[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Rules and Regulations]
[Pages 56832-56867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18992]



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Part II





Department of Homeland Security





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8 CFR Parts 103, 204, 213a et al.



 Classification of Aliens as Children of United States Citizens Based 
on Intercountry Adoptions Under the Hague Convention; Interim Rule

  Federal Register / Vol. 72, No. 192 / Thursday, October 4, 2007 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 213a, 299, and 322

[CIS No. 2098-00; DHS Docket No. USCIS-2007-0008]
RIN 1615-AA43


Classification of Aliens as Children of United States Citizens 
Based on Intercountry Adoptions Under the Hague Convention

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends Department of Homeland Security (``DHS'' or 
``the Department'') regulations relating to intercountry adoptions by 
U.S. citizens. First, to facilitate the ratification of the Convention 
on Protection of Children and Co-operation in Respect of Intercountry 
Adoption, signed at The Hague on May 29, 1993 (``Convention''), the 
rule establishes new administrative procedures for the immigration of 
children who are habitually resident in Convention countries and who 
are adopted by U.S. citizens. Second, the rule makes other amendments 
to DHS regulations relating to the immigration of adopted children to 
reflect the changes to those provisions necessary to comply with the 
Convention. The Senate consented to ratification of the Convention in 
2000 conditioned on the adoption of the necessary implementing 
regulations. Accordingly, this rule is necessary to establish the 
regulations necessary for the United States to ratify the Convention.

DATES: Comment date: Written comments must be submitted on or before 
December 3, 2007 to assure consideration.
    Effective date: This rule is effective November 5, 2007.

ADDRESSES: You may submit comments to DHS, identified by DHS Docket No. 
USCIS-2007-0008, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2007-0008 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 
20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Michael Valverde, Chief, Children's 
Issues, U.S. Citizenship and Immigration Services, 111 Massachusetts 
Avenue, NW., 3rd floor, Washington, DC 20529, telephone (202) 272-9176.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Background
    A. Section 101(b)(1)(E) Adoptions
    B. Orphan Adoptions
    C. Convention Adoptions
    D. USCIS Forms Used for Adoption Cases
III. The Purpose of This Rule
IV. The Changes Made by This Rule
    A. Section 101(b)(1)(E) Cases
    B. Orphan Cases
    C. Convention Adoption Cases
V. Regulatory Requirements
    A. Administrative Procedure Act (Notice and Comment)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 12866
    F. Executive Order 13132
    G. Executive Order 12988 Civil Justice Reform
    H. Paperwork Reduction Act
List of Subjects in 8 CFR

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
rule. DHS also invites comments that relate to the economic, 
environmental, or federalism effects of this rule. Comments that will 
provide the most assistance to DHS in developing these procedures will 
reference a specific portion of the rule, explain the reason for any 
recommended change, and include data, information, or authority that 
support such recommended change.
    Instructions: All submissions received must include the agency name 
and docket number (USCIS-2007-0008) for this rulemaking. All comments 
received (including any personal information that may be included in 
the comment) will be posted without change to http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.

II. Background

    The Immigration and Nationality Act (``the Act''), 8 U.S.C. 1101, 
et seq., provides three distinct provisions under which an adopted 
child may be considered, for immigration purposes, to be the child of 
his or her adoptive parents.\1\ Section 101(b)(1)(E) of the Act, 8 
U.S.C. 1101(b)(1)(E), relates to adoptions in general, and provides 
that an adopted child is considered the adoptive parent's child if 
certain custody and residence requirements are met. Section 
101(b)(1)(F) of the Act, 8 U.S.C. 1101(b)(1)(F), facilitates the 
immigration of aliens who qualify as ``orphans,'' if they are adopted, 
or are coming to the United States to be adopted, by U.S. citizens. 
Section 101(b)(1)(G) of the Act, 8 U.S.C. 1101(b)(1)(G), added by 
section 302 of the Intercountry Adoption Act, Public Law 106-279, 
governs the immigration of children who are adopted, or are coming to 
the United States to be adopted, by U.S. citizens under the Convention. 
This background discussion provides an overview of each of these 
provisions.
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    \1\ The Reviser of Statutes has informally codified the Act as 
title 8 of the United States Code. Title 8, however, has not been 
enacted as positive law. For this reason, this rule will refer to 
each particular statutory provision by its section number in the Act 
itself. For ease of reference, the first reference to a particular 
section of the Act will include the corresponding citation in title 
8, United States Code. Subsequent citations will be to the relevant 
section of the Act itself.
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A. Section 101(b)(1)(E) Adoptions

    The first provision of the Act relating to adopted children is 
section 101(b)(1)(E). Under this provision, an adopted child is the 
adoptive parent's child for immigration purposes, if:
     The adoptive parent adopted the child before the child 
reached the age provided in that section, and
     The child has lived with, and been under the legal custody 
of, the adoptive parent for at least 2 years.

This two-year period of legal custody and joint residence can be 
satisfied by periods of legal custody and joint residence that pre-date 
the adoption. 8 CFR 204.2(d)(2)(vii)(C ).

    Until December 7, 1999, the definition in section 101(b)(1)(E) made 
immigration benefits available only to a child who had been adopted 
before the child's sixteenth birthday. Section 1(a)(1) of the Act of 
December 7, 1999, Public Law 106-139, however, amended

[[Page 56833]]

section 101(b)(1)(E) to extend the benefit to a child who was adopted 
after the child's sixteenth birthday, but before the child's eighteenth 
birthday. A child qualifies under this amendment if the child is the 
birth sibling of another adopted child who:
     Qualified for immigration under section 101(b)(1)(E) based 
on the child's adoption, while under the age of 16, by the same 
adoptive parent(s), or
     Qualified for immigration under section 101(b)(1)(F) of 
the Act based on an approved visa petition filed by the same adoptive 
parent(s).
    Section 101(b)(1)(E) of the Act can be the basis of the approval of 
an immigrant visa petition filed by a U.S. citizen or an alien lawfully 
admitted for permanent residence on behalf of an adopted child whose 
adoption meets the requirements of section 101(b)(1)(E). However, 
section 101(b)(1)(E) also applies to adopted children in other 
situations. For example, under section 203(d) of the Act, 8 U.S.C. 
1153(d), the child of an alien who qualifies for an immigrant visa 
under section 203(a) (family-based immigrants), section 203(b) 
(employment-based immigrants), or section 203(c) of the Act (diversity 
immigrants) is generally eligible for an immigrant visa in the same 
visa classification as the parent, if the child accompanies the parent 
to or follows to join the parent in the United States. An adopted child 
whose adoption met the requirements of section 101(b)(1)(E) of the Act 
is eligible to accompany or follow to join his or her parent under 
section 203(d). The same principle would apply in determining whether 
the adopted child could accompany, or follow to join, a nonimmigrant 
alien who is admitted as a student, temporary worker, exchange alien, 
or as any other nonimmigrant in a classification that permits spouses 
and children to come to the United States with the principal 
nonimmigrant alien.
    The current regulations for the approval of immigrant visa 
petitions under section 101(b)(1)(E) of the Act are found at 8 CFR 
204.2(d)(2)(vii). This rule does not discuss section 101(b)(1)(E) 
adoptions further, since it does not revise those requirements, except 
to reflect the upcoming ratification of the Convention.

B. Orphan Adoptions

    The second provision of the Act relating to adopted children is 
section 101(b)(1)(F) of the Act, 8 U.S.C. 1101(b)(1)(F). This provision 
is designed specifically to permit the immigration of alien children 
who qualify as ``orphans,'' as defined by section 101(b)(1)(F), on the 
basis of their adoption by United States citizens. The two year legal 
custody and joint residence requirements of section 101(b)(1)(E) of the 
Act do not apply to orphan cases. That is, if the child qualifies as an 
orphan, the child can immigrate immediately either upon adoption abroad 
or even before adoption, if the adoptive parents intend to complete the 
adoption in the United States. The current regulations for approval of 
immigrant visa petitions on behalf of alien orphans are found at 8 CFR 
204.3. This rule will not discuss section 101(b)(1)(F) adoptions 
further, since it does not revise those requirements, except to reflect 
the upcoming ratification of the Convention.

C. Convention Adoptions

    Developed under the auspices of The Hague Conference on Private 
International Law, the Convention was opened for signature on May 29, 
1993. A copy of the Convention is available on the Hague Conference Web 
site at http://www.hcch.net. The text of the Convention is also 
available on the public docket for this rule at http://www.regulations.gov, DHS Docket No. USCIS-2007-0008.
    The Convention provides a framework of safeguards for protecting 
children and families involved in intercountry adoption. The Hague 
Conference on Private International Law makes available at http://www.hcch.net the current list of countries that have become Parties to 
the Convention. According to this Web site, 74 States have become 
Parties to the Convention. This Convention is one of the most widely-
embraced and broadly-accepted conventions developed by the Hague 
Conference.
    The Convention is the first multilateral international instrument 
to recognize that intercountry adoption could ``offer the advantage of 
a permanent home to a child for whom a suitable family cannot be found 
in his or her state of origin.'' (S Treaty Doc. 105-51, at 1). Some 
countries involved in the multilateral negotiations on the Convention 
sought to prohibit intercountry adoptions even for those children 
eligible for adoption for whom a permanent family placement in the 
child's country of origin could not be arranged. On the other hand, 
proponents of intercountry adoption at the Hague Conference believed 
that the best interests of a child would not be served by arbitrarily 
prohibiting a child in need of a permanent family placement from being 
matched with an adoptive family simply because the family resided in 
another country. The Convention reflects a consensus that an 
intercountry adoption may well be in an individual child's best 
interests.
    If the Convention is in force between two countries, then any 
adoption of a child habitually resident in one country by a person 
habitually resident in the other country must comply with the 
requirements of the Convention. The objectives of the Convention are:
     To establish safeguards to ensure that intercountry 
adoptions take place in the best interests of the child and with 
respect for the child's fundamental rights as recognized in 
international law;
     To establish a system of cooperation among contracting 
States to ensure that those safeguards are respected and thereby 
prevent the abduction, sale of, or traffic in children; and
     To secure the recognition in contracting states of 
adoptions made in accordance with the Convention.

The Convention also requires all parties to act expeditiously in the 
processing of intercountry adoptions.

    To accomplish its goals, the Convention makes a number of 
significant modifications to current intercountry adoption practice, 
including three particularly important changes. First, the Convention 
mandates close coordination between the governments of contracting 
countries through a Central Authority in each Convention country. In 
its role as a coordinating body, the Central Authority is responsible 
for sharing information about the laws of its own and other Convention 
countries and for monitoring individual cases. Second, the Convention 
requires that each country involved make certain determinations before 
an adoption may proceed. The sending country must determine in advance: 
That the child is eligible to be adopted; that it is in the child's 
best interests to be adopted internationally; that the birth parents or 
other individuals, institutions or authorities who must, under the law 
of the country of origin, consent to the adoption have freely consented 
to the adoption in writing; and that the consent of the child, if 
required, has been obtained. The sending country must also prepare a 
background study on the child that includes the medical history of the 
child as well as other background information. Third, the receiving 
country must determine in advance: that the prospective adoptive 
parent(s) are eligible and suited to adopt; that they have received 
counseling and training, as necessary; and that the child will be 
eligible to enter and reside permanently in the

[[Page 56834]]

receiving country. The receiving country must also prepare a home study 
on the prospective adoptive parent(s). These advance determinations and 
studies are designed to ensure that the child is protected and that 
there are no obstacles to completing the adoption.
    The United States signed the Convention on March 31, 1994. The 
Senate gave its consent to ratification on September 20, 2000. 146 
Cong. Rec. S8866-8868 (daily ed. September 20, 2000). This consent was 
conditioned on the adoption of the necessary implementing legislation, 
and the completion of any steps that would enable the United States to 
carry out all the obligations of the Convention, as required by the 
implementing legislation. Id. at S8868, Resolution of Ratification at 
sections (a)(1) and (b)(1). Under article 46(2) of the Convention, the 
Convention will enter into force for the United States on the first day 
of the month that begins three months after the United States deposits 
the instrument of ratification. The Secretary of State will give notice 
in the Federal Register of the date on which the Convention enters into 
force for the United States. See 22 CFR 96.17.
    In 2000, Congress passed the implementing legislation, the 
Intercountry Adoption Act (IAA), Pub. L. 106-279, 114 Stat. 825. 
Section 302 of the IAA enacted new section 101(b)(1)(G) of the Act, to 
be codified as 8 U.S.C. 1101(b)(1)(G). Section 101(b)(1)(G) of the Act, 
which will take effect when the Convention enters into force for the 
United States, provides for the classification of a Convention adoptee 
as the child of the U.S. citizen adoptive parent(s). By its terms, the 
Convention applies to any adoption by a person ``habitually resident'' 
in the United States of a child ``habitually resident'' in another 
Convention country, if the child ``has been, is being or is to be 
moved'' to the United States either after the adoption or for purposes 
of the adoption. Convention, article 2(1). Under section 101(b)(1)(G) 
of the Act, however, only a married U.S. citizen whose spouse also 
adopts the child, or an unmarried U.S. citizen who is at least 25 years 
old, may file an immigrant visa petition on behalf of a Convention 
adoptee. For this reason, it will not be possible for anyone who is 
habitually resident in the United States, but who is not a United 
States citizen, to bring a child habitually resident in another 
Convention country to the United States on the basis of a Convention 
adoption.
    Classification as a child under section 101(b)(1)(G) of the Act is 
somewhat similar to classification as an orphan under section 
101(b)(1)(F) of the Act. First, the child's adoption must be sought 
either by a United States citizen and the United States citizen's 
spouse, jointly, or by an unmarried United States citizen who is at 
least 25 years old. The visa petition must be filed before the child's 
sixteenth birthday. As with orphan cases, the two year legal custody 
and joint residence requirements of section 101(b)(1)(E) of the Act 
will not apply to Convention cases. Finally, as with orphans, a 
Convention adoptee may be adopted abroad, but may also be brought to 
the United States for the purpose of adoption.
    There are, however, some notable differences. First, as a matter of 
jurisdiction, section 204(d)(2) of the Act, as amended by section 
302(b) of the IAA, makes clear that section 101(b)(1)(G) of the Act 
relates only to adoptions in which the adopting parent is habitually 
resident in the United States, and the child is habitually resident in 
another country that is a Party to the Convention. Second, unlike 
sections 101(b)(1)(E) and (F) of the Act, section 101(b)(1)(G) applies 
only if the visa petition is filed before a child's sixteenth birthday, 
with no provision to allow the immigration of an older sibling adopted 
by the same parent(s). Third, the child does not have to be an 
``orphan,'' as defined in 101(b)(1)(F) of the Act. The primary criteria 
for classification under section 101(b)(1)(G) of the Act are:
     The child's birth parents (or parent, in the case of a 
child who has one sole or surviving parent because of the death or 
disappearance of, or the child's abandonment or desertion by, the other 
parent), or other persons or institutions that retain legal custody of 
the child, must have freely given their written irrevocable consent to 
the termination of their legal relationship with the child, and to the 
child's emigration and adoption; and
     In the case of a child placed for adoption by his or her 
two living birth parents, the birth parents must be incapable of 
providing proper care for the child.
    The Department notes that section 101(b)(1)(G) of the Act, like 
sections 101(b)(1)(E) and (F), use the term ``natural parents'' to 
describe the individuals to whom an adopted child was born. Adoption 
professionals generally recommend using the term ``birth parents,'' as 
some birth and adoptive parents consider ``natural parent'' offensive 
or insensitive. See, e.g., ``Positive Adoptive Language,'' (Adoptive 
Families of America), available online at http://www.adoptivefamilies.com/pdf/PositiveLanguage.pdf. Since ``birth 
parent'' and ``natural parent'' are synonymous, this rule uses the term 
``birth parent.''

D. USCIS Forms Used for Adoption Cases

    Section 103(a)(3) of the Act, 8 U.S.C. 1103(a)(3), authorizes the 
Secretary of Homeland Security to prescribe the forms and other papers 
to be used in the administration of the Act. A U.S. citizen begins the 
immigration process for the citizen's alien child by filing a petition 
under section 204(a)(1)(A)(i) of the Act, 8 U.S.C. 1154(a)(1)(A)(i). 
Note that different immigrant visa petition forms are used for 
different types of adoption cases. The Form I-130, Petition for Alien 
Relative, is used for cases filed under section 101(b)(1)(E) of the Act 
and many other family-based petition cases. Form I-600A, Application 
for Advance Processing of Orphan Petition, is used for orphan cases, to 
give the prospective adoptive parents the option of seeking to 
establish their suitability as adoptive parents before they are 
actually matched with a specific child. Parents also have the option, 
under current 8 CFR 204.3, to file just a Form I-600, the Petition to 
Classify an Orphan as Immediate Relative. If they do so, then their 
suitability as adoptive parents and the child's eligibility for 
classification as an orphan are adjudicated in the same proceeding.
    USCIS intends to create two similar forms, the Form I-800A and Form 
I-800, for Convention adoption cases. The new Form I-800A, Application 
for Determination of Suitability as Adoptive Parent(s) for a Convention 
Adoptee, corresponds to the Form I-600A for orphan cases. The Form I-
800A includes three supplements. Form I-800A Supplement 1 will be used 
to identify additional adult members of the prospective adoptive 
parent(s)'s household. A prospective adoptive parent may complete Form 
I-800A Supplement 2 if he or she wants to give consent under the 
Privacy Act of 1976 for DHS to disclose information about the 
prospective adoptive parent's case to the adoption service provider. 
Form I-800A Supplement 3 may be used to obtain an extension of the 
approval of a Form I-800A, if no Form I-800 has yet been filed, as well 
as to submit an updated or amended home study after the Form I-800A has 
been approved. The Form I-800, Petition to Classify Convention Adoptee 
as Immediate Relative, corresponds to the Form I-600 for orphan cases.
    Unlike the current practice for orphan cases, 8 CFR 204.3(d)(3), 
this rule requires a prospective adoptive parent

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seeking to adopt a child from a Convention country to always file the 
Form I-800A first. Only once the Form I-800A is approved will the 
prospective adoptive parents file the Form I-800. This change is 
consistent with the requirements of article 5 of the Convention, as 
discussed later in section IV(C) of this SUPPLEMENTARY INFORMATION.
    Note that the SUPPLEMENTARY INFORMATION section of this Preamble 
refers to the U.S. citizen (and his or her spouse, if any) seeking to 
adopt a Convention adoptee as the prospective adoptive parent(s). This 
term is used in the Supplementary Information because the same person 
(or couple) is the ``applicant'' at the Form I-800A stage, and the 
``petitioner'' at the Form I-800 stage. The text of the new 8 CFR part 
204, subpart C, however, uses the more precise terms, referring as 
appropriate to the ``applicant'' at the Form I-800A stage and the 
``petitioner'' at the Form I-800 stage. Because the spouse of a married 
U.S. citizen must always sign the Form I-800A and Form I-800, and must 
also adopt the Convention adoptee, the singular terms are used to refer 
to both the U.S. citizen and to his or her spouse, if any.

III. The Purpose of This Rule

    To facilitate the ratification of the Convention, this rule 
proposes to amend DHS regulations to provide for the adjudication of 
Convention adoption cases. This rule also makes amendments to the 
orphan provisions that govern cases under section 101(b)(1)(F) of the 
Act and to the regulations governing section 101(b)(1)(E) cases to 
reflect the new Convention procedures.

IV. The Changes Made by This Rule

A. Section 101(b)(1)(E) Cases

    Under article 2 of the Convention, the Convention applies to any 
adoption, or proposed adoption, if:
     The child is habitually resident in one Convention 
country; and
     The adoptive parent(s) is (are) habitually resident in 
another Convention country; and
     The child has immigrated, or will immigrate, to the 
parent's country as a result of, or for purposes of, the adoption.

    The only change that this rule makes to 8 CFR 204.2(d), as it 
relates to adopted children under section 101(b)(1)(E) of the Act, is 
to clarify when a child who is habitually resident in a Convention 
country and who is adopted by a U.S. citizen may be eligible to 
immigrate under section 101(b)(1)(E) of the Act, rather than under 
section 101(b)(1)(G) of the Act. For example, a U.S. citizen may have 
adopted a child from a Convention country while habitually resident in 
that Convention country, and without any present intention to bring the 
child to the United States. Some time after the adoption, the adoptive 
parent may decide to bring the child to the United States. In this 
situation, the adoption would not be subject to the Convention, since 
the child's immigration was not directly the result of the child's 
adoption by someone habitually resident in the United States. If the 
adoptive parent satisfies the two-year custody and residence 
requirement of section 101(b)(1)(E) of the Act by living with the child 
outside the United States, USCIS may approve the parent's Form I-130 
for the child. Thus, the child will be eligible for classification 
under section 101(b)(1)(E) of the Act if the child meets those 
requirements, and it will not be necessary to comply with the 
requirements of section 101(b)(1)(G) of the Act.

    If the adoptive parent seeks to bring the child to the United 
States without first satisfying the two-year custody and residence 
requirement, however, the adoptive parent will need to comply with the 
Convention, the IAA, and the regulations implementing the IAA, 
including this interim rule and the rules promulgated by the Department 
of State. Similarly, the rule addresses the case of a child from a 
Convention country who is already in the United States, whether as a 
nonimmigrant, parolee, or even without inspection and admission, but 
whose habitual residence was in a Convention country immediately before 
the child came to the United States. Such a child will still be deemed 
under this rule to be habitually resident in the other Convention 
country. If the adoptive parent seeks to adopt the child in the United 
States, it will still be necessary to comply with the Convention. Note 
that article 2(1) continues to apply to the adoption of a child 
habitually resident in another Convention country, even if the child 
already ``has been * * * moved to another Contracting State.''

B. Orphan Cases

    This rule does not propose any major revisions to the processing of 
orphan cases that are filed under section 101(b)(1)(F) of the Act. The 
chief purpose of this rule is to establish procedures for Convention 
cases.
    This rule does make one change to the orphan regulations that is 
necessary to reflect the implementation of the Convention. As noted, 
once the Convention enters into force for the United States, the 
Convention and section 101(b)(1)(G) of the Act will govern the 
immigration to the United States of any child who is habitually 
resident in a Convention country and who is adopted, or will be 
adopted, by a U.S. citizen who is habitually resident in the United 
States. It will no longer be possible for a child who is habitually 
resident in a Convention country and who is, or will be, adopted by a 
U.S. citizen habitually resident in the United States, to immigrate 
under section 101(b)(1)(F) of the Act. The adoptive parents will, 
instead, have to use the Convention procedures under section 
101(b)(1)(G) of the Act and new 8 CFR part 204, subpart C. New 8 CFR 
204.3(a)(2) incorporates this principle into the current orphan 
regulation. If, however, the prospective adoptive parent(s) filed the 
Form I-600A or Form I-600 before the date on which the Convention 
enters into force, section 505(b)(1) of the IAA provides that the case 
will continue to qualify as an orphan case even after the Convention 
enters into force. This rule also makes minor changes to 8 CFR 
204.3(a)(1) and (a)(2) to remove unnecessary language, to delete non-
binding procedural requirements, and to improve readability.

C. Convention Adoption Cases

1. Filing Fees
    In orphan cases, the prospective adoptive parent(s) pay(s) one 
filing fee, either upon the filing of the Form I-600A or upon the 
filing of the Form I-600 if no Form I-600A was filed. 8 CFR 
103.7(b)(1). For cases initiated with a Form I-600A, a new filing fee 
was required only if the Form I-600 was filed after the Form I-600A 
approval period expired or if the prospective adoptive parent(s) filed 
more than one Form I-600, for children who were not birth siblings. Id.
    Convention adoption cases will not follow the traditional practice 
from orphan cases. A Form I-800A will be required in every case, and 
must be approved before the Form I-800 may be filed. This change will 
assist the Department in ensuring that the requirements of articles 
5(a) and 17 of the Convention will be satisfied. Under articles 5(a) 
and 17, the receiving country must find that the prospective adoptive 
parent(s) is (are) suitable and eligible to adopt before the sending 
country matches them for adoption.
    The rule retains the practice under which the Form I-800A filing 
fee reflects the cost of adjudicating both the Form I-800A and I-800. 
There will be

[[Page 56836]]

no filing fee when the prospective adoptive parent(s) file(s) one Form 
I-800 after approval of a Form I-800A. As with orphan cases, the cost 
of adjudicating one Form I-800 is included in the Form I-800A filing 
fee. If the prospective adoptive parent(s) file more than one Form I-
800, a separate fee will be required for the second, and any 
subsequent, Form I-800. If the beneficiaries of the multiple Forms I-
800, however, are already siblings before the proposed adoptions, then 
one filing fee will cover each sibling's Form I-800.
    Because USCIS anticipates that the adjudication process and the 
workload for Convention cases will be essentially similar to orphan 
cases, this rule sets the filing fee at the same rate that applies for 
orphan cases. On February 1, 2007, DHS published the notice of proposed 
rulemaking, ``Adjustment of the Immigration and Naturalization Benefit 
Application and Petition Fee Schedule'' proposing a rule that would 
establish a comprehensive revision of USCIS filing fees. 72 FR 4888. 
That rule proposed a fee of $670 for filing Form I-600A, Application 
for Advance Processing of Orphan Petition, and Form I-600, the Petition 
to Classify an Orphan as Immediate Relative. DHS published the fee 
adjustments as a final rule on May 30, 2007, at 72 FR 29851. This rule 
sets the Form I-800A and I-800 filing fees at the same amount as the 
proposed Form I-600A and I-600 fees.
2. New Subpart C to 8 CFR Part 204
    The rule re-designates the current provisions in 8 CFR part 204 as 
subpart A to part 204, and adds new subparts B and C to 8 CFR part 204. 
This rule reserves subpart B. Subpart C governs Convention adoption 
cases. Each specific provision is discussed below. Before dealing with 
the details of the provisions, however, DHS is providing a summary of 
how the Convention adoption process is likely to work.
    Under article 5 of the Convention and section 101(b)(1)(G)(i) of 
the Act, a U.S. citizen who wants to adopt a child habitually resident 
in a Convention country must first obtain a determination that he or 
she (and his or her spouse, if married) will provide proper care to a 
Convention adoptee. USCIS has the authority to make the determination 
that the prospective adoptive parent(s) is (are) suitable for adoption. 
The most critical item of evidence in making this determination is the 
home study. The first step that the prospective adoptive parent(s) 
should take is to work with an adoption service provider to obtain a 
home study. The home study must recommend that USCIS should find that 
the prospective adoptive parent(s) is (are) suitable for adoption. The 
home study preparer must be authorized under Department of State 
regulations at 22 CFR part 96 to complete home studies for Convention 
cases. He or she must also be authorized to conduct home studies under 
the law of the jurisdiction in which the home study is conducted. He or 
she must prepare the home study according to the standards specified in 
new 8 CFR 204.312. Moreover, if the home study preparer is not, under 
22 CFR part 96, an accredited agency or temporarily accredited agency, 
then an accredited agency or temporarily accredited agency must review 
and approve the home study before it can be submitted to USCIS. This 
review requirement does not apply if a public domestic authority, as 
defined in 22 CFR 96.2, prepared the home study.
    Once the prospective adoptive parent(s) has (have) obtained a 
favorable home study, the next step is to file Form I-800A with USCIS. 
In addition to the home study, the prospective adoptive parent(s) would 
submit proof of citizenship, marital status, age (if not married) and 
other evidence as described in new 8 CFR 204.310. In addition to the 
Form I-800A filing fee, the prospective adoptive parent(s) would also 
submit the standard biometrics fee for the applicant, his or her 
spouse, and for each adult member of the household. The definition of 
``adult member of the household'' is discussed more fully in the 
discussion of new 8 CFR 204.301. USCIS would then arrange for the 
collection of fingerprints and other biometric information from these 
individuals. Once the fingerprint results are received, USCIS will 
weigh the evidence to determine whether to approve the Form I-800A. 
USCIS will approve it if the prospective adoptive parent(s) has (have) 
established, based on the evidence of record, that any child whom the 
prospective adoptive parent(s) may adopt will receive proper care. If 
USCIS denies the Form I-800A, the prospective adoptive parent(s) may 
appeal the denial to the Administrative Appeals Office, except in a 
narrow class of cases, discussed later in this rule, in which no appeal 
is permitted.
    If USCIS approves the Form I-800A, the prospective adoptive 
parent(s) may arrange for the submission of the approval notice, the 
home study and other supporting evidence, to the Central Authority of 
the Convention country in which they hope to adopt a child. Note that 
the Convention permits the governmental entity that a Convention 
country designates as the Central Authority to delegate some Central 
Authority functions to other governmental or non-governmental entities. 
In this Preamble and in the rule itself, ``Central Authority'' refers 
not only to the country's designated Central Authority, but also to any 
individual or entity delegated Central Authority functions. If the 
Central Authority proposes a child for an adoption placement, the 
Central Authority will prepare a report addressing the factors that 
make the child eligible for adoption as a Convention adoptee. Once the 
prospective adoptive parent(s) have received this report and have 
decided to accept the placement, they would file Form I-800, with the 
report and other evidence specified in new 8 CFR 204.313. The Form I-
800 must be filed before the prospective adoptive parent(s) have 
actually adopted or obtained legal custody of the child.
    The office with which the prospective adoptive parent(s) files the 
Form I-800 may vary from case to case, or country to country. For 
example, the prospective adoptive parent(s) may file the Form I-800 
with USCIS in the United States before traveling to the Convention 
country. In this situation, the parent(s) would file the Form I-800 and 
supporting evidence with the local USCIS office in the area where the 
parent(s) live. The prospective adoptive parent(s) may alternatively 
choose to file the Form I-800 after arrival in the Convention country, 
and while still physically present there. In such cases, the 
prospective adoptive parent(s) may file the Form I-800 either with an 
overseas USCIS office, or, if there is no USCIS office in the country, 
at the visa-issuing post at which he or she (they) will file the 
child's visa application. A Department of State officer will adjudicate 
a Form I-800 filed with a visa-issuing post, unless the Form I-800 is 
not clearly approvable. The Department of State will refer any Form I-
800 that has been filed with a Department of State officer and that is 
not clearly approvable to a USCIS office for adjudication.
    Whether it is a USCIS or a Department of State officer who 
adjudicates the Form I-800, the issue is fundamentally the same: Does 
the evidence show that the child qualifies for classification under 
section 101(b)(1)(G) of the Act, and will the proposed adoption or 
grant of custody be in compliance with the Convention? If so, the USCIS 
or Department of State officer will grant a provisional approval of the 
Form I-800. If USCIS grants the provisional approval, it would then 
forward the case to the Department of State officer at the visa issuing 
post. If the Department of

[[Page 56837]]

State officer grants the provisional approval, the Department of State 
officer will retain the Form I-800 for further action after the 
prospective adoptive parent(s) has (have) adopted or obtained custody 
of the child.
    Once provisional approval is granted, the prospective adoptive 
parent(s) may file a visa application for the child with the visa 
issuing post with jurisdiction over the child's country of residence. 
The Department of State published in the Federal Register on June 22, 
2006, at 71 FR 35847, a proposed rule that, once adopted as a final 
rule, will govern the adjudication of the visa application. If it 
appears to the Department of State officer that, based on the available 
information, the child would not be ineligible to receive an immigrant 
visa, the Department of State officer will annotate the visa 
application to reflect this conclusion. If the consular office is not 
aware of any ground(s) of inadmissibility that would preclude the 
child's admission to the United States following the adoption or grant 
of custody, the Department of State officer will then notify the 
Central Authority of the Convention country that the prospective 
adoptive parent(s) may proceed with the adoption, or with obtaining the 
grant of custody for purposes of adoption. If the Department of State 
officer becomes aware that the child may be subject to a ground of 
inadmissibility that was not already waived when the Form I-800 was 
provisionally approved, the Department of State officer will advise the 
prospective adoptive parent(s) concerning whether a waiver is 
available, and how to apply for it. The prospective adoptive parent(s) 
will then either complete the adoption in the Convention country or 
else obtain custody of the child for the purpose of bringing the child 
to the United States for adoption. Once this step is accomplished, the 
Department of State officer will, as required by section 301(a)(1)(B) 
of the IAA, perform a final verification of compliance with the 
Convention and the IAA. If the adoption or grant of custody complies 
with the Convention and the IAA, the Department of State officer will 
affix to the adoption or custody order a certification that the 
adoption or custody has been obtained in compliance with the 
requirements of the Convention and the IAA. The Department of State 
officer would then, on behalf of USCIS, grant final approval of the 
Form I-800. The Department of State officer would also issue the 
appropriate visa, unless the Department of State officer determines 
that the child is ineligible for a visa and inadmissible to the United 
States on a ground for which no waiver has been approved. Department of 
State regulations concerning the issuance of visas are codified at 22 
CFR parts 40 through 42.
    Once the Department of State officer issues the visa, the 
prospective adoptive parent(s) may bring the child to the United 
States. An adopted child who is admitted under section 101(b)(1)(G) of 
the Act, and who, after admission for permanent residence, actually 
resides in the United States with the adoptive parent(s) will acquire 
United States citizenship through naturalization by operation of law if 
the requirements of section 320 of the Act, 8 U.S.C. 1431, are met by 
the child's 18th birthday.\2\ If the child will not actually reside in 
the United States, the child's lawful admission would facilitate the 
child's naturalization under section 322 of the Act, 8 U.S.C. 1433. 
Unlike section 320 of the Act, naturalization under section 322 of the 
Act does not occur by operation of law; a formal application for 
naturalization must be filed.
---------------------------------------------------------------------------

    \2\ Section 320 does not, itself, use the term 
``naturalization.'' But ``naturalization'' encompasses any grant of 
citizenship that occurs after a person's birth. See INA section 
101(a)(23), 8 U.S.C. 1101(a)(23).
---------------------------------------------------------------------------

    This rule retains for Convention cases the current practice 
described in the orphan provisions, 8 CFR 204.3(h)(11), that allows a 
Department of State officer to approve a petition, but not to deny. As 
under current practice, a Department of State officer will be required 
to forward to USCIS any Form I-800 that is not clearly approvable. If 
USCIS denies the Form I-800, the prospective adoptive parent(s) may 
appeal the denial to the Administrative Appeals Office, except in a 
narrow class of cases, discussed later in this rule, in which no appeal 
is permitted.
New 8 CFR 204.300--Scope of Subpart C
    Section 204.300 defines the scope of new subpart C, which will 
apply to any Form I-800A or Form I-800 that is filed on or after the 
date the Convention enters into force for the United States. For orphan 
cases, if either the Form I-600A or Form I-600 was filed before that 
date, 8 CFR 204.3 will continue to apply.
    New 8 CFR 204.300(b) makes clear that, once the Secretary of State 
gives notice as specified in 22 CFR 96.17 that the Convention has 
entered into force for the United States, this rule, section 
101(b)(1)(G) of the Act, and the provisions of new subpart C will be 
the only way that an alien child who is habitually resident in a 
Convention country may immigrate to the United States as a direct 
result of an adoption by a U.S. citizen who is habitually resident in 
the United States. Even if the child may also qualify as an orphan 
under section 101(b)(1)(F) of the Act, the adoptive parents will be 
required to comply with the Convention procedures. Immigration under 
section 101(b)(1)(F) of the Act will be available to a child habitually 
resident in a Convention country only if the prospective adoptive 
parent(s) filed either the Form I-600A, or the Form I-600 before the 
Convention and this rule enter into force. New 8 CFR 204.2(d)(vii), 
discussed earlier in this Supplementary Information, addresses the 
circumstances under which a child habitually resident in a Convention 
country may immigrate under section 101(b)(1)(E) of the Act.
New 8 CFR 204.301--Definitions
    New 8 CFR 204.301 provides the definitions that will apply in the 
adjudication of Convention adoption cases. For the most part, the new 
definitions replicate the definitions currently found in 8 CFR 204.3. 
USCIS added new definitions for ``Central Authority,'' ``Convention 
adoptee,'' ``Convention adoption,'' ``Convention,'' ``Convention 
country,'' ``Irrevocable consent,'' and ``Legal Custodian.'' These 
definitions will apply only to Convention adoption cases, not to orphan 
cases under 8 CFR 204.3. The definitions in 22 CFR 96.2 will also apply 
to Convention cases.
    There are a number of definitions under the new section that 
warrant explanation. First, new 8 CFR 204.301 includes a definition of 
``adoption.'' To qualify as an ``adoption,'' a custody order that is 
alleged to be an adoption must create the legal parent-child 
relationship between a minor and someone who is not already the minor's 
legal parent, and terminate the legal parent-child relationship between 
the minor and any prior legal parent(s). The definition is not actually 
new, but a codification of the Board of Immigration Appeals decisions 
in Matter of Mozeb, 15 I&N Dec. 430 (BIA 1975), and Matter of Kong, 14 
I&N Dec. 649 (BIA 1974). The new definition also corresponds to the 
definition the Department of State has adopted at 22 CFR 96.2.
    Some countries allow for ``simple'' or ``semi-plena'' adoptions, or 
a similar child custody arrangement that may be called ``adoption,'' 
but do not create a permanent legal parent-child relationship between 
the child and the custodian. Similarly, the Board of Immigration 
Appeals has noted that in countries that follow traditional Islamic

[[Page 56838]]

law ``adoption'' in the sense required by the Act does not exist. See, 
e.g., Matter of Mozeb, supra; and Matter of Ashree, Ahmed and Ahmed, 14 
I&N Dec. 305 (BIA 1973). The Board has also noted the distinction, 
under Burmese law, between Kittima adoption, which does create a legal 
parent-child relationship, and Appatittha adoption, which does not. 
Matter of Kong, supra. USCIS may not approve a Form I-800 based on one 
of these alternative custody arrangements, unless the alternative 
custody arrangement is cited, not as proof of the child's adoption, but 
as proof that the custodian has authority to bring the child to the 
United States for adoption here.
    This rule also makes changes to the definition of an ``additional 
adult member of the household.'' The home study requirements for orphan 
cases, 8 CFR 204.3(e), require a home study preparer to address the 
presence in the household of adults other than the prospective adoptive 
parent(s). The orphan regulations define ``adult member of the 
household'' to include anyone over the age of 18 whose principal or 
only residence is the same as the residence of the prospective adoptive 
parent(s). 8 CFR 204.3(b). Someone who was under 18 when the Form I-
600A is filed can also be considered an ``adult'' member of the 
household if ``the director has a specific reason, based on the facts 
of the particular case, for requiring an evaluation by a home study 
preparer and/or fingerprint check.'' This rule generally follows that 
practice; however, there are two significant changes. First, the 
reference to a person's ``principal or only'' residence has been 
revised. The new definition includes any person 18 years or older who 
has the same principal residence as the applicant. By removing the term 
``only'' the definition is meant to clarify that it includes those 
individuals who may have another residence, such as an adult son or 
daughter who is away at college for most of the year, but who maintains 
the home being evaluated as their principal residence. Second, the 
current definition does not directly address the presence in the home 
of child care workers, or other household employees, who do not 
actually live there. To improve the ability to protect the best 
interests of adopted children, the revised definition has been expanded 
to specifically include as an ``additional adult member of the 
household'' any person who does not live in the home but whose regular 
presence in the home is relevant to the suitability of the prospective 
adoptive parents as the parents of a Convention adoptee. While this 
definition does expand the potential scope of the home study, the 
expansion will provide information that could be very relevant to the 
adjudication of the Form I-800A.
    New 8 CFR 204.301 also includes a specific definition of ``custody 
for purposes of emigration and adoption'' that will apply to Convention 
cases, if the child will be adopted in the United States, rather than 
abroad. The prospective adoptive parent(s) will have to show that the 
prospective adoptive parent(s), or someone acting on behalf of the 
prospective adoptive parent(s), has (have) obtained ``custody for 
purposes of emigration and adoption.'' This definition is different 
from the provisions in 8 CFR 204.3(d)(iv)(B)(1) and (2), which apply 
only to orphan cases, under which the orphan's prospective adoptive 
parent(s) had to: (i) Show that he or she (they) had custody of the 
child, and that (ii) the individual or entity who had custody 
immediately before he or she (they) acquired it has ``released''the 
child for emigration and adoption. This two-step requirement can prove 
unwieldy and somewhat unnecessary. Once the prior custodian no longer 
has custody, it is not clear why that former custodian should be in a 
position to permit or object to the child's emigration. Under this 
rule, it will be sufficient for the prospective adoptive parent(s) to 
show that whatever court or entity granted custody also expressly 
authorized the custodian to bring the child to the United States for 
adoption. This authorization may be included in the same order that 
granted custody, but may also be included in a separate order.
    Current 8 CFR 204.3(b) specifies who may complete a home study for 
an orphan case. The new definition of ``home study preparer'' for 
Convention adoption cases is significantly different. Only an 
individual who, or agency that, is authorized to do so under 22 CFR 
part 96 may complete a home study for a Convention case. In addition to 
meeting the requirements of 22 CFR part 96, the home study preparer 
must also hold any license or other authorization that may be required 
to conduct adoption home studies under the law of the jurisdiction in 
which the home study is conducted. For example, if the home study is 
conducted in the United States, the preparer must hold whatever license 
or authorization which the law of the State may require home study 
preparers practicing in that State to have. If the home study is 
conducted outside the United States, the preparer must hold any license 
or authorization that may be required under the law of that country to 
conduct home studies there.
    Under section 101(b)(1)(G) of the Act, if consent for the child's 
adoption is given by both of the child's birth parents, the prospective 
adoptive parent(s) must establish that the birth parents are incapable 
of providing proper care for the child. This rule adopts the same 
definition of ``incapable of providing proper care'' that is used in 
orphan cases under 8 CFR 204.3. In an orphan case, the ``incapable of 
providing proper care'' issue arises only if a sole or surviving parent 
releases the child for adoption. By contrast, in Convention cases this 
issue applies only if the child is placed for adoption by both birth 
parents. Under current USCIS policy for orphan cases, an officer is not 
limited to considering economic or financial concerns. Rather, the 
adjudicating officer should consider the entirety of the circumstances 
to determine whether, under the local standards of the country of the 
child's habitual residence, the child's birth parents were incapable of 
providing proper care. The revised definition incorporates this 
principle.
    The rule uses, for Convention cases, a definition of ``irrevocable 
consent.'' Article 4(c)(4) of the Convention provides that a mother's 
consent to a child's adoption can be given only after the child's 
birth. This definition reflects that requirement. Further, the rule is 
actually broader than article 4(c)(4), in that the rule provides that 
in addition, a legal custodian who is not the child's birth parent may 
not give consent before the child's birth. This broader provision is 
simply the logical extension of article 4(c)(4), in that the mother 
would necessarily be required to terminate the legal parent-child 
relationship before any other legal custodian could properly consent to 
an adoption placement. As the child's mother cannot give this consent 
prior to the child's birth, no other individual or entity will have the 
authority to consent to an adoption placement until after the child's 
birth. Note, however, that this provision does not preclude a birth 
father from giving consent to the termination of his legal relationship 
to the child before the child's birth if the birth father is permitted 
to do so under the law of the country of the child's habitual 
residence.
    Section 101(b)(1)(G)(i)(II) of the Act provides that the custodian 
must consent to the child's emigration and adoption. The definition of 
``irrevocable consent'' does not specifically include this element, 
since it could prove impossible for a person to comply with it. For 
example, if a birth parent

[[Page 56839]]

surrendered his or her rights to the custody of a child long before the 
possibility of an intercountry adoption arose, it may not be possible 
to find the birth parent at the time the placement is made in order to 
obtain a more specific consent. But if the birth parent surrendered his 
or her custody rights, and those rights were terminated, the birth 
parent would no longer have a basis to object to the child's adoption. 
Under this rule, the fact that the Central Authority of the other 
Convention country permitted the prospective adoptive parent(s) to 
adopt or obtain custody of the child will be taken as sufficient to 
establish that the necessary consent to the child's emigration has been 
obtained from the relevant custodian. That is, if the Central Authority 
specifies that all the necessary consents have been obtained, it will 
be presumed that the consent was sufficient to establish the statutory 
requirement of consent to emigration and adoption.
    In orphan cases, the term ``sole parent'' is defined by 8 CFR 
204.3(b) strictly to include only the mother of a child born out of 
wedlock who has not been legitimated. Section 101(b)(1)(G) of the Act 
defines the term more broadly. For a Convention adoption, a child is 
deemed the child of a sole parent if the other parent has abandoned or 
deserted the child, or has disappeared from the child's life. This rule 
reflects this broader understanding of ``sole parent.'' A child will be 
deemed to be the child of a sole parent if the child has only one legal 
parent, based on the competent authority's determination that the other 
legal parent has either abandoned or deserted the child, or has 
disappeared from the child's life.
    New 8 CFR 204.301 also incorporates an interpretation relating to 
stepparents that USCIS has adopted for orphan cases. See Adjudicator's 
Field Manual 21.5(d)(4). Under section 101(b)(2), a stepparent 
qualifies as a child's ``parent'' if the marriage creating the 
stepparent relationship occurred before the child's eighteenth 
birthday. For most situations, this provision is of great benefit, 
since it permits intact families to remain together. In the context of 
a Convention adoption petition, however, section 101(b)(2) can have an 
adverse impact. In some countries, a stepparent does not have a legal 
parent-child relationship with a stepchild. Thus, the stepparent may 
not have any right or duty to care for a child, and consequently, may 
not be able to perform any action terminating the non-existent rights 
and duties. Under the policy that USCIS has adopted, and that is 
incorporated into the definition of ``parent,'' a stepparent would not 
be considered a child's parent for purposes of approval or denial of a 
Convention adoption petition, if the prospective adoptive parent(s) 
establish(es) that, under the law of the child's habitual residence, a 
stepparent has no legal parent-child relationship to a stepchild. This 
exception would not apply if the stepparent actually adopted the 
stepchild as specified in section 101(b)(1)(E) of the Act, or if under 
the law of the child's habitual residence, the marriage between the 
parent and stepparent is itself enough to create a legal parent-child 
relationship between the stepparent and stepchild. If marrying the 
child's mother or father makes the stepparent, under the law of the 
Convention country, the child's legal parent, or if the stepparent 
adopted the child, it may be necessary to obtain the stepparent's 
consent. Consistent with the provisions concerning a sole or surviving 
parent, this consent would not be needed if the stepparent abandoned or 
deserted the child, or if the stepparent has disappeared from the 
child's life. Further, if it is established that the stepparent did not 
know of the child's existence, this fact may warrant a finding that the 
stepparent has disappeared from the child's life. Note that this 
definition does not restrict the ability to file an alien relative visa 
petition (Form I-130) based on a stepparent/stepchild relationship if 
the requirements of section 101(b)(1)(B) of the Act are met.
    This rule also establishes a definition of ``suitability as 
adoptive parents.'' Section 101(b)(1)(G)(i)(I) of the Act requires that 
USCIS be ``satisfied that proper care will be furnished the child,'' 
before USCIS may approve a child's immigration as a Convention adoptee. 
The Convention, in turn, requires a finding of their ``suitability'' as 
adoptive parents. As the concept of ``suitability as an adoptive 
parent'' has essentially the same meaning as the concept that USCIS be 
``satisfied that proper care will be furnished the child,'' this rule 
provides that the Convention requirement of ``suitability' is met if 
the evidence establishes the statutory requirement of ``proper care.''
New 8 CFR 204.302--Use of Adoption Service Providers
    Most U.S. citizens seeking to complete an intercountry adoption use 
the services of an adoption agency. This assistance benefits both the 
prospective adoptive parents and USCIS since it is more likely that the 
home study will be properly prepared and that other necessary 
requirements will be properly met. New 8 CFR 204.302(a) makes clear 
that prospective adoptive parents may use such service providers. In 
Convention cases, however, certain adoption services may only be 
provided by individuals who, or agencies that, are authorized under 22 
CFR part 96 to provide these services. An individual who, or agency 
that, is not authorized to do so under 22 CFR part 96 may not provide 
any of these six services, as listed in section 3(3) of the IAA:
     Identifying a child for adoption and arranging an 
adoption;
     Securing necessary consent to termination of parental 
rights and to adoption;
     Performing a background study on a child or a home study 
on a prospective adoptive parent, and reporting on such a study;
     Making non-judicial determinations of the best interests 
of a child and the appropriateness of adoptive placement for the child;
     Post-placement monitoring of a case until final adoption; 
and
     Where made necessary by disruption before final adoption, 
assuming custody and providing child care or any other social service 
pending an alternative placement.
    In some cases, USCIS has observed that it has appeared that an 
adoption service provider has prepared the Form I-600A or Form I-600 or 
other legal documents, and submitted them to USCIS. New 8 CFR 
204.302(b) makes clear that an adoption service provider must be 
authorized under 8 CFR Part 292 to practice before USCIS if the 
adoption service provider will be ``representing'' the prospective 
adoptive parent(s) before USCIS. In order to engage in the regular 
practice of giving legal advice concerning what USCIS forms to complete 
and how to complete them, an individual must be an attorney (or 
supervised law student or graduate) or the accredited representative of 
a not-for-profit agency that has been authorized by the Board of 
Immigration Appeals to practice before USCIS. See 8 CFR 1.1(i), (j) and 
(k) and 8 CFR 292.1. An individual must also be an attorney (or 
supervised law student or graduate) or accredited representative in 
order to file a properly completed notice of appearance (Form G-28) 
(which must be filed by anyone claiming to represent a petitioner or 
applicant before USCIS), and to submit USCIS Forms to USCIS as the 
representative of the prospective adoptive parent(s). Someone who is 
not an attorney (or supervised law student or graduate) or accredited 
representative may only assist ``in the completion of blank spaces on 
printed [USCIS] forms.'' 8 CFR 1.1(k). Pursuant to section 201 of the 
IAA, new 8 CFR 204.302(b) also

[[Page 56840]]

makes clear that an attorney's or accredited representative's legal 
services may not include the provision of any of the six specific 
adoption services specified in section 3(3) of the IAA, unless the 
attorney or accredited representative, in addition to being authorized 
to practice law before USCIS, is also authorized to provide these 
services in Convention cases.
    Furthermore, at least one of the prospective adoptive parent(s) 
must always be a U.S. citizen, who is therefore entitled to protection 
under the Privacy Act, 5 U.S.C. 552a. New 8 CFR 204.302(c) clarifies 
that, under the Privacy Act, USCIS will not disclose information about 
a Convention adoption case to an adoption service provider without the 
written consent of the prospective U.S. citizen adoptive parent(s). If 
the prospective adoptive parent(s) want(s) to give this consent, the 
prospective adoptive parent(s) may sign Form I-800A Supplement 2 and 
submit the Supplement 2 to DHS. Signing the Supplement 2, however, does 
not mean the service provider can act as the prospective adoptive 
parent(s)'s legal representative before DHS; it means only that DHS may 
provide information to the service provider that would otherwise be 
protected from disclosure by the Privacy Act. As with other records 
protected by the Privacy Act, the consent of the citizen adoptive 
parent(s) is not required in order for DHS to disclose information in a 
manner that qualifies as a routine use.\3\
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    \3\ Routine uses for information collected under this rule can 
be found in the current DHS Privacy Act System of Records Notice 
that applies generally to the DHS Central Index System (72 FR 1755, 
January 16, 2007) and in the DHS System of Records Notice for the 
DHS/USCIS-005 Intercountry Adoptions system (72 FR 31086, June 5, 
2007).
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New 8 CFR 204.303--Habitual Residence
    The Convention and section 101(b)(1)(G) of the Act apply to the 
adoption of a child ``habitually resident'' in a Convention country by 
a U.S. citizen ``habitually resident'' in the United States. Neither 
the Convention nor section 101(b)(1)(G) of the Act defines this 
critical term. This interim rule gives this term an expansive scope. 
Any U.S. citizen who is actually domiciled in the United States is 
habitually resident here. Equating ``habitual residence'' with 
``domicile,'' however, would unduly narrow the availability of the 
benefits of the Convention. In many cases a U.S. citizen will be 
residing abroad temporarily, and yet be seeking to bring an adopted 
child to the United States when the United States citizen returns here. 
To permit broad availability of the Convention procedures, new 8 CFR 
204.303(a)(2) provides that, in addition to U.S. citizens who are 
actually domiciled in the United States, a U.S. citizen who has been 
living abroad will also be deemed to be ``habitually resident'' in the 
United States if the U.S. citizen will be returning to establish a 
domicile in the United States on or before the date of the child's 
admission with an immigrant visa. The U.S. citizen who is living abroad 
will also be considered to be habitually resident in the United States, 
for purposes of a Convention adoption, if the United States citizen 
will be bringing the child to the United States after the child's 
adoption and before the child's eighteenth birthday, so that the child 
may be naturalized under section 322 of the Act.
    For the child whose adoption is sought, the child will, ordinarily, 
be deemed under new 8 CFR 204.303(b) to be habitually resident in the 
country of the child's citizenship. If the child lives in a country 
other than the country of citizenship, the child will be considered 
habitually resident there only if the child's status in that other 
country is sufficiently stable for that country properly to exercise 
jurisdiction over the child's adoption or custody. In the case of a 
child living outside the country of citizenship, USCIS will defer to 
the determination of that other country's Central Authority concerning 
whether the child's status in that country is sufficiently stable to 
permit that country to exercise jurisdiction over the child's adoption. 
Additionally, proposed 8 CFR 204.303(b) retains the provision in the 
definition of ``foreign sending country,'' in current 8 CFR 204.3(b), 
that precludes a child from being considered habitually resident in a 
country where the child is present only on a temporary basis, 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.'' If the 
child's presence in a country other than the country of citizenship is 
only temporary, so that that country will not exercise jurisdiction, 
the child will be deemed to be habitually resident in the country of 
citizenship.
New 8 CFR 204.304--Improper Inducement Prohibited
    Current 8 CFR 204.3(i) requires denial of a Form I-600 or Form I-
600A if the prospective adoptive parent(s), or someone acting for the 
prospective adoptive parent(s), ``have given or will give 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.'' Article 4, paragraphs 
(c)(3) and (d)(4) of the Convention also precludes inducing any consent 
to adoption ``by payment or compensation of any kind.'' But note, this 
rule does not preclude paying legitimate expenses in connection with an 
adoption.
    New 8 CFR 204.304(a) provides a clear statement of what 8 CFR 
204.3(i) and article 4 are intended to prevent. The decision of a 
parent or other custodian to release a child for adoption must be a 
free act for the adoption to be valid. Any payment or other 
consideration, no matter how small, will lead to denial of the Form I-
800 if the evidence of record establishes that the payment or other 
consideration was given specifically to induce the child's release.
    New 8 CFR 204.304(b), in turn, identifies the type of payments that 
may generally be considered appropriate. This paragraph is modeled on 
the 1994 edition of the Uniform Adoption Act, as recommended by the 
National Conference of Commissioners on Uniform State Laws. The text of 
the Uniform Adoption Act is available on line at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/uaa94.htm. Certain 
payments to a prior parent may be proper, such as expenses related to 
the birth of the child, or to care of the child, or to care of a birth 
mother while pregnant and immediately after the child's birth. Any 
payment for any service related to an adoption will be reasonable only 
if it is permitted under the law where the payment is made, and if the 
amount is commensurate with the costs or living standards of the 
country in which the related service was provided. The new Form I-800 
will require the petitioner to disclose the fees and other expenses 
paid in relation to the adoption.\4\
---------------------------------------------------------------------------

    \4\ Note that new 8 CFR 204.304 does not exhaust the regulatory 
provisions relating to adoption fees. Article 32 of the Convention 
provides generally that only ``reasonable'' fees may be paid in 
connection with a Convention adoption. Article 32 also bars improper 
financial or other gain from Convention adoptions. The accreditation 
regulation adopted by the Department of State, at 22 CFR part 96, 
gives the broader regulatory framework for adoption service 
providers. New 8 CFR 204.304 only addresses the actual payment of an 
inducement to obtain consent to the child's adoption.
---------------------------------------------------------------------------

New 8 CFR 204.305--State Pre-Adoption Requirements
    Rather than completing a Convention adoption abroad, a U.S. citizen 
may also bring a Convention adoptee to the

[[Page 56841]]

United States for purposes of completing the adoption in the United 
States. If the child will be adopted in the United States, section 
101(b)(1)(G) of the Act requires that the prospective adoptive parents 
satisfy any pre-adoption requirements that apply to adoptions in the 
State where the child will be adopted. This requirement should ensure 
that the prospective adoptive parents will not be precluded from 
adopting the child, once the child is here. New 8 CFR 204.305 restates 
the pre-adoption requirements from current 8 CFR 204.3(f).
New 8 CFR 204.306--General Overview of Convention Adoption Cases
    New 8 CFR 204.306 provides a general overview. As stated in section 
204.306, a child may immigrate to the United States based on a proposed 
Convention adoption only if the adoptive parents establish that they 
are ``suitable and eligible to adopt'' and that the child qualifies as 
a Convention adoptee. The requirement of ``suitability and eligibility 
to adopt'' reflects the statutory requirement that DHS must be 
satisfied that the prospective adoptive parent(s) is (are) eligible to 
file a Form I-800 (a married couple adopting jointly or a single person 
who is at least 25 when the petition is filed) and that the child will 
receive proper care. A finding that these statutory requirements are 
met will also satisfy the requirements of article 5(a) of the 
Convention. New 8 CFR 204.306(b) reflects articles 5(a), 17(d) and 
19(1) of the Convention, under which a Convention adoption may go 
forward only after the competent authorities of the State to which the 
child will move have determined that the prospective adoptive parent(s) 
is (are) ``eligible and suitable to adopt.'' Thus, unlike the current 
orphan procedure under 8 CFR 204.3(g)(4)--which allows for the 
``concurrent'' filing of the Form I-600A by filing a Form I-600 
supported by a home study and other evidence that would be filed with a 
Form I-600A--the prospective adoptive parent(s) in a Convention 
adoption case must file a Form I-800A, and may file the Form I-800 only 
if the Form I-800A is approved.
New 8 CFR 204.307--Who May File Form I-800A or I-800
    Under section 101(b)(1)(G) of the Act, a Convention adoptee may be 
brought to the United States if the child has been adopted by a U.S. 
citizen and his or her spouse, jointly, or by an unmarried U.S. citizen 
who is at least 25 years old. This provision corresponds to the 
requirements under section 101(b)(1)(F) of the Act for orphan 
petitions. As required by statute, new 8 CFR 204.307(b) permits an 
unmarried applicant to file the Form I-800 only after he or she is 25 
years old. Section 101(b)(1)(G) of the Act, like section 101(b)(1)(F), 
does not set a minimum age for the filing of a Form I-800A. Currently, 
USCIS regulations at 8 CFR 204.3(b) permit the unmarried U.S. citizen 
to file a Form I-600A, but only if the person is at least 24 years old. 
This interim rule, 8 CFR 204.307(a), applies this provision to 
Convention cases. As with orphan cases filed under section 101(b)(1)(F) 
of the Act, permitting the unmarried citizen who wants to complete a 
Convention adoption to file the Form I-800A on or after his or her 24th 
birthday is simply an accommodation. Because section 101(b)(1)(G) of 
the Act specifically requires that an unmarried citizen must be at 
least 25 years old in order to file an immigrant visa petition, an 
unmarried citizen cannot file the Form I-800 before his or her 25th 
birthday, even if USCIS approves the Form I-800A before that date.
    New 8 CFR 204.307(c) is a provision that strengthens the provisions 
of 8 CFR 204.309(a) and (b)(3), discussed below, relating to the 
mandatory denial of a Form I-800A or Form I-800 based on specific types 
of misconduct. Under new 8 CFR 204.307(c), if USCIS denies a Form I-
800A or a Form I-800 based on one of these grounds, the prospective 
adoptive parent(s) must wait at least one year before the prospective 
adoptive parent(s) may file a new Form I-800A or Form I-800. This one-
year period, similar to current 8 CFR 204.3(h)(4), begins when the 
prior denial becomes final. If the prospective adoptive parent(s) 
appealed the prior denial, the one-year period will end one year after 
the Administrative Appeals Office affirms the denial, and the filing of 
a new Form I-800A or I-800 will also be barred while the appeal is 
pending. If there is no appeal, the one-year period begins on the date 
of the original denial. Even once this one-year period expires, USCIS 
may consider the prior misconduct in determining whether to approve a 
subsequent Form I-800A or Form I-800. The prospective adoptive 
parent(s) will be required to establish that the subsequent Form I-800A 
or Form I-800 should be approved, despite the prior misconduct. The 
prospective adoptive parent(s) may not use the later Form I-800A or 
Form I-800 as a vehicle to re-litigate whether the prior misconduct 
actually occurred.
    New 8 CFR 204.307(c) is rooted in the requirement under section 
101(b)(1)(G)(i)(I) of the Act that the Secretary must be satisfied 
that, if allowed to immigrate, a Convention adoptee will receive proper 
parental care. If the prospective adoptive parent(s) has (have) already 
engaged in improper conduct that was sufficiently great to warrant the 
denial of an earlier Form I-800A or Form I-800, USCIS must take note of 
this fact in any subsequent case.
New 8 CFR 204.308--Where to File Forms I-800A and I-800
    Current 8 CFR 204.3(g) provides a detailed, and somewhat complex, 
framework for determining where to file a Form I-600A or a Form I-600 
in orphan cases. New 8 CFR 204.308 is the corresponding jurisdictional 
provision for this rule. In more recent years, however, USCIS has not 
specified which office had jurisdiction to adjudicate a petition or 
application in the regulations governing adjudication of the petition 
or application. Rather, USCIS has used the form instructions to specify 
the correct jurisdiction. See, e.g., 8 CFR 103.2(b)(6). This practice 
makes it possible for USCIS to adopt ``Direct Mail'' filing procedures 
and other improvements by changing the form instructions, rather than 
having to adopt a formal amendment to a regulation. New 8 CFR 204.308 
follows this practice.
    USCIS is studying the feasibility of allowing for electronic filing 
of orphan cases. To prepare for this possible change, proposed 8 CFR 
204.308(d) provides that, if electronic, internet-based, or other 
digital filing becomes available, the submission of the information and 
evidence required for Form I-800A and Form I-800 cases through the 
digital filing protocol will be the equivalent to paper filing.
    USCIS anticipates that, at least initially, the jurisdictional 
provisions relating to the filing of Forms I-800A and I-800 will 
closely follow current practice for orphan cases under section 
101(b)(1)(F) of the Act. A flowchart showing the anticipated processing 
path of a Convention adoption case is included in the docket for this 
rule at http://www.regulations.gov, DHS Docket No. USCIS-2007-0008.
    As with orphan cases under section 101(b)(1)(F) of the Act, both 
USCIS officers and Department of State officers will have jurisdiction 
to adjudicate a Form I-800. If the prospective adoptive parent(s) live 
in the United States or Canada and file the Form I-800 before traveling 
abroad to complete the child's adoption, the prospective adoptive 
parent(s) will file the Form I-800 with the USCIS office that has 
jurisdiction over the actual or, for those in Canada, intended place of 
residence in the

[[Page 56842]]

United States. If the prospective adoptive parent(s) live(s) in the 
United States, but travel abroad before filing the Form I-800, the Form 
I-800 may be filed with a USCIS office in the child's country of 
habitual residence, if the prospective adoptive parent(s) is (are) 
physically in that country at the time of filing. If the prospective 
adoptive parent(s) live(s) abroad, and USCIS has an office in the 
country in which they reside, the prospective adoptive parent(s) may 
file the Form I-800 with that office, although the prospective adoptive 
parent(s) may also file it with the USCIS office in the United States 
that has jurisdiction over the intended place of residence in the 
United States.
    Filing the Form I-800 with a Department of State officer would be 
appropriate if: (i) The prospective adoptive parent(s) is (are) 
actually physically present in the consular district at the time of 
filing, and (ii) there is no USCIS office in that country.
    There is one significant change from the practice that has been 
followed in orphan cases with respect to the way a Form I-800 will be 
adjudicated. Under article 5 of the Convention, a Convention adoption 
should not occur until the receiving State has determined that the 
child will be authorized to immigrate. USCIS, in consultation with the 
Department of State, has determined that a two-step approval process is 
needed in order to ensure compliance with the Convention. Thus, a Form 
I-800 will have to be provisionally approved before the prospective 
adoptive parent(s) actually adopt(s) or obtain(s) custody of the child. 
If the Form I-800 is filed with USCIS, the USCIS officer will decide 
whether to grant provisional approval. The Department of State officer 
will make this decision if the Form I-800 is filed with the Department 
of State officer and the Department of State officer finds that the 
Form I-800 is clearly approvable. Under this rule, the decision to 
grant final approval of a Form I-800 will generally be made by the 
Department of State officer who adjudicates the related visa 
application, rather than a USCIS officer. Regardless of where the Form 
I-800 is filed, it will, upon provisional approval, be forwarded to the 
appropriate Department of State officer for final approval. As with 
orphan cases, however, a Department of State officer will not have 
authority to deny a Form I-800. If the Department of State officer 
finds that he or she cannot clearly grant provisional or final 
approval, the Department of State officer will forward the case to the 
appropriate USCIS office for decision.
New 8 CFR 204.309--Factors Requiring Denial of a Form I-800A or I-800
    As noted, current 8 CFR 204.3(e)(2)(iii)(D) permits USCIS to deny a 
Form I-600A or Form I-600 if the prospective adoptive parents conceal 
material facts or fail to cooperate in the completion of the home 
study. This principle is carried forward in new 8 CFR 204.309(a). Under 
the current rule, the question of whether to deny a Form I-600A or Form 
I-600 based on one of these improprieties is discretionary. New 8 CFR 
204.309(a), by contrast, makes denial mandatory. Under section 
101(b)(1)(G)(i)(I) of the Act, DHS may approve prospective adoptive 
parent(s) for intercountry adoption only if DHS is satisfied that any 
child that may be adopted will receive proper care. DHS is not willing 
to make this finding in any case in which the prospective adoptive 
parent(s) has (have) failed to disclose all facts concerning issues 
that may have a bearing on whether USCIS should find that the 
prospective adoptive parent(s) is (are) suitable for intercountry 
adoption.
    New 8 CFR 204.309(b) lists certain factors that will require denial 
of a Form I-800. New 8 CFR 204.309(b)(1) requires denial of a Form I-
800 if the adoptive parents adopted the child, or obtained custody of 
the child, before the provisional approval of the Form I-800. This 
provision reflects the requirement of article 5(c) and 17(d) of the 
Convention that the child's eligibility to immigrate is to be 
determined before the adoption occurs. USCIS acknowledges that the rule 
can work a hardship in cases in which the prospective adoptive 
parent(s), in good faith, adopted the child before beginning the 
Convention process. For this reason, new 8 CFR 204.309(b)(1) provides 
that, if the competent authority in the country of the child's habitual 
residence voids the adoption or custody order, then the fact that the 
prospective adoptive parent(s) had already adopted, or obtained custody 
of, the child before the Form I-800 was provisionally approved will no 
longer preclude provisional approval of the Form I-800. The prospective 
adoptive parent(s) would then adopt the child again, after complying 
with the Convention procedures, and after provisional approval of the 
Form I-800. The prospective adoptive parent(s) must have the prior 
adoption or custody order voided before the prospective adoptive parent 
may file the Form I-800.
    Article 29 of the Convention restricts the ability of the 
prospective adoptive parents to have contact with the prospective 
adoptee's parents or other custodians. New 8 CFR 204.309(b)(2) provides 
that a Form I-800 must be denied if any such contact occurred before 
the contact was legally permitted. Generally, contact is permitted only 
after USCIS has approved a Form I-800A and after the Convention country 
has determined that the child is eligible for intercountry adoption and 
that the necessary consents to adoption have been given. Earlier 
contact is permitted only as allowed under the conditions established 
by the competent authority of the Convention country, or in the case of 
an intra-family adoption. In the case of a child who was adopted 
without compliance with the Convention requirements, if the other 
Convention country voids the adoption and allows the child to be 
adopted again after complying with the Convention, any contact that had 
occurred will be considered to have been approved.
    New 8 CFR 204.309(b)(3) and (b)(4) are drawn from current 8 CFR 
204.3(i) and (k)(2), respectively. As noted, 8 CFR 204.3(i) requires 
the denial of a case if there is a finding of ``child buying.'' New 8 
CFR 204.309(b)(3) applies the same principle to Convention adoption 
cases.
    Under 8 CFR 204.3(k)(2), a child who is already in the United 
States is generally not eligible for classification as an orphan. The 
only exception is for a child who has been paroled into the United 
States; even then, the child is eligible only if the child has not 
already been adopted in the United States. New 8 CFR 204.309(b)(4) 
would change this principle.
    DHS has concluded that limiting the benefits of intercountry 
adoption to parolees, and barring this benefit to aliens admitted as 
nonimmigrants, can work a significant hardship. For example, some 
children are brought to the United States as nonimmigrants for 
emergency medical treatment. If the child later becomes eligible for 
intercountry adoption, current 8 CFR 204.3(k)(2) requires the child to 
leave the United States first in order to be eligible to qualify for an 
orphan petition. In at least some cases, however, the medical condition 
that warranted bringing the child here makes it difficult or ill-
advised for the child to go abroad for adoption. The underlying purpose 
for current 8 CFR 204.3(k)(2) is to respect the jurisdiction of the 
country of the child's habitual residence over the child's placement 
and welfare. This interest, however, can be protected without having a 
rule as restrictive as current 8 CFR 204.3(k)(2).
    As noted in the discussion of the proposed amendment to 8 CFR 
204.2(d)(2)(vii), a child who has already

[[Page 56843]]

been brought to the United States will generally still be considered to 
be habitually resident in the Convention country. A child who is 
already present in the United States--as a parolee, nonimmigrant, or 
even in an unlawful status--will be able to be the beneficiary of a 
Convention adoption. It will, however, be necessary for the prospective 
adoptive parent(s) to comply with the Convention requirements and those 
of section 101(b)(1)(G) of the Act. This means that it will be 
necessary either to adopt the child in the Convention country, or to 
obtain custody of the child in the Convention country for purposes of 
adoption in the United States. To avoid unnecessary hardship to the 
child, however, the rule does not require the child to return abroad. 
Rather, it may be possible for USCIS to approve a Form I-800, if the 
Central Authority of the other Convention country will permit the 
prospective adoptive parents to complete the Convention process while 
the child remains in the United States.
    Note that approval of a Form I-800 does not waive any substantive 
eligibility requirements that must be met for adjustment of status. As 
an immediate relative, the beneficiary of an approved Form I-800 would 
not be subject to ineligibility for adjustment under section 245(c)(2) 
of the Act, 8 U.S.C. 1255(c)(2), based on a failure to maintain lawful 
immigration status, nor under section 245(c)(4), based on having been 
admitted under the Visa Waiver Program. A child who is present without 
having been inspected and admitted, however, is ineligible for 
adjustment under section 245(a) of the Act, 8 U.S.C. 1255(a). Section 
245(i) of the Act, 8 U.S.C. 1255(i), will not waive this requirement 
for Convention adoptees, since no Form I-800 will have been filed 
before April 30, 2001, as required by section 245(i). If the child 
would not be eligible for adjustment of status, the Form I-800 may be 
provisionally approved only if the child will, upon provisional 
approval, go abroad to obtain a visa.
    New 8 CFR 204.309(b)(5) requires denial of a Form I-800 if it is 
filed before a Form I-800A has been approved, after an approval has 
expired, or after a Form I-800A has been denied. This provision is 
necessary to give effect to the principle that the prospective adoptive 
parent(s) must be found suitable for adoption before they may pursue 
the adoption of a specific child.
    New 8 CFR 204.307(c) bars the filing of a new Form I-800A or Form 
I-800 within one year after a prior Form I-800A, I-800, I-600A, or I-
600 was denied based on one of the specific types of misconduct stated 
in the rule. New 8 CFR 204.309(a)(4) and (b)(6) require the denial of 
any Form I-800A or I-800 filed during this one-year period. If a Form 
I-800A, or Form I-800 under 8 CFR 204.307(c), is denied, no 
administrative appeal will be available.
    New 8 CFR 204.309(c) establishes that, before denying a case under 
the new 8 CFR 304.309(a) or (b), USCIS will issue a notice of intent to 
deny the Form I-800A or Form I-800, so that the prospective adoptive 
parent(s) will have an opportunity to counter the claim that 8 CFR 
204.309(a) requires denial of the Form I-800A. The response period for 
a notice of intent to deny in a Convention case will be 30 days.
New 8 CFR 204.310--Form I-800A Filing Requirements
    The general filing requirements for a Form I-800A are set forth in 
new 8 CFR 204.310. In general, this new provision corresponds to 
current 8 CFR 204.3(c). If a married couple files the Form I-800A, both 
spouses must sign the Form I-800A personally. This means that one 
spouse cannot sign for the other, even under a power of attorney or 
similar agency arrangement. If the prospective adoptive parent is not 
married, he or she must present his or her birth certificate, or other 
evidence to establish that he or she is at least 24 years old. This 
provision mirrors the provision that has been followed in orphan cases: 
Although, by statute, the unmarried prospective adoptive parent may not 
file the visa petition until he or she is at least 25, the unmarried 
prospective adoptive parent may begin the process by filing the 
application for approval as an adoptive parent at age 24. Cf. 8 CFR 
204.3(b) (definition of ``prospective adoptive parent''). As 
contemplated by article 5(a) of the Convention, the prospective 
adoptive parent(s) seeking to adopt a Convention adoptee must file the 
Form I-800A before the prospective adoptive parent(s) has (have) 
adopted or obtained custody of the child.
    The most significant change from 8 CFR 204.3(c) concerns the 
submission of the home study. Under current 8 CFR 204.3(c)(2), the 
prospective adoptive parent(s) in an orphan case may submit the home 
study up to one year after the filing of the Form I-600A. This 
provision serves little purpose. As the home study is the single most 
important item of evidence in determining the suitability of the 
prospective adoptive parent(s) for adoption, under new 8 CFR 
204.310(a)(3)(vi) the home study must be submitted with the Form I-
800A. If the home study is missing, USCIS will send a request for 
evidence, directing that the home study be submitted. If the home study 
is not submitted within the period specified in the request for 
evidence, the Form I-800A will be denied, without prejudice to the 
filing of a new Form I-800A, with a new filing fee.
    Under new 8 CFR 204.310(b), USCIS will arrange for the 
fingerprinting of the prospective adoptive parent(s) and any additional 
adult household members once the Form I-800A is filed. This provision 
mirrors current practice. The rule also makes clear that, unlike some 
types of cases, there is no upper age limit after which a person need 
not be fingerprinted. For example, an applicant for adjustment of 
status who is over 79 years old generally is not required to submit 
fingerprints. Applying this exception to intercountry adoption cases is 
not consistent with the protection of a child's best interests, since 
an older person could have a history of crime, sexual abuse, or child 
abuse that would be relevant to whether a child should be placed in the 
home.
New 8 CFR 204.311--Convention Adoption Home Study Requirements
    Drawn from current 8 CFR 204.3(e), new 8 CFR 204.311 establishes 
the requirements that a home study must meet, in order to be admissible 
as evidence in a Form I-800A case. The rule includes some important 
changes. The most important Convention-related change concerns who may 
conduct a home study. Sections 201 and 404 of the IAA make it unlawful 
for any individual or entity to provide any of the six adoption 
services identified in section 3(3) of the IAA in connection with a 
Convention adoption, unless specifically authorized to do so. The 
Department of State, as the U.S. Central Authority, published in the 
Federal Register on February 15, 2006, at 71 FR 8064, a comprehensive 
regulation governing the accreditation or approval of individuals and 
agencies as authorized adoption service providers in Convention 
adoption cases. As noted earlier, new 8 CFR 204.301 incorporates these 
requirements by reference into the definition of ``home study 
preparer'' that applies to Convention adoption cases.
    New 8 CFR 204.311(a) restates the first sentence of current 8 CFR 
204.3(e).
    New 8 CFR 204.311(b) incorporates the requirement that only someone 
authorized to do so under 22 CFR part 96 may complete a home study for 
a Convention adoption.
    New 8 CFR 204.311(c) gives a general overview, drawn from 8 CFR 
204.3(e), of the general requirements that all home studies must meet.

[[Page 56844]]

    New 8 CFR 204.311(d) restates provisions, from 8 CFR 204.3(e)(2)(i) 
and (iii)(D), concerning the applicant's duty to disclose all 
information relevant to the proper completion of the home study. In 
particular, new 8 CFR 204.311(d) states the general requirement that 
the applicant, and any additional adult household member, must answer, 
truthfully and completely, all questions relating to the proper 
completion of the home study. USCIS regularly encounters cases in which 
a person failed to disclose an arrest or conviction. When USCIS raises 
the issue, the person may respond that he or she did not think that it 
had to be disclosed because it had been dismissed, expunged, or 
subjected to some other amelioration. Section 101(a)(48) of the Act, 8 
U.S.C. 1101(a)(48), however, makes it clear that the disposition of a 
case may constitute a conviction, for purposes of the Act, even if it 
is no longer a conviction for State law purposes. More fundamentally, 
any arrest, regardless of the disposition, has the potential to be 
relevant in determining a person's suitability as an adoptive parent. 
New 8 CFR 204.311(d) makes clear, therefore, that the applicant, and 
any additional adult household members, must disclose each and every 
arrest or conviction, even if it has been erased, dismissed, expunged, 
or ameliorated in any other way. New 8 CFR 204.311(f) requires the home 
study preparer to certify that he or she advised the prospective 
adoptive parent(s) of this duty to disclose.
    New 8 CFR 204.311(e) restates the requirement in 8 CFR 204.3(e) 
that a home study must meet applicable State standards. This provision 
also corresponds to 22 CFR 96.47(b).
    New 8 CFR 204.311(f) requires the home study preparer to sign the 
home study under penalty of perjury. In doing so, the home study 
preparer declares that he or she either conducted or supervised the 
completion of the home study and that the factual statements in the 
home study are true to the best of the signer's knowledge, information 
and belief. Currently, 8 CFR 204.3 does not expressly require the home 
study to be signed under penalty of perjury. Adding this requirement 
reflects the fact that the home study is evidence in a legal 
proceeding.
    Current 8 CFR 204.3(e) requires the home study preparer to 
interview the prospective adoptive parent(s) in person and to visit the 
home. New 8 CFR 204.311(g) includes this requirement, but adds the 
requirement that the home study must state specifically when and where 
these interviews and visits took place. The home study preparer must 
also interview any additional adult members of the household. Unlike 
the interview(s) with the prospective adoptive parent(s), it is not 
strictly necessary to conduct face-to-face interviews of these other 
persons. The interview of an additional adult household member should 
be in person, if possible. If, for example, the additional adult 
household member is temporarily away at school, however, it may not be 
feasible to do the interview in person. Thus, new 8 CFR 204.311(g) 
allows the home study preparer to state that the interview with the 
additional adult household member was not done in person, and give a 
reason why the home study preparer decided it was appropriate to 
interview the person in this way. New 8 CFR 204.311(g)(3) and (4) 
restate the requirements of 8 CFR 204.3(e)(2)(i).
    New 8 CFR 204.311(h) restates current 8 CFR 204.3(e)(2)(ii).
    New 8 CFR 204.311(i) and (j) are drawn from current 8 CFR 
204.3(e)(2)(iii), relating to the screening of prospective adoptive 
parents against child abuse registries. The rule includes a significant 
change. The home study preparer will be required under new 8 CFR 
204.311(i)(1) to check the child abuse registries for any State or 
country in which the prospective adoptive parent(s) or additional adult 
household members has (have) lived since the age of 18. Current 8 CFR 
204.3(e)(2)(iii)(A)(1) requires checking ``available'' registries, but 
does not specify the period that the checks must cover. Current 8 CFR 
204.3(e)(2)(iii)(2) requires the home study preparer to ask whether a 
prospective adoptive parent or household member has any history of 
substance abuse, sexual abuse, child abuse, or domestic violence. The 
person must disclose any such history as an offender, even if there has 
never been an arrest or conviction. A single incidence of sexual abuse, 
child abuse, or family violence, under 8 CFR 204.311(c)(14), is enough 
to constitute a ``history.'' A history of substance abuse, by contrast, 
might not involve a single act of substance abuse. For substance abuse, 
the concern under 8 CFR 204.311(c)(15) is whether the person's abuse 
has resulted in an impairment that may adversely affect suitability as 
adoptive parent(s).
    New 8 CFR 204.311(k) requires the applicant, and any adult member 
of the household, to disclose any criminal history (other than minor 
traffic offenses), in addition to any history involving sexual abuse, 
child abuse, or family violence. This provision is drawn from 8 CFR 
204.3(e)(2)(v).
    New 8 CFR 204.311(l), drawn from 8 CFR 204.3(e)(2)(iii)(C), 
describes the type of evidence to be submitted to establish that a 
person with a history of sexual abuse, child abuse, family violence, or 
any other criminal activity, may show sufficient rehabilitation to 
warrant approval of a Form I-800A. The new provision makes clear that a 
home study preparer may not make a favorable recommendation if the 
applicant, or an additional adult member of the household, is on 
probation due to a criminal conviction. Approval will be possible only 
once the person has completed, and been discharged from, the probation.
    New 8 CFR 204.311(m) requires the home study preparer to address 
issues of physical, mental or emotional health, or behavioral issues of 
the prospective adoptive parent(s) and any additional adult members of 
the household, as these issues may affect the suitability of the 
prospective adoptive parent(s) for intercountry adoption. This 
provision is drawn from current 8 CFR 204.3(e)(2)(i).
    New 8 CFR 204.311(n), like current 8 CFR 204.3(e)(2)(iv), requires 
the disclosure, and provision of a copy, of any prior home study that 
did not favorably recommend the prospective adoptive parent(s), or an 
additional adult member of the household, for adoption or other 
custodial care of a child. If a copy of the prior home study is no 
longer available, the applicant must explain why it is not available. 
To ensure that USCIS has a complete history, the rule also requires the 
disclosure of any prior home study process that was initiated, but 
terminated without a formal home study having been completed.
    New 8 CFR 204.311(o) and (p) are drawn from current 8 CFR 
204.3(e)(3) and 204.3(e)(4).
    New 8 CFR 204.311(q) is drawn from section 203(b)(1)(A)(ii) of Pub. 
L. 106-279, 114 Stat. 833. Any home study for a proposed Convention 
adoption must specifically address whether the prospective adoptive 
parent(s) will actually be eligible to adopt or obtain custody of a 
child from the Convention country. To ensure that the United States and 
adoption service providers will be aware of these requirements, section 
102(b)(2) and (3) of Pub. L. 106-279 requires the Department of State 
to obtain from other Convention countries, and make available to 
adoption service providers, any special requirements relating to 
eligibility to adopt in those countries. Once the Department of State 
has obtained this information and made it available, new 8 CFR 
204.311(q) will require that the home study address those requirements. 
For example, if a

[[Page 56845]]

particular Convention country sets a maximum (or minimum) age for 
prospective adoptive parent(s), the home study will have to 
specifically state that requirement and assess whether the prospective 
adoptive parent(s) meet(s) the requirements. Note that USCIS will not 
deny a Form I-800A based solely on the other Convention country's 
requirements. It is for that other Convention country to determine how 
to apply its own law to a particular case. Including this information 
in the home study is meant to ensure that the prospective adoptive 
parent(s) is (are) aware of the requirements, that the home study 
preparer can assess the relevance of these requirements, and that the 
prospective adoptive parent(s) may make an informed decision about 
whether to attempt to adopt in a particular country.
    New 8 CFR 204.311(r) is drawn from current 8 CFR 204.3(e)(6). The 
home study preparer must specifically recommend for or against approval 
of the prospective adoptive parent(s) as suitable as the adoptive 
parent(s) of a Convention adoptee. As noted, new 8 CFR 204.311(e) 
requires the home study preparer to prepare the home study according to 
the requirements that apply to home studies in the State of residence 
of the prospective adoptive parent(s). The home study must also specify 
the scope of the recommendation, and note whether the home study 
preparer recommends any restrictions concerning the age, gender, or 
other characteristics of the intended adopted child.
    New 8 CFR 204.311(s) and (t) address the review of the home study. 
First, under 8 CFR 204.311(s), the home study preparer must specify the 
basis of the authority to complete the home study. As noted, only 
someone authorized under 22 CFR part 96 to complete a Convention home 
study may do so. If the home study preparer is not a public domestic 
authority or an accredited agency or temporarily accredited agency as 
defined in 22 CFR part 96, then, under 8 CFR 204.311(t)(2), an 
accredited agency or temporarily accredited agency must review and 
approve the home study before it can be submitted to USCIS. Finally, 8 
CFR 204.311(t)(1) also requires review of the home study by the 
competent authority of the State in which the prospective adoptive 
parent(s) reside, if that State's law requires this review. New 8 CFR 
204.311(t)(1) is drawn from current 8 CFR 204.3(e)(8).
    New 8 CFR 204.311(u) is drawn from current 8 CFR 204.3(e)(9), 
relating to the need to amend or update a home study. An amended or 
updated home study is subject to the same review requirements, in new 8 
CFR 204.311(s) and (t), that apply to the initial home study. It is not 
universally the case that an amended or updated home study is completed 
by the same home study preparer. For the sake of completeness, new 8 
CFR 204.311(u) requires that any amended or updated home study must 
include a copy of the earlier home study (and all prior updates or 
amendments) and the preparer must specifically state that the preparer 
reviewed the prior home study (and any prior amendments or updates) and 
is aware of its contents. USCIS, of course, will already have a copy of 
the original home study and any prior update or amendment. Requiring 
the update or amendment to include the prior home study ensures that 
the home study preparer did, in fact, receive a copy of these prior 
documents.
    If it becomes necessary to amend or update the home study while the 
Form I-800A is still pending, the prospective adoptive parent(s) need 
only submit it to USCIS. In some cases, however, the change that 
necessitates an amended or updated home study will occur after USCIS 
has approved the Form I-800A. The INS never developed a standardized 
process for submitting an amended or updated home study after approval 
of a Form I-600A. This rule fills that void. Rather than requiring a 
motion to reopen, new 8 CFR 204.311(u) allows the prospective adoptive 
parent(s) to submit the updated or amended home study with a properly 
completed Form I-800A Supplement 3, with the filing fee established by 
8 CFR 103.7(b). The basis for calculating the Form I-800A Supplement 3 
filing fee is discussed below, in relation to new 8 CFR 204.312(e)(3), 
governing the extension of the approval period for a Form I-800A. As 
noted in that discussion, the filing fee for the Form I-800A Supplement 
3 is less than the fee for a motion to reopen. If USCIS finds that the 
updated or amended home study supports the validity of the decision 
approving the Form I-800A, USCIS will issue a new approval notice. The 
new notice will not extend the approval period; new 8 CFR 204.312(e)(3) 
covers that issue.
New 8 CFR 204.312--Adjudication of the Form I-800A
    New 8 CFR 204.312(a) states the burden of proof and persuasion that 
must be met in order for USCIS to approve a Form I-800A. USCIS will 
approve the Form I-800A if the prospective adoptive parent(s) 
establish(es) that the prospective adoptive parent(s) is (are) eligible 
to file a Form I-800A (i.e., a married couple, at least one of whom is 
a United States citizen, or an unmarried United States citizen who is 
at least 24) and that the prospective adoptive parent(s) is (are) are 
suitable as the adoptive parent(s) of a Convention adoptee.
    New 8 CFR 204.312(b) and (c) correspond to current 8 CFR 
204.3(h)(2) and 204.3(h)(4) through (h)(7). First, new 8 CFR 
204.312(b), like current 8 CFR 204.3(h)(2), makes it clear that it is 
for the USCIS officer, not the home study preparer, to decide whether 
the Form I-800A should be approved. Although the home study will have 
considerable evidentiary weight, the USCIS officer is not bound to 
approve a Form I-800A simply because the home study is favorable. The 
officer may consult the accredited or temporarily accredited agency, 
the home study preparer, the prospective adoptive parents, State or 
local child welfare agencies, or other professionals. If USCIS denies 
the Form I-800A, new 8 CFR 204.312(c) will require USCIS to inform the 
prospective adoptive parents of the reasons for the denial, and of the 
right to file an administrative appeal.
    New 8 CFR 204.312(d) provides for the issuance of an approval 
notice, if USCIS approves the Form I-800A. The rule deletes, as no 
longer necessary, the current requirement in 8 CFR 204.3(j)(1) 
regarding the issuance of ``telegraphic notification'' of the approval 
to a visa issuing post. The availability of the National Visa Center, 
fax transmissions, and e-mails obviate the need for ``telegrams.'' New 
8 CFR 204.312(d)(2) requires that, once the Form I-800A is approved, 
any submission of the home study to the Central Authority of the other 
Convention country must include the entire and complete text of the 
same home study, including any amendments or updates, that was 
submitted to USCIS. This requirement harmonizes DHS regulations with 
the accreditation standards found in 22 CFR 96.47(d).
    New 8 CFR 204.312(e)(1) defines the approval period for a Form I-
800A. Under current 8 CFR 204.3(h)(3)(i), the approval notice for a 
Form I-600A in an orphan case is valid for 18 months. Except for 8 CFR 
204.3(h)(3)(ii), a special provision adopted in 2003 in response to the 
outbreak of Severe Acute Respiratory Syndrome (SARS), 8 CFR 204.3(h)(3) 
includes no provision for the extension of this approval period. If the 
Form I-600A approval expires before a child is located for adoption, 
the current rule requires the prospective adoptive parents either to 
file a new Form I-600A, or else to file with the Form I-600 the type of 
evidence necessary for approval of a Form I-600A.

[[Page 56846]]

    The current rule presents two problems. From the point of view of 
the protection of an adopted child, the approval period is too long. 
Standard USCIS policy has been that the FBI's clearance of a person's 
fingerprints is valid for 15 months. After that period, USCIS will not 
assume that the person's criminal history remains unchanged. Thus, by 
making the approval of a Form I-600A valid for 18 months, there is some 
risk that a Form I-600 may be approved without the discovery of new, 
adverse information. From the perspective of prospective adoptive 
parents, by contrast, the inability to obtain an extension of the 
approval period creates uncertainty, since some countries will not 
match for adoption a prospective adoptive parent whose Form I-600A 
approval has expired, despite the ability to obtain a new approval.
    DHS adopted a provisional remedy to this problem under the final 
fee rule, published on May 30, 2007, at 72 FR 29851. The fee rule 
amended 8 CFR 103.7(b) to permit the prospective adoptive parent(s) to 
make one request to extend the approval period of Form I-600A. Id. at 
29874. No fee was established for this request, since the proposed rule 
did not include any provision on this issue.
    New 8 CFR 204.312(e)(1) and (3) seek to provide a more 
comprehensive resolution to both problems. First, under new 8 CFR 
204.312(e)(1), the initial approval period for a Form I-800A in a 
Convention case will be 15 months from the date USCIS received the 
initial FBI response for the fingerprints of the prospective adoptive 
parent(s) and any additional family members. If the initial 15-month 
period is about to expire, the fingerprints must be submitted again 
before approval, as specified in new 8 CFR 204.310. Moreover, under new 
8 CFR 204.312(e)(3), the prospective adoptive parent(s) will be able to 
request an extension of the approval period for an additional 15 
months. To obtain this extension, if the approval of the Form I-800A is 
about to expire but no Form I-800 has yet been filed, the prospective 
adoptive parent(s) will file Form I-800A Supplement 3, without having 
to pay the Supplement 3 filing fee (for the first request for an 
extension), with an updated or amended home study. If USCIS finds that 
approval of the Form I-800A remains warranted, USCIS will extend the 
approval period for an additional 15 months, from the date USCIS 
receives the new FBI response on the fingerprints.
    As noted, if the prospective adoptive parents have not yet filed a 
Form I-800, no filing fee will be required to file Form I-800A 
Supplement 3 in order to obtain a first extension of the Form I-800A 
approval. This interim rule, however, is broader than the solution 
adopted in the final fee rule, in that under this interim rule there is 
no limit to the number of times the approval of a Form I-800A may be 
extended. As long as the prospective adoptive parents are still seeking 
to adopt a child, and are still suitable as adoptive parents, they may 
seek extensions as often as needed to keep the Form I-800A approval 
current. If the prospective adoptive parents will need to file a new 
Form I-800A Supplement 3 to obtain a second, or subsequent, extension 
of the approval of the Form I-800A, however, they will need to pay the 
Form I-800A Supplement 3 filing fee for the second or subsequent 
request. This interim rule adopts the filing fee for Form I-824, 
Application for Action on Approved Petition or Application, as the 
filing fee for Form I-800A Supplement 3 because USCIS anticipates that 
the cost of adjudicating an extension request will be substantially 
similar to the cost of adjudicating Form I-824. USCIS currently uses 
Form I-824 in a variety of situations in which a petitioner or 
applicant asks USCIS to take a specific act on an approved petition or 
application. USCIS will re-examine its fee structure again in 2 years 
in accordance with OMB requirements and all application and petition 
fees may be adjusted then. The actual experience of USCIS in 
adjudicating extension requests will be used to determine the fee for 
extension requests at that time. As noted, the Form I-800A Supplement 3 
filing fee is considerably less than the fee for a motion to reopen or 
to file a new Form I-800A.
    As a change in marital status is a considerable change in the facts 
supporting a prior approval, under 8 CFR 204.312(e)(2), approval of a 
Form I-800A will be revoked automatically if an unmarried prospective 
adoptive parent marries, or if the marriage of a prospective adoptive 
parent couple ends. Revocation of the approval of the Form I-800A will 
be without prejudice to the filing of a new Form I-800A and Form I-800, 
reflecting the change in marital status. As stated previously, when the 
prospective adoptive parents are married, both spouses must adopt the 
child. For this reason, 8 CFR 204.312(e)(2) also provides that approval 
of a Form I-800A is automatically revoked if either spouse withdraws 
his or her signature on the Form I-800A.
New 8 CFR 204.313--Filing and Adjudication of Form I-800
    Once USCIS has approved a Form I-800A and the prospective adoptive 
parent(s) has (have) identified a child who may qualify for immigration 
as a Convention adoptee, the next step is to file Form I-800. New 8 CFR 
204.313 governs the filing and adjudication of Forms I-800. The basic 
framework is drawn from current 8 CFR 204.3(d).
    The most significant difference, in comparison with orphan cases, 
is that the prospective adoptive parent(s) must file the Form I-800 
before they adopt or obtain custody of the child. This provision 
reflects the requirements of article 5(c) of the Convention. The 
fundamental Convention principle is that the child's eligibility for 
immigration, based on the proposed adoption, must be determined before 
the adoption or custody can take place.
    For this reason, new 8 CFR 204.313 provides a two-step process. 
First, the prospective adoptive parent(s) must submit a properly 
completed Form I-800 and evidence that the alien child qualifies as a 
Convention adoptee. The most important items of evidence will be the 
Central Authority's reports that document the child's eligibility for 
intercountry adoption. If the USCIS or Department of State officer 
finds that the child qualifies as a Convention adoptee, the USCIS or 
Department of State officer will issue a provisional approval of the 
Form I-800. The provisional approval permits the prospective adoptive 
parent(s) to complete the adoption or, for a child who will be adopted 
in the United States, to obtain custody of the child for purposes of 
emigration and adoption. Note that one requirement under article 5(b) 
of the Convention is that all necessary counseling must be completed 
before the adoption takes place. The required counseling is described 
in 22 CFR 96.48. At the Form I-800A stage, the home study is required 
to discuss the extent to which counseling has been completed and 
outline a plan for further counseling. New 8 CFR 204.311(c)(8). 
Further, before the Form I-800 can be provisionally approved, the 
adoption service provider must submit evidence that the remaining 
required counseling has been completed. New 8 CFR 204.313(c)(3).
    Section 101(b)(1)(G) of the Act requires that the visa petition in 
a Convention case must be filed before the child's sixteenth birthday. 
There is no authority to permit a later filing. This rule does 
establish, however, two special provisions for cases involving

[[Page 56847]]

children who are placed for adoption in cases initiated while the child 
is 15:
     If the prospective adoptive parent(s) filed the Form I-
800A after the child's fifteenth birthday but before the child's 
sixteenth birthday, the Form I-800A filing date will be treated as the 
Form I-800 filing date, but only if the Form I-800 is filed within 180 
days after the initial approval of the Form I-800A;
     If the Central Authority places the child for adoption 
more than 6 months after the child's 15th birthday but before the 
child's 16th birthday, and the reports that must accompany the Form I-
800 are not yet available, the prospective adoptive parent(s) may file 
the Form I-800 without those reports, but the Form I-800 will not be 
provisionally approved until the reports are submitted.

When the Form I-800 is filed without the required reports, so as not to 
miss the filing deadline on the day before the child's sixteenth 
birthday, the prospective adoptive parents would, instead, present a 
declaration from the adoption service provider that the Central 
Authority has, in fact, made the decision to place the child with the 
prospective adoptive parent(s) for adoption.

    The rule includes a special provision concerning the child's 
admissibility. Ordinarily, whether an alien beneficiary of a visa 
petition is admissible is not addressed in the visa petition 
proceeding. Matter of O-, 8 I&N Dec. 295 (BIA 1959). Article 5(c) of 
the Convention, however, provides that a Convention adoption should not 
occur, unless the child ``is or will be authorized to enter and reside 
permanently'' in the receiving country. For this reason, new 8 CFR 
204.313(d)(5) permits the prospective adoptive parent(s) to file with 
the Form I-800 an application for any waiver that may be necessary to 
overcome a known or suspected ground of inadmissibility. Provisional 
approval of the Form I-800 will include approval of the waiver 
application, although the waiver will be void if the child does not 
actually immigrate on the basis of the approved Form I-800. If it is 
determined that the waiver application will be denied, provisional 
approval of the Form I-800 will not be granted.
    Similarly, many Convention adoptees will not be subject to the 
affidavit of support requirement under section 213A of the Act, either 
because their adoptive parents already have 40 quarters of coverage 
under the Social Security Act or else because the children will acquire 
United States citizenship under section 320 of the Act upon admission. 
8 CFR 213a.2(a)(2)(ii)(C) and (E). Thus, new 8 CFR 204.313(d)(6) 
permits the prospective adoptive parent(s) to file the Form I-864W, 
Intending Immigrant's I-864 Exemption, or, if needed, Form I-864, with 
the Form I-800.
    New 8 CFR 204.313(f) provides authority to conduct an investigation 
before the provisional or final approval of a Form I-800. This 
investigation corresponds to the ``I-604 investigation'' that is 
conducted in orphan cases. See 8 CFR 204.3(k)(1). Unlike the ``I-604 
investigation,'' new 8 CFR 204.313(f) does not require an investigation 
in every case. The respective roles of the Central Authorities should 
make it more readily apparent that the documents submitted with a Form 
I-800 are legally sufficient to establish that the child is eligible to 
immigrate as a Convention adoptee. USCIS anticipates that, as a general 
principle, it will accept the Central Authority's certification that 
the consents necessary to make the child eligible for adoption are 
valid. New 8 CFR 204.313(f) does, however, permit an investigation, if 
the USCIS officer or Department of State officer believes that an 
investigation is necessary to the proper adjudication of the case. 
Consequently, even when the Central Authority has provided a 
certification that appears proper, USCIS may deny a Form I-800 if, as a 
result of an investigation, USCIS finds that the purported consents are 
not valid, or that the child, for any other reason, does not qualify as 
a Convention adoptee.
    The prospective adoptive parent(s) may either complete the adoption 
abroad, or else obtain custody of the child in order to bring the child 
to the United States for adoption, after (1) USCIS (or the Department 
of State officer acting on behalf of USCIS) has provisionally approved 
the Form I-800; (2) the consular officer has annotated the visa 
application as specified in the Department of State rule published in 
the Federal Register on June 22, 2006, at 71 FR 35847; and (3) the 
Department of State has provided the notice contemplated by article 
5(c) of the Convention. Upon completing the above processes, the 
parents would then present the adoption or custody decree to the 
Department of State officer with jurisdiction to adjudicate the child's 
visa application. Once the Secretary of State has certified that the 
adoption or custody decree satisfies the Convention and IAA 
requirements, and all other steps required both by this regulation and 
the Department of State regulations have been completed, the Department 
of State officer, acting on behalf of USCIS, will give final approval 
of the Form I-800. As with provisional approvals, if the Department of 
State officer determines that the Form I-800 is not clearly approvable, 
the Department of State officer must refer the Form I-800 to USCIS for 
decision.
    Under current 8 CFR 204.3, approval of a Form I-600 makes the alien 
beneficiary eligible to apply for an immigrant visa. Approval of a Form 
I-800 will have the same effect. In some cases, however, the intention 
is not for the child to live in the United States with the adoptive 
parent(s) immediately after the adoption. Rather, the intention is for 
the family to bring the child to the United States briefly, either 
after completing the adoption abroad or else to complete it in the 
United States, and then to return to the family's residence abroad. Use 
of an immigrant visa is not really designed for this situation. 
Moreover, acquisition of United States citizenship under section 320 of 
the Act occurs only if the child is ``residing in'' the United States 
with the United States citizen parent. To accommodate the situation of 
families living abroad, new 8 CFR 204.313(b)(2) provides that approval 
of a Form I-800 can support issuance of a nonimmigrant visa, as well as 
an immigrant visa, if the adoption is actually completed abroad. 
Admission of the child as a nonimmigrant will facilitate the child's 
naturalization under section 322 of the Act, rather than under section 
320 of the Act. Admission with a nonimmigrant visa for purposes of 
naturalization under section 322 of the Act is not an option, if the 
child will be adopted in the United States.
New 8 CFR 204.314--Administrative Appeals
    Under current 8 CFR 204.3, the prospective adoptive parent(s) may 
appeal to the Administrative Appeals Office from a decision denying a 
Form I-600A or Form I-600. New 8 CFR 204.314(a) retains this right to 
appeal for Convention adoption cases. There are four situations, 
however, in which the prospective adoptive parents will not be able to 
appeal the denial of a Form I-800 or Form I-800A. No appeal will be 
available if USCIS denies a: (i) Form I-800A because the Form I-800A 
was filed during any period during which 8 CFR 204.307(c) bars the 
filing of a Form I-800A; or (ii) Form I-800A for failure to timely file 
a home study as required by 8 CFR 204.310(a)(4)(viii); or (iii) Form I-
800 because the Form I-800 was filed during any period during which 8 
CFR 204.307(c) bars the filing of a Form I-800; or (iv) Form I-800 
filed either before USCIS approved a Form I-800A or after the 
expiration of the approval of a Form I-800A.

[[Page 56848]]

3. Affidavits of Support Under Section 213A of the Act
    Sections 212(a)(4) and 213A of the Act, 8 U.S.C. 1182(a)(4) and 
1183a, require the submission of a legally-enforceable affidavit of 
support on behalf of most aliens who immigrate as immediate relatives 
and family-based immigrants. The affidavit of support rule, 8 CFR 
213a.2, provides, however, that this requirement does not apply to an 
alien who has already earned, or can be credited with, 40 quarters of 
coverage under the Social Security Act. 8 CFR 213a.2(a)(2)(ii)(C). A 
child is credited with any quarters of coverage that the child's 
parents have already earned. Id. For this reason, many, and perhaps 
most, Convention adoptees will be exempt from the affidavit of support 
requirement under this provision.
    The affidavit of support is also waived for alien children of 
United States citizens who will acquire United States citizenship by 
naturalization under section 320 of the Act, 8 U.S.C. 1431, immediately 
upon admission for permanent residence. Many, and perhaps most, 
Convention adoptees will be naturalized under section 320 of the Act 
immediately upon having been admitted for permanent residence. This 
rule makes a conforming amendment to 8 CFR 213a.2(a)(2)(ii)(E) to 
clarify that the affidavit of support requirement does not apply to 
Convention adoptees who will acquire United States citizenship upon 
admission under section 320 of the Act.
4. Applying for Naturalization Under Section 322 of the Act
    As noted, approval of a Form I-800 may support the child's 
admission as a nonimmigrant, if the child will come to the United 
States for naturalization under section 322 of the Act and then return 
abroad to live with the adoptive parent(s). For orphan cases, 8 CFR 
322.3 provides for the submission of the Form I-600 approval notice and 
supporting evidence, if the orphan seeks naturalization under section 
322. This rule adopts a corresponding provision for Convention cases. 
If the child will seek naturalization under section 322, the Form I-800 
approval notice and supporting evidence (other than the home study) 
will be submitted to establish the child's eligibility for 
naturalization under that provision.

V. Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
permits DHS to publish this rule without prior notice and comment, 
because this rule implicates a foreign affairs function of the United 
States. 5 U.S.C. 553(a)(1). DHS has also determined that this rule is 
exempt from the APA's notice and comment requirements because those 
requirements are impracticable, unnecessary, and contrary to the public 
interest. 5 U.S.C. 553(b)(3)(B).
I. Foreign Affairs Function
    This rule implicates a foreign affairs function and advances the 
foreign policy interests of the United States and is, therefore, exempt 
from the Administrative Procedure Act's (APA) notice and comment 
requirements. 5 U.S.C. 553(a)(1). The APA's foreign affairs exemption 
allows Federal agencies to forgo notice and comment when the request 
for comments may provoke undesirable international consequences. Am. 
Association of Exporters & Importers v. U.S., 751 F.2d 1239 (Fed. Cir. 
1985). Cf, Zhang v. Slattery, 55 F.3d 732, 736 (2d Cir. 1995) (holding 
that ``notice and comment provisions of Administrative Procedure Act 
are inapplicable to rules involving military or foreign affairs 
function of United States, presumably to avoid public airing of matters 
that might inflame or embarrass relations with other countries''). In 
Am. Association of Exporters, the court determined that the adoption of 
textile trade regulations by the Committee for Implementation of 
Textile Agreements was exempt from APA notice-and-comment requirements, 
since prior disclosure of the Government's intention to impose import 
restrictions would provoke undesirable international consequences. Id., 
at 1241. The court first found that the underlying statute authorized 
regulations to carry out agreements with nations not covered by any 
agreement, so as to protect the textile trade program which the 
agreements established, and the subject multi-country arrangements 
announced as its purpose to negate unsatisfactory situations in world 
textile trade. The court also found that soliciting comments on the 
Committee's rules would disseminate market information to the detriment 
of market participants and parties to the agreement. Id.
    Consistent with the rule established in Am. Association of 
Exporters, the present rule obviously implicates foreign policy. As 
stated above, the Convention has been ratified by 74 countries to, 
inter alia, establish safeguards to ensure that intercountry adoptions 
take place in the best interests of the child and to secure the 
recognition of adoptions made in accordance with the Convention by 
contracting states. The United States Government has publicly committed 
to ratification of the Convention in 2007. See Testimony of Catherine 
Barry, Deputy Assistant Secretary for Overseas Citizens Services, U.S. 
Department Of State, before Subcommittee on Africa, Global Human Rights 
and International Operations of the Committee on International 
Relations House of Representatives (November 14, 2006). Since the 
United States is one of the primary destinations for children subject 
to intercountry adoption, ratification by the U.S. is necessary to 
advance the purposes of the Convention. The IAA assigned primary 
responsibility for implementation of the agreement to DOS; however, 
these regulations, promulgated after those of the Department of State 
and as required by statute, are necessary for ratification. Requesting 
public comments on issues already addressed by the DOS rules would make 
it very unlikely that the U.S. will ratify the Convention in 2007. Such 
a delay would be detrimental to the agreements made by the U.S. and 
damage the nation's foreign policy interests. If notice and comment 
precedes, rather than follows, the promulgation of this rule, the 
delays associated with soliciting comments will result in the inability 
of the United States to fulfill its commitment to ratify the Convention 
this year.
    Until the United States becomes a party, the ability of the United 
States to advocate for wider acceptance of the Convention will be 
hampered. This result could have an impact on children in the United 
States, as well as abroad. This rule addresses the immigration of 
children into the United States. The Convention itself, however, also 
applies its protections to children who are habitually resident in the 
United States and who are adopted by adoptive parents living abroad. A 
delay in ratification of the Convention will result in a delay in the 
ability to extend the benefits of the Convention to such children.
    This is further supported by well-established precedent. See Int'l 
Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1486 (D.C. Cir. 1994) 
(``foreign affairs function'' exception applied to rule promulgated to 
implement a memorandum of understanding between the United States and 
Mexico regarding recognition of each country's commercial drivers' 
licenses); Mast Industries, Inc. v. Regan, 596 F. Supp. 1567 (C.I.T. 
1984) (``foreign affairs function'' exception applied to regulations to 
implement bilateral trade agreements); WBEN, Inc. v. U.S., 396 F.2d 601 
(2d Cir. 1968) (``foreign affairs function'' exception applied to FCC

[[Page 56849]]

broadcast rules required by agreement with Canada).
II. Impractical, Unnecessary, and Contrary to Public Interest
    In addition, it would be unnecessary and impracticable for USCIS to 
seek comment on this interim rule. See 5 U.S.C. 553(b)(3)(A) (providing 
that notice and comment requirements do not apply ``when the agency for 
good cause finds * * * that notice and public procedure are 
impracticable, unnecessary, or contrary to public interest''). The 
Senate consented to ratification of the Convention in 2000, and 
Congress enacted the implementing legislation that same year. The 
consent to ratification, and hence the effective date of title III of 
Public Law 106-279, was conditioned on the creation of the necessary 
administrative procedures. For DOS, adopting the ``necessary 
administrative procedures'' required the creation of a comprehensive, 
and entirely new, procedural mechanism for accrediting and regulating 
adoption service providers who handle Convention cases. DOS completed 
this rulemaking process with the publication of 22 CFR part 96 in the 
Federal Register on February 15, 2006, at 71 FR 8064.
    This DHS interim rule, by contrast, has a more modest scope. 
Because DOS has established the accreditation process for these 
Convention cases, DHS is able to establish its necessary administrative 
procedures for these Convention cases. DHS has been able to adapt its 
existing regulations for orphan cases, which were promulgated after 
notice and comment on August 1, 1994, at 59 FR 38876, to reflect the 
accreditation requirements of 22 CFR part 96. An additional round of 
public comments on these accreditation issues, which DOS has already 
substantially addressed in its rule, would make it virtually impossible 
to ratify the Convention in 2007.
    This rule also incorporates the requirement of articles 5 and 17 of 
the Convention, which provides that the adoptive parent's(s') 
suitability for adoption and the child's eligibility to immigrate must 
be determined before the actual adoption occurs. Notice and comment on 
those issues would be impracticable, since it would not be possible to 
``implement'' the Convention while ignoring its key procedural 
requirements. Other aspects of this rule, such as the home study 
requirements, can most properly be characterized as clarifying, rather 
than significantly changing, the existing requirements that have been 
used in orphan cases for many years.
    For these reasons, DHS is promulgating this rule before requesting 
public comment. Although pre-promulgation notice and comment is not 
legally required, the Department has elected not to publish this rule 
as a final rule, with no opportunity for public comment at all. By 
using, instead, an interim rule, the Department does invite notice and 
comment on all aspects of this rule. Any comments received will be 
considered in the formulation of the final rule. Because of the need 
for prompt ratification of the Convention, however, any changes made in 
the final rule will probably take effect after the Convention enters 
into force. The Department will adjudicate cases under this interim 
rule until the final rule is published.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) mandates that an agency 
conduct an RFA analysis when an agency is ``required by section 553 * * 
*, or any other law, to publish general notice of rule making for any 
rule.'' 5 U.S.C. 603(a). As noted, the Department has the authority to 
publish this rule without prior notice and comment, and has chosen to 
do so. Therefore, no RFA analysis is required for this rule. In any 
event, this rule applies to individuals, families, children, and 
adoptions and involves no effort to directly regulate the actions of 
small entities as defined by the RFA. Thus, the RFA does not apply.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will 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.

E. Executive Order 12866

    The Office of Management and Budget (OMB) has reviewed this Interim 
Rule under Executive Order 12866. USCIS has conducted an analysis of 
the impacts on intercountry adoptions that are expected to result from 
this rule. This analysis relates only to the changes made by this 
interim rule itself, and not to changes resulting, for example, from 
the rules promulgated by the Department of State. Nonetheless, the 
costs and benefits associated with this rule may overlap with the costs 
and benefits of the DOS rules, as well as the costs and benefits of the 
ratification of the Convention and the enactment of the IAA.
    This regulation is required by legislation that is intended to 
support intercountry adoptions. The United States, by ratifying the 
Convention and through passage of the IAA, recognizes that adoption of 
a child by parents in another country may offer the advantage of a 
permanent family to a child for whom a suitable family cannot be found 
in the country of the child's habitual residence. Generally, 
governments regulate adoptions to make sure that the best interests of 
the adopted children are protected, rather than leave decisions 
regarding the welfare of a child to private organizations where 
placement of a child in a home may be based less on the child's best 
interest and the suitability of the prospective adoptive parent(s) and 
more on economic or other considerations. In any event, these 
intangible benefits of standardizing and improving the intercountry 
adoption process are difficult to quantify. Nonetheless, USCIS has 
performed an analysis of the impacts of this rule and summarized them 
below.
New Forms and Fee for Convention Adoptions
    USCIS immigration benefit fees are established based on the amount 
that is necessary for the agency to recover the costs of the government 
resources expended to deliver the benefit. As stated earlier in this 
rule, because the adjudication process for Convention cases will be 
very similar to orphan cases, this rule sets the filing fee at the same 
rate that applies for orphan cases. Thus, the filing fee for the forms 
to be submitted for adoptions of children under the Convention, Forms 
I-800A and I-800, will be $670. There is one difference. In current 
orphan cases, a fee is required for Form I-600A or with Form I-600, if 
it is filed alone and no Form I-600A was filed. A new fee is required 
if Form I-600 was filed after

[[Page 56850]]

the approval of Form I-600A expired, or if the parent filed more than 
one Form I-600 for non-siblings. Since Convention adoption cases 
require an approved I-800A in every case before the Form I-800 may be 
filed, the fee payment sequence will not be the same as with the I-600/
600A. As an I-800A is always required, an I-800A fee will always be 
required. There will not be a fee required for the first I-800. 
However, if the parents file more than one Form I-800, a separate fee 
will be required for the second, and any subsequent, Form I-800. The 
one exception will be if the second and subsequent I-800s are for 
adoption of pre-adoption siblings, in which case there is no required 
fee.
    This interim rule adopts the same filing fee for Convention cases 
as USCIS has adopted for orphan cases. USCIS anticipates that the cost 
of adjudicating a Convention case will be substantially similar to the 
cost of adjudicating orphan cases. USCIS will re-examine its fee 
structure again in 2 years in accordance with OMB requirements and all 
application and petition fees may be adjusted then. The actual 
experience of USCIS in adjudicating Convention adoptions will be used 
to determine the fee for Convention adoptions at that time. Thus, 
although the fee charged by the agency for Convention adoptions will be 
established identical to that for non-Convention orphan adoption 
petitions, if actual experience is that there are variations in the 
complexity of adjudication of the petitions, the respective fees may 
differ in the future.
Monetized Impacts
    This rule is expected to be revenue neutral to USCIS and the 
public. Although the number of applications and petitions for 
intercountry adoptions shifts each year between countries, general 
trends from recent years are expected to continue in a consistent 
fashion, unless there is an unforeseen disruption or surge in a 
particular country. After this rule, a prospective adoptive parent must 
file a Form I-800A and I-800 if they wish to adopt from a Convention 
country, unless an I-600A or I-600 had been filed prior to the 
effective date of this rule. Thus, following publication and 
implementation of this rule, adoptions from Convention countries are 
expected to shift from submission of the Form I-600 and 600A to Forms 
I-800A and I-800. Since the fees for both forms are equal, cost to the 
petitioner and fees collected by USCIS do not increase from shifts to 
Convention countries.
    There were 13,241 U.S. intercountry adoptions in fiscal year 2005 
from countries that have joined the Convention, and based on the 
average number of intercountry orphan adoptions over the past 5 years, 
approximately 61 percent of them have been from Convention countries. 
While the Convention provides benefits to countries that adopt its 
provisions, USCIS has no reliable data from which to estimate increases 
or decreases in the number of orphan adoptions, relative shifts in the 
number of adoptions from one country to another, or any other movement 
in adoption statistics that may occur as a result of this rule. 
Likewise, this analysis makes no estimate or assumptions as to how many 
additional countries will implement the Convention or how many 
countries that currently do not permit U.S. citizens to adopt children 
from their country will do so once this rule takes effect. If, for 
example, a country that historically has been the source of a large 
number of orphan adoptions that has not yet ratified the Convention, 
such as Russia, implements the requirements of the Convention, 
approximately 5000 I-600A/I-600 filings will shift to I-800A/800 
filings. Nonetheless, the near-term impacts from such changes are not 
expected to be significant and current trends in the number of source 
countries for adoptions are expected to remain somewhat constant. The 
projected fee receipts from filing fees for petitions for Convention 
adoptions is approximately $8,710,000 per year (13,000 x $670). 
However, this figure does not represent a net increase or decrease in 
fees for adoption petitions because, as stated above, USCIS has not 
undertaken an analysis of potential increase or decrease in the number 
of orphan adoptions, shifts in adoptions from one country to another, 
or any other movement in adoption statistics. The projected fees from 
projected Form I-800A filings would have been collected from I-600A 
filings regardless of this rule. Thus, the actual net economic effect 
of this rule should be zero.
Non-Monetized Impacts
    On its Web site, the Department of State lists the major advantages 
of the Convention and its implementation. See http://travel.state.gov/family/adoption/convention/convention_2300.html. With regard to the 
changes made by this rule, USCIS has identified the following 
qualitative benefits:
    Expanded definition of adoptable child. The IAA eliminates the 
orphan restriction for those adoptions conducted under, and in accord 
with, the Convention. The broader definition of an eligible child under 
the Convention will no longer require that an internationally adopted 
child be a true orphan (i.e., both parents deceased), be legally 
abandoned, or that both parents have disappeared, deserted, or become 
separated or lost from the child. Under the Convention, a child with 
two known birthparents can be eligible for adoption as long as the 
parents are both unable to meet the child's needs under the standards 
of the country of origin. Additionally, the definition of a sole parent 
is expanded for Convention adoptions. In orphan cases, the term ``sole 
parent'' is defined strictly to include only the mother of a child who 
was born out of wedlock and has not been legitimated. For a Convention 
adoption, a child is also deemed the child of the sole parent if the 
other parent has abandoned or deserted the child, or has disappeared 
from the child's life. A child will be deemed to be the child of a sole 
parent if the child has only one legal parent, based on the competent 
authority's determination that the other legal parent has abandoned or 
deserted the child, or has disappeared from the child's life. There 
will be no requirement that a sole or surviving parent be unable to 
provide proper care. Consequently, the expanded definition under the 
Convention provides a broader means for a child residing in a 
Convention country to qualify as a child eligible for adoption.
    There are several advantages to the adoption process under the 
Convention. First, a United States citizen can bring a child into the 
United States immediately without undergoing the two year period of 
residence and legal custody required for an adopted child who is not an 
orphan. Many international adoptions that would have required the two 
year legal custody and joint residence requirement for non-orphan 
adoptions can now be adopted under Convention orphan rules. Second, 
many parents who adopt in courts abroad re-adopt in their home state in 
the United States out of a concern that the decrees from family courts 
or other forums in many foreign countries may not be recognized in the 
United States. Parents who complete Convention adoptions will receive a 
certification from DOS, and this certification will establish that the 
foreign adoption is entitled to recognition in the United States. 
Third, both Convention adoptees and orphans are immediate relatives 
exempt from numerical quotas. Fourth, birth mothers relinquishing 
children for adoption into the U.S. may no longer feel they have to lie 
about the existence of a father, as was sometimes the case, allowing 
adopting families access to more accurate information. As a result,

[[Page 56851]]

more children in Convention countries are expected to qualify as 
eligible children for adoption.
    Standardization. By adopting the best interest of the child as its 
legal standard, a standard recognized both in the United States and 
internationally, the Convention places the focus on the child. The 
Convention mandates close coordination between the governments of 
contracting countries through a Central Authority in each Convention 
country that is responsible for sharing information about the laws of 
its own, and other Convention countries, and for monitoring individual 
cases. This cooperation is to ensure that safeguards are respected and 
to prevent the abduction, sale of, or traffic in children. The 
Convention also requires all parties to act expeditiously in the 
processing of intercountry adoptions, whether as sending or receiving 
country. This coordination and information sharing should result in 
less chance for irregularities and red tape in the adoption process.
    Duration of approval and extensions. By providing that the approval 
period for a Form I-800A is 15 months instead of the current 18 months, 
this rule matches the approval of the family for the adoption with the 
duration of the FBI's clearance of a person's fingerprints. The FBI 
fingerprint clearance process is a critical component necessary to the 
determination that a person has been found eligible and suitable to 
adopt. The matching of these two periods of validity recognizes the 
importance of the fingerprint clearance process to the approval of the 
family for adoption. From the perspective of prospective adoptive 
parents, under this rule the prospective adoptive parent(s) who has 
(have) not yet filed a Form I-800 will be able to request an extension 
of the approval period for an additional 15 months by filing a Form I-
800A Supplement 3. The first extension will be free. The required fee 
for a second or subsequent Supplement 3 is considerably less than the 
fee for a motion to reopen, and for a new Form I-800A.
Government Costs
    This rule requires no outlays of Congressionally appropriated 
funds. The requirements of this rule and the associated benefits are 
funded by fees collected from persons requesting these benefits. The 
fees are deposited into the Immigration Examinations Fee Account and 
are used to fund the full cost of processing immigration and 
naturalization benefit applications and petitions, biometric services, 
and associated support services.
    Reduction in multiple fee collections. When developing its fee 
schedule, USCIS heard from many intercountry adoption applicants that 
it is common for parents to have to repeat filings of applications as a 
result of expiration of the approval before the child has been matched 
with the family. USCIS has determined that collecting a full 
application fee for adjudication of an extension of the parent's 
approval was not justified in light of the lesser adjudicative burden 
for USCIS in approving extensions as compared to initial applications. 
Therefore, this rule provides that to request an extension of their 
period of approval for an additional 15 months, prior to the expiration 
of the approval, the parents must simply file a request for an 
extension and any additional documents from the original application 
that need updating, such as the home study. While the effects of this 
change are expected to be minor, USCIS has no reliable record of how 
many applications are updated in a typical year due to expiration of 
approval and, therefore, cannot accurately estimate the revenue impact 
of this change.
Public Cost
    Paperwork Reduction Act. Section 503(c) of the IAA waives the 
requirement of the Paperwork Reduction Act with respect to information 
collected for use as a Convention record. Thus, USCIS has not conducted 
an analysis to estimate any changes to the agency's currently approved 
information collection burden that will result from this rule. 
Nonetheless, as stated above, this rule is not expected to result in a 
noticeable increase or decrease in the number of intercountry adoptions 
of orphans.
    Requires Cooperation of Federal and State Authorities. Some 
adoption advocates are concerned that the IAA regulations will bring 
the federal government into adoption practices that have traditionally 
been under state purview. That is because the Convention and DOS 
accreditation requirements increase federal involvement and impose 
federal requirements on state and local entities in an area that has 
been governed mainly by states. Thus, states will have to adopt 
Convention requirements for such an adoption to proceed. Compliance 
with the Convention and the IAA will be a new task for states and will 
require close cooperation between DOS, state courts with family law 
jurisdiction, and USCIS to ensure that the United States meets its 
obligations under the Convention. However, states are not expected to 
have any major challenges or incur costs for complying with the USCIS 
petition requirements in this rule.
    Orphans may no longer be available from certain countries. The 
Hague Conference lists Guatemala as a contracting party to the 
Convention. Currently, however, Guatemala's adoption procedures are not 
in compliance with the Convention. After this rule is published, USCIS 
will not approve immigrant visa petitions based on adoptions from 
Guatemala unless Guatemala's adoption process is changed to comply with 
the Convention. That would be a reduction of about 3500-4000 adoptions 
each year, unless those prospective adoptive parents decide to adopt 
children from another country that either is not a contracting party to 
the Convention or else has the established the procedures in place for 
determining, according to the principles of the Convention, whether 
children are eligible for adoption. However, while pointing out the 
possible negative effects on prospective adoptions from Guatemala, 
USCIS does not project whether or not Guatemala can take the necessary 
actions to be Convention compliant by the time the Convention enters 
into force for the United States and this rule takes effect.
    Home study. The receiving country for the Convention adoptee must 
determine in advance that the prospective adoptive parent(s) is (are) 
eligible and suited to adopt; that they have received counseling and 
training, as necessary; and that the child will be eligible to enter 
and reside permanently in the receiving country. These advance 
determinations and studies are designed to ensure that the child is 
protected and that there are no obstacles to completing the adoption. 
For USCIS to determine that the child will receive proper care, this 
rule provides the requirements for the home study that must be 
submitted to permit USCIS to make an informed decision in exercising 
this authority. By requiring a home study to adjudicate the Convention 
adoption of a child, this rule technically imposes the costs of the 
home study. However, DOS regulations, not this USCIS rule, address an 
adoption service provider's obligations regarding fees. Regardless, 
Convention home study requirements are not projected to be much more 
onerous, if at all, than current home study requirements for 
adjudication of intercountry orphan adoptions. This rule simply 
standardizes these requirements to comply with the Convention. Further, 
DOS requires

[[Page 56852]]

adoption service providers to clearly disclose all fees so parents may 
accurately compare costs between adoption service providers.
    Child background study. This rule incorporates the requirement of 
article 16(a) of the Convention, under which the sending Convention 
country must prepare a child background study that includes the medical 
history of the child as well as other background information addressing 
the factors that make the child eligible for adoption as a Convention 
adoptee. Once they have received this report and have decided to accept 
the placement, the prospective adoptive parents will file Form I-800, 
with the report and other evidence required by this rule. This study 
could add to the burden and costs of an intercountry adoption; thus, 
this requirement is added by this rule to USCIS petition requirements 
and is included here as an added burden. However, by standardizing the 
sending country requirements, and providing that the receiving country 
will accept the conclusions of the sending country rather than 
adjudicating the child's status itself, the child study may actually 
reduce the time, costs, and burden of orphan adoptions for Convention 
countries. The actual effects of this new requirement cannot be 
determined until after implementation occurs.
Summary
    These regulations are required by legislation and are the final 
step for the United States to begin carrying out its obligations under 
the Convention. The effects of this rule are:
     This rule is to address immigration related determinations 
of how a United States citizen may obtain lawful custody, or adopt, a 
child from a number of countries.
     The U.S. is the largest receiving country for orphans from 
abroad, adopting more children from abroad than all other countries 
combined. The number of foreign children adopted annually by American 
citizens has doubled over the last decade from 11,340 to 22,739.
     USCIS expects to receive approximately 13,000 Convention 
adoption petitions per year. The resulting fee receipts are estimated 
at $8,710,000 per year. This does not, however, represent new fee 
income to USCIS, but a transfer of fees from non-Convention adoption 
petitions. The net economic effect of the rule should be zero.
     Under the Convention, an eligible child can have two known 
birth parents and still be eligible for adoption as long as the parents 
are both unable to meet the child's needs. The definition of sole 
parent is expanded and there is no requirement that a sole or surviving 
parent be unable to meet the child's needs.
     The Convention adopts the best interest of the child as 
its legal standard, a standard recognized internationally which places 
the focus on the welfare of the child.
     The Convention mandates close coordination between each 
Convention country, and requires all parties to act expeditiously in 
the processing of adoptions. This coordination should result in less 
chance for irregularities and red tape in the adoption process.
     This rule is expected to be revenue neutral to USCIS. This 
rule requires no outlays of Congressionally appropriated funds.
     This rule is not expected to result in a noticeable 
increase or decrease in the number of intercountry adoptions.
     This rule is estimated to require the same amount of time 
to complete its new petitions as it does for current forms. This rule 
is estimated to have no impact on the information collection burden 
imposed on the public.
     After this rule is published, and after the Convention 
enters into force with respect to the United States, USCIS will not 
approve adoptions from Guatemala unless Guatemala's adoption process is 
changed to comply with the Convention. This could have an impact on 
3,500 to 4,000 adoptions per year.
     Adoptive parents must submit a ``home study'' and an 
application in order for USCIS to determine eligibility and suitability 
as adoptive parents prior to submission of the petition on behalf of a 
Convention adoptee.
     This rule requires that the sending Convention country 
prepare a child background study which could add to the burden and 
costs of an intercountry adoption.
    USCIS is required by statute to promulgate this rule. As indicated 
in this analysis, the benefits of the requirements of this rule justify 
the costs to be imposed by it.

F. Executive Order 13132

    This rule 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. Section 503(a) of the IAA makes clear that 
neither it nor the Convention preempt State laws relating to 
intercountry adoption that are consistent with them. This rule respects 
corresponding State laws. For example, if prospective adoptive parents 
live in a particular State, the home study preparer must be authorized 
under that State's law to complete a home study for them. The home 
study itself must, in addition to the requirements of this rule, meet 
the requirements of that State's laws. A child who has not already been 
adopted abroad may not immigrate in order to be adopted in the United 
States unless the prospective adoptive parents comply with the adoption 
requirements of the State in which they will adopt the child.
    There will be some impact on the States, as the States will have to 
adopt Convention requirements for these adoptions to proceed. However, 
such impact should not cause the States to have to incur any costs or 
experience any challenges complying with the USCIS petition 
requirements in this rule. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    As noted, USCIS intends to create two new forms, the Form I-800A 
and Form I-800, for use in Convention adoption cases. The use of these 
new forms is considered an information collection that, ordinarily, 
would be subject to review and clearance under the Paperwork Reduction 
Act procedures. Section 503(c) of the IAA, however, waives the 
requirement of the Paperwork Reduction Act with respect to information 
collected for use as a Convention record. Forms I-800A and I-800 will 
be included in the Convention record for a particular child's adoption.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and 
recordkeeping requirements.

[[Page 56853]]

8 CFR Part 213a

    Administrative practice and procedure, Aliens, Affidavits of 
support, Immigrants, Immigration and Nationality Act.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

8 CFR Part 322

    Citizenship and naturalization, Infants and children, Reporting and 
recordkeeping requirements.

0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 
8 CFR part 2.


0
2. Section 103.7(b)(1) is amended by adding the entries for Forms ``I-
800'' and ``I-800A'', in alpha/numeric sequence, to read as follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-800. For filing a petition to classify a Convention adoptee 
as an immediate relative.

--No fee for the first Form I-800 filed for a child on the basis of an 
approved Form I-800A, filed during the approval period.
--If more than one Form I-800 is filed during the approval period for 
different children, the fee is $670 for the second and each subsequent 
Form I-800 submitted.
--If the children are already siblings before the proposed adoption, 
however, only one filing fee of $670 is required, regardless of the 
sequence of submission of the Form I-800.

    Form I-800A. For filing an application for determination of 
suitability to adopt a child from a Convention country--$670.
    For filing a Form I-800A, Supplement 3, Request for Action on 
Approved Form I-800A--$340, except that this filing fee is not charged 
if no Form I-800 has been filed based on the approval of the Form I-
800A, and Form I-800A Supplement 3 is filed in order to obtain a first 
extension of the approval of the Form I-800A. * * *
* * * * *

PART 204--IMMIGRANT PETITIONS

0
3. The authority citation for part 204 continues to read as follows:

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

Subpart A--[Added]

0
4. In part 204, a subpart A heading is added to read as follows:

Subpart A--Immigrant Visa Petitions

0
5. Sections 204.1 through 204.13, inclusive, are designated under 
subpart A.
0
6. Section 204.1 is amended by:
0
a. Revising paragraph (a)(4);
0
b. Re-designating paragraph (a)(5) as paragraph (a)(6); and
0
c. Adding a new paragraph (a)(5).
    The revisions and additions to read as follows:


Sec.  204.1  General information about immediate relative and family-
sponsored petitions.

    (a) * * *
    (4) A U.S. citizen seeking to have USCIS accord immediate relative 
status to a child based on the citizen's adoption of the child as an 
orphan, as defined in section 101(b)(1)(F) of the Act, must follow the 
procedures in Sec.  204.3.
    (5) A U.S. citizen seeking to have USCIS accord immediate relative 
status to a child under section 101(b)(1)(G) of the Act on the basis of 
a Convention adoption must:
    (i) File a Form I-800A, Application to Determine Suitability as 
Adoptive Parents for a Convention adoptee; and
    (ii) After USCIS approves the Form I-800A, file a Form I-800, 
Petition to Classify Convention adoptee as Immediate Relative, as 
provided in 8 CFR part 204, subpart C.

0
7. Section 204.2 is amended by adding new paragraphs (d)(2)(vii)(D), 
(E) and (F), to read as follows:


Sec.  204.2  Petitions for relatives, widows and widowers, and abused 
spouses and children.

* * * * *
    (d) * * *
    (2) * * *
    (vii) * * *
    (D) On or after the Convention effective date, as defined in 8 CFR 
part 204.301, a United States citizen who is habitually resident in the 
United States, as determined under 8 CFR 204.303, may not file a Form 
I-130 under this section on behalf of child who was habitually resident 
in a Convention country, as determined under 8 CFR 204.303, unless the 
adoption was completed before the Convention effective date. In the 
case of any adoption occurring on or after the Convention effective 
date, a Form I-130 may be filed and approved only if the United States 
citizen petitioner was not habitually resident in the United States at 
the time of the adoption.
    (E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS 
will deem a United States citizen, 8 CFR 204.303 notwithstanding, to 
have been habitually resident outside the United States, if the citizen 
satisfies the 2-year joint residence and custody requirements by 
residing with the child outside the United States.
    (F) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS 
will not approve a Form I-130 under section 101(b)(1)(E) of the Act on 
behalf of an alien child who is present in the United States based on 
an adoption that is entered on or after the Convention effective date, 
but whose habitual residence immediately before the child's arrival in 
the United States was in a Convention country. However, the U.S. 
citizen seeking the child's adoption may file a Form I-800A and Form I-
800 under 8 CFR part 204, subpart C.
* * * * *

0
8. Section 204.3 is amended by revising the section heading and 
paragraph (a) to read as follows:


Sec.  204.3  Orphan cases under section 101(b)(1)(F) of the Act (non-
Convention cases).

    (a) This section addresses the immigration classification of alien 
orphans as provided for in section 101(b)(1)(F) of the Act.
    (1) Except as provided in paragraph (a)(2) of this section, 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 
U.S. citizen if:
    (i) The U.S. citizen seeking the child's immigration can document 
that the citizen (and his or her spouse, if any) are capable of 
providing, and will provide, proper care for an alien orphan; and
    (ii) The child is an orphan under section 101(b)(1)(F) of the Act.


A U.S. citizen may submit the documentation necessary for each of these 
determinations separately or at one time, depending on when the orphan 
is identified.
    (2) Form I-600A or Form I-600 may not be filed under this section 
on or after the Convention effective date, as defined in 8 CFR 204.301, 
on behalf of a child who is habitually resident in a Convention 
country, as defined in 8

[[Page 56854]]

CFR 204.301. On or after the Convention effective date, USCIS may 
approve a Form I-600 on behalf of a child who is habitually resident in 
a Convention country only if the Form I-600A or Form I-600 was filed 
before the Convention effective date.
* * * * *

Subpart B--[Added and Reserved]

0
9. Subpart B is added and reserved.

0
10. Subpart C is added to read as follows:
Subpart C--Intercountry Adoption of a Convention Adoptee
Sec.
204.300 Scope of this subpart.
204.301 Definitions.
204.302 Role of service providers.
204.303 Determination of habitual residence.
204.304 Improper inducement prohibited.
204.305 State preadoption requirements.
204.306 Classification as an immediate relative based on Convention 
adoption.
204.307 Who may file a Form I-800A or Form I-800.
204.308 Where to file Form I-800A or Form I-800.
204.309 Factors requiring denial of a Form I-800A or Form I-800.
204.310 Filing requirements for Form I-800A.
204.311 Convention adoption home study requirements.
204.312 Adjudication of the Form I-800A.
204.313 Filing and adjudication of the Form I-800.
204.314 Appeal.

Subpart C--Intercountry Adoption of a Convention Adoptee


Sec.  204.300  Scope of this subpart.

    (a) Convention adoptees. This subpart governs the adjudication of a 
Form I-800A or Form I-800 for a Convention adoptee under section 
101(b)(1)(G) of the Act. The provisions of this subpart enter into 
force on the Convention effective date, as defined in 8 CFR 204.301.
    (b) Orphan cases. On or after the Convention effective date, no 
Form I-600A or I-600 may be filed under section 101(b)(1)(F) of the Act 
and 8 CFR 204.3 in relation to the adoption of a child who is 
habitually resident in a Convention country. If a Form I-600A or Form 
I-600 was filed before the Convention effective date, the case will 
continue to be governed by 8 CFR 204.3, as in effect before the 
Convention effective date.
    (c) Adopted children. This subpart does not apply to the immigrant 
visa classification of adopted children, as defined in section 
101(b)(1)(E) of the Act. For the procedures that govern classification 
of adopted children as defined in section 101(b)(1)(E) of the Act, see 
8 CFR 204.2.


Sec.  204.301  Definitions.

    The definitions in 22 CFR 96.2 apply to this subpart C. In 
addition, as used in this subpart C, the term:
    Abandonment means:
    (1) That a child's parent has willfully forsaken all parental 
rights, obligations, and claims to the child, as well as all custody of 
the child without intending to transfer, or without transferring, these 
rights to any specific individual(s) or entity.
    (2) The child's parent must have actually surrendered such rights, 
obligations, claims, control, and possession.
    (3) That a parent's knowledge that a specific person or persons may 
adopt a child does not void an abandonment; however, a purported act of 
abandonment cannot be conditioned on the child's adoption by that 
specific person or persons.
    (4) That if the parent(s) entrusted the child to a third party for 
custodial care in anticipation of, or preparation for, adoption, the 
third party (such as a governmental agency, a court of competent 
jurisdiction, an adoption agency, or an orphanage) must have been 
authorized under the Convention country's child welfare laws to act in 
such a capacity.
    (5) That, if the parent(s) entrusted the child to an orphanage, the 
parent(s) did not intend the placement to be merely temporary, with the 
intention of retaining the parent-child relationship, but that the 
child is abandoned if the parent(s) entrusted the child permanently and 
unconditionally to an orphanage.
    (6) That, although a written document from the parent(s) is not 
necessary to prove abandonment, if any written document signed by the 
parent(s) is presented to prove abandonment, the document must specify 
whether the parent(s) who signed the document was (were) able to read 
and understand the language in which the document is written. If the 
parent is not able to read or understand the language in which the 
document is written, then the document is not valid unless the document 
is accompanied by a declaration, signed by an identified individual, 
establishing that that identified individual is competent to translate 
the language in the document into a language that the parent 
understands and that the individual, on the date and at the place 
specified in the declaration, did in fact read and explain the document 
to the parent in a language that the parent understands. The 
declaration must also indicate the language used to provide this 
explanation. If the person who signed the declaration is an officer or 
employee of the Central Authority (but not of an agency or entity 
authorized to perform a Central Authority function by delegation) or 
any other governmental agency, the person must certify the truth of the 
facts stated in the declaration. Any other individual who signs a 
declaration must sign the declaration under penalty of perjury under 
United States law.
    Adoption means the judicial or administrative act that establishes 
a permanent legal parent-child relationship between a minor and an 
adult who is not already the minor's legal parent and terminates the 
legal parent-child relationship between the adoptive child and any 
former parent(s).
    Adult member of the household means:
    (1) Any individual other than the applicant, who has the same 
principal residence as the applicant and who had reached his or her 
18th birthday on or before the date a Form I-800A is filed; or
    (2) Any person who has not yet reached his or her 18th birthday 
before the date a Form I-800A is filed, or who does not actually live 
at the same residence, but whose presence in the residence is relevant 
to the issue of suitability to adopt, if the officer adjudicating the 
Form I-800A concludes, based on the facts of the case, that it is 
necessary to obtain an evaluation of how that person's presence in the 
home affects the determination whether the applicant is suitable as the 
adoptive parent(s) of a Convention adoptee.
    Applicant means the U.S. citizen (and his or her spouse, if any) 
who has filed a Form I-800A under this subpart C. The applicant may be 
an unmarried U.S. citizen who is at least 24 years old when the Form I-
800A is filed, or a married U.S. citizen of any age and his or her 
spouse of any age. Although the singular term ``applicant'' is used in 
this subpart, the term includes both a married U.S. citizen and his or 
her spouse.
    Birth parent means a ``natural parent'' as used in section 
101(b)(1)(G) of the Act.
    Central Authority means the entity designated as such under Article 
6(1) of the Convention by any Convention country or, in the case of the 
United States, the United States Department of State. Except as 
specified in this Part, ``Central Authority'' also means, solely for 
purposes of this Part, an individual who or entity that is performing a 
Central Authority function, having been authorized to do so by the 
designated

[[Page 56855]]

Central Authority, in accordance with the Convention and the law of the 
Central Authority's country.
    Competent authority means a court or governmental agency of a 
foreign country that has jurisdiction and authority to make decisions 
in matters of child welfare, including adoption.
    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, opened for signature at 
The Hague on May 29, 1993.
    Convention adoptee means a child habitually resident in a 
Convention country who is eligible to immigrate to the United States on 
the basis of a Convention adoption.
    Convention adoption, except as specified in 8 CFR 204.300(b), means 
the adoption, on or after the Convention effective date, of an alien 
child habitually resident in a Convention country by a U.S. citizen 
habitually resident in the United States, when in connection with the 
adoption the child has moved, or will move, from the Convention country 
to the United States.
    Convention country means a country that is a party to the 
Convention and with which the Convention is in force for the United 
States.
    Convention effective date means the date on which the Convention 
enters into force for the United States as announced by the Secretary 
of State under 22 CFR 96.17.
    Custody for purposes of emigration and adoption exists when:
    (1) The competent authority of the country of a child's habitual 
residence has, by a judicial or administrative act (which may be either 
the act granting custody of the child or a separate judicial or 
administrative act), expressly authorized the petitioner, or an 
individual or entity acting on the petitioner's behalf, to take the 
child out of the country of the child's habitual residence and to bring 
the child to the United States for adoption in the United States.
    (2) If the custody order shows that custody was given to an 
individual or entity acting on the petitioner's behalf, the custody 
order must indicate that the child is to be adopted in the United 
States by the petitioner.
    (3) A foreign judicial or administrative act that is called an 
adoption but that does not terminate the legal parent-child 
relationship between the former parent(s) and the adopted child and 
does not create the permanent legal parent-child relationship between 
the petitioner and the adopted child will be deemed a grant of custody 
of the child for purposes of this part, but only if the judicial or 
administrative act expressly authorizes the custodian to take the child 
out of the country of the child's habitual residence and to bring the 
child to the United States for adoption in the United States by the 
petitioner.
    Deserted or desertion means that a child's parent has willfully 
forsaken the child and has refused to carry out 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 Convention 
country.
    Disappeared or Disappearance means that a child's parent has 
unaccountably or inexplicably passed out of the child's life so that 
the parent's whereabouts are unknown, there is no reasonable 
expectation of the parent's reappearance, and there has been a 
reasonable effort to locate the parent as determined by a competent 
authority in accordance with the laws of the Convention country. A 
stepparent who under the definition of ``Parent'' in this section is 
deemed to be a child's legal parent, may be found to have disappeared 
if it is established that the stepparent either never knew of the 
child's existence, or never knew of their legal relationship to the 
child.
    Home study preparer means a person (whether an individual or an 
agency) authorized under 22 CFR part 96 to conduct home studies for 
Convention adoption cases, either as a public domestic authority, an 
accredited agency, a temporarily accredited agency, approved person, 
supervised provider, or exempted provider and who (if not a public 
domestic authority) holds any license or other authorization that may 
be required to conduct adoption home studies under the law of the 
jurisdiction in which the home study is conducted.
    Incapable of providing proper care means that, in light of all the 
relevant circumstances including but not limited to economic or 
financial concerns, extreme poverty, medical, mental, or emotional 
difficulties, or long term-incarceration, the child's two living birth 
parents are not able to provide for the child's basic needs, consistent 
with the local standards of the Convention country.
    Irrevocable consent means a document which indicates the place and 
date the document was signed by a child's legal custodian, and which 
meets the other requirements specified in this definition, in which the 
legal custodian freely consents to the termination of the legal 
custodian's legal relationship with the child. If the irrevocable 
consent is signed by the child's birth mother or any legal custodian 
other than the birth father, the irrevocable consent must have been 
signed after the child's birth; the birth father may sign an 
irrevocable consent before the child's birth if permitted by the law of 
the child's habitual residence. This provision does not preclude a 
birth father from giving consent to the termination of his legal 
relationship to the child before the child's birth, if the birth father 
is permitted to do so under the law of the country of the child's 
habitual residence.
    (1) To qualify as an irrevocable consent under this definition, the 
document must specify whether the legal custodian is able to read and 
understand the language in which the consent is written. If the legal 
custodian is not able to read or understand the language in which the 
document is written, then the document does not qualify as an 
irrevocable consent unless the document is accompanied by a 
declaration, signed, by an identified individual, establishing that 
that identified individual is competent to translate the language in 
the irrevocable consent into a language that the parent understands, 
and that the individual, on the date and at the place specified in the 
declaration, did in fact read and explain the consent to the legal 
custodian in a language that the legal custodian understands. The 
declaration must also indicate the language used to provide this 
explanation. If the person who signed the declaration is an officer or 
employee of the Central Authority (but not of an agency or entity 
authorized to perform a Central Authority function by delegation) or 
any other governmental agency, the person must certify the truth of the 
facts stated in the declaration. Any other individual who signs a 
declaration must sign the declaration under penalty of perjury under 
United States law.
    (2) If more than one individual or entity is the child's legal 
custodian, the consent of each legal custodian may be recorded in one 
document, or in an additional document, but all documents, taken 
together, must show that each legal custodian has given the necessary 
irrevocable consent.
    Legal custodian means the individual who, or entity that, has legal 
custody of a child, as defined in 22 CFR 96.2.
    Officer means a USCIS officer with jurisdiction to adjudicate Form 
I-800A or Form I-800 or a Department of State officer with 
jurisdiction, by delegation from USCIS, to grant either provisional or 
final approval of a Form I-800.
    Parent means any person who is related to a child as described in 
section 101(b)(1)(A), (B), (C), (D), (E), (F), or (G) and section 
101(b)(2) of the Act, except

[[Page 56856]]

that a stepparent described in section 101(b)(1)(B) of the Act is not 
considered a child's parent, solely for purposes of classification of 
the child as a Convention adoptee, if the petitioner establishes that, 
under the law of the Convention country, there is no legal parent-child 
relationship between a stepparent and stepchild. This definition 
includes a stepparent if the stepparent adopted the child, or if the 
stepparent, under the law of the Convention country, became the child's 
legal parent by marrying the other legal parent. A stepparent who is a 
legal parent may consent to the child's adoption, or may be found to 
have abandoned or deserted the child, or to have disappeared from the 
child's life, in the same manner as would apply to any other legal 
parent.
    Petitioner means the U.S. citizen (and his or her spouse, if any) 
who has filed a Form I-800 under this subpart C. The petitioner may be 
an unmarried U.S. citizen who is at least 25 years old when the Form I-
800 is filed, or a married U.S. citizen of any age and his or her 
spouse of any age. Although the singular term ``petitioner'' is used in 
this subpart, the term includes both a married U.S. citizen and his or 
her spouse.
    Sole parent means:
    (1) The child's mother, when the competent authority has determined 
that the child's father has abandoned or deserted the child, or has 
disappeared from the child's life; or
    (2) The child's father, when the competent authority has determined 
that the child's mother has abandoned or deserted the child, or has 
disappeared from the child's life; except that
    (3) A child's parent is not a sole parent if the child has acquired 
another parent within the meaning of section 101(b)(2) of the Act and 
this section.
    Suitability as adoptive parent(s) means that USCIS is satisfied, 
based on the evidence of record, that it is reasonable to conclude that 
the applicant is capable of providing, and will provide, proper 
parental care to an adopted child.
    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 and this section.


Sec.  204.302  Role of service providers.

    (a) Who may provide services in Convention adoption cases. Subject 
to the limitations in paragraph (b) or (c) of this section, a U.S. 
citizen seeking to file a Form I-800A or I-800 may use the services of 
any individual or entity authorized to provide services in connection 
with adoption, except that the U.S. citizen must use the services of an 
accredited agency, temporarily accredited agency, approved person, 
supervised provider public domestic authority or exempted provider when 
required to do so under 22 CFR part 96.
    (b) Unauthorized practice of law prohibited. An adoption agency or 
facilitator, including an individual or entity authorized under 22 CFR 
part 96 to provide the six specific adoption services identified in 22 
CFR 96.2, may not engage in any act that constitutes the legal 
representation, as defined in 8 CFR 1.1(i), (j) and (m), of the 
applicant (for a Form I-800A case) or petitioner (for a Form I-800 
case) unless authorized to do so as provided in 8 CFR part 292. An 
individual authorized under 8 CFR part 292 to practice before USCIS may 
provide legal services in connection with a Form I-800A or I-800 case, 
but may not provide any of the six specific adoption services 
identified in 22 CFR 96.2, unless the individual is authorized to do so 
under 22 CFR part 96 (for services provided in the United States) or 
under the laws of the country of the child's habitual residence (for 
services performed outside the United States). The provisions of 8 CFR 
292.5 concerning sending notices about a case do not apply to an 
adoption agency or facilitator that is not authorized under 8 CFR part 
292 to engage in representation before USCIS.
    (c) Application of the Privacy Act. Except as permitted by the 
Privacy Act, 5 U.S.C. 552a and the relevant Privacy Act notice 
concerning the routine use of information, USCIS may not disclose or 
give access to any information or record relating to any applicant or 
petitioner who has filed a Form I-800A or Form I-800 to any individual 
or entity other than that person, including but not limited to an 
accredited agency, temporarily accredited agency, approved person, 
public domestic authority, exempted provider, or supervised provider, 
unless the applicant who filed the Form I-800A or the petitioner who 
filed Form I-800 has filed a written consent to disclosure, as provided 
by the Privacy Act, 5 U.S.C. 552a.


Sec.  204.303  Determination of habitual residence.

    (a) U.S. Citizens. For purposes of this subpart, a U.S. citizen who 
is seeking to have an alien classified as the U.S. citizen's child 
under section 101(b)(1)(G) of the Act is deemed to be habitually 
resident in the United States if the individual:
    (1) Has his or her domicile in the United States, even if he or she 
is living temporarily abroad; or
    (2) Is not domiciled in the United States but establishes by a 
preponderance of the evidence that:
    (i) The citizen will have established a domicile in the United 
States on or before the date of the child's admission to the United 
States for permanent residence as a Convention adoptee; or
    (ii) The citizen indicates on the Form I-800 that the citizen 
intends to bring the child to the United States after adopting the 
child abroad, and before the child's 18th birthday, at which time the 
child will be eligible for, and will apply for, naturalization under 
section 322 of the Act and 8 CFR part 322. This option is not available 
if the child will be adopted in the United States.
    (b) Convention adoptees. A child whose classification is sought as 
a Convention adoptee is, generally, deemed for purposes of this subpart 
C to be habitually resident in the country of the child's citizenship. 
If the child's actual residence is outside the country of the child's 
citizenship, the child will be deemed habitually resident in that other 
country, rather than in the country of citizenship, if the Central 
Authority (or another competent authority of the country in which the 
child has his or her actual residence) has determined that the child's 
status in that country is sufficiently stable for that country properly 
to exercise jurisdiction over the child's adoption or custody. This 
determination must be made by the Central Authority itself, or by 
another competent authority of the country of the child's habitual 
residence, but may not be made by a nongovernmental individual or 
entity authorized by delegation to perform Central Authority functions. 
The child will not be considered to be habitually resident in any 
country to which the child 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.


Sec.  204.304  Improper inducement prohibited.

    (a) Prohibited payments. Neither the applicant/petitioner, nor any 
individual or entity acting on behalf of the applicant/petitioner may, 
directly or indirectly, pay, give, offer to pay, or offer to give to 
any individual or entity or request, receive, or accept from any 
individual or entity, any money (in any amount) or anything of value 
(whether the value is great or small), directly or indirectly, to 
induce or influence any decision concerning:
    (1) The placement of a child for adoption;

[[Page 56857]]

    (2) The consent of a parent, a legal custodian, individual, or 
agency to the adoption of a child;
    (3) The relinquishment of a child to a competent authority, or to 
an agency or person as defined in 22 CFR 96.2, for the purpose of 
adoption; or
    (4) The performance by the child's parent or parents of any act 
that makes the child a Convention adoptee.
    (b) Permissible payments. Paragraph (a) of this section does not 
prohibit an applicant/petitioner, or an individual or entity acting on 
behalf of an applicant/petitioner, from paying the reasonable costs 
incurred for the services designated in this paragraph. A payment is 
not reasonable if it is prohibited under the law of the country in 
which the payment is made or if the amount of the payment is not 
commensurate with the costs for professional and other services in the 
country in which any particular service is provided. The permissible 
services are:
    (1) The services of an adoption service provider in connection with 
an adoption;
    (2) Expenses incurred in locating a child for adoption;
    (3) Medical, hospital, nursing, pharmaceutical, travel, or other 
similar expenses incurred by a mother or her child in connection with 
the birth or any illness of the child;
    (4) Counseling services for a parent or a child for a reasonable 
time before and after the child's placement for adoption;
    (5) Expenses, in an amount commensurate with the living standards 
in the country of the child's habitual residence, for the care of the 
birth mother while pregnant and immediately following the birth of the 
child;
    (6) Expenses incurred in obtaining the home study;
    (7) Expenses incurred in obtaining the reports on the child as 
described in 8 CFR 204.313(d)(3) and (4);
    (8) Legal services, court costs, and travel or other administrative 
expenses connected with an adoption, including any legal services 
performed for a parent who consents to the adoption of a child or 
relinquishes the child to an agency; and
    (9) Any other service the payment for which the officer finds, on 
the basis of the facts of the case, was reasonably necessary.
    (c) Department of State requirements. See 22 CFR 96.34, 96.36 and 
96.40 for additional regulatory information concerning fees in relation 
to Convention adoptions.


Sec.  204.305  State preadoption requirements.

    State preadoption requirements must be complied with when a child 
is coming into the State as a Convention adoptee to be adopted in the 
United States. A qualified Convention adoptee is deemed to be coming to 
be adopted in the United States if either of the following factors 
exists:
    (a) The applicant/petitioner will not complete the child's adoption 
abroad; or
    (b) In the case of a married applicant/petitioner, the child was 
adopted abroad only by one of the spouses, rather than by the spouses 
jointly, so that it will be necessary for the other spouse to adopt the 
child after the child's admission.


Sec.  204.306  Classification as an immediate relative based on a 
Convention adoption.

    (a) Unless 8 CFR 204.309 requires the denial of a Form I-800A or 
Form I-800, a child is eligible for classification as an immediate 
relative, as defined in section 201(b)(2)(A)(i) of the Act, on the 
basis of a Convention adoption, if the U.S. citizen who seeks to adopt 
the child establishes that:
    (1) The United States citizen is (or, if married, the United States 
citizen and the United States citizen's spouse are) eligible and 
suitable to adopt; and
    (2) The child is a Convention adoptee.
    (b) A U.S. citizen seeking to have USCIS classify an alien child as 
the U.S. citizen's child under section 101(b)(1)(G) of the Act must 
complete a two-step process:
    (1) First, the U.S. citizen must file a Form I-800A under 8 CFR 
204.310;
    (2) Then, once USCIS has approved the Form I-800A and a child has 
been identified as an alien who may qualify as a Convention adoptee, 
the U.S. citizen must file a Form I-800 under 8 CFR 204.313.


Sec.  204.307  Who may file a Form I-800A or Form I-800.

    (a) Eligibility to file Form I-800A. Except as provided in 
paragraph (c) of this section, the following persons may file a Form I-
800A:
    (1) An unmarried United States citizen who is at least 24 years old 
and who is habitually resident in the United States, as determined 
under 8 CFR 204.303(a); or
    (2) A married United States citizen, who is habitually resident in 
the United States, as determined under 8 CFR 204.303(a), and whose 
spouse will also adopt any child adopted by the citizen based on the 
approval of a Form I-800A; and
    (3) The citizen's spouse must also be either a U.S. citizen, a non-
citizen U.S. national, or an alien who, if living in the United States, 
holds a lawful status under U.S. immigration law. If an alien spouse is 
present in a lawful status other than the status of an alien lawfully 
admitted for permanent residence, such status will be a factor 
evaluated in determining whether the family's situation is sufficiently 
stable to support a finding that the applicant is suitable as the 
adoptive parents of a Convention adoptee.
    (b) Eligibility to file a Form I-800. Except as provided in 
paragraph (c) of this section, the following persons may file a Form I-
800:
    (1) An unmarried United States citizen who is at least 25 years old 
and who is habitually resident in the United States, as determined 
under 8 CFR 204.303(a); or
    (2) A married United States citizen, who is habitually resident in 
the United States as determined under 8 CFR 204.303(a), and whose 
spouse will also adopt the child the citizen seeks to adopt. The spouse 
must be either a United States citizen or a non-citizen U.S. national 
or an alien who, if living in the United States, holds a lawful status 
under U.S. immigration law; and
    (3) The person has an approved and unexpired Form I-800A.
    (c) Exceptions. (1) No applicant may file a Form I-800A, and no 
petitioner may file a Form I-800, if:
    (i) The applicant filed a prior Form I-800A that USCIS denied under 
8 CFR 204.309(a); or
    (ii) The applicant filed a prior Form I-600A under 8 CFR 204.3 that 
USCIS denied under 8 CFR 204.3(h)(4); or
    (iii) The petitioner filed a prior Form I-800 that USCIS denied 
under 8 CFR 204.309(b)(3); or
    (iv) The petitioner filed a prior Form I-600 under 8 CFR 204.3 that 
USCIS denied under 8 CFR 204.3(i).
    (2) This bar against filing a subsequent Form I-800A or Form I-800 
expires one year after the date on which the decision denying the prior 
Form I-800A, I-600A, I-800 or I-600 became administratively final. If 
the applicant (for a Form I-800A or I-600A case) or the petitioner (for 
a Form I-800 or I-600 case) does not appeal the prior decision, the 
one-year period ends one year after the date of the original decision 
denying the prior Form I-800A, I-600A, I-800 or I-600. Any Form I-800A, 
or Form I-800 filed during this one-year period will be denied. If the 
applicant (for a Form I-800A or Form I-600A case) or petitioner (for a 
Form I-800 or I-600 case) appeals the prior decision, the bar to filing 
a new Form I-800A or I-800 applies while the appeal is pending and ends 
one year after the date of an Administrative Appeals Office decision 
affirming the denial.
    (3) Any facts underlying a prior denial of a Form I-800A, I-800, I-
600A, or I-600 are relevant to the adjudication of

[[Page 56858]]

any subsequently filed Form I-800A or Form I-800 that is filed after 
the expiration of this one year bar.


Sec.  204.308  Where to file Form I-800A or Form I-800.

    (a) Form I-800A. An applicant must file a Form I-800A with the 
USCIS office identified in the instructions that accompany Form I-800A.
    (b) Form I-800. After a Form I-800A has been approved, a petitioner 
may file a Form I-800 on behalf of a Convention adoptee with the 
stateside or overseas USCIS office identified in the instructions that 
accompany Form I-800. The petitioner may also file the Form I-800 with 
a visa-issuing post that would have jurisdiction to adjudicate a visa 
application filed by or on behalf of the Convention adoptee, when 
filing with the visa-issuing post is permitted by the instructions that 
accompany Form I-800.
    (c) Final approval of Form I-800. Once a Form I-800 has been 
provisionally approved under 8 CFR 204.313(g) and the petitioner has 
either adopted or obtained custody of the child for purposes of 
emigration and adoption, the Department of State officer with 
jurisdiction to adjudicate the child's application for an immigrant or 
nonimmigrant visa has jurisdiction to grant final approval of the Form 
I-800. The Department of State officer may approve the Form I-800, but 
may not deny it; the Department of State officer must refer any Form I-
800 that is ``not clearly approvable'' for a decision by a USCIS office 
having jurisdiction over Form I-800 cases. If the Department of State 
officer refers the Form I-800 to USCIS because it is ``not clearly 
approvable,'' then USCIS has jurisdiction to approve or deny the Form 
I-800. In the case of an alien child who is in the United States and 
who is eligible both under 8 CFR 204.309(b)(4) for approval of a Form 
I-800 and under 8 CFR part 245 for adjustment of status, the USCIS 
office with jurisdiction to adjudicate the child's adjustment of status 
application also has jurisdiction to grant final approval of the Form 
I-800.
    (d) Use of electronic filing. When, and if, USCIS adopts 
electronic, internet-based or other digital means for filing Convention 
cases, the terms ``filing a Form I-800A'' and ``filing a Form I-800'' 
will include an additional option. Rather than filing the Form I-800A 
or Form I-800 and accompanying evidence in a paper format, the 
submission of the same required information and accompanying evidence 
may be filed according to the digital filing protocol that USCIS 
adopts.


Sec.  204.309  Factors requiring denial of a Form I-800A or Form I-800.

    (a) Form I-800A. A USCIS officer must deny a Form I-800A if:
    (1) The applicant or any additional adult member of the household 
failed to disclose to the home study preparer or to USCIS, or concealed 
or misrepresented, any fact(s) about the applicant or any additional 
member of the household concerning the arrest, conviction, or history 
of substance abuse, sexual abuse, child abuse, and/or family violence, 
or any other criminal history as an offender; the fact that an arrest 
or conviction or other criminal history has been expunged, sealed, 
pardoned, or the subject of any other amelioration does not relieve the 
applicant or additional adult member of the household of the obligation 
to disclose the arrest, conviction or other criminal history;
    (2) The applicant, or any additional adult member of the household, 
failed to cooperate in having available child abuse registries checked 
in accordance with 8 CFR 204.311;
    (3) The applicant, or any additional adult member of the household, 
failed to disclose, as required by 8 CFR 204.311, each and every prior 
adoption home study, whether completed or not, including those that did 
not favorably recommend for adoption or custodial care, the person(s) 
to whom the prior home study related; or
    (4) The applicant is barred by 8 CFR 204.307(c) from filing the 
Form I-800A.
    (b) Form I-800. A USCIS officer must deny a Form I-800 if:
    (1) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to 
a new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner completed the adoption of the child, or 
acquired legal custody of the child for purposes of emigration and 
adoption, before the provisional approval of the Form I-800 under 8 CFR 
204.313(g). This restriction will not apply if a competent authority in 
the country of the child's habitual residence voids, vacates, annuls, 
or terminates the adoption or grant of custody and then, after the 
provisional approval of the Form I-800, and after receipt of notice 
under article 5(c) of the Convention that the child is, or will be, 
authorized to enter and reside permanently in the United States, 
permits a new grant of adoption or custody. The prior adoption must be 
voided, vacated, annulled or otherwise terminated before the petitioner 
files a Form I-800.
    (2) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to 
a new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner, or any additional adult member of the 
household had met with, or had any other form of contact with, the 
child's parents, legal custodian, or other individual or entity who was 
responsible for the child's care when the contact occurred, unless the 
contact was permitted under this paragraph. An authorized adoption 
service provider's sharing of general information about a possible 
adoption placement is not ``contact'' for purposes of this section. 
Contact is permitted under this paragraph if:
    (i) The first such contact occurred only after USCIS had approved 
the Form I-800A filed by the petitioner, and after the competent 
authority of the Convention country had determined that the child is 
eligible for intercountry adoption and that the required consents to 
the adoption have been given; or
    (ii) The competent authority of the Convention country had 
permitted earlier contact, either in the particular instance or through 
laws or rules of general application, and the contact occurred only in 
compliance with the particular authorization or generally applicable 
laws or rules. If the petitioner first adopted the child without 
complying with the Convention, the competent authority's decision to 
permit the adoption to be vacated, and to allow the petitioner to adopt 
the child again after complying with the Convention, will also 
constitute approval of any prior contact; or
    (iii) The petitioner was already, before the adoption, the father, 
mother, son, daughter, brother, sister, uncle, aunt, first cousin (that 
is, the petitioner, or either spouse, in the case of a married 
petitioner had at least one grandparent in common with the child's 
parent), second cousin (that is, the petitioner, or either spouse, in 
the case of a married petitioner, had at least one great-grandparent in 
common with the child's parent) nephew, niece, husband, former husband, 
wife, former wife, father-in-law, mother-in-law, son-in-law, daughter-
in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, 
stepdaughter, stepbrother, stepsister, half brother, or half sister of 
the child's parent(s).
    (3) The USCIS officer finds that the petitioner, or any individual 
or entity acting on behalf of the petitioner has engaged in any conduct 
related to the adoption or immigration of the child that is prohibited 
by 8 CFR 204.304, or that the petitioner has concealed or 
misrepresented any material facts concerning payments made in relation 
to the adoption;

[[Page 56859]]

    (4) The child is present in the United States, unless the 
petitioner, after compliance with the requirements of this subpart, 
either adopt(s) the child in the Convention country, or else, after 
having obtained custody of the child under the law of the Convention 
country for purposes of emigration and adoption, adopt(s) the child in 
the United States. This subpart does not require the child's actual 
return to the Convention country; whether to permit the child's 
adoption without the child's return is a matter to be determined by the 
Central Authority of the country of the child's habitual residence, but 
approval of a Form I-800 does not relieve an alien child of his or her 
ineligibility for adjustment of status under section 245 of the Act, if 
the child is present in the United States without inspection or is 
otherwise ineligible for adjustment of status. If the child is in the 
United States but is not eligible for adjustment of status, the Form I-
800 may be provisionally approved only if the child will leave the 
United States after the provisional approval and apply for a visa 
abroad before the final approval of the Form I-800.
    (5) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to 
a new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner files the Form I-800:
    (i) Before the approval of a Form I-800A, or
    (ii) After the denial of a Form I-800A; or
    (iii) After the expiration of the approval of a Form I-800A;
    (6) The petitioner is barred by 8 CFR 204.307(c) from filing the 
Form I-800.
    (c) Notice of intent to deny. Before denying a Form I-800A under 
paragraph (a) or a Form I-800 under paragraph (b) of this section, the 
USCIS officer will notify the applicant (for a Form I-800A case) or 
petitioner (for a Form I-800 case) in writing of the intent to deny the 
Form I-800A or Form I-800 and provide 30 days in which to submit 
evidence and argument to rebut the claim that this section requires 
denial of the Form I-800A or Form I-800.
    (d) Rebuttal of intent to deny. If USCIS notifies the applicant 
that USCIS intends to deny a Form I-800A under paragraph (a) of this 
section, because the applicant or any additional adult member(s) of the 
household failed to disclose to the home study preparer or to USCIS, or 
concealed or misrepresented, any fact(s) concerning the arrest, 
conviction, or history of substance abuse, sexual abuse or child abuse, 
and/or family violence, or other criminal history, or failed to 
cooperate in search of child abuse registries, or failed to disclose a 
prior home study, the applicant may rebut the intent to deny only by 
establishing, by clear and convincing evidence that:
    (1) The applicant or additional adult member of the household did, 
in fact, disclose the information; or
    (2) If it was an additional adult member of the household who 
failed to cooperate in the search of child abuse registries, or who 
failed to disclose to the home study preparer or to USCIS, or concealed 
or misrepresented, any fact(s) concerning the arrest, conviction, or 
history of substance abuse, sexual abuse or child abuse, and/or family 
violence, or other criminal history, or failed to disclose a prior home 
study, that that person is no longer a member of the household and that 
that person's conduct is no longer relevant to the suitability of the 
applicant as the adoptive parent of a Convention adoptee.


Sec.  204.310  Filing requirements for Form I-800A.

    (a) Completing and filing the Form. A United States citizen seeking 
to be determined eligible and suitable as the adoptive parent of a 
Convention adoptee must:
    (1) Complete Form I-800A, including a Form I-800A Supplement 1 for 
each additional adult member of the household, in accordance with the 
instructions that accompany the Form I-800A.
    (2) Sign the Form I-800A personally. One spouse cannot sign for the 
other, even under a power of attorney or similar agency arrangement.
    (3) File the Form I-800A with the USCIS office that has 
jurisdiction under 8 CFR 204.308(a) to adjudicate the Form I-800A, 
together with:
    (i) The fee specified in 8 CFR 103.7(b)(1) for the filing of Form 
I-800A;
    (ii) The additional biometrics information collection fee required 
under 8 CFR 103.7(b)(1) for the applicant and each additional adult 
member of the household;
    (iii) Evidence that the applicant is a United States citizen, as 
set forth in 8 CFR 204.1(g), or, in the case of a married applicant, 
evidence either that both spouses are citizens or, if only one spouse 
is a United States citizen, evidence of that person's citizenship and 
evidence that the other spouse, if he or she lives in the United 
States, is either a non-citizen United States national or an alien who 
holds a lawful status under U.S. immigration law.
    (iv) A copy of the current marriage certificate, unless the 
applicant is not married;
    (v) If the applicant has been married previously, a death 
certificate or divorce or dissolution decree to establish the legal 
termination of all previous marriages, regardless of current marital 
status;
    (vi) If the applicant is not married, his or her birth certificate, 
U.S. passport biographical information page, naturalization or 
citizenship certificate, or other evidence, to establish that he or she 
is at least 24 years old;
    (vii) A written description of the preadoption requirements, if 
any, of the State of the child's proposed residence in cases where it 
is known that any child the applicant may adopt will be adopted in the 
United States, and of the steps that have already been taken or that 
are planned to comply with these requirements. The written description 
must include a citation to the State statutes and regulations 
establishing the requirements. Any preadoption requirements which 
cannot be met at the time the Form I-800A is filed because of the 
operation of State law must be noted and explained when the Form I-800A 
is filed.
    (viii) A home study that meets the requirements of 8 CFR 204.311 
and that bears the home study preparer's original signature. If the 
home study is not included with the Form I-800A, the director of the 
office that has jurisdiction to adjudicate the Form I-800A will make a 
written request for evidence, directing the applicant to submit the 
home study. If the applicant fails to submit the home study within the 
period specified in the request for evidence, the director of the 
office that has jurisdiction to adjudicate the Form I-800A will deny 
the Form I-800A. Denial of a Form I-800A under this paragraph for 
failure to submit a home study is not subject to appeal, but the 
applicant may file a new Form I-800A, accompanied by a new filing fee.
    (b) Biometrics. Upon the proper filing of a Form I-800A, USCIS will 
arrange for the collection of biometrics from the applicant and each 
additional adult member of the household, as prescribed in 8 CFR 
103.2(e), but with no upper age limit. It will be necessary to collect 
the biometrics of each of these persons again, if the initial 
collection expires before approval of the Form I-800A. USCIS may waive 
this requirement for any particular individual if USCIS determines that 
that person is physically unable to comply. However, USCIS will require 
the submission of affidavits, police clearances, or other evidence 
relating to whether that person

[[Page 56860]]

has a criminal history in lieu of collecting the person's biometrics.
    (c) Change in marital status. If, while a Form I-800A is pending, 
an unmarried applicant marries, or the marriage of a married applicant 
ends, an amended Form I-800A and amended home study must be filed to 
reflect the change in marital status. No additional filing fee is 
required to file an amended Form I-800A while the original Form I-800A 
is still pending. See 8 CFR 204.312(e)(2) concerning the need to file a 
new Form I-800A if the marital status changes after approval of a Form 
I-800A.


Sec.  204.311  Convention adoption home study requirements.

    (a) Purpose. For immigration purposes, a home study is a process 
for screening and preparing an applicant who is interested in adopting 
a child from a Convention country.
    (b) Preparer. Only an individual or entity defined under 8 CFR 
204.301 as a home study preparer for Convention cases may complete a 
home study for a Convention adoption. In addition, the individual or 
entity must be authorized to complete adoption home studies under the 
law of the jurisdiction in which the home study is conducted.
    (c) Study requirements. The home study must:
    (1) Be tailored to the particular situation of the applicant and to 
the specific Convention country in which the applicant intends to seek 
a child for adoption. For example, an applicant who has previously 
adopted children will require different preparation than an applicant 
who has no adopted children. A home study may address the applicant's 
suitability to adopt in more than one Convention country, but if the 
home study does so, the home study must separately assess the 
applicant's suitability as to each specific Convention country.
    (2) If there are any additional adult members of the household, 
identify each of them by name, alien registration number (if the 
individual has one), and date of birth.
    (3) Include an interview by the preparer of any additional adult 
member of the household and an assessment of him or her in light of the 
requirements of this section.
    (4) Be no more than 6 months old at the time the home study is 
submitted to USCIS.
    (5) Include the home study preparer's assessment of any 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. See 8 CFR 204.309(a) for the 
consequences of failure to disclose information or cooperate in 
completion of a home study.
    (6) Include the home study preparer's signature, in accordance with 
paragraph (f) of this section.
    (7) State the number of interviews and visits, the participants, 
date and location of each interview and visit, and the date and 
location of any other contacts with the applicant and any additional 
adult member of the household.
    (8) Summarize the pre-placement preparation and training already 
provided to the applicant concerning the issues specified in 22 CFR 
96.48(a) and (b), the plans for future preparation and training with 
respect to those issues, or with respect to a particular child, as 
specified in 22 CFR 96.48(c), and the plans for post-placement 
monitoring specified in 22 CFR 96.50, in the event that the child will 
be adopted in the United States rather than abroad.
    (9) Specify whether the home study preparer made any referrals as 
described in paragraph (g)(4) of this section, and include a copy of 
the report resulting from each referral, the home study preparer's 
assessment of the impact of the report on the suitability of the 
applicant to adopt, and the home study preparer's recommended 
restrictions, if any, on the characteristics of the child to be placed 
in the home.
    (10) Include results of the checks conducted in accordance with 
paragraph (i) of this section including that no record was found to 
exist, that the State or foreign country will not release information 
to the home study preparer or anyone in the household, or that the 
State or foreign country does not have a child abuse registry.
    (11) Include each person's response to the questions regarding 
abuse and violence in accordance with paragraph (j) of this section.
    (12) Include 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 for anyone subject to the home study and a written statement 
submitted with the home study giving details, including any mitigating 
circumstances about each arrest, signed, under penalty of perjury, by 
the person to whom the arrest relates.
    (13) Contain an evaluation of the suitability of the home for 
adoptive placement of a child in light of any applicant's or additional 
adult member of the household's history of abuse and/or violence as an 
offender, whether this history is disclosed by an applicant or any 
additional adult member of the household or is discovered by home study 
preparer, regardless of the source of the home study preparer's 
discovery. A single incident of sexual abuse, child abuse, or family 
violence is sufficient to constitute a ``history'' of abuse and/or 
violence.
    (14) Contain an evaluation of the suitability of the home for 
adoptive placement of a child in light of disclosure by an applicant, 
or any additional adult member of the household, of a history of 
substance abuse. A person has a history of substance abuse if his or 
her current or past use of alcohol, controlled substances, or other 
substances impaired or impairs his or her ability to fulfill 
obligations at work, school, or home, or creates other social or 
interpersonal problems that may adversely affect the applicant's 
suitability as an adoptive parent.
    (15) Include a general description of the information disclosed in 
accordance with paragraph (m) of this section concerning the physical, 
mental, and emotional health of the applicant and of any additional 
adult member of the household.
    (16) Identify the agency involved in each prior or terminated home 
study in accordance with paragraph (o) of this section, when the prior 
home study process began, the date the prior home study was completed, 
and whether the prior home study recommended for or against finding the 
applicant or additional adult member of the household suitable for 
adoption, foster care, or other custodial care of a child. If a prior 
home study was terminated without completion, the current home study 
must indicate when the prior home study began, the date of termination, 
and the reason for the termination.
    (d) Duty to disclose. (1) The applicant, and any additional adult 
members of the household, each has a duty of candor and must:
    (i) Give true and complete information to the home study preparer.
    (ii) Disclose any arrest, conviction, or other adverse criminal 
history, whether in the United States or abroad, even if the record of 
the arrest, conviction or other adverse criminal history has been 
expunged, sealed, pardoned, or the subject of any other amelioration. A 
person with a criminal history may be able to establish sufficient 
rehabilitation.
    (iii) Disclose other relevant information, such as physical, mental 
or emotional health issues, or behavioral issues, as specified in 
paragraph (m) of

[[Page 56861]]

this section. Such problems may not necessarily preclude approval of a 
Form I-800A, if, for example, they have been or are being successfully 
treated.
    (2) This duty of candor is an ongoing duty, and continues while the 
Form I-800A is pending, after the Form I-800A is approved, and while 
any subsequent Form I-800 is pending, and until there is a final 
decision admitting the Convention adoptee to the United States with a 
visa. The applicant and any additional adult member of the household 
must notify the home study preparer and USCIS of any new event or 
information that might warrant submission of an amended or updated home 
study.
    (e) State standards. In addition to the requirements of this 
section, the home study preparer must prepare the home study according 
to the requirements that apply to a domestic adoption in the State of 
the applicant's actual or proposed residence in the United States.
    (f) Home study preparer's signature. The home study preparer (or, 
if the home study is prepared by an entity, the officer or employee who 
has authority to sign the home study for the entity) must personally 
sign the home study, and any updated or amended home study. The home 
study preparer's signature must include a declaration, under penalty of 
perjury under United States law, that:
    (1) The signer personally, and with the professional diligence 
reasonably necessary to protect the best interests of any child whom 
the applicant might adopt, either actually conducted or supervised the 
home study, including personal interview(s), the home visits, and all 
other aspects of the investigation needed to prepare the home study; if 
the signer did not personally conduct the home study, the person who 
actually did so must be identified;
    (2) The factual statements in the home study are true and correct, 
to the best of the signer's knowledge, information and belief; and
    (3) The home study preparer has advised the applicant of the duty 
of candor under paragraph (d) of this section, specifically including 
the on-going duty under paragraph (d)(2) of this section concerning 
disclosure of new events or information warranting submission of an 
updated or amended home study.
    (g) Personal interview(s) and home visit(s). The home study 
preparer must:
    (1) Conduct at least one interview in person, and at least one home 
visit, with the applicant.
    (2) Interview, at least once, each additional adult member of the 
household, as defined in 8 CFR 204.301. The interview with an 
additional adult mber of the household should also be in person, unless 
the home study preparer determines that interviewing that individual in 
person is not reasonably feasible and explains in the home study the 
reason for this conclusion.
    (3) Provide information on and assess the suitability of the 
applicant as the adoptive parent of a Convention adoptee based on the 
applicant's background, family and medical history (including physical, 
mental and emotional health), social environment, reasons for adoption, 
ability to undertake an intercountry adoption, and the characteristics 
of the child(ren) for whom they would be qualified to care.
    (4) Refer the applicant to an appropriate licensed professional, 
such as a physician, psychiatrist, clinical psychologist, clinical 
social worker, or professional substance abuse counselor, for an 
evaluation and written report, if the home study preparer determines 
that there are areas beyond his or her expertise that need to be 
addressed. The home study preparer must also make such a referral if 
such a referral would be required for a domestic adoption under the law 
of the State of the applicant's actual or proposed place of residence 
in the United States.
    (5) Apply the requirements of this paragraph to each additional 
adult member of the household.
    (h) Financial considerations. (1) Assessment of the finances of the 
applicant must include:
    (i) A description of the applicant's income, financial resources, 
debts, and expenses.
    (ii) A statement concerning the evidence that was considered to 
verify the source and amount of income and financial resources.
    (2) Any income designated for the support of one or more children 
in the applicant's care and custody, 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 adoptive child.
    (3) USCIS will not routinely require a detailed financial statement 
or supporting financial documents. However, should the need arise, 
USCIS reserves the right to ask for such detailed documentation.
    (i) Checking available child abuse registries. The home study 
preparer must ensure that a check of the applicant, and of each 
additional adult member of the household, has been made with available 
child abuse registries in any State or foreign country that the 
applicant, or any additional adult member of the household, has resided 
in since that person's 18th birthday. USCIS may also conduct its own 
check of any child abuse registries to which USCIS has access. 
Depending on the extent of access to a relevant registry allowed by the 
State or foreign law, the home study preparer must take one of the 
following courses of action:
    (1) If the home study preparer is allowed access to information 
from the child abuse registries, he or she must make the appropriate 
checks for the applicant and each additional adult member of the 
household;
    (2) If the State or foreign country requires the home study 
preparer to secure permission from the applicant and each additional 
adult member of the 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;
    (3) If the State or foreign country will only release information 
directly to an individual to whom the information relates, then the 
applicant and the additional adult member of the household must secure 
such information and provide it to the home study preparer.
    (4) If the State or foreign country will release information 
neither to the home study preparer nor to the person to whom the 
information relates, or has not done so within 6 months of a written 
request for the information, this unavailability of information must be 
noted in the home study.
    (j) Inquiring about history of abuse or violence as an offender. 
The home study preparer must ask each applicant and each additional 
adult member of the household whether he or she has a history as an 
offender, whether in the United States or abroad, of substance abuse, 
sexual abuse, or child abuse, or family violence, even if such history 
did not result in an arrest or conviction. This evaluation must 
include:
    (1) The dates of each arrest or conviction or history of substance 
abuse, sexual abuse or child abuse, and/or family violence; or,
    (2) If not resulting in an arrest, the date or time period (if 
occurring over an extended period of time) of each occurrence and
    (3) Details including any mitigating circumstances about each 
incident.
    Each statement must be signed, under penalty of perjury, by the 
person to whom the incident relates.
    (k) Criminal history. The applicant, and any additional adult 
members of the household, must also disclose to the home study preparer 
and USCIS any history, whether in the United States or abroad, of any 
arrest and/or conviction

[[Page 56862]]

(other than for minor traffic offenses) in addition to the information 
that the person must disclose under paragraph (j) of this section. If 
an applicant or an additional adult member of the household has a 
criminal record, the officer may still find that the applicant will be 
suitable as the adoptive parent of a Convention adoptee, if there is 
sufficient evidence of rehabilitation as described in paragraph (l) of 
this section.
    (l) Evidence of rehabilitation. If an applicant, or any additional 
adult member of the household, has a history of substance abuse, sexual 
abuse or child abuse, and/or family violence as an offender, or any 
other criminal history, the home study preparer may, nevertheless, make 
a favorable finding if the applicant has demonstrated that the person 
with this adverse history has achieved appropriate rehabilitation. A 
favorable recommendation cannot be made based on a claim of 
rehabilitation while an applicant or any additional adult member of the 
household is on probation, parole, supervised release, or other similar 
arrangement for any conviction. The home study must include a 
discussion of the claimed rehabilitation, which demonstrates that the 
applicant is suitable as the adoptive parent(s) of a Convention 
adoptee. Evidence of rehabilitation may include:
    (1) 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, the offender's acceptance of 
responsibility for his or her conduct, and any type of counseling or 
rehabilitation programs which have been successfully completed, or
    (2) A written opinion from an appropriate licensed professional, 
such as a psychiatrist, clinical psychologist, or clinical social 
worker.
    (m) Assessment with respect to physical, mental and emotional 
health or behavioral issues. The home study must address the current 
physical, mental and emotional health of the applicant, or any 
additional adult member of the household, as well as any history of 
illness or of any mental, emotional, psychological, or behavioral 
instability if the home study preparer determines, in the exercise of 
reasonable professional judgment, that the suitability of the applicant 
as an adoptive parent may be affected adversely by such history. 
Paragraph (g)(4) of this section, regarding referral to professionals, 
applies to any home study involving prior psychiatric care, or issues 
arising from sexual abuse, child abuse, or family violence issues if, 
in the home study preparer's reasonable professional judgment, such 
referral(s) may be necessary or helpful to the proper completion of the 
home study.
    (n) Prior home study. The home study preparer must ask each 
applicant, and any additional adult member of the household, whether he 
or she previously has had a prior home study completed, or began a home 
study process in relation to an adoption or to any form of foster or 
other custodial care of a child that was not completed, whether or not 
the prior home study related to an intercountry adoption, and must 
include each individual's response to this question in the home study 
report. A copy of any previous home study that did not favorably 
recommend the applicant or additional adult member of the household 
must be attached to any home study submitted with a Form I-800A. If a 
copy of any prior home study that did not favorably recommend the 
applicant or additional adult member of the household is no longer 
available, the current home study must explain why the prior home study 
is no longer available. The home study preparer must evaluate the 
relevance of any prior unfavorable or uncompleted home study to the 
suitability of the applicant as the adoptive parent of a Convention 
adoptee.
    (o) Living accommodations. The home study must include a detailed 
description of the living accommodations where the applicant currently 
resides. If the applicant is planning to move, the home study must 
include a description of the living accommodations where the child will 
reside with the applicant, if known. If the applicant is 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 applicant, 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.
    (p) Handicapped or special needs child. A home study conducted in 
conjunction with the proposed adoption of a special needs or 
handicapped child must contain a discussion of the preparation, 
willingness, and ability of the applicant to provide proper care for a 
child with the handicap or special needs. This information will be used 
to evaluate the suitability of the applicant as the adoptive parent of 
a special needs or handicapped child. If this information is not 
included in the home study, an updated or amended home study will be 
necessary if the applicant seeks to adopt a handicapped or special 
needs child.
    (q) Addressing a Convention country's specific requirements. If the 
Central Authority of the Convention country has notified the Secretary 
of State of any specific requirements that must be met in order to 
adopt in the Convention country, the home study must include a full and 
complete statement of all facts relevant to the applicant's eligibility 
for adoption in the Convention country, in light of those specific 
requirements.
    (r) Specific approval for adoption. If the home study preparer's 
findings are favorable, the home study must contain his or her specific 
approval of the applicant for adoption of a child from the specific 
Convention country or countries, and a discussion of the reasons for 
such approval. The home study must include the number of children the 
applicant may adopt at the same time. The home study must state whether 
there are any specific restrictions to the adoption based on the age or 
gender, or other characteristics of the child. If the home study 
preparer has approved the applicant for a handicapped or special needs 
adoption, this fact must be clearly stated.
    (s) Home study preparer's authority to conduct home studies. The 
home study must include a statement in which the home study preparer 
certifies that he or she is authorized under 22 CFR part 96 to complete 
home studies for Convention adoption cases. The certification must 
specify the State or country under whose authority the home study 
preparer is licensed or authorized, cite the specific law or regulation 
authorizing the preparer to conduct home studies, and indicate the 
license number, if any, and the expiration date, if any, of this 
authorization or license. The certification must also specify the basis 
under 22 CFR part 96 (public domestic authority, accredited agency, 
temporarily accredited agency, approved person, exempted provider, or 
supervised provider) for his or her authorization to conduct Convention 
adoption home studies.
    (t) Review of home study. (1) If the law of the State in which the 
applicant resides requires the competent authority in the State to 
review the home study, such a review must occur and be documented 
before the home study is submitted to USCIS.
    (2) When the home study is not performed in the first instance by 
an accredited agency or temporarily accredited agency, as defined in 22 
CFR part 96, then an accredited agency or temporarily accredited 
agency, as defined in 22 CFR part 96, must review

[[Page 56863]]

and approve the home study as specified in 22 CFR 96.47(c) before the 
home study is submitted to USCIS. This requirement for review and 
approval by an accredited agency or temporarily accredited agency does 
not apply to a home study that was actually prepared by a public 
domestic authority, as defined in 22 CFR 96.2.
    (u) Home study updates and amendments. (1) A new home study 
amendment or update will be required if there is:
    (i) A significant change in the applicant's household, such as a 
change in residence, marital status, criminal history, financial 
resources; or
    (ii) The addition of one or more children in the applicant's home, 
whether through adoption or foster care, birth, or any other means. 
Even if the original home study provided for the adoption of more than 
one adopted child, the applicant must submit an amended home study 
recommending adoption of an additional child, because the addition of 
the already adopted child(ren) to the applicant's household is a 
significant change in the household that should be assessed before the 
adoption of any additional child(ren);
    (iii) The addition of other dependents or additional adult 
member(s) of the household to the family prior to the prospective 
child's immigration into the United States;
    (iv) A change resulting because the applicant is seeking to adopt a 
handicapped or special needs child, if the home study did not already 
address the applicant's suitability as the adoptive parent of a child 
with the particular handicap or special need;
    (v) A change to a different Convention country. This change 
requires the updated home study to address suitability under the 
requirements of the new Convention country;
    (vi) A lapse of more than 6 months between the date the home study 
is completed and the date it is submitted to USCIS; or
    (vii) A change to the child's proposed State of residence. The 
preadoption requirements of the new State must be complied with in the 
case of a child coming to the United States to be adopted.
    (2) Any updated or amended home study must:
    (i) Meet the requirements of this section;
    (ii) Be accompanied by a copy of the home study that is being 
updated or amended, including all prior updates and amendments;
    (iii) Include a statement from the preparer that he or she has 
reviewed the home study that is being updated or amended and is 
personally and fully aware of its contents; and
    (iv) Address whether the home study preparer recommends approval of 
the proposed adoption and the reasons for the recommendation.
    (3) If submission of an updated or amended home study becomes 
necessary before USCIS adjudicates the Form I-800A, the applicant may 
simply submit the updated or amended home study to the office that has 
jurisdiction over the Form I-800A.
    (4) If it becomes necessary to file an updated or amended home 
study after USCIS has approved the Form I-800A, the applicant must file 
a Form I-800A Supplement 3 with the filing fee specified in 8 CFR 
103.7(b)(1) and the amended or updated home study. If USCIS determines 
that the amended or updated home study shows that the applicant remains 
suitable as the adoptive parent(s) of a Convention adoptee, USCIS will 
issue a new approval notice that will expire on the same date as the 
original approval. If the applicant also wants to have USCIS extend the 
approval period for the Form I-800A, the applicant must submit the 
updated or amended home study with an extension request under 8 CFR 
204.312(e)(3), rather than under this paragraph (u) of this section.
    (5) Each update must indicate that the home study preparer has 
updated the screening of the applicant and any additional adult member 
of the household under paragraphs (i) through (l) of this section, and 
must indicate the results of this updated screening.


Sec.  204.312  Adjudication of the Form I-800A.

    (a) USCIS action. The USCIS officer must approve a Form I-800A if 
the officer finds, based on the evidence of record, that the applicant 
is eligible under 8 CFR 204.307(a) to file a Form I-800A and the USCIS 
officer is satisfied that the applicant is suitable as the adoptive 
parent of a child from the specified Convention country. If the 
applicant sought approval for more than one Convention country, the 
decision will specify each country for which the Form I-800A is 
approved, and will also specify whether the Form I-800A is denied with 
respect to any particular Convention country.
    (b) Evaluation of the home study. In determining suitability to 
adopt, the USCIS officer will give considerable weight to the home 
study, but is not bound by it. Even if the home study is favorable, the 
USCIS officer must deny the Form I-800A if, on the basis of the 
evidence of record, the officer finds, for a specific and articulable 
reason, that the applicant has failed to establish that he or she is 
suitable as the adoptive parent of a child from the Convention country. 
The USCIS officer may consult the accredited agency or temporarily 
accredited agency that approved the home study, the home study 
preparer, the applicant, the relevant State or local child welfare 
agency, or any appropriate licensed professional, as needed to clarify 
issues concerning whether the applicant is suitable as the adoptive 
parent of a Convention adoptee. If this consultation yields evidence 
that is adverse to the applicant, the USCIS officer may rely on the 
evidence only after complying with the provisions of 8 CFR 103.2(b)(16) 
relating to the applicant's right to review and rebut adverse 
information.
    (c) Denial of application. (1) The USCIS officer will deny the Form 
I-800A if the officer finds that the applicant has failed to establish 
that the applicant is:
    (i) Eligible under 8 CFR 204.307(a) to file Form I-800A; or
    (ii) Suitable as the adoptive parent of a child from the Convention 
country.
    (2) Before denying a Form I-800A, the USCIS officer will comply 
with 8 CFR 103.2(b)(16), if required to do so under that provision, and 
may issue a request for evidence or a notice of intent to deny under 8 
CFR 103.2(b)(8).
    (3) A denial will be in writing, giving the reason for the denial 
and notifying the applicant of the right to appeal, if any, as provided 
in 8 CFR 204.314.
    (4) It is for the Central Authority of the other Convention country 
to determine how its own adoption requirements, as disclosed in the 
home study under 8 CFR 204.311(q), should be applied in a given case. 
For this reason, the fact that the applicant may be ineligible to adopt 
in the other Convention country under those requirements, will not 
warrant the denial of a Form I-800A, if USCIS finds that the applicant 
has otherwise established eligibility and suitability as the adoptive 
parent of a Convention adoptee.
    (d) Approval notice. (1) If USCIS approves the Form I-800A, USCIS 
will notify the applicant in writing as well as the Department of 
State. The notice of approval will specify:
    (i) The expiration date for the notice of approval, as determined 
under paragraph (e) of this section, and
    (ii) The name(s) and marital status of the applicant; and
    (iii) If the applicant is not married and not yet 25 years old, the 
applicant's date of birth.
    (2) Once USCIS approves the Form I-800A, or extends the validity 
period for a prior approval under paragraph (e) of

[[Page 56864]]

this section, any submission of the home study to the Central Authority 
of the country of the child's habitual residence must consist of the 
entire and complete text of the same home study and of any updates or 
amendments submitted to USCIS.
    (e) Duration or revocation of approval. (1) A notice of approval 
expires 15 months after the date on which USCIS received the FBI 
response on the applicant's, and any additional adult member of the 
household's, biometrics, unless approval is revoked. If USCIS received 
the responses on different days, the 15-month period begins on the 
earliest response date. The notice of approval will specify the 
expiration date. USCIS may extend the validity period for the approval 
of a Form I-800A only as provided in paragraph (e)(3) of this section.
    (2) (i) The approval of a Form I-800A is automatically revoked if 
before the final decision on a Convention adoptee's application for 
admission with an immigrant visa or for adjustment of status:
    (A) The marriage of the applicant terminates; or
    (B) An unmarried applicant marries; or
    (C) In the case of a married applicant, either spouse files with a 
USCIS or Department of State officer a written document withdrawing his 
or her signature on the Form I-800A.
    (ii) This revocation is without prejudice to the filing of a new 
Form I-800A, with fee, accompanied by a new or amended home study, 
reflecting the change in marital status. If a Form I-800 had already 
been filed based on the approval of the prior Form I-800A, a new Form 
I-800 must also be filed with the new Form I-800A under this paragraph. 
The new Form I-800 will be adjudicated only if the new Form I-800A is 
approved. The new Form I-800 will not be subject to denial under 8 CFR 
204.309(b)(1) or (2), unless the original Form I-800 would have been 
subject to denial under either of those provisions.
    (3)(i) If the 15-month validity period for a Form I-800A approval 
is about to expire, and the applicant has not filed a Form I-800, the 
applicant may file Form I-800A Supplement 3, with the filing fee under 
8 CFR 103.7(b)(1), if required. The applicant may not file a Form I-
800A Supplement 3 seeking extension of an approval notice more than 90 
days before the expiration of the validity period for the Form I-800A 
approval, but must do so on or before the date on which the validity 
period expires. The applicant is not required to pay the Form I-800A 
Supplement 3 filing fee for the first request to extend the approval of 
a Form I-800A. If the applicant files a second or subsequent Form I-
800A Supplement 3 to obtain a second or subsequent extension, however, 
the applicant must pay the Form I-800A Supplement 3 filing fee, as 
specified in 8 CFR 103.7(b), for the second, or any subsequent, Form I-
800A Supplement 3 that is filed to obtain a second or subsequent 
extension. Any Form I-800A Supplement 3 that is filed to obtain an 
extension of the approval of a Form I-800A must be accompanied by:
    (A) A statement, signed by the applicant under penalty of perjury, 
detailing any changes to the answers given to the questions on the 
original Form I-800A;
    (B) An updated or amended home study as required under 8 CFR 
204.311(u); and
    (C) A photocopy of the Form I-800A approval notice.
    (ii) Upon receipt of the Form I-800A Supplement 3, USCIS will 
arrange for the collection of the biometrics of the applicant and of 
each additional adult member of the applicant's household.
    (iii) If USCIS continues to be satisfied that the applicant remains 
suitable as the adoptive parent of a Convention adoptee, USCIS will 
extend the approval of the Form I-800A to a date not more than 15 
months after the date on which USCIS received the new biometric 
responses. If new responses are received on different dates, the new 
15-month period begins on the earliest response date. The new notice of 
approval will specify the new expiration date.
    (iv) There is no limit to the number of extensions that may be 
requested and granted under this section, so long as each request is 
supported by an updated or amended home study that continues to 
recommend approval of the applicant for intercountry adoption and USCIS 
continues to find that the applicant remain suitable as the adoptive 
parent(s) of a Convention adoptee.
    (4) In addition to the automatic revocation provided for in 
paragraph (e)(2) of this section, the approval of a Form I-800A may be 
revoked pursuant to 8 CFR 205.1 or 205.2.


Sec.  204.313  Filing and adjudication of a Form I-800.

    (a) When to file. Once a Form I-800A has been approved and the 
Central Authority has proposed placing a child for adoption by the 
petitioner, the petitioner may file the Form I-800. The petitioner must 
complete the Form I-800 in accordance with the instructions that 
accompany the Form I-800, and must sign the Form I-800 personally. In 
the case of a married petitioner, one spouse cannot sign for the other, 
even under a power of attorney or similar agency arrangement. The 
petitioner may then file the Form I-800 with the stateside or overseas 
USCIS office or the visa issuing post that has jurisdiction under 8 CFR 
204.308(b) to adjudicate the Form I-800, together with the evidence 
specified in this section and the filing fee specified in 8 CFR 
103.7(b)(1), if more than one Form I-800 is filed for children who are 
not siblings.
    (b) What to include on the Form. (1) The petitioner must specify on 
the Form I-800 either that:
    (i) The child will seek an immigrant visa, if the Form I-800 is 
approved, because the child will reside in the United States with the 
petitioner (in the case of a married petitioner, if only one spouse is 
a United States citizen, with that spouse) after the child's admission 
to the United States on the basis of the proposed adoption; or
    (ii) The child will seek a nonimmigrant visa, in order to travel to 
the United States to obtain naturalization under section 322 of the 
Act, because the petitioner intends to complete the adoption abroad and 
the petitioner and the child will continue to reside abroad immediately 
following the adoption, rather than residing in the United States with 
the petitioner. This option is not available if the child will be 
adopted in the United States.
    (2) In applying this paragraph (b), if a petitioner is a United 
States citizen who is domiciled in the United States, but who is posted 
abroad temporarily under official orders as a member of the Uniformed 
Services as defined in 5 U.S.C. 2101, or as a civilian officer or 
employee of the United States Government, the child will be deemed to 
be coming to the United States to reside in the United States with that 
petitioner.
    (c) Filing deadline. (1) The petitioner must file the Form I-800 
before the expiration of the notice of the approval of the Form I-800A 
and before the child's 16th birthday. Paragraphs (c)(2) and (3) of this 
section provide special rules for determining that this requirement has 
been met.
    (2) If the appropriate Central Authority places the child with the 
petitioner for intercountry adoption more than 6 months after the 
child's 15th birthday but before the child's 16th birthday, the 
petitioner must still file the Form I-800 before the child's 16th 
birthday. If the evidence required by paragraph (d)(3) or (4) of this 
section is not yet available, instead of that

[[Page 56865]]

evidence, the petitioner may submit a statement from the primary 
provider, signed under penalty of perjury under United States law, 
confirming that the Central Authority has, in fact, made the adoption 
placement on the date specified in the statement. Submission of a Form 
I-800 with this statement will satisfy the statutory requirement that 
the petition must be submitted before the child's 16th birthday, but no 
provisional or final approval of the Form I-800 will be granted until 
the evidence required by paragraph (d)(3) or (4) of this section has 
been submitted. When submitted, the evidence required by paragraph 
(d)(3) and (4) must affirmatively show that the Central Authority did, 
in fact, make the adoption placement decision before the child's 16th 
birthday.
    (3) If the Form I-800A was filed after the child's 15th birthday 
but before the child's 16th birthday, the filing date of the Form I-
800A will be deemed to be the filing date of the Form I-800, provided 
the Form I-800 is filed not more than 180 days after the initial 
approval of the Form I-800A.
    (d) Required evidence. Except as specified in paragraph (c)(2) of 
this section, the petitioner must submit the following evidence with 
the properly completed Form I-800:
    (1) The Form I-800A approval notice and, if applicable, proof that 
the approval period has been extended under 8 CFR 204.312(e);
    (2) A statement from the primary provider, as defined in 22 CFR 
96.2, signed under penalty of perjury under United States law, 
indicating that all of the pre-placement preparation and training 
provided for in 22 CFR 96.48 has been completed;
    (3) The report required under article 16 of the Convention, 
specifying the child's name and date of birth, the reasons for making 
the adoption placement, and establishing that the competent authority 
has, as required under article 4 of the Convention:
    (i) Established that the child is eligible for adoption;
    (ii) Determined, after having given due consideration to the 
possibility of placing the child for adoption within the Convention 
country, that intercountry adoption is in the child's best interests;
    (iii) Ensured that the legal custodian, after having been counseled 
as required, concerning the effect of the child's adoption on the legal 
custodian's relationship to the child and on the child's legal 
relationship to his or her family of origin, has freely consented in 
writing to the child's adoption, in the required legal form;
    (iv) Ensured that if any individual or entity other than the legal 
custodian must consent to the child's adoption, this individual or 
entity, after having been counseled as required concerning the effect 
of the child's adoption, has freely consented in writing, in the 
required legal form, to the child's adoption;
    (v) Ensured that the child, after having been counseled as 
appropriate concerning the effects of the adoption; has freely 
consented in writing, in the required legal form, to the adoption, if 
the child is of an age that, under the law of the country of the 
child's habitual residence, makes the child's consent necessary, and 
that consideration was given to the child's wishes and opinions; and
    (vi) Ensured that no payment or inducement of any kind has been 
given to obtain the consents necessary for the adoption to be 
completed.
    (4) The report under paragraph (d)(3) of this section must be 
accompanied by:
    (i) A copy of the child's birth certificate, or secondary evidence 
of the child's age; and
    (ii) A copy of the irrevocable consent(s) signed by the legal 
custodian(s) and any other individual or entity who must consent to the 
child's adoption unless, as permitted under article 16 of the 
Convention, the law of the country of the child's habitual residence 
provides that their identities may not be disclosed, so long as the 
Central Authority of the country of the child's habitual residence 
certifies in its report that the required documents exist and that they 
establish the child's age and availability for adoption;
    (iii) A statement, signed under penalty of perjury by the primary 
provider (or an authorized representative if the primary provider is an 
agency or other juridical person), certifying that the report is a 
true, correct, and complete copy of the report obtained from the 
Central Authority of the Convention country;
    (iv) A summary of the information provided to the petitioner under 
22 CFR 96.49(d) and (f) concerning the child's medical and social 
history. This summary, or a separate document, must include:
    (A) A statement concerning whether, from any examination as 
described in 22 CFR 96.49(e) or for any other reason, there is reason 
to believe that the child has any medical condition that makes the 
child inadmissible under section 212(a)(1) of the Act; if the medical 
information that is available at the provisional approval stage is not 
sufficient to assess whether the child may be inadmissible under 
section 212(a)(1), the submission of this information may be deferred 
until the petitioner seeks final approval of the Form I-800;
    (B) If both of the child's birth parents were the child's legal 
custodians and signed the irrevocable consent, the factual basis for 
determining that they are incapable of providing proper care for the 
child, as defined in 8 CFR 204.301;
    (C) Information about the circumstances of the other birth parent's 
death, if applicable, supported by a copy of the death certificate, 
unless paragraph (d)(4)(ii) of this section makes it unnecessary to 
provide a copy of the death certificate;
    (D) If a sole birth parent was the legal custodian, the 
circumstances leading to the determination that the other parent 
abandoned or deserted the child, or disappeared from the child's life; 
and
    (E) If the legal custodian was the child's prior adoptive parent(s) 
or any individual or entity other than the child's birth parent(s), the 
circumstances leading to the custodian's acquisition of custody of the 
child and the legal basis of that custody.
    (v) If the child will be adopted in the United States, the primary 
provider's written report, signed under penalty of perjury by the 
primary provider (or an authorized representative if the primary 
provider is an agency or other juridical person) detailing the primary 
adoption service provider's plan for post-placement duties, as 
specified in 22 CFR 96.50; and
    (5) If the child may be inadmissible under any provision of section 
212(a) for which a waiver is available, a properly completed waiver 
application for each such ground; and
    (6) Either a Form I-864W, Intending Immigrant's I-864 Exemption, or 
a Form I-864, Affidavit of Support, as specified in 8 CFR 213a.2.
    (e) Obtaining the home study and supporting evidence. The materials 
from the Form I-800A proceeding will be included in the record of the 
Form I-800 proceeding.
    (f) Investigation. An investigation concerning the alien child's 
status as a Convention adoptee will be completed before the Form I-800 
is adjudicated in any case in which the officer with jurisdiction to 
grant provisional or final approval of the Form I-800 determines, on 
the basis of specific facts, that completing the investigation will aid 
in the provisional or final adjudication of the Form I-800. Depending 
on the circumstances surrounding the case, the investigation may 
include, but is not limited to, document checks, telephone checks, 
interview(s) with the birth or

[[Page 56866]]

prior adoptive parent(s), a field investigation, and any other 
appropriate investigatory actions. In any case in which there are 
significant differences between the facts presented in the approved 
Form I-800A or Form I-800 and the facts uncovered by the investigation, 
the office conducting the investigation may consult directly with the 
appropriate USCIS office. In any instance where the investigation 
reveals negative information sufficient to sustain a denial of the Form 
I-800 (including a denial of a Form I-800 that had been provisionally 
approved) or the revocation of the final approval of the Form I-800, 
the results of the investigation, including any supporting 
documentation, and the Form I-800 and its supporting documentation will 
be forwarded to the appropriate USCIS office for action. Although USCIS 
is not precluded from denying final approval of a Form I-800 based on 
the results of an investigation under this paragraph, the grant of 
provisional approval under paragraph (g), and the fact that the 
Department of State has given the notice contemplated by article 5(c) 
of the Convention, shall constitute prima facie evidence that the grant 
of adoption or custody for purposes of adoption will, ordinarily, 
warrant final approval of the Form I-800. The Form I-800 may still be 
denied, however, if the Secretary of State declines to issue the 
certificate provided for under section 204(d)(2) of the Act or if the 
investigation under this paragraph establishes the existence of facts 
that clearly warrant denial of the petition.
    (g) Provisional approval. (1) The officer will consider the 
evidence described in paragraph (d) of this section and any additional 
evidence acquired as a result of any investigation completed under 
paragraph (f) of this section, to determine whether the preponderance 
of the evidence shows that the child qualifies as a Convention adoptee. 
Unless 8 CFR 204.309(b) prohibits approval of the Form I-800, the 
officer will serve the petitioner with a written order provisionally 
approving the Form I-800 if the officer determines that the child does 
qualify for classification as a ``child'' under section 101(b)(1)(G), 
and that the proposed adoption or grant of custody will meet the 
Convention requirements.
    (i) The provisional approval will expressly state that the child 
will, upon adoption or acquisition of custody, be eligible for 
classification as a Convention adoptee, adjudicate any waiver 
application and (if any necessary waiver of inadmissibility is granted) 
direct the petitioner to obtain and present the evidence required under 
paragraph (h) of this section in order to obtain final approval of the 
Form I-800.
    (ii) The grant of a waiver of inadmissibility in conjunction with 
the provisional approval of a Form I-800 is conditioned upon the 
issuance of an immigrant or nonimmigrant visa for the child's admission 
to the United States based on the final approval of the same Form I-
800. If the Form I-800 is finally denied or the immigrant or 
nonimmigrant visa application is denied, the waiver is void.
    (2) If the petitioner filed the Form I-800 with USCIS and the child 
will apply for an immigrant or nonimmigrant visa, then, upon 
provisional approval of the Form I-800, the officer will forward the 
notice of provisional approval, Form I-800, and all supporting evidence 
to the Department of State. If the child will apply for adjustment of 
status, USCIS will retain the record of proceeding.
    (h) Final approval. (1) To obtain final approval of a provisionally 
approved Form I-800, the petitioner must submit to the Department of 
State officer who has jurisdiction of the child's application for an 
immigrant or nonimmigrant visa, or to the USCIS officer who has 
jurisdiction of the child's adjustment of status application, a copy of 
the following document(s):
    (i) If the child is adopted in the Convention country, the adoption 
decree or administrative order from the competent authority in the 
Convention country showing that the petitioner has adopted the child; 
in the case of a married petitioner, the decree or order must show that 
both spouses adopted the child; or
    (ii) If the child will be adopted in the United States:
    (A) The decree or administrative order from the competent authority 
in the Convention country giving custody of the child for purposes of 
emigration and adoption to the petitioner or to an individual or entity 
acting on behalf of the petitioner. In the case of a married 
petitioner, an adoption decree that shows that the child was adopted 
only by one spouse, but not by both, will be deemed to show that the 
petitioner has acquired sufficient custody to bring the child to the 
United States for adoption by the other spouse;
    (B) If not already provided before the provisional approval 
(because, for example, the petitioner thought the child would be 
adopted abroad, but that plan has changed so that the child will now be 
adopted in the United States), a statement from the primary provider, 
signed under penalty of perjury under United States law, summarizing 
the plan under 22 CFR 96.50 for monitoring of the placement until the 
adoption is finalized in the United States;
    (C) If not already provided before the provisional approval 
(because, for example, the petitioner thought the child would be 
adopted abroad, but that plan has changed so that the child will now be 
adopted in the United States), a written description of the preadoption 
requirements that apply to adoptions in the State of the child's 
proposed residence and a description of when and how, after the child's 
immigration, the petitioner intends to complete the child's adoption. 
The written description must include a citation to the relevant State 
statutes or regulations and specify how the petitioner intends to 
comply with any requirements that can be satisfied only after the child 
arrives in the United States.
    (2) If the Secretary of State, after reviewing the evidence that 
the petitioner provides under paragraph (h)(1)(i) or (ii) of this 
section, issues the certificate required under section 204(d)(2) of the 
Act, the Department of State officer who has jurisdiction over the 
child's visa application has authority, on behalf of USCIS, to grant 
final approval of a Form I-800. In the case of an alien who will apply 
for adjustment of status, the USCIS officer with jurisdiction of the 
adjustment application has authority to grant this final approval upon 
receiving the Secretary of State's certificate under section 204(d)(2) 
of the Act.
    (i) Denial of Form I-800. (1) A USCIS officer with authority to 
grant provisional or final approval will deny the Form I-800 if the 
officer finds that the child does not qualify as a Convention adoptee, 
or that 8 CFR 204.309(b) of this section requires denial of the Form I-
800. Before denying a Form I-800, the officer will comply with the 
requirements of 8 CFR 103.2(b)(16)), if required to do so under that 
provision, and may issue a request for evidence or a notice of intent 
to deny under 8 CFR 103.2(b)(8).
    (2) The decision will be in writing, specifying the reason(s) for 
the denial and notifying the petitioner of the right to appeal, if any, 
as specified in 8 CFR 204.314.
    (3) If a Department of State officer finds, either at the 
provisional approval stage or the final approval stage, that the Form 
I-800 is ``not clearly approvable,'' or that 8 CFR 204.309(b) warrants 
denial of the Form I-800, the Department of State officer will forward 
the Form I-800 and accompanying evidence to the USCIS office with 
jurisdiction over the place of the child's habitual residence for 
review and decision.

[[Page 56867]]

Sec.  204.314  Appeal.

    (a) Decisions that may be appealed.
    (1) Except as provided in paragraph (b) of this section:
    (i) An applicant may appeal the denial of a Form I-800A (including 
the denial of a request to extend the prior approval of a Form I-800A) 
and
    (ii) A petitioner may appeal the denial of a Form I-800.
    (2) The provisions of 8 CFR 103.3, concerning how to file an 
appeal, and how USCIS adjudicates an appeal, apply to the appeal of a 
decision under this subpart C.
    (b) Decisions that may not be appealed. There is no appeal from the 
denial of:
    (1) Form I-800A because the Form I-800A was filed during any period 
during which 8 CFR 204.307(c) bars the filing of a Form I-800A; or
    (2) Form I-800A for failure to timely file a home study as required 
by 8 CFR 204.310(a)(3)(viii); or
    (3) Form I-800 that is denied because the Form I-800 was filed 
during any period during which 8 CFR 204.307(c) bars the filing of a 
Form I-800;
    (4) Form I-800 filed either before USCIS approved a Form I-800A or 
after the expiration of the approval of a Form I-800A.

PART 213a--AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS

0
11. The authority citation for part 213a continues to read as follows:

    Authority: 8 U.S.C. 1183a; 8 CFR part 2.


0
12. Section 213a.2(a)(2)(ii)(E) is amended by adding two new sentences 
at the end, to read as follows:


Sec.  213a.2  Use of affidavit of support.

    (a) * * *
    (2) * * *
    (ii) * * *
    (E) * * * In the case of a child who immigrates as a Convention 
adoptee, as defined in 8 CFR 204.301, this exception applies if the 
child was adopted by the petitioner in the Convention country. An 
affidavit of support under this part is still required in the case of a 
child who immigrates as a Convention adoptee if the petitioner will 
adopt the child in the United States only after the child's acquisition 
of permanent residence.
* * * * *

PART 299--PRESCRIBED FORMS

0
13. The authority citation in part 299 continues to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.


0
14. Section 299.1 is amended in the table by adding the entries ``I-800 
and I-800A'', in proper alpha/numeric sequence, to read as follows:


Sec.  299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
            Form No.              Edition date            Title
------------------------------------------------------------------------
 
                              * * * * * * *
I-800..........................        09-21-07  Petition to Classify a
                                                  Convention Adoptee as
                                                  an Immediate Relative.
I-800A.........................        09-21-07  Application for
                                                  Determination of
                                                  Suitability to Adopt a
                                                  Child from a
                                                  Convention Country.
 
                              * * * * * * *
------------------------------------------------------------------------

PART 322--CHILD BORN OUTSIDE THE UNITED STATES; REQUIREMENTS FOR 
APPLICATION FOR CERTIFICATE OF CITIZENSHIP

0
15. The authority citation for part 322 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.


0
16. Section 322.3 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (b)(1)(xi);
0
b. Redesignating paragraph (b)(1)(xii) as paragraph (b)(1)(xiii); and 
by
0
c. Adding a new paragraph (b)(1)(xii).
    The addition read as follows.


Sec.  322.3.  How, where, and what forms and other documents should the 
United States citizen parent(s) file?

* * * * *
    (b) * * *
    (1) * * *
    (xii) For a Convention adoptee applying under section 322 of the 
Act, a copy of the notice of approval of the Form I-800 and the 
supporting documents submitted with the Form I-800 (except the home 
study); and
* * * * *

    Dated: September 21, 2007.
Michael Chertoff,
Secretary.
 [FR Doc. E7-18992 Filed 10-3-07; 8:45 am]
BILLING CODE 4411-10-P