and the Service any 
history of arrest and/or conviction early in the advanced processing 
procedure. Failure to do so may result in denial pursuant to paragraph 
(h)(4) of this section or in delays. Early disclosure provides the 
prospective adoptive parents with the best opportunity to gather and 
present evidence, and it gives the home study preparer and the Service 
the opportunity to properly evaluate the criminal record in light of 
such evidence. When such information is not presented early in the 
process, it comes to light when the fingerprint checks are received by 
the Service. By that time, the prospective adoptive parents are usually 
well into preadoption proceedings of identifying a child and may even 
have firm travel plans. At times, the travel plans have to be 
rescheduled while the issues raised by the criminal record are 
addressed. It is in the best interests of all parties to have any 
criminal records disclosed and resolved early in the process.
    (3) Living accommodations. The home study must include a detailed 
description of the living accommodations where the prospective adoptive 
parents currently reside. If the prospective adoptive parents are 
planning to move, the home study must include a description of the 
living accommodations where the child will reside with the prospective 
adoptive parents, if known. If the prospective adoptive parents are 
residing abroad at the time of the home study, the home study must 
include a description of the living accommodations where the child will 
reside in the United States with the prospective adoptive parents, if 
known. Each description must include an assessment of the suitability 
of accommodations for a child and a determination whether such space 
meets applicable State requirements, if any.
    (4) Handicapped or special needs orphan. A home study conducted in 
conjunction with the proposed adoption of a special needs or 
handicapped orphan must contain a discussion of the prospective 
adoptive parents' preparation, willingness, and ability to provide 
proper care for such an orphan.
    (5) Summary of the counseling given and plans for post-placement 
counseling. The home study must include a summary of the counseling 
given to prepare the prospective adoptive parents for an international 
adoption and any plans for post-placement counseling. Such preadoption 
counseling must include a discussion of the processing, expenses, 
difficulties, and delays associated with international adoptions.
    (6) Specific approval of the prospective adoptive parents for 
adoption. If the home study preparer's findings are favorable, the home 
study must contain his or her specific approval of the prospective 
adoptive parents for adoption and a discussion of the reasons for such 
approval. The home study must include the number of orphans which the 
prospective adoptive parents may adopt. The home study must state 
whether there are any specific restrictions to the adoption such as 
nationality, age, or gender of the orphan. If the home study preparer 
has approved the prospective parents for a handicapped or special needs 
adoption, this fact must be clearly stated.
    (7) Home study preparer's certification and statement of authority 
to conduct home studies. The home study must include a statement in 
which the home study preparer certifies that he or she is licensed or 
otherwise authorized by the State of the orphan's proposed residence to 
research and prepare home studies. In the case of an orphan whose 
adoption was finalized abroad and whose adoptive parents reside abroad, 
the home study preparer must certify that he or she is licensed or 
otherwise authorized to conduct home studies under the law of any State 
of the United States, or authorized by the adoption authorities of the 
foreign country to conduct home studies under the laws of the foreign 
country. In every case, this statement must cite the State or country 
under whose authority the home study preparer is licensed or 
authorized, the specific law or regulation authorizing the preparer to 
conduct home studies, the license number, if any, and the expiration 
date, if any, of this authorization or license.
    (8) Review of home study. If the prospective adoptive parents 
reside in a State which requires the State to review the home study, 
such a review must occur and be documented before the home study is 
submitted to the Service. If the prospective adoptive parents reside 
abroad, an appropriate public or private adoption agency licensed, or 
otherwise authorized, by any State of the United States to place 
children for adoption, must review and favorably recommend the home 
study before it is submitted to the Service.
    (9) Home study updates and amendments.
    (i) Updates. If the home study is more than six months old at the 
time it would be submitted to the Service, the prospective adoptive 
parents must ensure that it is updated by a home study preparer before 
it is submitted to the Service. Each update must include screening in 
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.
    (ii) Amendments. If there have been any significant changes, such 
as a change in the residence of the prospective adoptive parents, 
marital status, criminal history, financial resources, and/or the 
addition of one or more children or other dependents to the family, the 
prospective adoptive parents must ensure that the home study is amended 
by a home study preparer to reflect any such changes. If the orphan's 
proposed State of residence has changed, the home study amendment must 
contain a recommendation in accordance with paragraph (e)(8) of this 
section, if required by State law. Any preadoption requirements of the 
new State must be complied with in the case of an orphan coming to the 
United States to be adopted.
    (10) ``Grandfather'' provision for home study. A home study 
properly completed in conformance with the regulations in force prior 
to September 30, 1994, shall be considered acceptable if submitted to 
the Service within 90 days of September 30, 1994. Any such home study 
accepted under this ``grandfather'' provision must include screening in 
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section. 
Additionally, any such home study submitted under this ``grandfather'' 
provision which is more than six months old at the time of its 
submission must be amended or updated pursuant to the requirements of 
paragraph (e)(9) of this section.
    (f) State preadoption requirements.
    (1) General. Many States have preadoption requirements which, under 
the Act, must be complied with in every case in which a child is coming 
to such a State as an orphan to be adopted in the United States.
    (2) Child coming to be adopted in the United States. An orphan is 
coming to be adopted in the United States if he or she will not be or 
has not been adopted abroad, or if the unmarried petitioner or both the 
married petitioner and spouse did not or will not personally see the 
orphan prior to or during the adoption proceeding abroad, and/or if the 
adoption abroad will not be, or was not, full and final. If the 
prospective adoptive parents reside in a State with preadoption 
requirements and they plan to have the child come to the United States 
for adoption, they must submit evidence of compliance with the State's 
preadoption requirements to the Service. Any preadoption requirements 
which by operation of State law cannot be met before filing the 
advanced processing application must be noted. Such requirements must 
be met prior to filing the petition, except for those which cannot be 
met by operation of State law until the orphan is physically in the 
United States. Those requirements which cannot be met until the orphan 
is physically present in the United States must be noted.
    (3) Special circumstances. If both members of the prospective 
adoptive couple or the unmarried prospective adoptive parent intend to 
travel abroad to see the child prior to or during the adoption, the Act 
permits the application and/or petition, if otherwise approvable, to be 
approved without preadoption requirements having been met. However, if 
plans change and both members of the prospective adoptive couple or the 
unmarried prospective adoptive parent fail to see the child prior to or 
during the adoption, then preadoption requirements must be met before 
the immigrant visa can be issued, except for those preadoption 
requirements that cannot be met until the child is physically in the 
United States because of operation of State law.
    (4) Evidence of compliance. In every case where compliance with 
preadoption requirements is required, the evidence of compliance must 
be in accordance with applicable State law, regulation, and procedure.
    (g) Where to file.
    (1) Where to file an advanced processing application. An advanced 
processing application must be filed with the Service as follows:
    (i) Prospective adoptive parents residing in the United States. If 
the prospective adoptive parents reside in the United States, the 
application must be filed with the Service office having jurisdiction 
over their place of residence.
    (ii) Prospective adoptive parents residing in Canada. If the 
prospective adoptive parents reside in Canada, the application must be 
filed with the stateside Service office having jurisdiction over the 
proposed place of residence of the prospective adoptive parents in the 
United States.
    (iii) Prospective adoptive parents residing in a foreign country 
other than Canada. If the prospective adoptive parents reside outside 
of the United States or Canada, the application may be filed with the 
overseas Service office having jurisdiction over the current place of 
residence pursuant to Sec. 100.4(b) of this chapter, or with the 
stateside Service office having jurisdiction over the proposed place of 
residence of the prospective adoptive parents in the United States.
    (2) Where to file an orphan petition when the advanced processing 
application has been approved. An orphan petition must be filed with 
the appropriate Service office or immigrant visa-issuing post of the 
Department of State as follows:
    (i) Prospective adoptive parents residing in the United States who 
do not travel abroad to locate and/or adopt an orphan. If the 
prospective adoptive parents reside in the United States and do not 
travel abroad to locate and/or adopt an orphan, the petition must be 
filed with the Service office having jurisdiction over the place of 
residence of the prospective adoptive parents.
    (ii) Prospective adoptive parents residing in the United States, 
with one or both members of the prospective adoptive couple, or the 
unmarried prospective adoptive parent, traveling abroad to locate and/
or adopt an orphan. If the prospective adoptive parents reside in the 
United States, and one or both members of the prospective adoptive 
couple, or the unmarried prospective adoptive parent, travel abroad to 
locate and/or adopt an orphan, the petition may be filed with the 
stateside Service office having jurisdiction over the place of 
residence of the prospective adoptive parents in the United States or 
at the overseas site. The petitioner may file the orphan petition at 
the overseas site only while he or she is physically present within the 
jurisdiction of the overseas site. If only one member of a married 
couple, which includes an alien, travels abroad to file the petition, 
it must be the United States citizen who travels abroad so that the 
overseas site will have jurisdiction over the petition.
    (iii) Prospective adoptive parents residing outside the United 
States. Prospective adoptive parents residing outside of the United 
States may file the petition with the overseas site, or with the 
stateside Service office having jurisdiction over the proposed place of 
residence of the prospective adoptive parents in the United States.
    (3) Where to file an orphan petition when the advanced processing 
application is pending. When the advanced processing application is 
pending, the petition must be filed at the Service office at which the 
application is pending.
    (4) Where to file an orphan petition concurrently with the advanced 
processing application. When the petition is filed concurrently with 
the advanced processing application, it must be filed in accordance 
with the instruction for filing an advanced processing application in 
paragraphs (g)(1)(i) through (g)(1)(iii) of this section.
    (h) Adjudication and decision.
    (1) ``Grandfather'' provision for advanced processing application 
and/or orphan petition. All applications and petitions filed under 
prior regulations which are filed before and are still pending on 
September 30, 1994, shall be processed and adjudicated under the prior 
regulations.
    (2) Director's responsibility to make an independent decision in an 
advanced processing application. No advanced processing application 
shall be approved unless the director is satisfied that proper care 
will be provided for the orphan. If the director has reason to believe 
that a favorable home study, or update, or both are based on an 
inadequate or erroneous evaluation of all the facts, he or she shall 
attempt to resolve the issue with the home study preparer, the agency 
making the recommendation pursuant to paragraph (e)(8) of this section, 
if any, and the prospective adoptive parents. If such consultations are 
unsatisfactory, the director may request a review and opinion from the 
appropriate State Government authorities.
    (3) Advanced processing application approved. If the advanced 
processing application is approved, the prospective adoptive parents 
shall be advised in writing. The application and supporting documents 
shall be forwarded to the overseas site where the orphan resides. 
Additionally, if the petitioner advises the director that he or she 
intends to travel abroad to file the petition, telegraphic notification 
shall be sent overseas as detailed in paragraph (j)(1) of this section. 
The approved application shall be valid for eighteen months from its 
approval date. During this time, the prospective adoptive parents may 
file an orphan petition for one orphan without fee. If approved in the 
home study for more than one orphan, the prospective adoptive parents 
may file a petition for each of the additional children, to the maximum 
number approved. If the orphans are siblings, no additional fee is 
required. If the orphans are not siblings, an additional fee is 
required for each orphan beyond the first orphan. Approval of an 
advanced processing application does not guarantee that the orphan 
petition will be approved.
    (4) Advanced processing application denied for failure to disclose 
history of abuse and/or violence, or for failure to disclose a criminal 
history, or for failure to cooperate in checking child abuse 
registries. Failure to disclose an arrest, conviction, or history of 
substance abuse, sexual or child abuse, and/or domestic violence, or a 
criminal history to the home study preparer and to the Service in 
accordance with paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of 
this section may result in the denial of the advanced processing 
application, or if applicable, the application and orphan petition 
filed concurrently. Failure by the prospective adoptive parents or an 
adult member of the prospective adoptive parents' household to 
cooperate in having available child abuse registries checked in 
accordance with paragraphs (e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) 
through (e)(2)(iii)(A)(1)(iii) of this section will result in the 
denial of the advanced processing application or, if applicable, the 
application and orphan petition filed concurrently. Any new application 
and/or petition filed within a year of such denial will also be denied.
    (5) Advanced processing denied for failure to submit home study. If 
the home study is not submitted within one year of the filing date of 
the advanced processing application, the application shall be denied. 
This action shall be without prejudice to a new filing at any time with 
fee.
    (6) Advanced processing application otherwise denied. If the 
director finds that the prospective adoptive parents have otherwise 
failed to establish eligibility, the applicable provisions of 8 CFR 
part 103 regarding a letter of intent to deny, if appropriate, and 
denial and notification of appeal rights shall govern.
    (7) Advanced processing application deemed abandoned for failure to 
file orphan petition within eighteen months of application's approval 
date. If an orphan petition is not properly filed within eighteen 
months of the approval date of the advanced processing application, the 
application shall be deemed abandoned. Supporting documentation shall 
be returned to the prospective adoptive parents, except for 
documentation submitted by a third party which shall be returned to the 
third party, and documentation relating to the fingerprint checks. The 
director shall dispose of documentation relating to fingerprint checks 
in accordance with current policy. Such abandonment shall be without 
prejudice to a new filing at any time with fee.
    (8) Orphan petition approved by a stateside Service office. If the 
orphan petition is approved by a stateside Service office, the 
prospective adoptive parents shall be advised in writing, telegraphic 
notification shall be sent to the immigrant visa-issuing post pursuant 
to paragraph (j)(3) of this section, and the petition and supporting 
documents shall be forwarded to the Department of State.
    (9) Orphan petition approved by an overseas Service office. If the 
orphan petition is approved by an overseas Service office located in 
the country of the orphan's residence, the prospective adoptive parents 
shall be advised in writing, and the petition and supporting documents 
shall be forwarded to the immigrant visa-issuing post having 
jurisdiction for immigrant visa processing.
    (10) Orphan petition approved at an immigrant visa-issuing post. If 
the orphan petition is approved at an immigrant visa-issuing post, the 
post shall initiate immigrant visa processing.
    (11) Orphan petition found to be ``not readily approvable'' by a 
consular officer. If the consular officer adjudicating the orphan 
petition finds that it is ``not readily approvable,'' he or she shall 
notify the prospective adoptive parents in his or her consular district 
and forward the petition, the supporting documents, the findings of the 
I-604 investigation conducted pursuant to paragraph (k)(1) of this 
section, and any other relating documentation to the overseas Service 
office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
    (12) Orphan petition denied: petitioner fails to establish that the 
child is an orphan. If the director finds that the petitioner has 
failed to establish that the child is an orphan who is eligible for the 
benefits sought, the applicable provisions of 8 CFR part 103 regarding 
a letter of intent to deny and notification of appeal rights shall 
govern.
    (13) Orphan petition denied: petitioner files orphan petition more 
than eighteen months after the approval of the advanced processing 
application. If the petitioner files the orphan petition more than 
eighteen months after the approval date of the advanced processing 
application, the petition shall be denied. This action shall be without 
prejudice to a new filing at any time with fee.
    (14) Revocation. The approval of an advanced processing application 
or an orphan petition shall be automatically revoked in accordance with 
Sec. 205.1 of this chapter, if an applicable reason exists. The 
approval of an advanced processing application or an orphan petition 
shall be revoked if the director becomes aware of information that 
would have resulted in denial had it been known at the time of 
adjudication. Such a revocation or any other revocation on notice shall 
be made in accordance with Sec. 205.2 of this chapter.
    (i) Child-buying as a ground for denial. An orphan petition must be 
denied under this section if the prospective adoptive parents or 
adoptive parent(s), or a person or entity working on their behalf, have 
given or will given money or other consideration either directly or 
indirectly to the child's parent(s), agent(s), other individual(s), or 
entity as payment for the child or as an inducement to release the 
child. Nothing in this paragraph shall be regarded as precluding 
reasonable payment for necessary activities such as administrative, 
court, legal, translation, and/or medical services related to the 
adoption proceedings.
    (j) Telegraphic notifications.
    (1) Telegraphic notification of approval of advanced processing 
application. Unless conditions preclude normal telegraphic 
transmissions, whenever an advanced processing application is approved 
in the United States, the director shall send telegraphic notification 
of the approval to the overseas site if a prospective adoptive parent 
advises the director that the petitioner intends to travel abroad and 
file the orphan petition abroad.
    (2) Requesting a change in visa-issuing posts. If a prospective 
adoptive parent is in the United States, he or she may request the 
director to transfer notification of the approved advanced processing 
application to another visa-issuing post. Such a request shall be made 
on Form I-824 (Application for Action on an Approved Application or 
Petition) with the appropriate fee. The director shall send a Visas 37 
telegram to both the previously and the newly designated posts. The 
following shall be inserted after the last numbered standard entry. 
``To: [insert name of previously designated visa-issuing post or 
overseas Service office]. Pursuant to the petitioner's request, the 
Visas 37 cable previously sent to your post/office in this matter is 
hereby invalidated. The approval is being transferred to the other 
post/office addressed in this telegram. Please forward the approved 
advanced processing application to that destination.'' Prior to sending 
such a telegram, the director must ensure that the change in posts does 
not alter any conditions of the approval.
    (3) Telegraphic notification of approval of an orphan petition. 
Unless conditions preclude normal telegraphic transmissions, whenever a 
petition is approved by a stateside Service office, the director shall 
send telegraphic notification of the approval to the immigrant visa-
issuing post.
    (k) Other considerations.
    (1) I-604 investigations. An I-604 investigation must be completed 
in every orphan case. The investigation must be completed by a consular 
officer except when the petition is properly filed at a Service office 
overseas, in which case it must be completed by a Service officer. An 
I-604 investigation shall be completed before a petition is adjudicated 
abroad. When a petition is adjudicated by a stateside Service office, 
the I-604 investigation is normally completed after the case has been 
forwarded to visa-issuing post abroad. However, in a case where the 
director of a stateside Service office adjudicating the petition has 
articulable concerns that can only be resolved through the I-604 
investigation, he or she shall request the investigation prior to 
adjudication. In any case in which there are significant differences 
between the facts presented in the approved advanced processing 
application and/or orphan petition and the facts uncovered by the I-604 
investigation, the overseas site may consult directly with the 
appropriate Service office. In any instance where an I-604 
investigation reveals negative information sufficient to sustain a 
denial or revocation, the investigation report, supporting 
documentation, and petition shall be forwarded to the appropriate 
Service office for action. Depending on the circumstances surrounding 
the case, the I-604 investigation shall include, but shall not 
necessarily be limited to, document checks, telephonic checks, 
interview(s) with the natural parent(s), and/or a field investigation.
    (2) Authority of consular officers. An American consular officer is 
authorized to approve an orphan petition if the Service has made a 
favorable determination on the related advanced processing application, 
and the petitioner, who has traveled abroad to a country with no 
Service office in order to locate or adopt an orphan, has properly 
filed the petition, and the petition is approvable. A consular officer, 
however, shall refer any petition which is ``not clearly approvable'' 
for a decision by the Service office having jurisdiction pursuant to 
Sec. 100.4(b) of this chapter. The consular officer's adjudication 
includes all aspects of eligibility for classification as an orphan 
under section 101(b)(1)(F) of the Act other than the issue of the 
ability of the prospective adoptive parents to furnish proper care to 
the orphan. However, if the consular officer has a well-founded and 
substantive reason to believe that the advanced processing approval was 
obtained on the basis of fraud or misrepresentation, or has knowledge 
of a change in material fact subsequent to the approval of the advanced 
processing application, he or she shall consult with the Service office 
having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
    (3) Child in the United States. A child who is in parole status and 
who has not been adopted in the United States is eligible for the 
benefits of an orphan petition when all the requirements of sections 
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in 
the United States either illegally or as a nonimmigrant, however, is 
ineligible for the benefits of an orphan petition.
    (4) Liaison. Each director shall develop and maintain liaison with 
State Government adoption authorities having jurisdiction within his or 
her jurisdiction, including the administrator(s) of the Interstate 
Compact on the Placement of Children, and with other parties with 
interest in international adoptions. Such parties include, but are not 
necessarily limited to, adoption agencies, organizations representing 
adoption agencies, organizations representing adoptive parents, and 
adoption attorneys.

    Dated: June 10, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-18367 Filed 7-29-94; 8:45 am]
BILLING CODE 4410-10-M