[Federal Register Volume 71, Number 120 (Thursday, June 22, 2006)]
[Proposed Rules]
[Pages 35847-35852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9596]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice 5445]
RIN 1400-AC17


Hague Convention on Intercountry Adoption; Intercountry Adoption 
Act of 2000; Consular Officer Procedures in Convention Cases

AGENCY: State Department.

ACTION: Proposed Rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This proposed rule amends U.S. Department of State regulations 
to provide for intercountry adoptions that will occur pursuant to the 
Hague Convention on Protection of Children

[[Page 35848]]

and Co-operation in Respect of Intercountry Adoption (hereinafter the 
``Convention'') and the Intercountry Adoption Act of 2000 (hereinafter 
the ``IAA'') This proposed rule addresses consular officer processing 
of immigration petitions, visas, and Convention certificates in cases 
of children immigrating to the United States in connection with an 
adoption subject to the Convention.

DATES: Written comments must be submitted on or before July 24, 2006.

ADDRESSES: You may submit comments, identified by any of the following 
methods:
     E-mail: [email protected]. You must include the RIN 
number in the subject line of your message.
     Mail: Chief, Legislation and Regulations Division, Visa 
Office, U.S. Department of State, 2401 E Street, NW., Washington DC 
20520-0106.
     Fax: 202-663-3898. You must include the RIN number in the 
subject line of your message.

Persons with access to the Internet may also view this document and 
provide comments by going to the regulations.gov Web site at: http://www.regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT: Barbara J. Kennedy, Legislation and 
Regulations Division, Visa Services, U.S. Department of State, 2401 E 
Street, NW., Room L-603, Washington, DC 20520-0106; telephone 202-663-
1206 or e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (Convention) is a multilateral treaty 
that provides a framework for the adoption of children habitually 
resident in one country party to the Convention by persons habitually 
resident in another party to the Convention. It establishes procedures 
to be followed in such adoption cases and imposes safeguards to protect 
the best interests of the children at issue. It also provides for 
recognition of adoptions that occur pursuant to the Convention. In the 
United States, the implementing legislation for the Hague Convention is 
the Intercountry Adoption Act of 2000 (IAA). To implement the 
Convention, the IAA makes two significant changes to the Immigration 
and Nationality Act (INA): (1) It creates a new definition of child 
applicable in Convention adoption cases, INA 101(b)(1)(G) (``Hague 
child''), that roughly parallels the current ``orphan'' definition, INA 
101(b)(1)(F), but that applies only to children being adopted from 
Convention parties. (2) It incorporates Hague procedures into the 
immigration process for children covered by INA 101(b)(1)(G), most 
directly by precluding approval of an immigration petition under this 
classification until the Department has certified that the child was 
adopted in accordance with the Convention and the IAA. Separately, the 
IAA requires domestic entities to recognize adoptions that have been so 
certified by the Department.
    The Department of Homeland Security will be issuing separate but 
complementary regulations relating to the immigration process for Hague 
children. Additional regulations will implement other aspects of the 
Convention and the IAA, such as on the accreditation/approval of 
adoption service providers to perform adoption services in cases 
covered by the Convention (22 CFR Part 96), preservation of records (22 
CFR Part 98), and certificate issuance with respect to U.S. court 
proceedings (22 CFR Part 97). Further background on the Convention and 
IAA is provided in the Preamble to the Final Rule on the Accreditation 
of Agencies and Approval of Persons under the Intercountry Adoption Act 
of 2000, Sections III and IV, 71 FR 8064-8066 (February 15, 2006).

The Proposed Regulation

    This proposed rule establishes new procedures that consular 
officers will follow in adjudicating Hague child cases. Although much 
of the petition and visa processes will be similar to the current 
orphan case procedures, there are important changes. Perhaps most 
significantly, U.S. authorities will perform the bulk of petition and 
visa adjudication work much earlier than under current practice. This 
early review will enable U.S. authorities to make the determination 
required by Article 5 of the Convention that the child will be eligible 
to enter and reside permanently in the receiving state prior to the 
adoption or grant of custody. The regulation also provides that, once 
the country of origin has provided appropriate notification that the 
adoption or custody grant has occurred, the consular officer will issue 
a certificate to the U.S. adoptive or prospective adoptive parent if 
the officer is satisfied that the requirements of the Convention and 
IAA have been met, and only if so will the consular officer approve the 
immigration petition and complete visa processing. To streamline the 
process, the regulation departs from current practice by allowing 
consular officers to approve Hague child petitions regardless of 
whether the petition was originally filed with the Department or DHS.
    Paragraph (a) of the proposed Sec.  42.24 sets forth short forms 
and abbreviations of terms used in this section that do not appear in 
the general definitions for 22 CFR Part 42.
    Paragraph (b) clarifies that INA 101(b)(1)(G) is the only 
definition of child applicable to adoptions subject to the Convention. 
Children who are immigrating to the United States from a Convention 
country in connection with an adoption will not be classifiable under 
INA 101(b)(1)(F). The Convention obligates Contracting Parties to apply 
the Convention in all cases that fall within its scope. Continuing to 
allow children to qualify under INA 101(b)(1)(F), which provides for 
children to enter the United States as part of the intercountry 
adoption process, but which does not incorporate Hague procedures, 
would be inconsistent with this mandate. (Note, however, that it may 
still be possible for a child adopted in a Hague country to qualify for 
a visa pursuant to INA 101(b)(1)(E). INA 101(b)(1)(E) is designed to 
allow immigration of an adopted child who is an established part of an 
existing family. It generally requires that the child have been in the 
legal custody of, and have resided with, the adoptive parent(s) for at 
least two years. Unlike INA 101(b)(1)(F), INA 101(b)(1)(E) is not 
targeted at children habitually resident abroad being adopted by 
parents habitually resident in the United States, but rather at 
adoptive families formed while both parents and child were habitually 
resident abroad. A subsequent move to the United States would not 
trigger U.S. procedural obligations under the Convention.
    Paragraph (c) provides that the provisions of Sec.  42.24 will 
govern the operations of consular officers in processing Hague child 
cases. It also incorporates the Secretary's non-delegable authority to 
waive any requirement of the IAA or these regulations in a particular 
case in the interests of justice or to prevent grave physical harm to 
the child, to the extent consistent with the Convention. This authority 
is granted in IAA section 502. The Department does not anticipate that 
the Secretary will exercise this authority, which would require her 
personal consideration of the matter, except in the most rare and 
unusual of circumstances.
    Paragraph (d) states the general rules that will govern the 
adoption process in Hague child cases and the division of functions 
between DHS and the Department. To qualify as a Hague

[[Page 35849]]

child, a DHS or consular officer must review and provisionally approve 
an immigration petition for the child (I-600) and a consular officer 
must review and annotate the child's visa application prior to the 
foreign adoption or custody proceeding. A consular officer will give 
final approval to the petition and visa application only after the 
adoption or custody proceeding, and before a visa may be issued to the 
child.
    This procedure reflects a significant shift in timing of consular 
processing of adoption cases that is effectively mandated by the 
Convention. Under current practices, the determination of whether the 
child will be permitted to enter the United States is generally made 
only after the adoption or custody proceeding has been completed. 
Article 5 of the Convention requires that the receiving country make 
such a determination much earlier in the process. Pursuant to this 
Article, the adoption may not take place until the competent 
authorities of the receiving State have (1) Determined that the 
prospective adoptive parents are eligible and suited to adopt; (2) 
ensured that the prospective adoptive parents have been counseled as 
may be necessary; and (3) determined that the child is or will be 
authorized to enter and reside permanently in that State. These 
requirements effectively mean that U.S. authorities must provisionally 
review the child's case before an adoption or custody proceeding under 
the Convention takes place abroad.
    Paragraph (e) sets forth the procedures a consular officer will 
follow if a petition is filed abroad with a consular officer. Consular 
officers are instructed to follow DHS requirements in making a decision 
on provisional approval of the petition. Based on consultations with 
DHS, the Department anticipates that before providing provisional 
approval, a consular or DHS officer will need to establish that DHS has 
granted I-600A approval (concluding that prospective adoptive parents 
are eligible and suitable to adopt). In addition, a consular or DHS 
officer will need to determine whether, but for the absence of a final 
adoption or custody order, the proposed adoption or custody grant 
complies with all Convention requirements and whether the child falls 
within the Hague child definition. In some cases, as is current 
practice, DHS will carry out an initial review of classification but 
request that a consular officer do additional reviews, determinations 
or investigations. The regulation makes clear that the consular officer 
will provide this service to DHS so that it can decide whether to grant 
provisional approval of the petition.
    Paragraph (f) instructs consular officers to approve a petition 
provisionally if, in accordance with applicable DHS requirements, it 
appears the child will be classifiable as a Hague child and that the 
proposed adoption or grant of custody will be in compliance with the 
Convention. If a consular officer knows or has reason to believe the 
petition is not provisionally approvable, the consular officer must 
return the petition to DHS for processing in accordance with existing 
procedures for consular officer suspension of action in petition cases, 
which are set forth in Sec.  42.43.
    Paragraph (g) requires an immigrant visa application for the child, 
together with supporting documentation identified in 42.63 (Application 
forms and other documentation) and 42.65 (Supporting documents) and any 
required fees, to be submitted to a U.S. consular officer located in 
the consular district in which the child's visa will be processed (as 
determined by Sec.  42.61) for a provisional review of visa 
eligibility. Paragraph (g) also requires visa applicants to comply with 
the remainder of the requirements normally applicable to persons filing 
an immigrant visa petition to the extent practicable to do so: Sec.  
42.62 (personal appearance and interview of applicant), Sec.  42.64 
(passport requirements), Sec.  42.66 (medical examination) and Sec.  
42.67 (execution of application, registration, and fingerprinting). 
Because conclusions drawn at this stage of processing will be critical 
to the determination of the child's eligibility to enter and reside 
permanently in the United States, it will be important for the consular 
officer to make as comprehensive a review of visa eligibility as 
possible. In some cases, however, it will not be practicable to satisfy 
all visa processing requirements prior to the adoption or custody 
grant, in particular with respect to requirements that require actions 
to be taken by the applicant child. For example, it may not be 
practicable for a child to travel a considerable distance to be 
examined by a panel physician or be interviewed by a consular officer 
until the adoption or custody proceeding has taken place. Thus the 
regulation does not require applicants to comply with Sec.  42.62, 
Sec.  42.64, Sec.  42.66 or Sec.  42.67 at the provisional review stage 
if it is not practicable to do so.
    Paragraph (h) instructs the consular officer to determine visa 
eligibility provisionally based on the information provided. The 
consular officer must follow all procedures that would normally be 
required to adjudicate an immigrant visa, except to the extent the 
consular officer cannot because the applicant has not provided the 
necessary input. For example, the consular officer does not need to 
examine a panel physician's report if the applicant has not undergone a 
panel physician exam. If there is other information in the record 
before the consular officer indicating that the child may have a 
disease that would result in a medical ineligibility, however, the 
consular officer will have to take this information into account as 
part of the provisional review process.
    If it appears that the child will not be ineligible for a visa, the 
consular officer will so annotate the visa application. If it appears 
the child will be ineligible for a visa, the rule requires the consular 
officer to inform the prospective adoptive parents of the ineligibility 
and give them an opportunity to show that it will be overcome. If, 
after the prospective adoptive parents have had such an opportunity, 
the child continues to appear ineligible, the consular officer will be 
required to deny the visa in accordance with the normal procedures set 
forth in Sec.  42.81. Although these procedures normally apply only to 
executed visa applications, this proposed rule will authorize consular 
officers to follow the procedures set forth in Sec.  42.81 even if the 
application has not been executed. This adjustment to normal procedures 
is required because in at least some cases the applicant may not have 
complied with Sec.  42.67 (execution of application, registration, and 
fingerprinting). If, in the course of reviewing the visa-related 
materials, the consular officer comes to know or have reason to believe 
that the petition is not approvable, the consular officer will be 
required to return the petition to DHS for processing in accordance 
with existing procedures for consular officer suspension of action in 
petition cases, set forth in Sec.  42.43.
    Paragraph (i) provides that, if both the petition and visa 
provisional reviews are concluded favorably, and the consular officer 
is aware of no grounds that would preclude the entry of the child into 
the United States, the consular officer will notify the country of 
origin that the steps required under Article 5 have been taken, so that 
the adoption or custody proceeding may proceed. The Department intends 
that, in general, the consular officer's notification will be 
transmitted to the country of origin through the relevant adoption 
service provider.
    Paragraph (j) provides that, once the country of origin has 
notified the consular officer that the adoption or grant of custody has 
occurred and once any remaining petition or visa-related

[[Page 35850]]

requirements have been met, the consular officer will reexamine the 
case. (Thus, for example, if it was not practicable for the child to 
submit to a panel physician's exam at the provisional review stage, the 
exam must be done prior to this final stage of consular officer 
review.) If, upon review of additionally submitted information, the 
consular officer is satisfied that the Convention and IAA requirements 
have been met, the consular officer will affix a certificate so 
indicating to the adoption decree or grant of custody. This certificate 
will meet the requirements of INA section 204(d)(2), which mandates 
certification by the Department prior to petition approval, as well as 
the requirements of IAA section 301(a), which addresses certificate 
issuance by the Department to parents. Paragraph (j) also instructs 
consular officers that, for purposes of deciding whether to issue a 
certificate, the fact that a consular officer previously provided 
notification to the country of origin pursuant to paragraph (i) (i.e., 
the Article 5 notification) with respect to the case is prima facie 
evidence of compliance with the Convention and IAA. The earlier 
provisional approval of the petition, and Article 5 notification, will 
have required a finding of Convention and IAA compliance on every 
matter except the existence of a final adoption or custody decree. 
Thus, following appropriate notification from the country of origin 
regarding completion of the adoption or custody proceedings, and 
compliance with all remaining visa and petition requirements, the prior 
determinations should be considered a sufficient basis on which to 
issue a certificate except in very unusual cases in which a consular 
officer becomes aware of information calling into question Convention 
and IAA compliance.
    Paragraph (k) instructs consular officers to notify the country of 
origin in those rare cases for which they are unable to certify 
Convention and IAA compliance as provided in paragraph (j). For 
example, new information may be discovered that reveals that 
birthparent consent was fraudulently obtained. Article 24 of the 
Convention provides that recognition of an adoption may be refused by a 
Contracting State if the adoption is manifestly contrary to its public 
policy, taking into account the best interests of the child. The 
country of origin is notified so that it can be involved in determining 
appropriate next steps in the case.
    Following the determination of whether to issue the certificate 
described in paragraph (j), paragraph (l) instructs the consular 
officer to perform a final adjudication of the petition and visa 
application in accordance with standard procedures.
    There may also be circumstances in which, although the adoption is 
certified as being in compliance with the Convention and the IAA, a 
visa cannot be issued to the child, at least in the immediate term. For 
example, if the panel physician medical exam is not performed prior to 
Article 5 notification, completion of that exam may reveal that the 
child has a medical ineligibility. Such cases will usually be resolved 
through treatment of an illness or through the use of Department and 
DHS waiver authorities in appropriate cases.
    Paragraph (m) instructs consular officers unable to give final 
approval to the petition at this stage to follow standard procedures in 
handling such cases, which include returning the petition to DHS for 
possible revocation, pursuant to Sec.  42.43, and denial of the visa 
pursuant to Sec.  42.81. If the petition is approvable but the visa 
application is not, the visa must be refused in accordance with Sec.  
42.81.

Regulatory Findings

Administrative Procedure Act

    In accordance with provisions of the Administrative Procedure Act 
governing rules promulgated by federal agencies that affect the public 
(5 U.S.C. 552), the Department is publishing this proposed rule and 
inviting public comment.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department of State, in accordance with the Regulatory 
Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) and Executive Order 
13272, section 3(b), has evaluated the effects of this action of small 
entities and has determined and hereby certifies that this rule would 
not have a significant economic impact on a substantial number of small 
entities.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires 
agencies to prepare a statement before proposing any rule that may 
result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private sector. This rule would 
not result in any such expenditure, nor would it significantly or 
uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule would not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign based companies in domestic and 
export markets.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' within the scope of section 3(f)(1) 
of Executive Order 12866. Nonetheless, the Department has reviewed the 
rule to ensure its consistency with the regulatory philosophy and 
principles set forth in the Executive Order.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulations in light of sections 
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 
Chapter 35. The Department plans for applicants for visas for children 
adopted under the Hague Convention to use visa application forms that 
have already been approved by OMB. The forms related to the petition 
process, such as the I600 and I600A, are DHS forms, and DHS would be 
responsible for compliance with the PRA, where it applies, with respect 
to any changes in those forms. We currently anticipate that the 
certificates to be issued by

[[Page 35851]]

consular officers will not involve the collection of additional 
information not already collected. Moreover, Section 503(c) of the IAA 
exempts from the PRA any information collection ``for use as a 
Convention record as defined'' in the IAA. Information collected on 
Convention adoptions in connection with the visa, petition, and 
certificate processes would relate directly to specific Convention 
adoptions (whether final or not), and therefore would fall within this 
exemption. Accordingly, the Department has concluded that this 
regulation will not involve an ``information collection'' under the 
Paperwork Reduction Act.

List of Subjects in 22 CFR Part 42

    Immigration, Passports, Visas, Intercountry adoption, Convention 
certificates.

    In view of the foregoing, 22 CFR part 42 would be amended as 
follows:

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

    1. The authority citation for part 42 is revised to read as 
follows:

    Authority: 8 U.S.C. 1104 and 1182; Pub. L. 107-56, sec 421; The 
Convention on Protection of Children and Cooperation in Respect of 
Intercountry Adoption (done at the Hague, May 29, 1993), S. Treaty 
Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The 
Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 
106-279.

    2. Add a new Sec.  42.24 to subpart C to read as follows:


Sec.  42.24  Adoption under the Hague Convention on Protection of 
Children and Cooperation in Respect of Intercountry Adoption and the 
Intercountry Adoption Act of 2000.

    (a) For purpose of this section, the following definitions apply:
    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May 
29, 1993.
    DHS means the Department of Homeland Security and encompasses the 
former Immigration and Naturalization Service (INS) or any successor 
entity designated by the Secretary of Homeland Security to assume the 
functions vested in the Attorney General by the IAA relating to the 
INS's responsibilities.
    IAA means the Intercountry Adoption Act of 2000, Public Law 106-279 
(2000) (42 U.S.C. 14901-14954), as amended from time to time.
    (b) A child habitually resident in a country with which the 
Convention is in force with the United States who is traveling to the 
United States in connection with an adoption must qualify for visa 
status under the provisions of INA section 101(b)(1)(G) as provided in 
this section. Such a child shall not be accorded status under INA 
section 101(b)(1)(F).
    (c) The provisions of this section govern the operations of 
consular officers in processing cases involving children for whom 
classification is sought under INA section 101(b)(1)(G), unless the 
Secretary has personally waived any requirement of the IAA or these 
regulations in a particular case in the interests of justice or to 
prevent grave physical harm to the child, to the extent consistent with 
the Convention.
    (d) An alien child shall only be classifiable under INA section 
101(b)(1)(G) if, before the child is adopted or legal custody for the 
purpose of adoption is granted, (1) A petition for the child has been 
received and provisionally approved by a DHS officer or, where 
authorized by DHS, by a consular officer, and (2) a visa application 
for the child has been received and annotated in accordance with 
paragraph (h) of this section by a consular officer. No alien child 
shall be issued a visa pursuant to INA section 101(b)(1)(G) unless the 
petition and visa application are finally approved by a consular 
officer.
    (e) If a petition for a child under INA section 101(b)(1)(G) is 
received by a consular officer, the consular officer will review the 
petition for the purpose of determining whether the petition can be 
provisionally approved in accordance with applicable DHS requirements. 
If a petition for a child under INA section 101(b)(1)(G) is received by 
a DHS officer, the consular officer will conduct any reviews, 
determinations or investigations requested by DHS with regard to the 
petition and classification determination in accordance with applicable 
DHS procedures.
    (f) A petition shall be provisionally approved by the consular 
officer if, in accordance with applicable DHS requirements, it appears 
that the child will be classifiable under INA 101(b)(1)(G) and that the 
proposed adoption or grant of custody will be in compliance with the 
Convention. If the consular officer knows or has reason to believe the 
petition is not provisionally approvable, the consular officer shall 
return it to DHS pursuant to Sec.  42.43.
    (g) After a petition has been provisionally approved, a completed 
visa application form, any supporting documents required pursuant to 
Sec.  42.63 and Sec.  42.65, and any required fees must be submitted to 
the consular officer in accordance with Sec.  42.61 for a provisional 
review of visa eligibility. The requirements in Sec.  42.62, Sec.  
42.64, Sec.  42.66 and Sec.  42.67 shall also be satisfied to the 
extent practicable.
    (h) A consular officer shall provisionally determine visa 
eligibility based on a review of the visa application, submitted 
supporting documents, and the provisionally approved petition. In so 
doing, the consular officer shall follow all procedures required to 
adjudicate the visa to the extent possible in light of the degree of 
compliance with Sec. Sec.  42.62-42.67. If it appears, based on the 
available information, that the child would not be ineligible under INA 
section 212 or other applicable law to receive a visa, the consular 
officer shall so annotate the visa application. If evidence of an 
ineligibility is discovered during the review of the visa application, 
the prospective adoptive parents shall be informed of the ineligibility 
and given an opportunity to establish that it will be overcome. If the 
visa application cannot be annotated, the consular officer shall deny 
the visa in accordance with Sec.  42.81, regardless of whether the 
application has yet been executed in accordance with Sec.  42.67(a). If 
in addition the consular officer comes to know or have reason to 
believe that the petition is not approvable as provided in Sec.  42.43, 
the consular officer shall return the petition to DHS pursuant to that 
section.
    (i) If the petition has been provisionally approved, the visa 
application has been annotated in accordance with subparagraph (h), and 
the consular officer is aware of no grounds that would preclude the 
entry of the child into the United States following the adoption or 
grant of custody, the consular officer shall notify the country of 
origin that the steps required by Article 5 of the Convention have been 
taken.
    (j) After the consular officer has received appropriate 
notification from the country of origin that the adoption or grant of 
custody has occurred and any remaining requirements established by DHS 
or Sec. Sec.  42.61-42.67 have been fulfilled, the consular officer, if 
satisfied that the requirements of the IAA and the Convention have been 
met with respect to the adoption or grant of custody, shall affix to 
the adoption decree or grant of custody a certificate so indicating. 
This certificate shall constitute the certification required by IAA 
section 301(a) and INA section 204(d)(2). For purposes of determining 
whether to issue a certificate, the fact that a consular officer 
notified the country of

[[Page 35852]]

origin pursuant to paragraph (i) that the steps required by Article 5 
of the Convention had been taken shall constitute prima facie evidence 
of compliance with the Convention and the IAA.
    (k) If the consular officer is unable to issue the certificate 
described in paragraph (j) of this section, the consular officer shall 
notify the country of origin of the consular officer's decision.
    (l) After the consular officer determines whether to issue the 
certificate described in paragraph (j) of this section, the consular 
officer shall finally adjudicate the petition and visa application in 
accordance with standard procedures.
    (m) If the consular officer is unable to give final approval to the 
visa application or the petition, then the consular officer shall, as 
appropriate, return the petition to DHS for appropriate action in 
accordance with applicable DHS procedures and/or refuse the visa 
application in accordance with Sec.  42.43 or Sec.  42.81. The consular 
officer shall notify the country of origin that the visa has been 
refused.

    Dated: June 9, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
 [FR Doc. E6-9596 Filed 6-21-06; 8:45 am]
BILLING CODE 4710-06-P