Wednesday, September 9, 2015

I-800, I-600, Hague, and UAA – Oh My!

It’s all a confusing soup of acronyms, abbreviations, the laws of two countries and the ‘World Organisation for Cross-border Co-operation in Civil and Commercial Matters' (Hague Permanent Bureau).    Add in the rumor mill of Haiti and the chaos of international adoption, and you get… well, you get the level of confusion we have now.

 I am going to attempt to clarify some of the issues facing adoptive families as they negotiate the US Immigrations process.  Please note that I am NOT an attorney. ABI does provide consulting and services Primary Provider as a Hague accredited adoption service provider to families who are caught between laws or procedures in Haiti. The following is information gathered from careful research, experience, and lots of help from supportive attorneys and government officials.  It is not intended to serve as a substitute for actual legal advice.

First, a brief clarification of which parts belong to Haiti, to Hague, and to the US:

Haiti’s New Adoption Law
In November of 2013, Haiti enacted a new adoption law.  You can read it for yourself here:


 The new law in itself caused a lot of turbulence as Haiti transitioned to new procedures.  The new law is a Haitian matter.  It is NOT issued by or monitored by the Hague Permanent Bureau!  The new law and Haiti’s accession to the Hague Convention on Intercountry Adoption are separate events.  (They do tie together with DOS, eventually.  More about that later.)

 The new law offers superlative protection to biological families who are considering an adoption plan for their child, as only IBESR can request to have a child found legally free for adoption in Children’s Court.  IBESR is taking its responsibility to educate biological families regarding the meaning and implications of intercountry adoption very seriously.

 The new law has been determined by the US Department of State, our Central Authority, to be in compliance with the Hague Convention on Intercountry Adoption.

 An important fact to note for independent families who started their adoption before the new law came into effect:

Article 76

The current law applies to all dossiers in progress for which biological parents’ adoption consent has not yet been given in front of the family court Judge.

For dossiers in process where the consent has been given in front of the Justice of the Peace, the Court will order that biological parents appear in person on the set day and hour, either to confirm their informed consent to simple adoption or to give their informed consent to plenary adoption.

That means that if nobody gave consent in Children’s Court to a plenary adoption at the very beginning, biological parents MUST still appear in court to grant consent to plenary adoption!  USCIS/DOS cannot approve your adoption if it does not follow the Haitian law!

The Hague
On April 1st, 2014, Haiti officially became a Hague country.  That means that families could no longer file I-600A forms for Haiti after March 31st, 2014.  As Haiti began using the new law to manage cases several months before that date, the transition was smoother than it could have been.  Most importantly, DOS was able to determine that Haiti’s new law and current procedures do in fact conform to the rules of the Hague Convention.  This is a very good thing, as had they not found Haiti in compliance, DOS would have had no choice but to close Haitian adoptions for American citizens. 

 Here is where the new law and Hague interact – had Haiti submitted their instrument of ratification (sort of ‘signed up’) with Hague right after the Senate voted on it but before the new law was in place, I can’t imagine how DOS could possibly have found them to be Hague compliant.  Fortunately, due to some impressive leg work done by the Joint Council and some pretty smart people at IBESR, that did not happen.

 From April 1st, 2014 forward, all international adoptions in and out of Haiti will be Hague adoptions.  You can read the text of the Hague convention on intercountry adoption here: http://www.hcch.net/index_en.php?act=conventions.text&cid=69  It’s actually a pretty short and simple document.

UAA
In case all of this wasn’t complicated enough in the first place, the US threw another wrench into the spokes with the Universal Accreditation Act of 2012 (UAA).  The UAA is a law that prevents families from adopting internationally without a Hague accredited agency signed on to oversee and assist.

 You can read the Act here:
http://www.gpo.gov/fdsys/pkg/PLAW-112publ276/pdf/PLAW-112publ276.pdf

 There are quite a few families who adopted independently in the past who are upset about the law.  They feel it will make international adoption even more expensive than it is already.  I can’t disagree there, for the lucky few whose independent adoption actually worked.  However, as ABI does a great deal of repair work trying to pick up the pieces for families whose independent adoptions have turned into tangled nightmares, I personally believe that the UAA is a much-needed protective measure for adoptive families and the children that they adopt.

 There are multiple very clear explanations about who is and is not affected by the UAA online:




Are a few good places to start.

Very big picture:
Generally, the UAA does not apply if either of the following occurred before July 13, 2013:

·       Prospective adoptive parents filed the I-600 or the I-600A. See UAA Section 2(c)(1).

 OR

·       Prospective adoptive parents “initiated the adoption process with the filing of an appropriate application in a foreign country sufficient such that the Secretary of State is satisfied.” See UAA Section 2(c)(2).   (For example, your dossier went into IBESR before July 13th, 2013.)

If neither of these are true, you may very well be required to have a Hague accredited agency involved as your Primary Adoption Service Provider.

 Even if you don’t fall under the UAA, you really might want to consider using a Hague accredited agency anyway.  With all of the changes, knowing that your dossier is correct and legal before you turn it in to USCIS at the very end of the process is a very good idea.  An experienced agency should know exactly what documents are required and if yours are in order.  It’s a lot easier to do it right in the first place than to desperately scramble around trying to address an RFE, or worse yet, a NOID.

 Quick word to the wise- trying to handle an RFE or a NOID on your own makes about as much sense as trying to do an appendectomy on your own kid, unless you are in fact a surgeon.  Or in our case, an immigrations attorney or experienced Haiti program coordinator.  Or both. 

USCIS/DOS
So, what does all of the above gibberish really mean?  For most families it comes down to US immigrations.  Once you have adopted your child, how are you going to get him home and make sure he’s a citizen?  That’s the big question…

 First, let’s clarify some of the alphabet soup.

 I-600A: the form you sent to USCIS with your home study.  USCIS took your fingerprints, and eventually you got a letter from them saying that you were found suitable and eligible (pre-approved) to adopt a child from Haiti.  This letter is usually referred to as form I-171H.  Sometimes it’s an I-797C instead. 

 It was no longer possible to file a form I600A for Haiti after March 31st, 2014.

 I-600: this is the form you file on behalf of a particular child whom you wish to adopt.  Not at all the same as the I-600A, although most people do the I-600A first.

I-600A is about the US government approving you as an adoptive parent.  I-600 is about approving the child for immigration to the US.

I-800A: the form you send to USCIS with your home study.  USCIS took your fingerprints, and eventually you got a letter from them saying that you are suitable and eligible (pre-approved) to adopt a child from Haiti.  The letter is called a form I-797.

All families wishing to adopt from Haiti must file form I-800A if they have not already been approved for I-600A.

I-800: the form you will send to USCIS after you get your referral from IBESR, requesting provisional approval under the Hague Convention and US law to adopt a particular child.  Your agency should provide you with a lot of assistance.

I-800A is about the US government approving you as an adoptive parent.  I-800 is about approving the child for immigration to the US.

The I-600 Filing Process:

If you have current I-600A approval and your fingerprints are current, you can file form I-600 anytime before April 16th, 2016.  You must have an IBESR referral before you file.

There are two ways to file form I-600. 

1.      You can file it with your child’s adoption decree, after you have adopted him. This can be done in person with USCIS in Port-au-Prince, or you can mail it in to the USCIS Dallas TX lockbox.  (Speak with your agency or an attorney for details of what needs to be included in the filing.)

2.      You can file through the Adjudicate Orphans First pilot program (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2003/orphanpilot060403.pdf).  Under the AOF program, you can file with very little information besides the child’s birth certificate, relinquishment, and some sort of documentation regarding what became of the biological family.  Again, speak with your agency or an attorney for details of what needs to be included in the filing.  This option is very important to keep in mind when we consider the end of the transitional I-600 filing period for Haiti.

The End of the Transitional Period:
Following March 31st, 2016, it will no longer be possible to file a form I-600 for Haitian child.  Even if you have current I-600A approval, UCSIS will be unable to accept your I-600 petition.  Haiti will transition to a fully Hague nation on April 1st, 2016.  Therefore:

·        If you have I-600A approval, you MUST file form I-600 on behalf of any child referred by IBESR to you so that it ARRIVES at the USCIS Port-au-Prince office or USCIS Dallas Lockbox on or before March 31st, 2016

OR

·        You must seek I-800A approval and file form I-800 on behalf of any child referred to you by IBESR.

 There has been some misinformation spread that the child’s adoption decree must be completed before March 31st, 2016 for you to be able to file form I-600.  This information is untrue, because Haiti is one of the countries in the AOF pilot program.  Please refer to your agency for further information.

The I-800 Filing Process:
If you have an approved I-800A and your fingerprints are current, once you have an IBESR referral it will be time to file form I-800 by mail.  The form must be accompanied by your child’s Article 16 report.  The ‘report’ is actually a compilation of documents that allow the NBC to determine that the child might qualify to immigrate to the United States under the laws found at 8 CFR § 204.313.  USCIS intends to provide the public with a list of documents on its website, but this guidance is not yet available.  In the meantime, speak with your agency regarding what must be included.

Most I-800 cases in Haiti fall into one of three categories:

1.      ‘Normal’ cases- IBESR issued a referral, the family has I-800A approval, they need to file form I-800 on behalf of the child.

2.      Prior contact cases – family is I-800A ready, but they have had prior contact with the child’s legal guardian.  Please note that prior contact with the CHILD is legally irrelevant to the Hague or to US immigration law.

3.      Pre-existing adoption – family has already adopted the child but did not have a Form I-800 provisional approval or Article 5/17 approval for the adoption to proceed prior to doing so.  The family does not have current I-600A approval.  Most of these cases are independent adoption families who have made an error with filing or maintaining a current form I-600A.  ABI is managing several such cases.  We recommend families in this situation seek experienced assistance in applying for US immigration for their child.

The I-800 process for Haiti remains vague and undetermined as it has not yet been finalized between IBESR, DOS, and USCIS.  At the time of this writing (July 31, 2015) a solution for the ‘normal’ cases is imminent.  We should shortly have a well defined, specific, and orderly process for the management of standard I-800 cases in Haiti.  Gossip abounds, but in fact the final decisions are well underway.

For cases in which there was contact between the prospective adoptive family and the legal guardian of the child, USCIS, DOS and IBESR are working to arrive at a solution.  There are persistent rumors that ‘pre-identified’ adoptions are forbidden under the Hague, US law, and/or Haitian law.  None of these are true. 

It is true that under Hague (see Article 29), and therefore US law, that Haiti must acknowledge and permit any contact that occurred prior to the issuance of a referral.  Again, IBESR, USCIS, and DOS are working on a solution.  Solutions already exist in numerous other Hague countries.

 Pre-existing adoption cases are highly complex and will be managed on a case-by-case basis.

 It has been a very rough ride over the past few years for all of us involved in Haitian adoptions in any way. The new Haitian law provides outstanding protection for children.  Dedicated individuals at DOS, USCIS, and IBESR have worked very, very hard to make sure that Haiti’s adoption process will not only be compliant, but that it will be a model process for how international adoption should work.  It hasn’t been easy, or fast, but it has been worth it for the long run. 

 As international adoption programs around the world collapse, leaving children with no better alternative to waste away in institutions, a few very fortunate Haitian children each year will have one last chance at a real family.  And for that reason, we will keep fighting on.

Every child has the right to grow up in a permanent and loving family.